MZZHK v Minister for Immigration

[2014] FCCA 86

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZHK v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 86

Catchwords:
MIGRATION – Refugee Review Tribunal – refusal of a protection visa – no matter of principle – application dismissed.

Legislation:  
Migration Act 1958 (Cth), s.36(2)(aa)

SZATV v the Minister of Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 237 ALR 634; (2007) 81 ALJR 1659; (2007) 97 ALD 1; [2007] ALMD 6400
MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; (2012) 206 FCR 191; (2012) 133 ALD 276

Applicant: MZZHK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 275 of 2013

Judgment of: Judge Riethmuller

Hearing date: 28 October 2013

Date of Last Submission: 28 October 2013

Delivered at: Melbourne

Delivered on: 23 January 2014

REPRESENTATION

Counsel for the Applicant: Mr Watters

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The Application filed on 7 March 2013 and the Amended Application filed 1 August 2013 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,446.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

MLG 275 of 2013

MZZHK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan.  He arrived in Australia on a student visa on 26 April 2011.  On 10 November 2011 he applied for a protection visa, which application was refused by a delegate on 6 January 2012.

2. The applicant then sought a review of the delegate’s decision which was determined by the Refugee Review Tribunal on 12 February 2013.  These proceedings are judicial review proceedings lodged by the applicant to review the decision of the Tribunal.

3. In the applicant’s amended application filed 1 August 2013, the applicant particularised his ground of application as follows:

   1. In finding that the Applicant could relocate within Pakistan, the Refugee Review Tribunal misapplied the relevant law.

   ·   Particulars

   a. A person will be excluded from the definition of a refugee if it is reasonable for them to relocate within their country of origin.

   b. In determining whether it is reasonable for a person to relocate to a specified place, the Tribunal must consider, among other things, any risk of harm from generalised violence that a person might face if they relocated.

   c. The Tribunal misconstrued s 36(2B) of the Migration Act as excluding harm from generalised violence from its consideration and thus did not consider the risk of such harm to the Applicant.

   d. Accordingly, the Tribunal misapplied the law in relation to relocation.

Meaning of “reasonable”

1. The meaning of “reasonable” in the respect of these provisions has been discussed by the High Court in SZATV v the Minister of Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 237 ALR 634; (2007) 81 ALJR 1659; (2007) 97 ALD 1; [2007] ALMD 6400 at paras.23 to 24. Significantly the factors which may show that it is unreasonable to expect a person to relocate do not necessarily have to amount to harm of the type that would be within the ambit of the Refugee Convention or the complementary protection provisions as was stated by Dodds-Streeton J in MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; (2012) 206 FCR 191; (2012) 133 ALD 276 where her Honour said:

   61. In my opinion, therefore, the IMR’s error lay not in considering that a risk of “serious harm as required by s 91R(1)(b)” was relevant to relocation, but in implicitly treating such harm as the only level or kind of harm which could affect the reasonableness of relocation.

2. In substance the applicant’s fears were based upon:

   a)attacks by the Taliban;

   b)his family had an imputed political opinion;

   c)that he was a member of a particular social group, namely the son of an active member of the national peace committee;  and

   d)that his father had refused to support the Taliban financially.

3. As a result the applicant said that he had real fear of serious harm at the hands of the Taliban.  The Tribunal accepted that the applicant and his family were among people displaced from the city in which he lived during the worst of the fighting in the course of the recent military action against the Taliban in 2008 and 2009.  However, the Tribunal did not accept all that the applicant said, concluding that:

   103. ... important aspects of what has been submitted in support of the applicant’s claims are not credible.

4. Ultimately the Tribunal concluded that the chances that the applicant could face serious harm:

   124. … cannot reasonably be regarded as remote even though nothing has happened to him or his family of a kind which would constitute persecution as the term is applied in Australia’s refugee law, apart from the assault on the applicant in 2007 which the Tribunal has found was a single isolated incident.

5. Ultimately, therefore, the Tribunal concluded that the applicant had made out a case and went on to consider whether or not the applicant could relocate within Pakistan to another area.

6. It is this part of the decision that is challenged.

Relocation

1. The Tribunal commenced their identification of this issue of para.129 when they said:

   129. The first question now for the Tribunal is whether there would remain a real chance that the applicant would be persecuted if he were to live elsewhere and the Tribunal has in mind [city in Pakistan] or [two other cities in Pakistan] although there may be other places which might be suitable for or preferred by the applicant.

