MZAPB v Minister for Immigration and Border Protection
[2016] FCA 1393
•15 November 2016
FEDERAL COURT OF AUSTRALIA
MZAPB v Minister for Immigration and Border Protection [2016] FCA 1393
Appeal from: MZAPB v Minister for Immigration & Anor [2016] FCCA 1553 File number: VID 785 of 2016 Judge: LOGAN J Date of judgment: 15 November 2016 Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – application for protection visa – fear of persecution for political reasons – where Tribunal accepted well-founded fear of persecution – whether well-founded fear may be confined to a region of a country – whether internal relocation reasonable – whether Tribunal failed to address all integers of claim that relocation was unreasonable – appellant has wife and young family in home country – whether Tribunal failed to consider practical reality of relocation of family unit – whether practical reality of relocation of family unit was raised by appellant on established facts for consideration –– no such relocational difficulty raised by the appellant in his evidence before the Tribunal – correspondingly, no related failure by the Tribunal exercise its review jurisdiction by reference to the integers of the claim – no error by Federal Circuit Court in determining judicial review application Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth) Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088
Januzi v Secretary of State for the Home Department (2006) 2 AC 426
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 448
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
Date of hearing: 15 November 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Appellant: Ms J Taylor Solicitor for the Appellant: Victoria Legal Aid Counsel for the Respondents: Mr L Brown Solicitor for the Respondents: DLA Piper ORDERS
VID 785 of 2016 BETWEEN: MZAPB
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
15 NOVEMBER 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
In Januzi v Secretary of State for the Home Department (2006) 2 AC 426 at 440 (Januzi), Lord Bingham of Cornhill stated:
The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave the country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.
That particular statement by his Lordship was regarded by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at 25, [19] (SZATV), as encapsulating how it is that the matter of relocation finds its place in the definition of what may be conveniently named the Refugee Convention. Their Honours added in SZATV at [20], in respect of that passage, the following:
The reference in the passage to the unavailability of the protection of the country of nationality of the refugee is best understood as referring not to the phrase “the protection of that country” in the second limb of the definition, but to the broader sense of the term identified in Respondents S152/2003. This was the international responsibility of the country of nationality to safeguard the fundamental rights and freedom of its nationals.
[Footnotes omitted]
They further cited at [21] and [22], with approval, the following additional passages from Lord Bingham’s speech in Januzi, in which his Lordship referred to the UNHCR Handbook and added some further comments of his own:
The fear of being persecuted need not always extend to the whole territory of the refugee’s country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.
…
The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.
The present appeal is very much concerned with whether or not the Federal Circuit Court of Australia (Federal Circuit Court) misapprehended that a ground of judicial review based on an alleged failure on the part of the then Refugee Review Tribunal (Tribunal) to address all of the integers of the appellant’s claim for a protection visa, materially including his asserted inability to relocate, was made out.
Earlier in time than Januzi, and in this Court, Black CJ observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443:
… notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.
The particular “practical reality” which was said not to have been considered by the Tribunal and erroneously rejected as a ground of review emerged in a submission made to the Tribunal by the appellant’s representative at the hearing which the Tribunal conducted. That occurred prior to the Tribunal’s decision on 13 November 2014, to confirm a decision of the Minister for Immigration and Border Protection’s delegate (Minister) not to grant to the appellant that class of visa under the Migration Act 1958 (Cth) known as a Protection (Class XA) visa. What the representative put to the Tribunal was:
I think of particular importance in the current case is the fact that the applicant has never ever resided in other parts of Pakistan in the past. He has no family support networks in any other area of Pakistan. I note that in Pakistani culture it’s very important to have ties within the community in order to assist individuals to find work and to assimilate into the society. The applicant is not highly educated which also would affect the ability to obtain employment. And the applicant has the responsibility of looking after not only himself but his entire family unit, which does consist of a number of very young children. I note all these factors should be taken into consideration in the assessment of relocation.
In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088, Gummow and Callinan JJ (who having formed with Kirby and Hayne JJ, a majority in that case), stated at 394, [24]:
To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the tribunal.
[Emphasis added]
The question in this case, which emerged from two very helpfully focused submissions (one on behalf of the appellant, the other on behalf of the Minister), was whether, truly, this was a case, contrary to the Federal Circuit Court’s conclusion, where there had been not just a substantial clearly articulated argument but also one which relied upon established facts.
There is no doubt, having regard to the passage cited from the submissions put to the Tribunal, that there was a substantial, clearly articulated argument. The real question, it seems to me, is whether that argument relied upon established facts such that the argument and those facts were just not considered by the Tribunal and in turn, such that the Tribunal failed to exercise the jurisdiction which it was its duty to exercise upon the review of the decision of the Minister’s delegate.
It is important in this regard to recall that the “core function” of the Tribunal was that of review, not conducting a roving inquiry of its own motion. Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123. Of course, it would be an error if the Tribunal had failed to make an obvious inquiry which emerged on the material before it, but that is not the asserted error here. It was not for the Tribunal to make out the appellant's claim for him. Rather, it was for him to introduce such material as he was able to support the claim which he made, assisted in this case by his representative.
The case which the appellant had sought to argue, apart from the oral submission mentioned, was, so far as the alleged error is concerned, first articulated in a submission made on his behalf to the Tribunal in writing by his representatives under cover of a letter dated 11 December 2013. This submission was responsive to reasons for refusing the visa application given by the Minister’s delegate. It was put (Appeal Book at p 206):
The applicant submits that he has no employment or educational opportunities that may be of assistance if forced to relocate. Although he can read and write and is educated until year 10, he has no college or university education and working or opening a shop in a non-Shia Pashtun dominated area will be almost impossible for him, as he cannot go and work with Sunni Pashtuns as they are anti-Turi Pashtuns, which will further increase the risk of the applicant’s life in Pakistan. The applicant also instructs that he does not have family or support network living elsewhere in Pakistan. Without a support network, the applicant is likely to be susceptible to harm.
