MZZEH v Minister for Immigration

[2013] FCCA 1282

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZEH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1282

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) Subclass 866 visa – relocation within Pakistan – s.36(2)(aa) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.36(2A), 36(2)(aa)

1951 Convention Relating to the Status of Refugees

1967 Protocol Relating to the Status of Refugees

Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration v SZQXZ [2012] FCA 931
MZYPW v Minister for Immigration and Citizenship (2012) 128 ALD 520
MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191
SZATV v Minister of Immigration and Citizenship & Anor [2007] HCA 40
SZFDV v Minister of Immigration and Citizenship [2007] HCA 41
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1

Applicant: MZZEH

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1642 of 2012

Judgment of: Judge Hartnett

Hearing date: 9 May 2013

Delivered at: Melbourne

Delivered on: 27 September 2013

REPRESENTATION

Counsel for the Applicant: Mr Smallwood

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Hill

Solicitors for the First Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to ‘Minister for Immigration, Multicultural Affairs and Citizenship’.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1642 of 2012

MZZEH

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. An Amended Application was filed in these proceedings on 12 April 2013. That application is one for judicial review of a decision made by the Second Respondent (‘the Tribunal’) that affirmed a decision of a delegate of the First Respondent (‘the delegate’) dated 26 July 2012 not to grant the Applicant a Protection (Class XA) Subclass 866 visa.

2. The grounds of the Amended Application are:-

   “Ground One

   The Tribunal fell into jurisdictional error by misdirecting itself or asking the wrong question when it made a finding that it would be reasonable for the applicant to relocate to Islamabad.

   Particulars

   1. The way in which the Tribunal misstated and misapplied the ‘relocation principle’ such that the Tribunal limited its consideration to only whether it is reasonable for the applicant to relocate to a city where there is no appreciable risk of the occurrence of serious harm which is convention related.

   2. The way in which the Tribunal interpreted the ‘relocation principle’ caused the Tribunal to fail to consider whether there were other and different risks in the propounded place of internal relocation; that is, whether there was relevant evidence of harm of a type other than ‘serious harm which is convention related’ such as would lead to the conclusion that relocation is not reasonable.

   Ground Two

   The Tribunal fell into jurisdictional error by making findings or inferences of fact with respect to the risk of harm which the applicant would face on relocation to Islamabad which were not supported by some probative material or logical grounds.

   Particulars

   1. The conclusion reached by the Tribunal that the chance of the applicant being seriously harmed for a Convention reason, if he returns to Islamabad, now or in the reasonably foreseeable future, is remote [and] was based on an absence of evidence, not on probative evidence.

   2. The reasoning of the Tribunal that an absence of evidence of whether or not there is convention related violence in Islamabad leads to the conclusion that the risk of such violence is remote is irrational and/or illogical.”

Background

1. The Applicant is a Hazara and a Shia Muslim. He was born on 5 February 1982 in Quetta Pakistan. On 21 February 2012, he arrived in Australia as an unauthorised boat arrival. He had prior thereto and in September 2011 departed his home in Quetta Pakistan legally on his own passport. He had travelled through Thailand to Malaysia and then to Indonesia.

2. On 5 June 2012, the Applicant applied for a Protection (Class XA) Subclass 866 visa. On 15 June 2012, the Applicant’s representatives made separate submissions to the Department of Immigration and Citizenship (as it then was) (‘the Department’). The Applicant’s claims were based on his religion as a Shia Muslim, his ethnicity as a Hazara and his occupation (alternatively his membership of a social group as a businessman/contractor).

3. On 26 July 2012, the delegate refused the application for a Protection (Class XA) Subclass 866 visa. The delegate accepted that the Applicant had a well-founded fear or persecution on the grounds of his religion, race or membership of the particular social group Hazara businessmen/contractor from Quetta, if he were to return to Quetta. However, the delegate found that it would be safe, and reasonable and practicable, for the Applicant to relocate to Karachi. On that basis, the delegate was not satisfied that Australia had protection obligations to the Applicant under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Convention’). For the same reasons, the delegate was not satisfied that, as a necessary and foreseeable consequence of the Applicant being removed to Pakistan, there was a real risk that he would suffer significant harm as defined in s.36(2A) of the Migration Act 1958 (Cth) (‘the Act’).

