MZZID v Minister for Immigration

[2014] FCCA 1121

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZID v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1121

Catchwords:
MIGRATION – Relocation – wrong test applied – whether relocation reasonable in the sense of practicable – application dismissed.

Legislation:

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

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant: MZZID

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 330 of 2013

Judgment of: Judge O'Dwyer

Hearing date: 11 October 2013

Date of Last Submission: 11 October 2013

Delivered at: Melbourne

Delivered on: 30 May 2014

REPRESENTATION

Counsel for the Applicant: Ms Latif

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Rogers

Solicitors for the Respondent: Australian Government Solicitor

ORDERS:

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. The application filed on 18 March 2013, as amended, is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 330 of 2013

MZZID

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application to review a decision of the Second Respondent (“the Tribunal”) dated 18 February 2013; which decision affirmed an earlier decision of a delegate of the First Respondent (“the Minister”) not to grant the Applicant a Protection (Class XA) visa.

Background

1. The Applicant is a 22-year-old  Pakistani who was born in Parachinar, Kurram Agency. He arrived at Christmas Island as an irregular maritime arrival on 22 February 2012. The Applicant made claims for protection and the Minister exercised his discretion and allowed him to apply for a protection visa.

2. The Minister’s delegate thereafter refused the application on the basis that the Applicant could relocate to another part of Pakistan. The Applicant sought a review of that decision before the Tribunal, which conducted a hearing on 24 October 2012.

The Applicant’s claims

1. The Applicant claims that he is a member of the Bangash tribe, a Pashtun and a Shi’a Muslim and, because of such, he feared persecution throughout Pakistan.

2. The Applicant feared persecution from members, or sympathisers of the Taliban, who were supported by Sunnis in Parachinar. The Applicant feared that if he was to return to Pakistan, he will be killed by Sunni extremist groups because of his religion and because his tribe is opposed to the Taliban in his native area.

3. The Applicant recited instances, involving himself, in support of his claim to fear persecution and the risk he would be exposed to if he was to return to Pakistan. The Tribunal accepted the following as credible:

   i.that damage was caused to the Applicant’s home when conflict commenced in Parachinar;

   ii.that in 2008  he was the victim of a suicide bombing in a marketplace where he suffered injuries and was treated in hospital for approximately 25 days, but thereafter required further treatment for three years

   iii.that in 2011,  he was approached by two Sunni men in Peshawar where he was studying, one of whom was carrying a pistol and one was known to him from his native area;

   iv.that the Applicant fled but he was pursued by these men, he managed, however, to evade them;

   v.that a few days after this incident he received a threatening telephone call to the effect that if he continued studies at the University in Peshawar he would suffer the fate of other students who were kidnapped and found two days later beheaded; and

   vi.that a close friend had died in a suicide bombing incident in Parachinar close to the time of the hearing.

4. In fear, the Applicant returned to his native area and then left Pakistan for Australia.

5. The Applicant provided further information in support of his justified fear of the Taliban and Sunni extremists. It appears that in 2007 the Taliban approached the elders of his village in his native area seeking agreement for the Taliban to access the road network. They were refused access and the Taliban responded violently. His tribe, he asserts, is hated by the Taliban.

6. He claimed that, because of his Shi’a religion he would be targeted by the Laskar-e-Jhangawi, Baluchi and Taliban, as members of the Bangash tribe and the Shi’a religion are readily identified. Because of his religion and his ethnicity he claimed to fear persecution throughout Pakistan.

7. He had a fear that he would be killed by Sunni extremist groups.

8. The Applicant also claimed complementary protection under s.36(2)(aa) of the Migration Act 1958 (“the Act”) because he faced a real risk of significant harm.

The Tribunal’s decision

1. The Applicant in written submissions provided a fair and accurate summary of the Tribunal’s reasons and findings and, for the sake of convenience, they are repeated below.

2. The Tribunal included a consideration of relevant country information in its reasons. This included country information which estimated the size of the Shi’a population in Pakistan. The Tribunal quoted from country information, stating that sectarian violence targeting the Shi’a minority in Pakistan continued in 2011 and that the violent attacks were carried out in Karachi, amongst other places. The Tribunal quoted from country information indicating law enforcement authorities in Pakistan (expressly including Karachi) were unable or unwilling to protect members of religious minorities, including Shi’a.

