MZZJY v Minister for Immigration

[2014] FCCA 91

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZJY v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 91

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – whether Tribunal correctly applied “real chance” and “real risk” tests – whether Tribunal correctly applied complementary protection criterion – whether Tribunal erred in its consideration of relocation – whether decision of Judge Driver in SZSSM wrong.

Legislation:  

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91R

SZSSM v Minister for Immigration & Anor [2013] FCCA 1489
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: MZZJY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 560 of 2013

Judgment of: Judge Burchardt

Hearing date: 1 November 2013

Date of Last Submission: 16 December 2013

Delivered at: Melbourne

Delivered on: 4 February 2014

REPRESENTATION

Counsel for the Applicant: Ms Taylor

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Knowles

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application be dismissed. 

3. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 560 of 2013

MZZJY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By an amended application filed on 7 October 2013 the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 April 2013.  The applicant says that the Tribunal fell into jurisdictional error in four ways set out in the grounds of application.

2. The applicant's case is that the Tribunal erred in applying the “real chance” and the “real risk” tests, that the Tribunal erred in its consideration of the complementary protection obligations by failing to apply the criteria in s.36(2)(aa) of the Migration Act 1958 (“the Act”), that the Tribunal erred by misapplying the law regarding State protection and, finally, that the Tribunal erred in its consideration of relocation by the applicant within Pakistan.

3. For the reasons that follow I do not think that these criticisms can be made out and it follows that the application must be dismissed.

The materials before the Tribunal

1. Because of the way both sides put their case, it is necessary to review what the Tribunal actually had to consider when it was considering the applicant's claims.

2. At Court Book (“CB”) 11-19 there is a record of the applicant's arrival interview.  The applicant stated that his ethnicity was Turi Pashtun.  He said he had received threats from the Taliban because of money.  He complained that the Taliban blocked the roads and stopped people like Shias and people living in Parachinar city and cut their heads and kidnapped them because of money and otherwise harmed them.  He complained that there had been a lot of incidents and threats and that one night he was working and he was himself attacked.  He said it was very hard for him to stay at home because his family needed money for surviving and he sold his land.  Because security in Parachinar was very bad his family made the decision and told him to leave the country.  He said he had received threatening letters from the Taliban and that the police had done nothing to assist him because they had a connection with the Taliban.

3. At CB19, later in the interview the applicant was asked what would happen if he returned to Pakistan.  He said his business was now closed and would be hard to reopen because of the security situation in Parachinar.  He said that if he returned to Pakistan he would receive threats from the Taliban and also maybe lose his life.  When asked why he was being targeted he replied:

   “Because in Parachinar, my main job, I had a business, because that business I had in Khoat as well, because that business I had, because these people left Parachinar and are jealous of my business because the peoples are bankrupt and must to (sic) something to get back that one.”

4. At CB26 and following, there is a transcript of the interview between the applicant and the departmental officer in which the applicant essentially repeated in greater detail matters already recorded.  I note that relevantly the applicant identified at CB29 that Shia pray differently and national identity cards identify him as a Turi.  It should also be noted that the matters in the interview are consistent with matters earlier recorded.

5. The decision of the delegate is at CB99-114.  I note that at CB104 the delegate recorded the applicant as stating that he was identifiable as a Shia throughout Pakistan by the Taliban as Shias pray differently.  “He would also be identifiable as being a resident of Parachinar by his identity card, his accent and his name as the Turi tribe is known to be from that area.  He also believes that he will be targeted because he is young and that the authorities in Pakistan do not protect Shi’a’s and Turis.”

6. At CB111 the delegate accepted that the applicant "may have an accent distinctive to his home region and that his identification may distinguish him as coming from Kurram agency (and therefore put him at risk of harm because of his imputed political opinion anywhere in the country)”.  Nonetheless the delegate did not accept that these matters of themselves would put the applicant at risk of serious harm in the area outside the Federally Administered Tribal Region.  I note that at CB109 the delegate accepted the applicant's claims of fear of harm in Parachinar and said:

   “I am satisfied that the applicant does have a well-founded fear of harm within the local area as a person from Parachinar because of his imputed political opinion as someone who is obstructing and opposing the Taliban.”

