MZZBW v Minister for Immigration

[2014] FCCA 761

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZBW v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 761

Catchwords:
MIGRATION – Refugee Review Tribunal – relocation – whether Tribunal considered all necessary matters – whether Tribunal failed to consider an integer of the claim.

Cases cited:
MZYPW v Minister for Immigration and Citizenship and Another (2012) 128 ALD 520; (2012) 289 ALR 541; [2012] FCAFC 99
SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 97 ALD 1; (2007) 237 ALR 634; [2007] HCA 40

Applicant: MZZBW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1338 of 2012

Judgment of: Judge Riley

Hearing date: 20 March 2014

Date of last submission: 20 March 2014

Delivered at: Melbourne

Delivered on: 15 April 2014

REPRESENTATION

Counsel for the applicant: Jessie E Taylor

Solicitors for the applicant: Sabelberg Morcos Lawyers

Counsel for the first respondent: Emily Latif

Solicitors for the first respondent: Clayton Utz

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz

ORDERS

1. The application filed on 23 October 2012 and amended on 26 February 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1338 of 2012

MZZBW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal.  The applicant is a 42 year old citizen of Pakistan.  He arrived in Australia on 28 October 2011 as a sailor on a merchant ship.  He abandoned ship and applied for a protection visa on

   
   

   29 November 2011.

The applicant’s claims

1. The applicant claimed that:

   a)he was a member and general secretary of the Awami National Party (“ANP”), which represents Pashtuns;

   b)the ANP is opposed to the Taliban and the Muttahida Qaumi Movement (“MQM”);

   c)in October 2010, the applicant was providing security at the Aligarh Market;

   d)his brother met him there;

   e)they were shot by the Taliban/MQM;

   f)his brother was killed instantly and the applicant was wounded in the hand and leg;

   g)other ANP members were killed subsequently; and

   h)the applicant left Pakistan in March 2011.

The Tribunal’s reasons

1. The Tribunal accepted that the applicant:

   a)is a citizen of Pakistan;

   b)is a Pashtun who grew up in Karachi;

   c)is a Sunni Muslim of Yousafzai ethnicity;

   d)became a member of the ANP in 1987;

   e)engaged in activities on behalf of the ANP as an ordinary member and in a voluntary capacity;

   f)was shot and his brother was killed at the Aligarh Market in 2010;

   g)was engaged in ANP activities at the time of the shooting;

   h)was targeted by reason of his ANP membership; and

   i)suffers from post traumatic stress disorder. 

2. However, the Tribunal did not accept that the applicant was the general secretary of the ANP.  The Tribunal considered that the applicant had little knowledge of the structure and workings of the ANP and, because he was away at sea for prolonged periods, would not have been able to fulfil the role. 

3. The Tribunal considered that if the applicant returned to Pakistan, he would return to Karachi, where his wife and children live.  The Tribunal considered that the applicant, as a member of the ANP, would be at risk from the Taliban and MQM in Karachi as drive by shootings of party activists are an almost daily occurrence there.  The Tribunal considered that the state was not able to provide an adequate level of protection against the relevant non-state actors.

4. The Tribunal considered that the applicant faced a real risk of persecution only in particular areas of Pakistan. The Tribunal considered that it would be reasonable for the applicant to relocate to another area of Pakistan, such as Lahore. Consequently, the Tribunal was not satisfied that Australia owes the applicant protection obligations.

Ground 1

1. The first ground of review in the application filed on 23 October 2012 and amended on 26 February 2014 is: 

   The Tribunal erred in failing to apply Australian law when considering whether it would be reasonable for the applicant to relocate within Pakistan.

   Particulars

   (a)by failing to consider the meaning of “reasonable in the sense of practicable”; and

   (b)by failing to address whether the applicant could avoid a real risk of serious or significant harm by relocating within Pakistan.

2. The applicant emphasised that the Tribunal is obliged to consider the personal circumstances of the applicant before concluding that internal relocation is reasonable. In SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 97 ALD 1; (2007) 237 ALR 634; [2007] HCA 40, Kirby J said at [81]:

   An inability or unwillingness on the part of the national authorities to provide protection in one part of the country may make it difficult to demonstrate durable safety in another party of that country.  In some circumstances, having regard to the age of the applicant, the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable.  In each case, the personal circumstances of the applicant; the viability of the propounded place of internal relocation; and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution, will need to be weighed in judging the realism of the hypothesis of internal relocation. (footnotes omitted)

3. In MZYPW v Minister for Immigration and Citizenship and Another (2012) 128 ALD 520; (2012) 289 ALR 541; [2012] FCAFC 99, Flick and Jagot JJ referred to that statement and said at [9]:

   ... What was put in issue, and what must be accepted, was that the factors identified by Kirby J were not to be construed as a statutory list of considerations which must necessarily be taken into account in every case.

