MZZIJ v Minister for Immigration

[2013] FCCA 1910

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZIJ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1910

Catchwords:
MIGRATION – Risk of feared persecution localised – whether it was reasonable for the Applicant to relocate within the country of nationality – no error by the Tribunal in finding that relocation was reasonable – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

SZATV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1627

Applicant: MZZIJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 357 of 2013

Judgment of: Judge Whelan

Hearing date: 25 October 2013

Date of Last Submission: 25 October 2013

Delivered at: Melbourne

Delivered on: 25 October 2013

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore

ORDERS

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

2. The Application filed by the Applicant on 20 March 2013 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $4,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 357 of 2013

MZZIJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for judicial review of a decision of the

   
   

   Refugee Review Tribunal (“the Tribunal”) made on 27 February 2013. The Tribunal affirmed a decision of a delegate of the Minister dated

   
   

   25 May 2012 to refuse to grant a protection visa to the Applicant.

   
   

   In this application, the Applicant seeks:

   ·A declaration that the decision of the Tribunal is unlawful, void and of no force and effect;

   ·An order quashing or setting aside the decision of the Tribunal;

   ·An order directing the Minister, prohibiting him from acting upon or giving effect to, or proceeding further upon, the decision of the Tribunal; and

   ·An order compelling the Tribunal to consider and determine according to law his claim for a protection visa.[1]

   The Applicant also seeks costs and such further orders as the Court deems appropriate.[2]

   [1] Application of MZZIJ filed 20 March 2013, at p.2.

   [2] Ibid.

Background

1. The Applicant, who is a citizen of Pakistan, entered Australia in December 2011. He lodged a protection visa application on

   
   

   9 April 2012. The Applicant claimed to fear harm on his return to Pakistan from the Taliban and from the Lashkar-e-Jhangvi on account of his religion and ethnicity as a Hazara Shia from Quetta.

   
   

   The Applicant stated that he left Quetta for Iran in 2009 because the situation in Quetta was too dangerous. In 2010, the Applicant decided to return to Pakistan, but found that it still remained unsafe.

   
   

   The Applicant claimed he was required to travel on dangerous roads around Quetta in order to work, and that he had been told that a group of local Pashtun people wanted to kill him. At that point, the Applicant fled Pakistan for Australia.

2. The Applicant attended an interview with the delegate on

   
   

   15 April 2012 and on 25 May 2012, the delegate refused his application. On 31 May 2012, the Applicant lodged an application with the Tribunal to review the delegate’s decision. He was assisted in this process. On 5 July 2012, the Applicant’s representative submitted a written submission and independent country information to the Tribunal.[3] The Applicant was invited to attend a hearing on 2 August 2012, and attended with his representative. On 13 August 2012, the Applicant’s representative submitted a further written submission to the Tribunal.[4] The Tribunal issued its decision on 27 February 2013, and this application for review was made to the Court on 20 March 2013.

   [3] Court Book filed 5 June 2013, at pp.97-124.

   [4] Ibid, at pp.142-150.

The Tribunal’s decision

1. The Tribunal accepted, on the basis of the Applicant’s evidence and independent country information, that Hazaras in Quetta had been subject to a number of sectarian attacks in recent years. The Tribunal found, however, that the threat which the Applicant faced in Pakistan was localised to Quetta. The Tribunal found that there were no reports of Hazara Shias being attacked in Peshawar, and turned to consider whether it was reasonable for the Applicant to relocate to Peshawar.

2. The Tribunal had regard to independent country information which indicated that:

   ·Peshawar had welcomed Hazaras;

   ·Trade seemed to be thriving for many members of the Hazara community in Peshawar; and

   ·There was a neighbourhood where two-thirds of the population were Hazara Shias from Afghanistan.

   The Tribunal did not accept that there was any evidence to support the Applicant’s assertions that the Hazara Shia community in Peshawar had been the target of sectarian attacks. While the Tribunal accepted that there was a problem of sectarian violence throughout Pakistan, it found that the chance of an individual Shia, such as the Applicant, being killed or injured in sectarian violence outside of Quetta was very remote.