4. On 2 August 2012, the Applicant applied to the Tribunal for review of the delegate’s decision. The Applicant made a further statement dated 18 September 2012, which addressed mainly whether he could relocate to other parts of Pakistan, particularly Karachi or Islamabad. The Applicant’s representatives made written submissions to the Tribunal on 20 September 2012 and provided further information (post the Tribunal hearing) on 18 October 2012. The Tribunal conducted a hearing on 27 September 2012. The Applicant gave oral evidence through an interpreter. He was represented by his registered migration agent.

5. On 21 November 2012, the Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection (Class XA) Subclass 866 visa (‘the Decision Record’). On 20 December 2012, the Applicant applied to this Court for review of the Tribunal’s decision.

6. The Applicant’s claims of fear of persecution should he return to Pakistan were for reasons of his Hazara ethnicity and his Shia religion. He also raised claims of fear of persecution on the basis of his membership of a particular social group of “successful Hazara businessmen or members of prominent Hazara family” and “contractors”. He claimed, as relevantly set out in the Applicant’s Submissions filed 12 April 2013, that:-

   “…

   d. He worked as a certified contractor since 2007, in 2011 acquiring a contract to maintain the Iranian Cultural Centre in Quetta;

   e. After a week of work on the contract, he started receiving threatening phone calls telling him that he was not doing a good job by getting the contract and saying they were going to assassinate him;

   f. He interpreted the calls as saying that he should not have got the contract because he is a Shia Hazara and perhaps there could be extremist groups against Iran and perhaps it could be another contractor who felt they should have acquired that contract;

   g. He did not take these phone call[s] seriously;

   h. On 7 September 2011 there were two bombings behind the construction site and a couple of hours later he received a call which said ‘be ready, it’s your turn’;

   i. He took the call seriously and, fearing for his life, stopped working and fled Pakistan;

   …”

The Tribunal Decision

1. The Tribunal accepted that the Applicant was a Hazara Shia born in Pakistan and who lived in Quetta. The Tribunal accepted he was a contractor who had his own business which he commenced in 2007.

2. The Tribunal accepted that the Applicant received telephone calls after bomb explosions in Quetta in September 2011; however, the Tribunal did not accept that these calls were from extremist groups. Therefore, the Tribunal did not accept that the Applicant was on the hit list of any extremist group in Pakistan, or had a profile that would make him well-known to militant groups. Even if the threatening calls were from militant or extremist groups, the Tribunal did not accept that the Applicant was on a hit list, either now or in the reasonably foreseeable future. The Applicant had remained in Quetta for between 20 and 30 days after the bomb blasts and nothing had happened to him in that time. Accordingly, the Tribunal did not accept that if the Applicant was to return to Quetta now, he would face a real chance of persecution as a member of a particular social group of successful businessmen or contractors.

3. However, the Tribunal accepted that the Applicant would face more than a remote chance of persecution on the grounds of his religion or race if he were to return to Quetta. Further, the Tribunal did not accept that if the Applicant were to return to Quetta, State protection in accordance with international standards would be available to him.

4. The Tribunal then considered whether the Applicant’s fear of persecution was well-founded throughout Pakistan. The Tribunal stated:-

   “94. The Tribunal must consider whether the applicant’s fear of persecution is well-founded throughout Pakistan. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of “practicable”, to expect him or her to seek refuge in another part of the same country. What is “reasonable” in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC [2007] HCA 40 and SZFDV v MIAC [2007] HCA 41, per Gummow, Hayne & Brennan JJ, Callinan J agreeing.”

5. The Tribunal then went on to state the relevant questions for it as being:-

   (1) whether there was a real chance that the Applicant would face persecution for a Convention reason if he were to move to another area of Pakistan; and

   (2) whether in his particular circumstances it was reasonable for him to do so.

6. The Tribunal carefully considered the country information before it. On the first issue, the Tribunal accepted that there was more than a remote chance that the Applicant may be seriously harmed if he relocated to Karachi. The Tribunal then considered the position in Islamabad or Rawalpindi. The Tribunal “note[d] that there was not a lot of information available about the situation of ethnic Hazaras in Islamabad or Rawalpindi.” The Tribunal then noted there was evidence to suggest that Hazaras had moved to Islamabad in the belief that the city would provide them with some security.

