MZZFA v Minister for Immigration and Border Protection

[2014] FCA 615

FEDERAL COURT OF AUSTRALIA

MZZFA v Minister for Immigration and Border Protection [2014] FCA 615

Citation:	MZZFA v Minister for Immigration and Border Protection [2014] FCA 615
Appeal from:	MZZFA v Minister for Immigration & Anor [2013] FCCA 1404
Parties:	MZZFA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 1101 of 2013
Judge:	JESSUP J
Date of judgment:	13 June 2014
Catchwords:	MIGRATION – whether Federal Circuit Judge erred in not finding that the RRT fell into error in affirming the decision of the Minister not to grant a protection visa – whether RRT failed to consider whether the appellant faced “significant harm” within the meaning of s 36(2A) if he returned to Pakistan and relocated within Pakistan – whether the RRT fell into jurisdictional error by failing to take into account the considerations identified by Kirby J in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 – the RRT applied correct reasoning and considered all relevant factors in affirming the Minister’s decision – appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 36, 91R & 476
Cases cited:	MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
Date of hearing:	2 June 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	23
Counsel for the Appellant:	Ms J Taylor
Solicitor for the Appellant:	Victoria Legal Aid
Counsel for the Respondents:	Mr R Knowles
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1101 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZFA
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	13 JUNE 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1101 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZFA
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	13 JUNE 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Circuit Court of Australia given on 27 September 2013, in which the appellant’s application for a writ of mandamus pursuant to the jurisdiction of that court under s 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 21 December 2012 was dismissed. In that decision, the Tribunal had affirmed an earlier decision of a delegate of the respondent Minister not to grant the applicant a Protection (Class XA) Visa under the Act.

2. The appellant is a citizen of Pakistan who arrived in Australia on 9 June 2012. His application for a visa was based on claims that he would be persecuted because of his race, his religion, his imputed political opinions and his membership of particular social groups. He also claimed fear of persecution “as a returnee from a western country/failed asylum seeker” (a formulation lifted from the reasons of the Tribunal). The Tribunal held that the appellant had a well-founded fear that he would face serious harm, now or in the reasonably foreseeable future, if he were to return to the Federally Administered Tribal Areas of Pakistan, from which he originally hailed, by reason of him being a Shia Muslim from Parachinar, a Turi tribe member, as someone from such a background, and because an anti-Taliban political opinion would be imputed to him. However, the Tribunal also found that the appellant’s fear of persecution elsewhere in Pakistan, to the extent that he had one, was not well‑founded. It found that the appellant might reasonably be expected to relocate to a part of Pakistan where there was no well-founded fear of persecution, most obviously to Peshawar, where he had lived and worked for more than five years. The Tribunal also held that the appellant’s circumstances did not satisfy the complementary protection criterion for the grant of a visa set out in s 36(2)(aa) of the Act.

3. Presently, I shall identify the three grounds upon which the appellant relies in this appeal.  Save that each commences with the passage “the learned Federal Circuit Judge erred in failing …”, these grounds correspond precisely with the grounds specified in the appellant’s amended application for mandamus in the Federal Circuit Court.  In this court, however, counsel for the appellant argued her case with little or no reference to the reasoning of the Circuit Court Judge.  Her project was, in effect, to re-run the case which had been conducted in the Federal Circuit Court and, by establishing merit in each of the grounds relied on, to demonstrate corresponding error on the part of that Judge. 

4. Normally, this would not be an appropriate way of proceeding.  The Federal Circuit Court was the court having first instance jurisdiction with respect to the appellant’s case for mandamus, and the conventional – and usually the only appropriate – means of demonstrating error on appeal would be by engaging, at the level of detail, with the published reasons of that court.  A party is not entitled to treat the judgment given by the court appealed from as a non-event, and to run the same arguments a second time, in the hope of securing a more favourable outcome than was originally achieved. 

5. In the present case, however, I can sympathise with the approach taken by counsel for the appellant.  The case was heard in the Federal Circuit Court on 20 May 2013.  Judgment was handed down more than four months later.  The reasons of the Federal Circuit Court, in support of its judgment dismissing the appellant’s application, occupied 22 paragraphs over 12 pages.  A substantial part of those reasons involved the setting out, verbatim, of paragraphs from the Tribunal’s reasons of 21 December 2012.  The Judge’s conclusions are expressed at a rather high level and, I would have to say, do not reflect the kind of engagement, at the level of detail, with the grounds upon which the appellant then relied that would normally be expected in a case of this nature.  The appellant was then represented by the same counsel as represented him on the present appeal, and it was not suggested on behalf of the Minister that she argued a case on appeal which differed materially from the case which she argued in the Federal Circuit Court.  Assuming, as I must, that the case presented to the Judge below corresponded substantially with the case which I have heard in this court, I am bound to say that I have not been able to find, in the written reasons of that Judge, any clear articulation of the detail of that case, or of why it was not accepted. 