3. The Tribunal considered the Applicant’s objections to relocating. It had regard to the Applicant’s submission that his family would be at risk on the roads if they were to move from Quetta to Peshawar, but found there was no evidence to support that assertion. The Tribunal found that the Applicant’s parents, who only spoke Hazaragi, would be able to speak their own language within the Shia community in Peshawar. The Tribunal also had regard to the Applicant’s evidence that he had successfully earned a living as a welder in both Quetta and Tehran.

   
   

   For those reasons, the Tribunal found that it was reasonable for the Applicant to relocate to Peshawar to avoid the persecution in Quetta.

Grounds of application

1. In his application to the Court, the Applicant provided the following grounds:

   ·The decision of the Tribunal was effected by an error of law; and

   ·The decision of the Tribunal takes into account irrelevant considerations.[5]

   [5] Application of MZZIJ filed 20 March 2013, at p.2.

2. There were no written submissions provided by the Applicant, and in his oral submissions, the Applicant did not identify what irrelevant considerations the Tribunal took into account.

3. In his oral submissions today, the Applicant made the following points:

   ·

   Not one family had relocated from Quetta to Peshawar in

   
   

   13 years, and if it had been easy to do so, he would have gone there;

   ·He did not believe that the people identified in Peshawar as being Hazaras were Hazaras;

   ·He gave much emphasis to the dangers to people in Quetta, including women and children and people who did not have a high profile; and

   ·It was dangerous to return to Quetta because he was Hazara and a Shia, and because of the number of Hazara people being killed there.

The First Respondent’s submissions

1. In submissions to the Court, the First Respondent submitted that the test to be applied by the Tribunal was whether it was reasonable, in the sense of being practicable, for the Applicant to relocate to a region where objectively there was no real risk of the feared persecution. What is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact on that person of relocating to a place within the country of nationality.[6] The

   
   

   First Respondent submits that the Tribunal applied the correct relocation test in finding that it was reasonable for the Applicant to relocate to Peshawar. The Tribunal considered the objections to relocation raised by the Applicant and was entitled to rely on the country information, which it chose to rely on.[7] The First Respondent submits there was no jurisdictional error on the part of the Tribunal, and that it is not the role of this Court to review the factual findings of the Tribunal, or to consider afresh the claims the Applicant made.[8]

   [6] SZATV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1627.

   [7] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.

   [8] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259.

Conclusions

1. The Applicant has not identified the error of law or the irrelevant consideration which he claims caused the Tribunal’s decision to be one which should be quashed.

2. The Tribunal accepted that the Applicant was a Hazara Shia.

   
   

   It accepted that Hazaras in Quetta had been the subject of a number of sectarian attacks. The Tribunal accepted that the Applicant had a

   
   

   well-founded fear of persecution and the threat that he faced was localised to Quetta. The Tribunal was therefore obliged to consider if the Applicant could reasonably relocate within Pakistan. As Black CJ observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, the focus of the Convention is not upon the protection that the country of nationality might be able to provide in particular regions, but upon a more general notion of protection in the whole of the country.

3. The question to be asked is not merely whether an applicant could relocate to another area, but whether he or she could reasonably be expected to do so. The Tribunal put to the Applicant that he could reasonably relocate to Peshawar. It considered independent country information about the situation in Peshawar for Hazara Shias.

   
   

   The Tribunal also considered the particular circumstances of the Applicant, including:

   ·His previous capacity to relocate to Iran for work;

   ·His capacity to find employment on the basis of his skills as a welder in both Iran and Quetta; and

   ·The existence in Peshawar of a Hazara Shia community which spoke the Applicant’s language.

4. The Tribunal took into account the objections the Applicant raised, but did not accept them. This Court is not in a position to address those findings unless it is satisfied that the Tribunal applied a wrong test, or incorrectly applied the correct test.

5. In my view, in reaching its conclusions, I am unable to see where the Tribunal failed to apply the appropriate test of whether it was reasonable for the Applicant to relocate to Peshawar. The Tribunal considered the evidence before it and reached conclusions which were open to it on that evidence. I am further unable to determine that it took into account any irrelevant considerations or failed to consider relevant ones.

6. For these reasons the application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  19 November 2013