7. The Tribunal referred to the country information which did not suggest that there have been targeted killings of Shias in Islamabad in recent years. By contrast, before the Tribunal was detailed information regarding the threats to Hazaras and Shias in other areas of Pakistan, such as Karachi and Lahore. This suggested to the Tribunal that the threat of targeted attacks on either Hazaras or Shias were geographically confined to areas other than Islamabad and not endemic to the whole of Pakistan. The Tribunal found that the Applicant’s claims that extremist groups were prominent in all cities were not supported by country information. Further, the Tribunal did not accept that the Applicant had a profile that would cause extremist groups in Quetta or competing contractors from his home region to track him down in other parts of the country such as Islamabad or Rawalpindi. Nor did the Tribunal accept that fundamentalist or extremist groups in Islamabad would have any particular interest in the Applicant given the Tribunal’s finding regarding his lack of profile (Decision Record paragraph 99). Based on the country information and other evidence before it, the Tribunal found that there was only a remote chance of the Applicant being seriously harmed for a Convention reason if he returned to Islamabad, now or in the reasonably foreseeable future (Decision Record paragraph 97).

8. On the second issue (whether relocation was reasonable), the Tribunal found that the Applicant, who speaks English and Urdu, could live and work in the capital city. The Applicant was educated and had considerable work experience in the construction industry. The Tribunal considered the evidence provided by the Applicant’s adviser about the domicile system of Pakistan. The Tribunal accepted that the domicile or quota system may affect access to employment in the public service and in public schools, but did not accept that restrictions were placed within the private sector (Decision Record paragraph 100).

9. The Tribunal also accepted that much of the Applicant’s wealth may be bound up in properties in Quetta and that these properties would be useful in establishing himself in another part of the country. However, the Tribunal considered that the Applicant had demonstrated capability and, in opening his own business, resourcefulness and would be able to manage in a city such as Islamabad. The Tribunal found that the Applicant’s other claims as to why he could not relocate to Islamabad were unsupported assertions. The Tribunal considered that there was no analogy in the Applicant’s relocation to Islamabad with the situation of mass movements of internally displaced persons to areas such as Karachi (Decision Record paragraph 101 and 102).

10. In summary, the Tribunal found that it would be reasonable for the Applicant to relocate to Islamabad, and that the risk of him being seriously harmed for a Convention reason there, was remote.

11. The Tribunal also considered the alternative criteria in s.36(2)(aa) of the Act. The Tribunal accepted that there were substantial grounds for believing that the Applicant would suffer “significant harm” as defined in s.36(2A) of the Act if he returned to Quetta. However, for the reasons already given, the Tribunal found that, in the circumstances of the Applicant’s case, it would be reasonable for him to relocate to an area outside Quetta, such as Islamabad, where there would not be a real risk that he will suffer significant harm.

Consideration

1. The Applicant claimed that the Tribunal fell into jurisdictional error in two ways: firstly in relation to the matters that it took into account in reaching the conclusion that it did; and secondly in relation to the specific finding that the chance of the Applicant being seriously harmed for a Convention reason if he returns to Islamabad now or in the reasonably foreseeable future is remote.

2. In response, the First Respondent argued that:-

   “2 … the Tribunal applied the correct test in determining whether the relocation was reasonable.

   2.1 The Tribunal’s task in this regard is largely determined by the case against relocation put by the Applicant, and the Applicant did not raise any “other or different risk” that was not considered by the Tribunal.

   2.2 The Tribunal clearly did not exclude harms other than serious harms, as demonstrated by its consideration of whether the Applicant would be prejudiced by a domicile or quota system in obtaining employment.”

3. Further, the First Respondent argued that:-

   “3. … the Tribunal’s conclusion that the Applicant could reasonably relocate to Islamabad was neither illogical nor irrational.

   3.1 The country information relied upon by the Applicant was probative, and the weight to be given to it was a matter for the Tribunal.

   3.2 The Tribunal drew a reasonable inference that the lack of reports about targeted attacks on Shias or Muslims in Islamabad indicated that there were few of that type of attack, given that there were reports of targeted attacks in other parts of Pakistan and reports of non-targeted attacks in Islamabad.