4. The first respondent submitted that the effect of those passages from SZATV and MZYPW is that the Tribunal is obliged to consider only those of an applicant’s personal circumstances that the applicant squarely puts forward as relevant to the question of relocation.  I do not accept that submission.  The question for the Tribunal to answer is whether relocation is reasonable in all the circumstances.  Obviously, the Tribunal must take into account any matters that the applicant specifically raises.  But the Tribunal must also take into account, in assessing the reasonableness of relocation, any other matters that arise from the materials before it.

5. The Tribunal itself acknowledged that at paragraph 133 of its reasons, where it said:

   The evidence before the Tribunal and the submissions made by the applicant’s representative suggests (sic) that the following factors personal to the applicant may impact on his ability to relocate ...

6. In his written submissions to this court, the applicant said that the Tribunal erred by failing to consider various matters.  Firstly, the applicant said:

   The Tribunal failed to consider whether linguistic difference of the applicant and his family would identify them as being members of the Yusufzai Pashtun ethnicity from Karachi, thus potentially increasing the risk of identification as members of the ANP (particularly in conjunction with ongoing political activities by the applicant).

7. The Tribunal said at [135] of its reasons:

   In relation to the second point, the Tribunal accepts that as a Pashtun speaker, relocation to another part of Pakistan will require considerable adjustment on the applicant’s behalf.  For the reasons set out above, the Tribunal has not accepted that the applicant will be identifiable as an ANP member throughout Pakistan by his ethnicity, his appearance or his identity documents.  While the Tribunal has accepted that the applicant may continue to be a member and/ or supporter of the ANP on his return to Pakistan and therefore identifiable as such throughout Pakistan, for the reasons set out above the Tribunal has found that the risk to the applicant on the basis of his ANP membership and his political opinion is localised to Karachi, Swat, Balochistan and Hyderabad.

8. Clearly, the Tribunal considered that the applicant would continue to be a member of the ANP if he relocated to Lahore and would be recognisable as such because of his political activities.  Consequently, it was immaterial that he might also be suspected of being an ANP member because of his “linguistic difference”.  The Tribunal simply did not accept that, as an ANP member, he was at risk outside Karachi, Swat, Balochistan and Hyderabad.

9. Secondly, the applicant said:

   The Tribunal also failed to consider the Applicant’s lack of family networks outside Karachi and the Swat valley.  The Tribunal noted that his wife and children are still in Karachi and considered that they could relocate with him.  The Tribunal then failed to consider how the lack of family network would impact on the Applicant or his family.

10. The Tribunal did not specifically identify family networks as an issue in this case. The Tribunal said at paragraph 133 of its reasons for decision:

    The evidence before the Tribunal and the submissions made by the applicant’s representative suggests (sic) that the following factors personal to the applicant may have impact on his ability to relocate:

    ·that his long term employment may be assumed to have ended given that he broke his contract by departing the boat in Perth;

    ·that his language, appearance, name, accent and identity documents will identify him as someone from the Karachi region and identify his ANP position;

    ·that he has a young family which will be an impediment to his relocation within Pakistan; and

    ·the applicant’s mental health issues.

11. In relation to the applicant’s family, the Tribunal said, at paragraph 136 of its reasons for decision:

    In relation to the third point, the applicant told the Tribunal that his wife and children remain living at their home in Karachi at the same address where he previously resided.  While accepting that the applicant and his family do not wish to relocate to another part of Pakistan, the Tribunal does not consider that such a relocation is unreasonable in the particular circumstances of the applicant.

12. The issue about the applicant’s young family making it difficult for him to relocate is a different one to the issue of whether the applicant would be supported by family networks in the proposed place of relocation.  It was not suggested that the applicant put forward the latter issue as a relevant matter in his own circumstances.

13. The point about family networks is that they can provide both emotional support and practical support in the form of money, food and accommodation.  In the present case, the Tribunal clearly considered that the applicant would have the emotional support of his wife and children.  In relation to the practical support that a family network might provide, the Tribunal evidently considered that the applicant would be self-sufficient.  The Tribunal said, at paragraph 134 of its reasons for decision:

    In relation to the first point, while the Tribunal accepts that it may be that the applicant’s previous employer will not rehire him given that he left his ship mid-contract, the Tribunal considers that the applicant has a long employment history and will be able to obtain other employment in Pakistan.  In this regard the Tribunal notes the applicant’s evidence that he has been employed in Pakistan as a merchant seaman between 2000 and 2011 and that since arriving in Australia in 2011 he has worked at a car wash and as a cleaner of trains.  The Tribunal does not accept that the applicant will be unable to find employment elsewhere in Pakistan on his return, nor that his current lack of employment in Pakistan makes relocation unreasonable in his particular circumstances.