7. The delegate went on to consider whether the applicant could relocate and concluded at CB112:

   “In conclusion, I am satisfied that it would be reasonable and practicable for the applicant to relocate within Pakistan if he fears harm from the Taliban in FATA.”

8. On this footing the delegate decided that the applicant was not owed Convention protection. At CB113-114 the delegate reached a similar adverse conclusion in relation to the complementary protection obligation in s.36(2)(aa) of the Act.

9. At CB178 and following, the submissions made by the applicant's representative to the Tribunal are set out.  The applicant's claims are clearly articulated at CB178-179.  He claimed to fear persecution throughout Pakistan for the following reasons:

   a)his religion (Shi’a Muslim);

   b)his imputed political opinion of opposition to the Taliban;

   c)his membership of the particular social group of the Turi tribe; and

   d)his membership of the particular social group of Shi’a Muslims from the Parachinar region of Pakistan (CB178).

10. The imputation of the political opinion arose from:

    a)membership of the Turi tribe, whose elders have taken an active stance of opposition to the Taliban since at least 2007;

    b)membership of the particular social group of Shi’a Muslims from the Parachinar region of Pakistan, who are imputed with a political opinion of support for the Turi leaders of that region, who are opposed to the Taliban; and

    c)Shi’a Muslim faith, which is offensive to Taliban ideals (CB178).

11. The submission also referred to the applicant's national identity card which clearly identifies him as a Shi’a Muslim born in the Parachinar region of Pakistan and referred to his accent betraying his place of origin (CB178).

12. The submission went on to say, "In particular, Mr (applicant) fears that he will be seriously physically harmed or killed by the Taliban and/or other militant Sunni groups in Pakistan" (CB179).

13. Having paraphrased the delegate's decision at CB179-180 the submission went on to say at paragraph 17 (CB180):

    “Firstly, Mr (applicant's) primary claims are that he is persecuted because he is easily identifiable as a Shi’a Muslim of the Turi tribe from Parachinar.  There is a wealth of independent country information available to demonstrate that Shi’a Muslims of the Turi tribe from Parachinar in Pakistan face continued persecution by the Taliban and other such groups throughout Pakistan.  On this basis, we submit that our client's fears are well-founded.”

14. The submission went on at paragraph 24 (CB181) to refer to attached country information indicating matters in support of the applicant's contentions and at CB181-183 more detailed submissions were made about the applicant's membership of the particular social group identified.

15. At CB184-186 the submission dealt with the issue of relocation and submitted that this would not be practicable in the circumstances. At CB186 the submission dealt with State protection and submitted that this would not be available (paragraph 48). At CB186-190 the submission addressed the issue of complementary protection. It was submitted that ‘significant harm’ in s.36(2A) of the Act should be interpreted as requiring a lower threshold of harm than ‘serious harm’ in s.91R of the Act (paragraph 53 CB187). The submission concluded (paragraph 68 CB189) that the applicant had a well-founded fear of significant harm in the future in the event that he were to be returned to Pakistan.

16. The country information referred to is CB191-214.  It included material relating to the persecution of Shi’a Muslims in Pakistan (CB193-200), material relating to persecution of the Turi tribe in Pakistan (CB201-205) and material relating to attacks on Shi’as in Islamabad and Rawalpindi (CB206-208).  At CB209-212 there is country information relating to political opposition to the Taliban in Pakistan and at CB213-214 there is information relating to previous Tribunal decisions regarding Shi’as in Pakistan.

17. This information is clearly material cogent and relevant to the applicant's application.  There is no question that the Turi tribe has faced persecution in the Parachinar region.  I note at CB204-205 under the heading Karachi the following was set out:

    “No reports have been located that state that Shi’ite Pashtun tribes and sub-clans such as the Turi and Bangash have been specifically targeted for harm in Karachi.  There are, however, numerous examples of both Shi’ites groups and individuals being targeted for harm for both ethnic and sectarian reasons.”