   The Applicant’s challenge is no more than an impermissible attack on the factual merits of the Tribunal’s decision.”

4. The Applicant’s first ground is that the Tribunal asked the wrong question in determining whether it would be reasonable for the Applicant to relocate to Islamabad. The alleged errors are (i) the Tribunal did not ask itself whether the evidence revealed that there were “other and different risks”, apart from persecution for a Convention reason, and (ii) the Tribunal did not consider whether the Applicant faced harm, other than serious harm.

5. Contrary to the submissions made by the Applicant, I find the Tribunal neither misstated nor misapplied the test for relocation as set out at paragraph 94 of the Decision Record (quoted at paragraph 12 above).

6. The reference of the Applicant to “other and different risks” (in the propounded place of internal relocation) comes from the separate judgment of Kirby J in SZATV v Minister of Immigration and Citizenship & Anor [2007] HCA 40 at paragraph 80 (which appears hereafter at paragraph 26).

7. These “other and different risks” are in context relevant to the question of whether relocation is reasonable; that is, the second question identified by the Tribunal. These risks are not relevant to the first question identified by the Tribunal; that is, whether there is another part of Pakistan where the Applicant would not be persecuted for a Convention reason. The statements in paragraph 97 of the Decision Record (as referred to in paragraph 15 above) addressed the first question, not the second. Further, these “other and different risks” are not matters “which must necessarily be taken into account in every case”. In MZYPW v Minister for Immigration and Citizenship (2012) 128 ALD 520 at paragraphs 8 and 9 the Federal Court of Australia (Flick, Jagot and Yates JJ) said as follows:-

   “[8] The requirement that a “fear” be “well-founded” also incorporates a consideration as to whether a claimant for refugee status can relocate within the country of his nationality so as to avoid persecution: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 ; 237 ALR 634 ; 97 ALD 1 ; [2007] HCA 40 (SZATV). Gummow, Hayne and Crennan JJ there followed the decision of the House of Lords in Januzi v Secretary of State for Home Department [2006] 2 AC 426 ; [2006] 3 All ER 305 ; [2006] UKHL 5 saying (at [19]–[22]):

   [19] With these propositions in mind, it will be seen that the matter of “relocation” finds its place in the Convention definition by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for Home Department [2006] 2 AC 426 ; [2006] 3 All ER 305 ; [2006] UKHL 5]. His Lordship said [[2006] 2 AC 426 ; [2006] 3 All ER 305 ; [2006] UKHL 5 at [7]]:

   “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 that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could 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.”

   [20] 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 [(2004) 222 CLR 1 ; 205 ALR 487 ; 77 ALD 296; [2004] HCA 18 at [20]]. This was the international responsibility of the country of nationality to safeguard the fundamental rights and freedom of its nationals.

   [21] Lord Bingham went on in Januzi [[2006] 2 AC 426 ; [2006] 3 All ER 305 ; [2006] UKHL 5 at [7]] to refer to the statement in the UNHCR Handbook [UN High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1979)] (at [91]):

   “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.”

   [22] His Lordship, significantly both for Januzi and the present appeal to this Court, added [[2006] 2 AC 426 ; [2006] 3 All ER 305 ; [2006] UKHL 5 at [7]]:

   “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.”

   Their Honours then went on to address the submissions there being advanced as follows (at [23]–[24]):

   [23] The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a “hypothetical assumption”, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a “safe area” within the country of nationality as determinative of the existence of a well-founded fear of persecution.

   [24] However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

   Kirby J in SZATV further addressed the requirement that relocation be “reasonable” as follows (at [80]–[81]):

   [80] A review of the literature suggests that this conclusion will not invariably follow, either as a matter of fact or law. Thus, internal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven [European Council on Refugees and Exiles, Research Paper, pp 8–9]. Nor if the evidence indicates that there are other and different risks in the propounded place of internal relocation [The Michigan Guidelines on the Internal Protection Alternative, agreed to at the First Colloquium on Challenges in International Refugee Law, 9–11 April 1999, para [13]]; or where safety could only be procured by going underground or into hiding [Hathaway and Foster, “Internal protection/relocation/flight alternative as an aspect of refugee status determination” in Feller et al (eds) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003) pp 384–385]; or where the place would not be accessible on the basis of the applicant’s travel documents or the requirements imposed for internal relocation [Hathaway and Foster, p 391].

