MZZFA v Minister for Immigration

[2013] FCCA 1404

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZFA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1404

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, 36(2)(a), 36(2)(aa), 36(2A), 36(2B), 36(2B)(a)

1951 Convention Relating to the Status of Refugees

1967 Protocol Relating to the Status of Refugees

SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

Applicant: MZZFA

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 31 of 2013

Judgment of: Judge Hartnett

Hearing date: 24 May 2013

Delivered at: Melbourne

Delivered on: 27 September 2013

REPRESENTATION

Counsel for the Applicant: Ms Taylor

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Knowles

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 31 of 2013

MZZFA

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an Amended Application for judicial review filed 26 April 2013. The grounds of the application are as follows:-

   “i. The Second Respondent erred in its consideration of Australia’s complementary protection obligations to the applicant in that it failed to consider and apply the criteria in s 36(2)(aa) [Migration Act 1958 (Cth)] in accordance with law .

   ii. In considering whether or not the applicant could relocate within Pakistan to avoid persecution for a Convention reason, the Second Respondent erred in failing to apply Australian law;

   iii. In considering whether or not the applicant could avoid persecution for a Convention reason (s.36(2)(a)) by relocating within Pakistan, the Second Respondent erred in failing to consider whether such relocation would protect the applicant from a real risk of significant harm as contemplated by law.”

History

1. The Applicant, a citizen of Pakistan, arrived in Australia on 9 June 2012. He applied to the Department of Immigration and Citizenship (as it then was) for a Protection (Class XA) Subclass 866 visa (‘protection visa’) on 10 September 2012. A Delegate of the First Respondent (‘the Delegate’) refused to grant the protection visa on 15 October 2012.

2. On 19 October 2012, the Applicant applied to the Second Respondent (‘the Tribunal’) for review of the Delegate’s decision. The Applicant’s representatives subsequently lodged with the Tribunal written submissions dated 21 November 2012 and 12 December 2012 and other supporting documents.

3. On 30 November 2012, the Tribunal conducted a hearing at which the Applicant was represented and gave evidence.

4. On 24 December 2012, the Tribunal handed down it decision in which it affirmed the Delegate’s decision not to grant the Applicant a protection visa (‘the Decision Record’).

5. The Applicant claimed a well-founded fear of persecution on the basis of the following grounds under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugees Convention’):-

Convention Ground

Particulars

Race/Nationality

·     Membership of the Turi (Duparazai) tribe.

Religion

·     Shi’a Muslim.

Political opinion (imputed or actual)

·     Imputed opposition to the Taliban as a member of the Turi (Duparzai) tribe; and

·     Imputed opposition to the Taliban as a Shi’a Muslim.

Membership of a particular social group

·     The Turi (Duparzai) tribe whose elders have taken an active stance of opposition against the Taliban since at least 2007;

·     Shi’a Muslims from the Parachinar region of Pakistan, who are imputed with a political opinion of support for the Turi leaders of the region, who are opposed to the Taliban; and

·     Shi’a Muslim father, which is offensive to the Taliban’s ideals of imposing militant Sunni Islam throughout Pakistan.

1. In relation to the complementary protection regime enshrined in s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’), the Applicant claimed that he feared he would be arbitrarily deprived of his life, executed, tortured and/or subjected to cruel, inhumane or degrading treatment or punishment by extremist groups in Pakistan.

Tribunal Findings

1. These are accurately set out in the First Respondent’s Submissions filed 17 May 2013 as follows:-

   “11. The Tribunal accepted the applicant’s claims to be a citizen of Pakistan, a member of the Turi tribe, a member of the Doparzai, and a Shi’a Muslim from Parachinar in the Kurram Agency in the Federally Administered Tribal Areas of Pakistan.

   12. The Tribunal accepted that, having regard to country information about Pakistan, the applicant would, on account of his tribal and religious background, face a real chance of persecution upon any return to the Kurram Agency in the Federally Administered Tribal Areas. The Tribunal accepted that, having regard to the applicant’s background, the applicant would, in the Federally Administered Tribal Areas, be imputed with a political opinion of opposition to the Taliban.

   13. The Tribunal did not, however, accept that the applicant would face, throughout the entirety of Pakistan, a real chance of persecution for any reason set out in the Refugees Convention (and the Refugees Protocol) (together, the “Convention”). The Tribunal also found that, upon any return to Pakistan in the reasonably foreseeable future, the applicant would not face a real chance of harm from the authorities on account of his status as a returnee from a Western country or as a failed asylum seeker.

