MZZIG v Minister for Immigration
[2013] FCCA 1236
•6 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZIG v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1236 |
| Catchwords: MIGRATION – Application for judicial review of Refugee Review Tribunal decision – whether Tribunal erred in considering issue of relocation – whether Tribunal required to consider matters not specifically raised by applicant – nature of test as to relocation. |
| Legislation: Migration Act 1958 (Cth) |
| Applicant: | MZZIG |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 350 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 15 July 2013 |
| Date of Last Submission: | 20 August 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 6 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Waters |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 14 February 2013.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant’s costs fixed in the sum of $6,471.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 350 of 2013
| MZZIG |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
By an Application filed on 20 March 2013, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 14 February 2013, by which the Tribunal affirmed the decision of a delegate not to grant the applicant a Protection (Class XA) visa.
The grounds of application were not specified in any meaningful way in the application but an amended application, itself modified to an extent by oral submissions made, filed on 8 July 2013 sets out in essence, two grounds.
First, it is said that the Tribunal erred in the way it approached the issue of relocation. Put shortly, it was submitted that the consideration of the relocation issue required consideration of the possibility of harm occurring to the applicant in a generalised way, not limited to his Convention based claims. This can be further refined in the light of counsel for the applicant’s oral submissions. What was really put is that the Tribunal’s decision and reasoning focussed wholly upon the applicant’s claims, arising from his ethnicity and imputed political opinion and failed to have proper regard, as it was submitted should have been the case, to the risk of harm as a matter of general risk in the light of the disturbed situation pertaining in Karachi.
A subset of this submission is that the Tribunal erred in failing to indicate specifically to the applicant that it was Karachi that it was considering as a possible point of relocation.
The second ground advanced, which is interrelated with the first, is to the effect that the Tribunal should have adjourned to give the applicant a longer period of time to address the question of relocation.
It was also put, although this is a subset of the first ground, that the Tribunal’s approach to the issue of Complementary protection was infected with the same error as that which applied to its assessment of the Refugee Convention claims.
For the reasons that follow, I think applicant should succeed.
The applicant’s claims
The applicant’s Claims and Evidence are set out by the Tribunal at Court Book (“CB”) 180-181. In view of the unusual circumstances of this claim, because the applicant’s evidence was generally believed, it is not necessary to traverse the matters in the CB and the applicant’s claims articulated antecedent to the hearing in any detail.
The applicant was born in Parachinar, Pakistan in 1987. His protection claims are summarised at paragraph 22 (CB180). The applicant is a Pashtun Shia from Parachinar and is afraid:
“that if he returns to Pakistan Taliban and other Sunni extremist groups will kill him because of his religion and because people from his ethnic group oppose the Taliban having access to the local area.”
The Tribunal noted that the applicant’s claims had been considered by a delegate who refused them on the basis that he could relocate to another part of Pakistan and it was reasonable to expect him to do so. The same reasoning applied to whether or not the applicant met the Complementary protection criterion.
The applicant appeared before the Tribunal on 26 October 2012 with the assistance of an interpreter and a representative.
The applicant expanded upon his claims arising from his life in Parachinar. The Tribunal noted (paragraph 44, CB183) that the applicant had studied Urdu but concluded that he would not now be fluent.
It is fair to say that the applicant’s claims can be put as arising out of his membership of the Bangash tribe and being a Shia who would face danger from the Taliban wherever he was in Pakistan. This characterisation, in my view, is uncontroversial and it is not necessary to traverse the materials to give further details.
It should be noted that the Tribunal accepted the applicant’s claims of possible prejudice on the basis of being a Bangash tribe member and a Shia (see paragraphs 62-67, CB187-188).
The gravamen of the Tribunal’s subsequent Reasons for Decision relates to the relocation issue.
The relocation issue
Counsel for the applicant submitted, in my view correctly, that the Tribunal had focussed its considerations of the question of relocation and its practicability wholly on the claims advanced by the applicant as to specific harm, namely his ethnicity, his religion and imputed political opinion. Counsel made two comments in this regard. First, counsel pointed to paragraph 25 of the applicant’s advisor’s submission, as at CB140, which said:
“Should you conclude there are areas to which our client could relocate to avoid persecution, we would request that you inform us and provide us with ten working days to respond.”
This point relates perhaps more to the natural justice issue.