18. The material went on to instance examples of mass attacks on Shi’ites in Karachi.

19. In those circumstances the submission made by the applicant at CB205 that:

    “Turis throughout Pakistan have been targeted for violence, regardless of their distance from the Turis' traditional homelands in the Kurrum Agency of the FATA”

    is not necessarily made out.  The instances of violence outside the FATA are, so far as I read the materials, limited to Shi’ites generally.

The Tribunal's decision

1. The Tribunal set out the application and summarised the relevant law at CB239-241.  Although I accept the submission of the applicant that a mere correct enunciation of the law at the commencement of the decision does not protect the Tribunal's decision in the event that the law is not in fact applied, it is fair to say nonetheless that the summary of the refugee criterion and the complementary protection criterion seems to me to be correct.

2. The Tribunal went on at CB241-244 to set out the claims and evidence.  I note, inter alia, that the interview with the delegate was defectively recorded and the Tribunal was unable to listen to it.  No point has been taken arising from this difficulty.

3. The Tribunal recorded the evidence given by the applicant at CB243-244 and once again no challenge has been made to the accuracy of that recitation.

4. The Tribunal also had before it of course the applicant's statement of claims as set out in the Supplementary Court Book filed 24 October 2013, but it is noteworthy that those matters were, in my view, merely consistent with the claims the applicant has made throughout.

5. The Tribunal set out country information at CB244-250.  The Tribunal noted that the security situation in the area where the applicant lived was still extremely uncertain and then dealt at CB247 with the situation in Karachi for Shi’as from the Kurram Agency.  The Tribunal said (at paragraph 57 and following):

   “57.  No information was located specifically relating to the size of the Turi community in Karachi.  Limited information was located relating to the security of Turi residents of Karachi.

   58.  Karachi is home to an ethnic Pashtun population estimated to be between four and seven million.  Shia Muslims reportedly constitute 30 per cent of the city's population.  No information was located indicating what proportion of Karachi's Pashtun population observes Shia Islam.  The population of Karachi is estimated at being 18 million.

   59.  Sunni extremist groups have a presence in the city.  The ICG reports that due to threats against the Shia Imam Bara mosque, the former president of the mosque turned it "into a fortress, with armed guards on the rooftop during Friday prayers".  The Express Tribune reported in March 2012 that Shia neighbourhoods in the city are "visibly barricaded and fortified".

   60.  The predominantly Turi student group the Youths of Parachinar (YoP) has a presence in Karachi and has staged demonstrations in the city without incident.  In May 2011, the YoP marched through Karachi, demanding that the Pakistan Army take action against the TTP in Kurram.  The march was concluded without incident.

   61.  More generally, Karachi has witnessed a number of large scale attacks on Shia targets since late 2009.  A March 2010 report, The Open City: Social Networks and Violence in Karachi, states that following "a lull of two years ... Shia religious processions were bombed in December 2009 and February 2010, claiming over sixty lives".  The Human Rights Commission of Pakistan reported that following an attack on a bus carrying Shia Muslims in February 2010, terrorists targeted a hospital where survivors were taken; "[t]he terrorists first targeted a bus carrying Shia mourners to a Chehlum procession and later a hospital where casualties from the first bombing were taken for treatment.  Over 100 people were injured.  People who had gathered at the hospital to donate blood were also among the casualties of the second bombing".

   62.  In September 2010, there was a further attack on a Shi’a religious procession with casualties.  The Daily Times reported that two people were killed and 18 others injured on 17 August 2012 in a bomb attack on a bus in Karachi.  The passengers were Shias who were travelling to a Youm-e-Quds rally.  It was reported that “[p]olice investigators suspected the involvement of militant organisations, especially the outlawed Lashkar-e-Jhangvi and the Tehreek-i-Taliban Pakistan”.