   14. The Tribunal considered the applicant’s ability to relocate within Pakistan. The Tribunal observed that the applicant had lived and worked in Peshawar for over five years prior to his departure from Pakistan. The Tribunal found that, in the past, the applicant had not personally experienced any harm or threat of harm in Pakistan. The Tribunal also did not consider that the applicant was personally at risk of being targeted now or in the reasonably foreseeable future.

   15. The Tribunal found that the applicant would not face a real chance of serious harm for a Convention-related reason in Peshawar. The Tribunal also found that it would be reasonable, in the sense of practicable, for the applicant to relocate to Peshawar upon any return to Pakistan.

   16. The Tribunal also considered what, if any, complementary protection obligations might exist in respect of the applicant. The Tribunal found, due to “the applicant’s continued work and daily living in Peshawar for a significant period”, he did not face a real risk of significant harm in Pakistan.

   17. The Tribunal concluded that it was not satisfied that the applicant met the criteria in s 36 (2) (a) or (aa) of the Migration Act 1958 (Cth) (the “Act”).

   18. The Tribunal therefore affirmed the decision not to grant the applicant a protection visa.”

2. The Applicant in the proceedings commenced at the outset by saying that he takes no issue with the fact finding undertaken by the Tribunal. However, the Applicant claims that the Tribunal’s findings of fact were overwhelmingly supportive of the lawful conclusions that the Applicant claims the Tribunal failed to draw.  The Applicant asserts that the Tribunal’s decision is affected by jurisdictional error. In support of this assertion, the Applicant advanced the following arguments:-

   a)the Tribunal erred in its application of the criterion in s.36(2)(a) of the Act;

   b)the Tribunal erred in its consideration of relocation within Pakistan;

   i)in its assessment of the criterion in s 36(2)(a) of the Act; and

   ii)in its assessment of the criterion in s 36(2)(aa) of the Act.

Tribunal’s Consideration

1. In its Decision Record the Tribunal stated the following:-

   “91. The Tribunal does have further concerns about the actual actions of the applicant, particularly in his travel to and from his family home on a frequent basis, and his conduct in Peshawar, as compared to his stated fears of harm. As discussed with the applicant at the hearing, his activities do not always reflect his stated fear of persecution. In particular, the Tribunal raised with the applicant his practice of returning home to his family in Burki and then back to work. The Tribunal put to the applicant that this meant he travelled on the Peshawar to Parachinar road over 50 times in the five years he worked in Peshawar. This is a road that country information describes as one of the most dangerous in the world, that was blocked for significant periods of time by the Taliban over the past five years, allowing only limited travel. Despite this, the applicant continued to travel this road and had no personal difficulty on this trip.

   …

   93. The applicant’s claims are that he will be persecuted because of his race (Turi/Doparzai Tribe), religion (Shia), imputed political opinions (variously described as opposition to Taliban / Turi tribe opposition to Taliban / Shia Muslim from Parachinar / imputed support of Turi Tribe) and particular social groups (described as Doparzai tribe / Shia Muslims from Parachinar). The Tribunal considers that some of these claims are fairly interchangeable and rely on the same set of circumstances for the resulting fear of harm. The applicant has also made a separate claim of fear of persecution as a returnee from a western country / failed asylum seeker.

   94. The applicant has not personally been affected by any particular incident with the Taliban or other anti-government elements. His family have been affected by sporadic incidents, including an untargeted attack on Burki that was near to the applicant’s home. The applicant’s fears of harm arise from his assessment of the ongoing lack of security in Parachinar and surrounding areas, and the violence coming out of the Kurram Agency.

   95. The Tribunal has considered the personal circumstances of the applicant. The applicant has not detailed any circumstances in which he has specifically been targeted for harm, nor, in the consideration of the Tribunal, any circumstances where his family have been specifically targeted for harm. The circumstances as described by the applicant, in his taking precautions in Peshawar to conceal his identity, and the bombing of his village in December 2007, do not disclose a direct threat against him or his family. The actual practice of the applicant reveals a significantly different set of circumstances, he has frequently travelled on the Peshawar to Parachinar road and has not experienced any harm on that road, and he has conducted himself in Peshawar with only minimal steps to provide security for himself, the Tribunal has found that he was open in his dealings with shopkeepers in Peshawar and did not conceal his identity in these circumstances.

   96. The Tribunal finds that the applicant has not personally experienced any harm in Pakistan, nor personal threat of harm. The Tribunal is aware that absence of past harm is not determinative in relation to the fear of persecution now or in the reasonably foreseeable future. In that regard the Tribunal does not consider that the applicant is personally at risk of being targeted now or in the reasonably foreseeable future for any actual practice that he has undertaken. The Tribunal finds that the applicant has not drawn the adverse attention of the Taliban or other extremist forces, and is not at risk now or in the reasonably foreseeable future from the Taliban or other extremist forces / militant groups for any specific circumstances of the applicant.”