3. The Tribunal referred to country information (or remarked on the absence of specific information) concerning the size of the Turi Pashtun Shi’a community in Karachi and the population of Karachi more broadly.

4. The Tribunal referred to country information indicating Sunni extremist groups have a presence in Karachi and two incidents of sectarian violence targeting Shi’a in Karachi.

5. The Tribunal accepted, whilst in Peshawar and in Parachinar he would suffer persecution:

   There is a real chance the Applicant will suffer serious harm for the essential and significant reason of his religious and adverse opinions imputed to him by Sunnis who would wish to harm him if he was to return to Parachinar and, more broadly, the Kurram agency.[1]

   [1] Tribunal's decision at [77]

6. The Tribunal thereafter reasoned it was required to consider whether it was reasonable for the Applicant to relocate to a regional area of Pakistan where, objectively, there was no appreciable risk of the occurrence of the feared persecution. The Tribunal specifically considered whether it was reasonable to relocate to Karachi.

7. In considering this issue, the Tribunal observed that:

   ·country information indicates a third of Karachi population is Shi’a;

   ·the Tribunal did not have specific information about Pashtun Shi’a in Karachi, particularly whether they were the victims of harm in Karachi;

   ·there have been attacks on Shi’a in Karachi, notably on religious processions in December 2009, February 2010 and September 2010, and isolated reports of professionals being killed and a bus carrying Shi’a being attacked in 2012.

8. The Tribunal concluded, however, that “[w]hen considered in the context of the size of the Shi’a population”, the risk of the Applicant suffering harm as a Pashtun Shi’a in Karachi was remote.

9. Whilst the Tribunal accepted the Applicant was targeted for harm in Peshawar, it did not accept the Applicant had a significant profile with the Taliban, “other like Sunny groups” or “Sunnis generally”, or that these groups would pursue him in Karachi.

10. The Tribunal in its reasons considered whether it would be reasonable for the Applicant to relocate to Karachi. In that context, the Tribunal considered the Applicant’s safety should he relocate to Karachi. At each point where this issue was considered in the Tribunal’s reasons, the Tribunal referred to there being a remote risk of harm. In specific context of harm to the Applicant by reason of his religious beliefs, the Tribunal appeared to accept there was sectarian violence targeting Shi’a in Karachi, but indicated this risk had to be considered in the context of the size of the Shi’a population and accordingly found that the risk of the Applicant suffering harm was remote.

11. In considering the question of the Applicant’s relocation within Pakistan, the Tribunal also had regard to the Applicant’s evidence that neither he nor his family were ever politically active in Pakistan. The Tribunal also had regard to the Applicant’s ability to speak Urdu, his standard of education, including university, and his work experience were all factors suggestive of a successful relocation to Karachi where the Applicant could settle and find employment.

12. The Tribunal ultimately concluded that the Applicant could reasonably be expected to relocate to Karachi where there was no appreciable risk for Pashtun Shi’as  to fear persecution, and therefore he does not have a well-founded fear of persecution.

13. By reason of the relocation finding, the Tribunal found the Applicant was not a refugee within the meaning of the Act and also not entitled to complementary protection.

Grounds of review

1. The amended application set out one ground of review, with two separate contentions supportive of that ground. The ground is as follows:

   1. The [Tribunal] constructively failed to exercise its jurisdiction by applying the wrong test, misconceiving its duty, failing to apply itself to the real question to be decided or misunderstanding the nature of the opinion, it was required to form with respect to “well-founded fear of persecution”

   Particulars

   A. The [Tribunal] approached the question whether the objective limb of the phrase “well-founded fear of persecution” was satisfied in respect of the Applicant’s fear of sectarian violence against Shi’a in the Karachi by assessing whether the likelihood of harm was remote. Having regard to the size of the Shi’a population in Karachi and the number of incidents of sectarian violence identified in relevant country information, the [Tribunal] was instead required to apply the analytical framework articulated in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and endorsed in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, and assess the degree to which the Applicant had a “well-founded fear of persecution”, bearing in mind that a fear of persecution may be well founded, even where the evidence does not establish the persecution will, or more likely than not, eventuate.