6. I have made the foregoing observations to provide the setting for what will follow, namely, a consideration of the appellant’s grounds against the published reasons of the Tribunal.  It has not been possible for me to dispose of those grounds by reference only to the way in which they were considered, and dealt with, in the Federal Circuit Court.  Nonetheless, as will appear, I have reached the conclusion that the Federal Circuit Judge was correct to dismiss the appellant’s application for mandamus. 

7. The appellant’s first ground of appeal is as follows:

   The learned Federal Circuit Judge erred in failing to find that the RRT 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) in accordance with law[.]

   The appellant has two points under this ground. The first is that, although the Tribunal considered the question of “serious harm” within the meaning of s 91R of the Act, when it came to address the appellant’s entitlement to a visa under the complementary protection provisions of s 36(2)(aa), it did not specifically revisit whether, even if he relocated as was considered reasonable for the purposes of s 36(2)(a), he faced a risk of “significant harm” within the meaning of s 36(2A).

8. With respect to the situation in Pakistan generally, the Tribunal concluded as follows:

   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. 

   In the context of the complementary protection provisions, the Tribunal said:

   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 inhuman 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.

   It is true that the definition of “significant harm” in s 36(2A) differs from that of “serious harm” in s 91R(2). The Tribunal would not have been entitled to draw the positive conclusion that there was no real risk that the appellant would suffer significant harm simply on the basis that it had previously concluded that there was no real risk that he would suffer serious harm. However, to contend that the Tribunal so proceeded in the present case would be to take an unjustifiably superficial view of its reasons.

9. At the general level, it would not be surprising to find the Tribunal carrying over its factual conclusions under s 91R(2) into s 36(2A): the former is, generally, concerned with injuries and other detrimental outcomes of a lesser seriousness than the latter. But the Tribunal did not merely proceed in this way. In the passage to which I have referred above, the Tribunal made findings with specific reference to the lettered paragraphs in s 36(2A). It cannot, therefore, be said that it asked itself the wrong question under the complementary protection provisions.

10. The appellant’s second point is that, in its recitation of the “country information” which had come to its attention, the Tribunal had referred to sufficient facts to sustain – indeed, to compel – the conclusion that, if he were required to return to Pakistan, the applicant would face a real risk of being arbitrarily deprived of his life within the meaning of s 36(2A)(a) of the Act. This is not a submission which should be accepted. The Federal Circuit Court was not involved in an appellate review of the Tribunal’s decision. There were many facts which were before the Tribunal in the context of “country information”, and these had to be weighed against each other, and, importantly, against the appellant’s own experiences, and those of his family, friends and associates which he related to the Tribunal and were accepted by it. It is impermissible to take instances constituting only the high-water mark of a case under s 36(2A)(a) and to contend that the Tribunal fell into jurisdictional error by not deciding the case conformably with those facts.

11. Further, the country information upon which the appellant relied was set out in a section of the Tribunal’s reasons dealing with attacks which were targeted against the Shia population, particularly along the road between Parachinar and Thall. It was information of this kind that led to the Tribunal’s conclusion, for the purposes of s 36(2)(a), that the appellant’s fear of persecution was well-founded in relation to the areas from which he hailed, including those referred to in the present context. It was against that background that the Tribunal considered the prospects of relocation. It held that, if the appellant were to relocate to Peshawar, there would not be a more than remote risk of him suffering harm for a Convention-related reason. At the point of considering the complementary protection provisions of the Act, the Tribunal’s assumption was that, if the appellant were to relocate to Pakistan, it would be to an area where, as the Tribunal had held, the anti-Shia violence was not problematic. In the context of those provisions and that assumption, therefore, it is simply not sustainable to contend that the Tribunal was compelled to conclude that, if the appellant returned to Pakistan (ie even to a region to which it had held it reasonable to expect the appellant to relocate), he would face a real risk of being arbitrarily deprived of his life.

12. Absent the pattern of attacks against the Shia population which was referred to in the country information, there was nothing in the detailed setting out of the facts of the case, and the claims of the appellant, in the reasons of the Tribunal which would provide any nurture for a case involving the application of s 36(2A). Neither did counsel for the appellant draw my attention to any such circumstance in her submissions made on the appeal. On any practical view of the matter, the appellant’s criticism of the Tribunal for having decided the complementary protection aspect of the case by reference to its very detailed exposition of the facts for the purposes of s 36(2)(a) must be regarded as highly theoretical, and as having little or nothing to do with the merit of the case which he ran before the Tribunal.

13. For the above reasons, the appellant’s first ground of appeal must be rejected.

14. The appellant’s second ground of appeal is as follows:

    The learned Federal Circuit Judge erred in failing to find that the RRT erred by failing to apply Australian law in considering whether or not the applicant could relocate within Pakistan to avoid persecution for a Convention reason[.] 