2. The Tribunal considered country information in the process of reaching its decision. It then proceeded to make factual findings on the basis of the totality of the evidence before it including an assessment of the country information before it, which was both presented to it by the Applicant, and obtained by it independent of the Applicant. The Tribunal gave that country information such weight as it determined, the choice of same and weight given, a matter for the Tribunal. The Tribunal referred to country information as to the road between Peshawar and Parachinar but found that the Applicant, on his own evidence, had travelled that road on a large number of occasions, without experiencing any harm or difficulties. In fact the Applicant travelled between Peshawar and Burki, Burki being a village some 30 minutes by car to Parachinar city. Burki is the village in which the Applicant claimed to be born and the place where his mother, wife and three children were all said to reside. The Tribunal however, did conclude that the Applicant would face a real chance of persecution in his home region based on the Applicant’s claims and the Tribunal’s assessment of the country information before it.

3. The Tribunal in its Decision Record said the following:-

   “103. The Tribunal considered the country information in relation to the claims of the applicant. The Tribunal considered that the circumstances of Parachinar and its surrounding areas demonstrate that there remains a significant level of violence and danger in the area that is not going to subside any time in the foreseeable future. The Tribunal considers that the applicant’s accepted identification as a Turi/Doparzai tribe member and a Shia from Parachinar, creates a real chance of persecution for the applicant in his home region of Kurram Agency, FATA.

   104. The Tribunal finds that there is a well-founded fear that the applicant would face serious harm now or in the reasonably foreseeable future if he was to return to FATA, for the Convention reasons as a Shia Muslim from Parachinar, a Turi Tribe member, and as someone from that background, would be imputed as having an anti- Taliban political opinion.”

4. The Tribunal then went on to consider whether the Applicant’s well-founded fear of persecution was limited to his home region or applicable to all of Pakistan. It said further in its Decision Record the following:-

   “Fears of Persecution in Pakistan

   105. The Tribunal has turned its mind as to whether the applicant’s well-founded fear of persecution is localised to his home region, or as claimed, has a real chance of serious harm in in all of Pakistan. The applicant has claimed that he well be persecuted in Pakistan as a Parachinar Shia and Doparzai/Turi Tribe member, with imputed political opinions of being anti-Taliban and other militant groups because he is of that background. He also claims he will be persecuted because of his membership of particular social groups, Doparzai/Turi, Shia, and ‘Shi’a Muslims from Parachinar region of Pakistan, who are imputed with a political opinion of support for the Turi leaders of that region, who are opposed to the Taliban’.

   106. The Tribunal considered the country information in relation to the treatment of Turi Tribe, Shia Muslims and Parachinar Shia Muslims in Pakistan as a whole.

   107. The Tribunal has considered the country information as cited above regarding the situation for Shia Turi with imputed anti-insurgent political opinions across Pakistan. The Tribunal notes that the information shows that there are targeted attacks on locations where Shia congregate, particularly during significant Shia religious festivals, the attacks on the Ashura festival in November an example of this. There are also specific attacks on Shia individuals, including professionals, by extremist organisations, across Pakistan. There is less country information regarding specific targeting of Turi tribe members, either for their ethnicity or their imputed anti surgent political opinions. The Tribunal considers that the country information provides a mixed assessment in relation to the level of risk that Parachinar Shia Muslims from the Turi Tribe. It is clear that there are areas of Pakistan where the levels of risk are very high, for example Quetta, whereas the information for other areas is less clear.

   108. The country information states that there are several cities in Pakistan where there are sizable Shia populations, including Karachi, Quetta, Lahore, Faisalabad and in particular Peshawar, where the applicant spent a number of years living. Included in these populations are people like the applicant, Parachinar Shia Turi Tribe members from the Kurram Agency. The information cited above states that the insurgent groups like the Taliban have targeted particular individuals, such as professionals, but that there has not been targeting of Shia Turi from Parachinar specifically for harm.

   109. The Tribunal finds that the applicant does not have a real chance of persecution for the reason of his Shia religion. The Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future for this reason.

   110. The Tribunal finds that the applicant does not have a real chance of persecution for the reason of his Turi ethnicity. The Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future for this reason.

   111. The Tribunal finds that the applicant does not have a real chance of persecution for the reason of his imputed political opinion against the Taliban and other extremist/militant organisations in Pakistan, arising out of his Shia religion, his Turi Tribe ethnicity, his Parachinar Shia Turi background, or his imputed support for Turi leaders in the Kurram Agency. The Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future for these reasons.

   112. The Tribunal finds that the applicant does not have a real chance of persecution for the reason of his membership of political social groups, including social groups arising out of his Parachinar, Shia, Turi, imputed political opinion as anti-insurgent or anti-Taliban. The Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future for these reasons.