   B. The Applicant filed evidence and argument in opposition to a finding that he could relocate to another part of Pakistan, that evidence and argument concerned sectarian violence against Shi’a throughout Pakistan. The [Tribunal] considered that evidence and argument in the context of assessing the likelihood of the Applicant being harmed (the Applicant relies upon the error identified in Particular A in this). At law, the [Tribunal] was required to consider this evidence and argument in the context of its analysis of the degree to which relocation was reasonable, in the sense of practicable. It wholly failed to do so.

Contentions and consideration

1. The ground of review is a narrow one which centres on the construction of “well-founded fear of persecution” in the context of determining whether it was possible for the Applicant to relocate to an area where the prospect of persecution was said to be remote.

Particular A

1. For Particular A, the Applicant relied on Chan and Guo to establish the contention that the Tribunal, to discharge its statutory function, when determining whether the Applicant had a well-founded fear of persecution if relocated, that determination should not be determined solely by analysing the likelihood of a risk based upon a restricted consideration, but should be considered within the framework identified by the High Court in Chan and Guo. The Tribunal was bound to assess the degree to which the Applicant had a well-founded fear, bearing in mind the fear of persecution may be well founded, even where the evidence does not establish the persecution will, more likely than not, eventuate.[2]

   [2] Per Mason CJ at 389, Toohey J at 407- 8, Dawson J at 396-8,McHugh J at 428-9, where a well-founded fear, may be one where  a "real chance" of persecution may be below a 50% chance;  a real chance is not a remote chance; there needs to be a real substantial basis for a fear of persecution in order for it to be well-founded.

2. Counsel for the Applicant was critical of the Tribunal’s approach to its determination. Reference was made to passages from the delegate’s decision, which was referred to by the Tribunal as being before it, that explored varying estimates of populations in Pakistan, with particular reference to the Shi’a population in the country as a whole, and in Karachi in particular. [3]

   [3] See Case Book , pp 124 and 112

3. It was contended that the Tribunal’s calculation of populations in Pakistan[4], which was, in combination with those considered by the delegate, discloses significant variation, yet the Tribunal was able to, through arithmetic, determine the population of Pakistan. This, it was said, was indicative of the ‘computational’ focus of the Tribunal. The Applicant further contended that a fair reading of the Tribunal’s decision, taken “as a whole”, confirms  this alleged narrow focus on computing the likelihood of persecution by calculating the numbers of various populations, is not enough to fulfil the Tribunal’s statutory function, which was to determine whether there was a well-founded fear in the context of all the facts, and not only on numbers.

   [4] Tribunal's decision at [51]

4. In my view, a fair reading of the Tribunal’s decision does not support this particular of the ground. In my view, the Tribunal was entitled to examine the information pertaining to populations and its determination in that regard was not unreasonable. I am satisfied that the Tribunal did examine the whole context of the Applicant’s situation in Parachinar and importantly in Karachi if he was to relocate there. The Tribunal examined what the Applicant would most likely experience should he relocate to Karachi[5]; including the likely victims and levels of violence in Karachi[6] and the Applicant’s capacity to subsist in Karachi[7] were fully considered by the Tribunal, resulting in the Tribunal’s assessment that the risk to the Applicant in Karachi was remote and, as a result did not, have a well-founded fear of persecution.

   [5] ibid at [100], [103]-[107]

   [6] ibid at [101]-[102]

   [7] ibid at [111]-[114]

5. The Applicant was critical of the Tribunal for finding that he was readily identifiable as Turi Shi’a Pashtun but then relied upon a lack of information that would indicate whether Shi’a Pashtuns are at risk in Karachi. In my view, the approach in this regard by the Tribunal is not wrong, being one way such could be assessed, remembering also that there was information relied upon by the Tribunal in respect of the treatment of Shi’a Muslims in Karachi, which by contrast was readily available.

6. In my view, the Tribunal was not in error in how it approached the question of establishing whether or not the Applicant had a well-founded fear of persecution should he relocate to Karachi. Accordingly, this particular of the ground must fail.