   [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 part of that country [Hathaway and Foster, p 383]. 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 [Hathaway and Foster, pp 386–387]. In each case, the personal circumstances of the applicant [UNHCR, Guidelines, p 6 [25]]; the viability of the propounded place of internal relocation [European Council on Refugees and Exiles, Research Paper, pp 12 [8.1], 52]; and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution [UNHCR, Guidelines, p 6 [26]], will need to be weighed in judging the realism of the hypothesis of internal relocation.

   [9] No issue was taken with the proposition that an assessment of reasonableness was dependent upon “the particular circumstances of the applicant for refugee status”. Nor did senior counsel for the respondent minister put in issue the potential relevance of those factors identified by Kirby J. Relevant to the present proceeding is the respondent minister’s acknowledgment that when assessing whether relocation is reasonable one may consider factors such as:

   ·“other and different risks in the propounded place of internal relocation”, including risk of violence for non-convention reasons; and

   ·“the absence of family networks”.

   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.”

   Thus, matters such as other and different risks “may be relevant, albeit, not mandatory, considerations when determining the reasonableness of a proposed relocation” (MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 at paragraph 55). As submitted by Counsel for the First Respondent, this is significant because the issue of whether relocation is practicable “depends upon the framework set by the particular objections raised to relocation” (SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at paragraph 124). There is no error here where the Tribunal has considered the claims put by the Applicant and those claims squarely raised on the material. It did not fall into an error of law by excluding from consideration matters central to a determination of whether internal relocation was reasonable in the Applicant’s particular circumstances.

1. The Tribunal’s finding that Shias are the targets of violent attacks by Sunni fundamentalists is squarely a finding about religious persecution, which the Tribunal did consider. The Tribunal’s findings that Islamabad and Rawalpindi had “experienced a significant number of terrorist attacks over the past decade” must be read, as submitted by the First Respondent, with the Tribunal’s earlier statement that attacks in Islamabad targeted government institutions and bodies such as naval bases and air bases. Accordingly, this finding does not raise the possibility of a state of generalised violence that would make relocation there unreasonable as was put by the Applicant in these proceedings. Indeed as submitted by the First Respondent, the Applicant did not put before the Tribunal a claim supported by probative material that relocation to Islamabad would be unreasonable because of generalised violence and the Tribunal’s inclusion of paragraphs 78 and 81 in the Decision Record, when read as a whole, cannot be taken as raising squarely the possibility of generalised violence, such that relocation to Islamabad would be unreasonable. Paragraph 78 is expressly qualified, that attacks are predominantly in some parts of Pakistan. And paragraphs 81 read with paragraph 42 does not mean so significant as to arise to a state of generalised violence goes to other and different risks.

2. Nor did the Tribunal exclude harm other than serious harm in deciding whether relocation was reasonable. As referred to earlier in these Reasons, the Tribunal considered at paragraphs 100 to 102 of the Decision Record the practical obstacles that the Applicant claimed would prevent him from relocating to Islamabad, particularly that he would be precluded by a domicile or quota system from obtaining employment there, and that his wealth was bound up in properties in Quetta (which he could safely sell) and that he would become a member of a particular group of internally displaced persons in Pakistan. The Tribunal rejected each and every claim. None of these claims could be described as “serious harm”, but they were each considered in deciding whether relocation to Islamabad was reasonable.

3. The Applicant’s further ground of claimed jurisdictional error was that the Tribunal’s finding the Applicant only faced a remote prospect of harm if he returned to Islamabad was illogical and not based on any probative material. This ground must also fail.

4. A finding that a decision was illogical or irrational is not lightly made. It is no part of this Court’s role to revisit the factual enquiry concerning the reasonableness of relocation. There will not be a jurisdictional error if the point “is merely upon which reasonable minds might differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based” (SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at paragraph 85).