   113. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm within the entirety of Pakistan now or in the reasonably foreseeable future.”

Relocation

1. In paragraphs 114 and 115 of its Decision Record the Tribunal set out a correct statement of the applicable law in respect of relocation in so far as it concerns relocation to avoid Refugee Convention related harm. It said:-

   “114. Having determined that the applicant does have genuine fears [to] return to his home region, the Tribunal is required to consider whether the applicant could reasonably relocate to a separate part of Pakistan. 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…

   115. The issue of whether it would be reasonable to expect an applicant to relocate within Pakistan only arises if the circumstances indicate that there is a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, that is, where the feared persecution is localised rather than nation-wide.”

1. The Tribunal then proceeded, as it was required to do, to consider the personal circumstances of the Applicant as it had found them to be and the impact upon the Applicant of any proposed relocation (SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, paragraphs 23 and 24). Among other things, the Tribunal found that the “applicant could return to Peshawar where he has lived and worked for over five years, and does not face a real chance of serious harm for the convention reasons of his Shia religion, Turi tribe or imputed political opinion in that location”. Contrary to the submissions of the Applicant, I find the Tribunal considered the Applicant’s personal circumstances and found that “it would be reasonable in the sense of practicable for the applicant to return to areas of Pakistan where he could live without a real chance of serious harm”. The Tribunal found that those areas of Pakistan included Peshawar. In considering those personal circumstances of the Applicant, the Tribunal found that the Applicant had lived and worked in the city of Peshawar for some time without any threat or risk to his person through living in this city. A linguistic distinction as asserted by the Applicant had not caused him any difficulty. The Tribunal considered that whilst the Applicant had lived there he had regularly travelled to the village where his family resided – without incident and over a period of five years. The Tribunal found that the Applicant could readily return to Peshawar without a real chance of serious harm befalling him. It considered that should he go to other parts of Pakistan, his initial challenges would include that he had limited or no family connection to other areas of Pakistan but said that “his demonstrated skills and abilities will allow him to gain employment and again become financially capable of living and supporting his family”. These were findings open to the Tribunal on the evidence before it.

2. The Applicant, in challenging this aspect of the decision, is seeking to review the merits of the Tribunal’s decision which is not the function of this Court.

3. Further, the Tribunal did not misapply the legal test in s.36(2B)(a) of the Act as asserted by the Applicant. It correctly referred to the operation of s.36(2B) of the Act in the following terms:-

   “There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.”

4. The Tribunal made a finding addressing the issue as to whether there would be a real risk that there would be significant harm suffered by the Applicant in Peshawar and said at paragraph 121 of its Decision Record:-

   “Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings of the Tribunal above, the Tribunal does not accept that what the applicant might experience upon return to Pakistan will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhumane treatment or punishment; or to degrading treatment or punishment. The Tribunal accepts that the applicant may experience difficulties in settling in and establishing himself in other locations outside of the Kurram Agency but does not accept, having regard to his particular circumstances, that this could be said to amount to significant harm within the meaning of section 36(2A). The Tribunal has considered the applicant’s continued work and daily living in Peshawar for a significant period to demonstrate the applicant’s own lack of a real risk of significant harm arising from his living in Pakistan.”

5. The Tribunal was also cognisant of the operation of s.36(2)(aa) of the Act. In its decision, the Tribunal correctly set out and applied the complementary protection criterion. The Tribunal made clear its understanding (in paragraph 16 and 17 of the Decision Record) that if a person does not meet the criterion in s.36(2)(a) of the Act, the person may instead seek to meet the criterion in s.36(2)(aa) of the Act. The Tribunal noted:-

   “… a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).”

6. The Tribunal also understood that for the purpose of s.36 of the Act, the expression “significant harm” is defined in s.36(2A) of the Act. The Tribunal correctly set out and applied the terms of the definition.

7. The Tribunal’s findings and reasons do not disclose misconstruction or misapplication of the terms of s.36 of the Act. Nor do they disclose that the Tribunal applied a stricter standard of proof or a different standard of proof in respect of the “real risk” test than it did in respect of the “real chance” test as asserted by the Applicant. When the Tribunal’s decision is read fairly and as a whole, it is clear that the Tribunal was satisfied that it would be reasonable for the Applicant to return to Peshawar, where he had lived and worked for the past five years, and that there would not be a real risk that the Applicant would suffer significant harm there. Such finding was open to the Tribunal on the evidence before it. There was no misapplication of the relevant law and no failure to deal with the Applicant’s claims. As is so often said in judicial review proceedings, it is not for this Court to conduct a merits review and reach a different view on the evidence.

8. The application is dismissed with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  27 September 2013