Particular B

1. In respect of Particular B, namely the contention that the Tribunal failed to apply the correct test to the question of relocation, the Applicant contended that before an Applicant is denied refugee status because he could relocate, the Tribunal must determine:

   a)whether the Applicant had a well-founded fear of persecution in another part of his country of nationality – described by the Applicant as the first limb of the relocation test; and

   b)whether it is reasonable, in the sense of it being practical, for the Applicant to relocate – described as the second limb of the test.

2. The Applicant contended that the Tribunal failed to consider the second limb of the test. The Tribunal, it was contended, was required to address the Applicant’s submissions and evidence in respect of the security situation in Karachi within the framework of the second limb of the test; namely, by asking whether it was reasonable, in the sense of practicable, for the Applicant to relocate to Karachi, given the security situation for Shi’a in Karachi.

3. The Tribunal, it was said, instead considered the Applicant’s submissions and evidence going to the practicality of relocation exclusively within the framework of the first limb of the relocation test. This, it was said, amounts to legal error, or a failure to consider a relevant consideration.

4. The Applicant does not suggest that the Tribunal failed to consider the submissions and evidence on the security situation for Shi’a in Karachi altogether. The contention is that it considered that evidence and submissions only in the context of determining the safety of relocation and failed to consider the reasonableness of relocation.

5. With respect to the Applicant, there appears to be a misreading of the Tribunal’s decision as the Tribunal clearly addressed the reasonableness of the Applicant relocating to Karachi and in doing so considered and rejected some of the Applicant’s submissions that argued that relocation to Karachi would be unreasonable, in a practicable sense.

6. At [103], the Tribunal said:

   103The representative made submissions and referred to country information that generally discussed higher levels of violence occurring in Karachi, the deaths caused by that and the harm that has caused to the economy in the city. This information indicated that this violence took place between rival gangs and in particular, political parties, which represent different ethnic groups in the city, among whom there are tensions.

   104. The Tribunal has considered this information, but it does not alter the Tribunal’s view about the level of risk for this Applicant. He has not ever been politically active and there is a significant Pashtun population in Karachi. The Tribunal considers that the risk of the Applicant being a victim of harm of this violence that occurs in Karachi is remote. While this violence has affected the economy in the city, it does not go so far as to say that there is little or no demand for labour there. As stated above, the Applicant is relatively well educated and has previous employment experience. He should be well placed to find employment and accommodation in Karachi.

7. Again at [111] the Tribunal said:

   111. The representative submitted that in view of conditions in Karachi in terms of the violence that takes place there and because he did not have family in Karachi the Applicant would not be able to find work or accommodation; he would live in poverty; he would not have an adequate level of subsistence and he would be at risk of violence. For all of those reasons, it was submitted that relocation was not reasonable.

   112. The Tribunal rejects those submissions. Karachi has a significant Pasthtun and Shi’a population. The Applicant speaks both Pashto and Urdu which are languages spoken in that city. The fact the Applicant does not have family in Karachi does not mean that he cannot establish himself there in terms of finding work and somewhere to stay and, therefore, in terms of subsisting. The Tribunal has acknowledged the violence that occurs in Karachi, but finds that the risk of the Applicant being a victim of that harm is remote and it will not prevent him from being able to settle and subsist in Karachi.

8. The above quoted paragraphs, although considerations of reasonableness were intermingled with the question of violence, there is significant and ample indication that the Tribunal addressed the issue of the reasonableness, in the sense of practicality, of the Applicant relocating. The Tribunal’s consideration of the practical aspects of the Applicant relocating are clearly addressed by the Tribunal’s consideration of the Applicant’s submissions in that regard, and the Tribunal’s consequential findings that addressed subjects such as the Applicant’s capacity to subsist have regard to the level of his education, his work experience, his capacity to find employment and capacity to find accommodation. The Tribunal found by necessary inference that he also would have the reassurance of living amongst Pashtun Shi’a in Karachi. The Tribunal also found that he could practice his religion without discrimination, nor would he be subject to discrimination in a general sense because of that religion.

1. In my view, the Tribunal clearly addressed the reasonableness of the Applicant’s relocation to Karachi and this particular of the ground must fail.

Conclusion

1. For the above reasons, the Applicant is unsuccessful in his review. The application filed on 18 March 2013, as amended, should be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer

Associate: 

Date: 30 May 2014