Second, counsel referred to Country Information provided by the applicant’s advisor at CB147. It is clear from the passage that begins at about point 6 with the words, “As recently as March 2012”, that the material referred to by the applicant’s advisor indicated endemic violence and unrest in Karachi.
What was submitted by counsel for the applicant was that the Tribunal failed to consider, as it should have done, whether the applicant was at risk not just in relation to Convention grounds, but in the context of relocation, to general endemic violence, both in the context of the Convention application and the Complementary protection criterion.
Counsel for the first respondent’s submissions concentrated on the essential proposition that the Tribunal had dealt with the applicant’s objections to relocation as they were stated. Indeed, it is apparent from a reading of the transcript as well as the Reasons for Decision that that is so.
Accordingly, this aspect of the matter boils down to the difference of opinion between the parties, that is whether or not it was incumbent upon the Tribunal to embark on “a broader consideration of the risks the Applicant might face than those he might face specifically by reason of his religion and ethnicity (or political opinion).” (applicant’s written submissions, paragraph 10).
At this point, it is appropriate to examine what actually took place before the Tribunal by reference to the transcript submitted following the hearing before the Court. At P-16, the Tribunal mentioned the applicant not being able to live in Rawalpindi or Islamabad. The Tribunal went on to assert that there had not been attacks against Shias in Rawalpindi or Islamabad (P-16).
At P-17 the applicant responded that such attacks were occurring to Shia people everywhere, in Karachi, Islamabad and Pindi. It is fair to characterise the responses from the applicant as being entirely concerned with himself and people of similar status (persons from Parachinar).
At P-19 and 20, the issue was dealt with further. The Tribunal member referred to attacks on Shias in Karachi and the advisor said, at CB20, that the applicant was not just a Shia but a Shia from a particular area which gave him a heightened profile.
At P-20, the Tribunal member said:
“Thanks for that. Mr (Applicant), I’ve just been having a discussion with your representative about your case. I was basically again talking to her about the risk of harm for you in Karachi, Islamabad and Rawalpindi, and she just made some comments about why it’s dangerous for you in those places. So I will consider her comments and submissions. I don’t have any more questions to ask you. Before I finish the hearing is there anything else you want to say about your case?”
Thereafter the applicant did not say anything relevant to this aspect of the matter.
In the end, I think this aspect of the matter can be dealt with relatively shortly. While no reasonable criticism can be made of the Tribunal for dealing with the matter in the way in which the applicant himself advanced his case, and no criticism has been or could be advanced of the way that the Tribunal dealt with those matters, the difficulty with the Tribunal’s decision is that it ignores the fact that the issue of relocation depends upon whether it is reasonable and practicable to relocate.
While, of course, it is for the applicant to make his or her case, the fact is that relocation is not merely a subset of the grounds of persecution or of significant harm, referred to in the Convention and in the Complementary protection criterion. It concerns whether or not it is reasonable and practicable for the applicant to relocate. The applicant’s materials (see paragraph 18 above) had squarely raised the issue of endemic violence in Karachi and the inevitable associated risks. Although not clearly pressed at the hearing, it was an issue that should have been addressed.
Put again shortly, the fact is that the applicant’s submission that the relocation principle is not limited to the Convention or the Complementary protection criterion in the sense that it involves broader considerations than mere persecution per se is, in my view, plainly correct.
It follows that the Tribunal misconstrued the test it was applying and fell into jurisdictional error in this regard.
Ground 2: natural justice
In the light of the conclusions I have reached in respect of the first ground advanced, it is not necessary to say over much about this issue. It is always for an applicant to make their case.
In my view, it is not open to an applicant or their advisor, as it were, to play cat and mouse with the Tribunal. It is well established that it is not for the Tribunal to reveal, from time to time, on a running basis, its process of consideration and the preliminary views it had reached. A request that, as it were, the Tribunal form a view and then give the applicant another opportunity to reconsider it is misconceived. The request of the applicant’s advisor that they be put on notice as to the Tribunal’s conclusion with an opportunity to put further submissions is, in my view, misconceived. There was no lack of natural justice in the Tribunal’s failure to accede to the advisor’s request.
Conclusion
In these circumstances, the applicant’s case is made out in relation to the first ground advanced and the applicant should have the relief he seeks. There will be orders accordingly.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 6 September 2013
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