14. In these circumstances, it does not appear to me that the Tribunal erred by not considering the issue of family networks.  Family networks do not need to be considered in every case.  What might be relevant if a person is particularly young or particularly old is not necessarily relevant to a man in his prime with an extensive work history.  The applicant has been able to find work and establish himself in Australia.  It does not seem unreasonable to suppose that he would be able to do the same in Lahore, with or without family networks.

15. Thirdly, the applicant said that:

    The Tribunal considered that the Applicant would be likely to continue his political activities should he relocate elsewhere in Pakistan.  However the Tribunal failed to consider whether those activities would then lead to a serious risk of harm as it had in Karachi.  The Tribunal noted the lower incidence of violence against the ANP in other areas, but failed to consider whether the Applicant’s continued political activities would bring him to the attention of the Taliban, MQM and others opposed to the ANP, rather than simply inducing MQM & Taliban in Karachi from “pursuing the applicant through Pakistan”.

16. The Tribunal said at paragraphs 127 and 129 to 131 of its reasons for decision:

    127.The Tribunal accepts that the applicant will continue to be a member and supporter of the ANP if he returns to Pakistan and may engage in similar political activities to those he has undertaken in the past. However the Tribunal does not accept that those political activities would be such that the applicant would be pursued by the Taliban outside the areas of Khyber Pakhtunkhwa, Karachi or Balochistan. In making that assessment the Tribunal notes that there is no evidence before it of attacks on ANP members or their families outside of Khyber Pakhtunkhwa, Karachi and Balochistan in recent years.

    …

    129.While accepting that MQM and the Taliban are targeting ANP members in Karachi, the Tribunal does not accept the applicant’s claims that Taliban are communicating across Pakistan, noting that in recent years the Tehrik-e-Taliban has been described as lacking real unity and as being factionalised into some 40 groups, forming a decentralised insurgent movement characterised by infighting, divergent motiviations and shifting alliances.  In August 2011, Terrorism Monitor reported that the TTP appeared to be “slowly disintegrating as various commanders try to pull it in different directions”. Free and Fair Election Network (FAFEN) reported in 2012 that the ANP is vulnerable in KPK, Sindh and Balochistan. (footnotes omitted)

    130.Nor does the Tribunal accept that MQM would be motivated to or capable of pursuing the applicant throughout Pakistan.  In making that assessment, the Tribunal has had regard to the country information provided by the applicant’s representative indicating that MQM dominates Karachi, but that Hyderabad is also under MQM’s political domain.  While the Tribunal accepts that to be the case, there is nothing in that country information nor any other evidence before the Tribunal to suggest that MQM pose a threat to ANP members outside of Karachi or Hyderabad. (footnotes omitted)

    131.For the reasons above, the Tribunal considers that the persecution feared by the applicant as an ANP worker from the Taliban is localised to the Karachi, Khyber Pakhtunkhwa, and Balochistan areas and that the persecution feared by the applicant from MQM is localised to Karachi and Hyderabad.  The [Tribunal] does not accept that the applicant faces a real chance of persecution outside of those areas on the basis of his political opinion, his ethnicity or his ANP membership.  In particular the Tribunal considers that the applicant could relocate safely to Lahore, which has a large Pashtun population.

17. The Tribunal clearly considered and rejected the possibility of the applicant being targeted by reason of his ANP membership or activities in certain areas.  The Tribunal considered that MQM only posed a threat to ANP members in Karachi and Hyderabad.  The Tribunal considered that the Taliban only posed a threat to ANP members in Karachi, Khyber Pakhtunkhwa and Balochistan.  The applicant appears to be inviting merits review with this submission.

18. Fourthly, the applicant said that:

    The Tribunal failed to consider how the applicant’s Pashtun ethnicity, Yousafzai tribal identity, accent and appearance might identify him as from Karachi and having lineage in Swat, and may eventually lead to his identification as an ANP member.

19. The Tribunal was clearly of the view that, even if the applicant were identified as an ANP member, he would not be at risk in certain areas of Pakistan. Consequently, it would have been immaterial if the Tribunal had failed to consider whether various of the applicant’s characteristics might have eventually led to him being identified as an ANP member.