Given the above, we therefore submit that the Applicant’s return to Pakistan, including Islamabad and Rawalpindi, is not a viable option for the Applicant.
In that same submission, there was an earlier reference (Appeal Book at p 189) to the appellant maintaining that it was common for Turi Pashtun Shias to be the target of attacks on the basis of religion, whether in Parachinar (his home town) or Rawalpindi or throughout Pakistan.
The Tribunal accepted that there was a real chance that the appellant would face serious harm on the basis of his adherence to the Shia branch of the Islamic faith upon his return to his home region, Parachinar. Having done this, the Tribunal then addressed at considerable length whether the appellant would suffer harm if he relocated to another part of Pakistan, such as Islamabad or Rawalpindi: see [21] - [37] inclusive, of the Tribunal’s reasons.
It is plain enough, reading the Tribunal’s reasons as a whole, that the Tribunal was well aware that the appellant was married and had six children born between 2000 and 2012 who resided in Parachinar: see [5] of the Tribunal’s reasons. The appellant had come to Australia alone, later in July 2012.
There was a lengthy exchange at the hearing between the Tribunal and the appellant with the assistance of an interpreter. The learned primary judge chose to cite a portion of that exchange at [20] of her Reasons for Judgment:
There is a risk for me. If I go to Islamabad … I’d have to get a job to support my family myself and I have to go to mosque and practise my religion … if I do these activities, it mean I can be easy target for the terrorists unless I sit at home and do nothing, which is not possible.
Neither in this passage nor elsewhere in the exchange which occurred between the appellant and the Tribunal member is there an express reference just to the particular difficulty of settling a family (which included his wife and six young children), as opposed to just an adult male, in either Islamabad or Rawalpindi. There is a reference to difficulties in the journey as between either of these places and the appellant’s home town of Parachinar. But the appellant himself did not apprehend in the evidence which he gave that there would be a particular difficulty in a familial relocation based upon the number of persons, including infants, in his family.
In other words, this case is one, it seems to me, where the element “relying upon established facts” was not present. The facts which were established were addressed in detail by the Tribunal in that part of the reasons under the heading ‘Relocation’. Having done that, the Tribunal added at [35]:
… The Tribunal is not satisfied it is unreasonable in the applicant’s circumstances for him to make arrangements to enable his family to join him in Rawalpindi or Islamabad, should he wish to do so. In all the circumstances, the Tribunal is satisfied that it is reasonable for the applicant to relocate to Islamabad or Rawalpindi, its twin city.
The Tribunal did not, in my view, given the way in which the appellant himself had highlighted apprehended difficulties, need to do any more than this, having already addressed particular difficulties which the appellant himself had chosen to highlight in his evidence. The Tribunal’s reasons are very much reactive to the way in which the appellant chose to give his evidence about apprehended relocational difficulties. That is why, for example, there is detailed consideration on the subject of attacks on Shias on the Parachinar-Thall Road.
The Tribunal did address at a more general level the apprehended risk to a Shia residing in Islamabad and Rawalpindi. The conclusion the Tribunal reached on the whole of the material before it, which materially included Department of Foreign Affairs and Trade country information, was that:
[G]iven the low levels of sectarian violence in Islamabad and Rawalpindi, and the applicant’s lack of a particular profile such that he would be sought by the Taliban or any of its associated extremist groups as well as Islamic State, combined with the large number of Shia Muslims in Pakistan, the Tribunal is satisfied that the chance of the applicant being harmed in an act of sectarian or generalised violence in Rawalpindi or Islamabad is remote.
It is not that the Tribunal ignored particular articulated integers of that part of the claim concerning relocation. To the contrary, the Tribunal’s reasons disclose that it engaged with the articulated integers. The submission made orally to the Tribunal by the representative entailed an unarticulated premise, which was that it was in some way more difficult for a family to relocate than just a single adult male. That may or may not have been so, but it was not a basis which emerged on the evidence. One has to be extremely careful indeed in not elevating assumed cultural norms into a basis for judicial review. If there are such norms, they must emerge on the material before the Tribunal, be it from material put by or on behalf of the appellant or material otherwise before the Tribunal, such as country studies.
As it was, the Tribunal had, based on the appellant’s own evidence, material which showed that his family in his home town, as well as the appellant himself, had been supported for some years by his parents, who were at least relatively wealthy. The Tribunal was entitled to conclude that there was no reason to expect that this particular support would cease upon the return of the appellant to Pakistan.
Assuming cultural norms apart, it is always salutary to recall the observations endorsed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 about not reading the reasons of an administrator narrowly and with an eye for error.
What follows then is that this is not a case such as SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 448 where a particular integer was not considered. Rather, this was a case where such integers as were raised on the evidence were considered. It is just that the evidence was not all one way and the Tribunal reached conclusions of fact which were reasonably open.
The competing submissions made on the appeal will be apparent enough from the reasons just given. In the result, I am driven to a like conclusion to that reached by the learned primary judge. That conclusion is that the Tribunal did not fail to carry out its assigned function of review by failing to address the integers of the claim as made, materially including those relating to the reasonable practicability of relocation.
It follows from the foregoing that the appeal must be dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 24 November 2016
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