5. The Tribunal relied on three matters in reaching its conclusion that the chance of the Applicant being persecuted in Islamabad for a Convention reason was remote:-

   a)reports of Hazaras moving to Islamabad because they believed the city would provide them with some security;

   b)country information that few of the attacks in Islamabad in the last decades have targeted attacks of Shias or Hazaras; and

   c)the absence of reports of targeted attacks of Shias or Hazaras in Islamabad, in contrast to detailed reports of targeted attacks in other parts of the country, suggesting that Islamabad was a safer place for Hazaras and Shias than other parts of Pakistan.

   These matters are as set out in paragraph 97 of the Decision Record. As was submitted by the First Respondent the information in a) is probative, and therefore the weight to be given to it is a matter for the Tribunal (a complaint about the sufficiency of evidence does not establish jurisdictional error (Minister for Immigration v SZQXZ [2012] FCA 931 at paragraph 23)). The inference in c) is reasonable, and is supported by b) – there is no reason to suppose that targeted attacks against Shias or Hazaras are reported if they occur in some parts of Pakistan, but nor reported if they occur in Islamabad, particularly when there is information about non-targeted attacks in Islamabad. The country information chosen and weight given to it was a matter for the Tribunal. It cannot be said that the Tribunal’s reasons were based on findings or inferences of fact which were not supported by some probative material or logical grounds as claimed by the Applicant.

6. As was said by Gageler J in Minister for Immigration & Citizenship v Li [2013] HCA 18 at paragraphs 108 to 113 inclusive as to the Court’s manner of determination of such an issue when considering the closely related “Wednesbury” unreasonableness:-

   “[108] Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.

   [109] The conception underlying the stringency of the test as applicable in Australia is captured by the observation made 50 years ago that (Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473 ; [1963] HCA 54, quoted in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20/2002 (2003) 77 ALJR 1165 at 1178 [69]).

   :

   This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised … We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.

   [110] The same observation lends force to the suggestion that, for the purpose of applying the test, “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion” (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42). There is, in particular, a close analogy with the settled principle that an appellate court will review the exercise of a judicial discretion “if upon the facts it is unreasonable or plainly unjust”( House v R (1936) 55 CLR 499 at 505 ; [1936] HCA 40. See Re Minister for Immigration and Multicultural Affairs;Ex parte Applicant S 20/2002 (2003) 77 ALJR 1165 at 1178 [68 ; 198 ALR 59 at 75), or if “failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court” (Lovell v Lovell (1950) 81 CLR 513 at 519 ; [1950] HCA 52, citing Sharp v Wakefield [1891] AC 173 at 179). It is therefore fair to say that “[i]f a discretionary power is exercised in a way in which a reasonable repository of the power might exercise it, the exercise of the power is supported by the statute which confers it, whether the discretion is judicial or administrative in nature” (Norbis v Norbis (1986) 161 CLR 513 at 540).

   [111] It has nevertheless been observed that “in practice the comparative familiarity of an appellate court with judicial discretions and the usual confines of a judicial discretion make the appellate court more sensitive to an unreasonable exercise of discretion and more confident of its ability to detect error in its exercise” (Norbis v Norbis (1986) 161 CLR 513 at 540-541). That is because it is “harder to be satisfied that an administrative body has acted unreasonably, particularly when the administrative discretion is wide in its scope or is affected by policies of which the court has no experience” (Norbis v Norbis (1986) 161 CLR 513 at 541). Similar observations have been made as to the inability of a court “effectively” to review a state of satisfaction forming a precondition to an exercise of a statutory power or performance of a statutory duty “where the matter of which the [repository] is required to be satisfied is a matter of opinion or policy or taste”( Buck v Bavone (1976) 135 CLR 110 at 118-119 ; [1976] HCA 24, quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 276).

   [112] There is no such practical difficulty in a court applying the test of ‘Wednesbury’ unreasonableness to a refusal by the MRT to adjourn a review. The aspirations required to inform the performance of the MRT’s duty to review — sufficiently captured in the repeated statutory references to what is fair and just — are aspirations at the core of the judicial function. The MRT is to some degree free from “constraints otherwise applicable to courts of law” (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 628 [49]), and a court must be careful not to “draw too closely upon analogies in the conduct and determination of civil litigation” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282). But a refusal by the MRT to adjourn a review will rarely, if ever, be legitimately affected by policies of which the court has no experience.

   [113] Yet the stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. This is a rare case.”

7. The application will be dismissed with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  27 September 2013