2. They then said:

   139. The applicant’s representative points to ineffective state protection in respect of actions by the Taliban and the Tribunal accepts that this is a fair statement.  However, the Tribunal has found that the chance that the applicant would face serious harm for a Convention reason if he were to live in, say [city in Pakistan] or [two other cities in Pakistan], is remote and it follows that there is not more than a remote chance that the applicant would find himself in need of police or other security services.  Even if here, the Tribunal does not accept that what services were available to him would be affected by any of the reasons in the Refugees Convention, that is his race, religion, nationality, membership of a particular social group or his political opinion. [emphasis added]

3. The Tribunal ultimately concluded:

   141. In summary and having considered the applicant’s claims and circumstances individually and cumulatively, the Tribunal considers that there is not more than a remote chance that the applicant would face persecution on account of his actual or imputed anti-Taliban political opinion if he were to return to live elsewhere in Pakistan, away from [city in Pakistan] and [city in Pakistan], or on account of his membership of a particular social group defined as his family.  There would be in the Tribunal’s view no appreciable risk of the feared persecution occurring elsewhere.

4. Thereafter the Tribunal commenced its considerations on the question of whether or not it was reasonable for the applicant to relocate.  This part of the Tribunal decision commences with a heading in such terms.  At para.142 the Tribunal identified the test again stating:

   142. … The Tribunal has had regard to submissions and the applicant’s evidence at the hearings on the question of whether it would be reasonable and practicable for him to live elsewhere in Pakistan where there would not be an appreciable risk that he would be prosecuted for a Convention reason.  [emphasis added]

5. The Tribunal identified the factors that the applicant raised which bore upon whether or not it was reasonable for him to relocate saying:

   143. Factors raised in the evidence which relate to the matter of the reasonableness of relocation for the applicant are:

   ·   his family had difficulty renting a house when they moved to [a city in Pakistan] in 2009 because they were from a disputed area and some people called them terrorists suggesting that the applicant too might face difficulties with finding accommodation.

   ·   the applicant is the youngest in the family and lives with and is supported by his brother here and he has never worked and has always had the support and care of his family; and

   ·   the applicant would not be safe anywhere in Pakistan, including [three cities in Pakistan] because there are crimes, including terror attacks, all over the country.

6. At para.145 the Tribunal identified that the applicant had support of family members and had come from a “well-off family”, but ultimately concluded that moving to live away from family was not sufficient to make it unreasonable for him to relocate.

7. With respect to safety issues in other parts of Pakistan, the Tribunal said:

   146. The Tribunal understands the applicant’s concern about the security situation in his country but its assessment is that the chance that the applicant would come to harm as a result of such violence is remote.  The Tribunal does not consider that the poor security situation prevailing in Pakistan makes it unreasonable for an individual such as the applicant to return and live in a place other than his home area such as [three cities in Pakistan].

8. The Tribunal therefore concluded, with respect to the relocation issue as it concerned the applicant’s Convention claim:

   147. The Tribunal has concluded that the applicant does not have a well-founded fear of persecution for a Convention reason if he returns to Pakistan and lives outside [a Pakistani city], now or in the reasonably foreseeable future.  It has found that it is reasonable for him to relocate and live elsewhere.  The applicant does not meet the refugee criterion for the grant of a protection visa. [emphasis added].

9. The Tribunal then turned to consider the complementary protection provisions under the Migration Act 1958 (see s.36(2)(aa) of the Migration Act).

10. The Tribunal summarised the law under s.36(2B) as follows:

    151. In [in] some circumstances there is taken not to be a real risk that an applicant will suffer significant harm in a country and these include 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; 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.

11. The Tribunal then identified that, as a result of earlier findings, there was a real chance the applicant could be persecuted and therefore a real risk the applicant could suffer significant harm.  The Tribunal then went on to consider the question with respect to the complementary protection provisions, saying:

    153. The Tribunal has looked at the applicant’s circumstances closely and has concluded that its assessment about the question of relocation in accordance with the refugee criterion is equally applicable to the assessment against the complementary protection criterion.  In [three cities in Pakistan], the applicant will not in the Tribunal’s view face a real risk of being arbitrarily deprived of his life; of the death penalty being carried out against him, or being subjected to torture.  Difficulties he may have in settling to live in an area away from home, looked at separately and all together, cannot in the Tribunal’s view reasonably be construed as significant harm, in particular cruel or inhuman treatment or punishment, or degrading treatment or punishment.  At most, the Tribunal considers that what the applicant may face upon return to Pakistan will be unwelcome and inconvenient for him.  It is reasonable for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm.