20. Nevertheless, the Tribunal expressly rejected the argument that the applicant would be identifiable as an ANP member by reason of certain characteristics. The Tribunal said at paragraph 135 of its reasons for decision:

    … the Tribunal has not accepted that the applicant will be identifiable as an ANP member throughout Pakistan by his ethnicity, his appearance or his identity documents.

21. That was a reference back to paragraph 120 of the reasons for decision, where the Tribunal said:

    [The applicant] stated that his ethnic group could be discovered from his language and the colour of his skin.  It was submitted on his behalf that his physical appearance, his name, his accent and his National Identity Card would identify the applicant’s home region as Karachi which would in turn lead to the identification of his ANP position.  While the Tribunal accepts that the applicant may be readily identified as a Pashtun from Karachi, the Tribunal does not accept that this means he will be identified as an ANP member.

22. The Tribunal clearly accepted that the applicant’s appearance and so on could lead to him being identified as a Pashtun from Karachi.  However, the Tribunal did not consider that the consequence would be that he would be identified as an ANP member.  However, even as an ANP member, the Tribunal did not consider that the applicant was at risk outside certain areas.

23. While the Tribunal did not specifically mention the applicant’s Yousafzai tribal identity in this context, nor did the applicant.  The Tribunal was aware of the applicant’s Yousafzai tribal identity, and was aware that he was part of the larger Pashtun ethnic group: see paragraph 99 of the reasons for decision.  It does not appear to me that the applicant’s Yousafzai tribal identity added anything to this issue.

24. All in all, it does not appear to me that the applicant has identified any matter that the Tribunal should have taken into account, but failed to take into account, in assessing the reasonableness of the applicant’s relocation within Pakistan. 

25. In his written submissions, the applicant went on to challenge the Tribunal’s finding that the applicant would not be at risk outside certain areas of Pakistan.  The applicant said that the Tribunal failed to consider the presence, existence and activity of the Taliban and the MQM in other areas of Pakistan. 

26. However, the Tribunal did consider that very matter in paragraph 131 of its reasons for decision.  That paragraph is as follows:

    For the reasons above, the Tribunal considers that the persecution feared by the applicant as an ANP worker from the Taliban is localised to the Karachi, Khyber Pakhtunkhwa, and Balochistan areas and that the persecution feared by the applicant from MQM is localised to Karachi and Hyderabad.  The [Tribunal] does not accept that the applicant faces a real chance of persecution outside of those areas on the basis of his political opinion, his ethnicity or his ANP membership.  In particular the Tribunal considers that the applicant could relocate safely to Lahore, which has a large Pashtun population.

1. With this complaint, the applicant is seeking impermissible merits review.  Ground 1 is not made out.

Ground 2

1. The second ground of review in the application filed on 23 October 2012 and amended on 26 February 2014 is:

   The Tribunal erred in failing to consider the component integers of the applicant’s claim as a Yusufzai Pashtun member of the Awami National Party.

2. In his written submissions, the applicant said at paragraphs 17 and 18:

   17.At no point in time did the Tribunal consider the implications of the applicant’s Yusufzai tribal identity, and the ways in which such tribal identity might increase or otherwise impact upon the risk faced by him throughout Pakistan, such as by identifying him as originating from a particular region in Pakistan, and causing him to be imputed with certain political or religious views.

   18.The Tribunal’s findings and conclusions were limited to the applicant’s claims on the basis of his Pashtun ethnicity, his imputed political opinion and his membership of the ANP.  The applicant’s tribal identity – and its implications in terms of identifying the applicant as being from a particular area – did not receive consideration.  No specific consideration of the claim is given insofar as it relates to the applicant being not just a Pashtun member of the ANP, but a Yusufzai Pashtun with lineage running back to Swat.

3. However, the applicant conceded at the hearing before this court that the applicant did not actually articulate a claim that he was at risk because he was a Yousafzai, whether alone or in combination with any other matters.  Nothing arose from the materials to indicate that a person might be at risk as a Yousafzai, whether alone or in combination with any other matters.  Consequently, it was not incumbent upon the Tribunal to consider the effects of the applicant being a Yousafzai.  Ground 2 is not made out.

Conclusion

1. As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.  The matter had a somewhat convoluted procedural history in this court.  As a result, the usual costs order would not be appropriate.  At the end of the hearing, the parties were hopeful that, when judgment was handed down, they would be able to present an agreed position on costs, depending on who succeeded.  If an agreement does not eventuate, the parties will be asked for short written submissions on costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  15 April 2014