    As explained by counsel for the appellant, the point here is not that the Tribunal applied the law of a place other than Australia.  Rather, the appellant contends that, in its treatment of the issue of the reasonableness of relocation for the purpose of avoiding or minimising the risk of persecution for a Convention reason, the Tribunal fell into jurisdictional error in that its finding failed to “satisf[y] the considerations outlined by Kirby J” in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18.

15. In SZATV, Kirby J said (233 CLR at 42-43 [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.  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. 

    In this extract from his Honour’s reasons, I have omitted five footnotes, each of which is included in the same extract as set out in the reasons of Flick and Jagot JJ in MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541, 545 [8].

16. In MZYPW itself, Flick and Jagot JJ held (289 ALR at 547-548 [19]) that the merits reviewer in that case had fallen into jurisdictional error in the department of its consideration which involved the reasonableness of relocation by failing to consider either the “lack of family support” which the appellant in that case would have if he relocated as proposed by the Minister or the difficulties presumptively associated with the manner in which his children spoke their language, which would identify them as having lived in Pakistan. In the present case, it was submitted on behalf of the appellant that the Tribunal had fallen into the same jurisdictional error, for the same reasons.

17. I do not accept that submission.  In MZYPW, Flick and Jagot JJ held (289 ALR at 545 [9]) that the factors identified by Kirby J in SZATV “were not to be construed as a statutory list of considerations which must necessarily be taken into account in every case”.  An invitation to proceed contrary to this caution seems implicit in the submissions made on behalf of the appellant in the present case. There is one very good, and rather obvious, reason why the two circumstances relied on by the appellant did not feature large in the Tribunal’s conclusion that it would be reasonable to expect the appellant to relocate to Peshawar:  the appellant had in fact lived there for the five years preceding his travel to Australia.  Although it is not the role of the court to enter upon factual issues which were for the Tribunal to determine, when it is submitted that the Tribunal fell into jurisdictional error by failing to address the significance of particular facts, it is open to the court to note the place which such facts occupied, or would have occupied, in the Tribunal’s overall assessment of the reasonableness of relocation (on any view, a matter of judgment).  That the appellant would have been in no strong position to resist the proposition, before the Tribunal, that it would be reasonable to expect him to base himself in Peshawar if he returned to Pakistan, when he had in fact lived there for the immediately preceding five years, does seem rather obvious.

18. For the above reasons, the appellant’s second ground of appeal must be rejected.

19. The appellant’s third ground of appeal is as follows:

    The learned Federal Circuit Judge erred in failing to identify error in the RRT’s consideration of whether or not the applicant could avoid persecution for a Convention reason (s36(2)(a)) by relocating within Pakistan.  The RRT erred in failing to consider whether such relocation would protect the applicant from a real risk of significant harm as contemplated at law. 

    Contrary to what appears to be the import of the first sentence of this ground, the appellant’s point here does not relate to the Tribunal’s consideration of the possibility of avoiding Convention-related persecution by relocation. As appears below, the point relates to the complementary protection provisions of the Act.

20. The appellant’s point is best exposed by setting out the following paragraphs from the written outline of submissions filed on his behalf in this appeal:

    36.In its discussion of relocation at paragraphs [114]-[118], the Second Respondent considered whether relocation might enable the appellant “to live without a real chance of serious harm...for a Convention reason” (the s 36(2)(a) test). In so doing, the Second Respondent failed entirely to consider whether or not relocation would allow the appellant to live without a real risk of significant harm, even if not for a Convention reason (the s 36(2)(aa) test).

    37.If the Court finds, against the submission of the appellant, that the RRT did consider whether the appellant could reasonably relocate within Pakistan in order to avoid persecution for a Convention reason, it ought still to find that the RRT failed to consider whether such relocation would protect the appellant from a real risk of significant harm. 

    The operation of s 36(2)(aa) of the Act is activated where “the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm”. What constitutes “significant harm” is the subject of the definition in s 36(2A). However, under subs (2B)(a), “there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that … it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm”. Although the Tribunal had, previously to its consideration of the complementary protection obligations which potentially arose, found that the appellant would not be exposed to more than a remote risk of serious harm for Convention-related reasons were he to relocate to, for example, Peshawar, it did not, in terms at least, consider whether he would then be exposed to a real risk of “significant harm” for the purposes of s 36(2B)(a). So the appellant contends.

1. If there is a distinction between this ground and the appellant’s first ground, it must be a subtle one. However, the ground, and the argument in support of it, must be considered. In the light of so much of the Tribunal’s reasons as is extracted at para 8 above, the argument cannot be accepted. The second and third sentences of that passage show, without ambiguity, that the Tribunal gave attention to the matter required under s 36(2B)(a). It may have done so in an abbreviated way, but, given the previous treatment of the analogous issue which arose under s 36(2)(a) and the uncontroversial nature of its conclusions, for the Tribunal to have proceeded in the way that it did could not be regarded as jurisdictional error in the sense of a failure to consider a matter which the statute required to be considered.

2. For the above reasons, the appellant’s third ground of appeal must be rejected.

3. The appeal must be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       13 June 2014