    154. As stated already, the Tribunal understands the applicant’s concern about the security situation in his country.  The Tribunal does not consider that there is anything about the applicant and his circumstances which gives rise to real risk that he would personally face significant harm in, say [three cities in Pakistan].  Having regard to its findings of fact set out in its assessment of the applicant’s claims against the refugee criterion and its assessment of independent information about the security situation, it is the Tribunal’s assessment that what the applicant may face in this regard is a real risk faced by the population generally and not by him personally.

12. A fair reading of these paragraphs of the Tribunal’s decision indicates that the Tribunal had in mind the test of serious or real risk of significant harm.  The paragraphs contain many references to the specific wording of the sections.  This gives the paragraphs the flavour of a discussion as to whether or not the applicant may suffer significant harm as is contemplated by the latter part of the wording of s.36(2B)(a) rather than a consideration of whether or not relocation would be reasonable.  It would certainly have been easier had the Tribunal looked at these two limbs to s.36(2B)(a) in separate paragraphs rather than in the somewhat mixed reasons that have been provided.  However, this in itself is not an error of law.

13. The first sentence of para.153 refers to the conclusions that were made with respect to the Convention ground and imports them into the reasoning with respect to the complementary protection criteria.  Those conclusions are as set out above at para.16 herein.

14. It appears clear that para.146 addresses the security concerns that are identified in the third dot point of para.143 (the list of factors that are raised in evidence relating to the reasonableness of relocation for the applicant), and makes some assessment of the level of risk (that violence is remote), and a determination as to whether or not it would be reasonable for the applicant to return to Pakistan and live in another city, with the Tribunal concluding that it did not consider the poor security situation in Pakistan made it unreasonable.  The Tribunal had concluded that the applicant did not suffer a real risk of harm for a Convention reason if he moved to another city.

15. On this basis the Tribunal has incorporated, through the words of the first sentence of para.153, its assessment of the reasonableness of the applicant relocating it utilised in dealing with the Convention claim into its consideration for the complementary protection claim.  It does not appear to me that there is a basis for concluding that the test of reasonableness that applies either under the Convention claim or the complementary protection claim should be seen as being any different. 

16. The Tribunal then goes on to consider whether or not the applicant would be at real risk of significant harm for most of the balance of para.153.  The Tribunal, in a penultimate sentence, concludes that at most the applicant would face circumstances that would be:

    153. …unwelcome and inconvenient for him.  

17. The Tribunal then goes on to consider the matters discussed in s.36(2B)(c) at para.154, where the Tribunal member states:

    154. As stated already, the Tribunal understands the applicant’s concern about the security situation in his country.  The Tribunal does not consider that there is anything about the applicant and his circumstances which gives rise to real risk that he would personally face significant harm in, say [three cities in Pakistan].  Having regard to its findings of fact set out in its assessment of the applicant’s claims against the refugee criterion and its assessment of independent information about the security situation, it is the Tribunal’s assessment that what the applicant may face in this regard is a real risk faced by the population generally and not by him personally.

18. In summary, despite the reasons not being structured in the clearest terms, it is apparent that the Tribunal has concluded that there would be no more than a remote risk of harm within the meaning of the Convention and the complementary protection proceedings if the applicant were to relocate within Pakistan.

19. The Tribunal has also concluded that the applicant’s risk of suffering violence as outlined by him as a basis for it being unreasonable for him to relocate is “remote” (see para.146).  This finding was used both with respect to the Convention claims and the complementary protection claims (see para.153, first sentence).  The Tribunal member has also made a finding that “at most” the difficulties confronting the applicant if he relocated would be “unwelcome and inconvenient for him” (see para.153).

Conclusion

1. On reading the decision of the Tribunal member as a whole, I am not persuaded that the Tribunal member has erred and applied the wrong test in considering the applicant’s claim in this particular case.

2. In the circumstances, the Application and the Amended Application must therefore be dismissed. 

Costs

1. I note the parties have previously confirmed, via email to Chambers, that costs will follow the event.  I note that there has been a previous Order for the Applicant to pay the First Respondent $1800.  The costs I order today are in accordance with the scale, in the amount of $6,646 (not including the previous costs Order). 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  23 January 2014