   63.  Five Shi’a men were killed in separate incidents in Karachi in November 2012.

   64.  While not specific to Shi’as from the Kurram agency, the Tribunal notes that Shia professionals have been targeted and killed in cities in Pakistan including in January 2012, three lawyers were assassinated in Karachi.  Shi’a doctors have also been killed in that city in 2010.  On 28 January 2012, a Shia doctor named Jaffer Mohsin Rizvi was killed in Karachi by two unidentified men on a motorbike.  The Friday Times described Rizvi as being "a victim of the ongoing wave of ethnic and sectarian violence in Karachi".  It was also reported that police "suspected that he might have been murdered on the sectarian grounds as he was a prominent and practising Shia who was actively involved in religious proceedings".

   65.  The Tribunal does not have specific information about the ability of the Tehreek-e-Taliban to track down and find people who have relocated within Pakistan to escape them.  The Tribunal notes that in April 2011 a list of "prominent political party leaders and traders in Karachi" was found during police raids on TTP locations, and in June 2011 a list "containing the names of senior leaders of political parties and police officers" was found.

   66.  Although it is not clear whether such lists are shared across the TTP network, a 2009 report on a Chinese news website indicates that hit lists are sometimes made public.  The report states that in 2009 in KPP, the TTP published a hit list of "45 political leaders, ministers, members of parliament, elected councillors and prominent personalities".  In a 2008 report posted on Global Hujra, a Pashtun news forum, a TTP spokesperson stated with regard to people on a TTP hit list that "We will hit them wherever we find them".  No information was found suggesting that local political activists or members of religious minorities are placed on TTP hit lists.”

6. I note that the Tribunal discussed this country information with the applicant in the context of his going to live in Karachi where there appeared to be only a remote chance that he would suffer harm for being Shi’a and a Pashtun Turi from Parachinar.  The Tribunal pointed out that there were at least 26 million Shi’as living in Pakistan and attacks against them were predominantly carried out in the northwest of the country.  The Tribunal told the applicant that 30 per cent of the population of Karachi was Shi’a and that while the Tribunal accepted he could be identified as a Pashtun Shi’a Turi from Parachinar it had no reports on attacks for such people being made in Karachi.  And the attacks that had been reported predominantly occurred at places where there were large numbers of Shi’as such as religious processions and that targeted killings of individual Shi’as who did not appear to have a profile as professional or in some other way were isolated.

7. The applicant's response (paragraph 71 CB249) was that Karachi was the third most dangerous place in Pakistan after Parachinar and Quetta.  “If he could live safely in Karachi he would never have risked his life to travel to Australia by sea”.

8. The Tribunal then put it to the applicant that while there was limited information as to the sort of person the Taliban would pursue from one part of Pakistan to another, he was not such a person.  In reply the applicant said that if his petrol station had not been attacked and he had not received threats from the Taliban he would have agreed but because of this did not do so.

9. The Tribunal's findings and reasons are at CB250-257.  The Tribunal accepted "as credible the account of events narrated by the applicant at the hearing which the Tribunal regards as being the same as that he advanced at his interview with the delegate and as advanced in the statement he lodged with his protection visa application" (paragraph 76 CB250).

10. The Tribunal accepted (paragraph 77 CB250) that there was “a real chance the applicant would suffer serious harm for the essential and significant reason of his religion and adverse opinions imputed to him by Sunni’s who would wish to harm him if he was to return to Parachinar and, more broadly, the Kurram Agency”.

11. The Tribunal therefore considered whether or not it was reasonable for the applicant to relocate to a region in Pakistan where objectively there was no appreciable risk of such persecution.

12. At paragraph 79 (CB250) the Tribunal said:

    “The Tribunal finds that there is no appreciable risk of the occurrence of the persecution the applicant fears in Karachi.  The Tribunal has set out the above its reasons why the risk of the applicant suffering harm on the basis of his religion and his tribal ethnicity is remote.  The Tribunal does not have reports of Pashtun Turi Shi’as from Parachinar being attacked in Karachi and considers that, in view of the size of the Shia population in Karachi, considered against available country information about attacks on Shi’as in that city, the risk of the applicant suffering harm on that basis is remote.”

1. Although the Tribunal accepted (paragraph 80 CB250) that the applicant had received threats from the Taliban when living in Parachinar and that they had fired on his petrol station business, the Tribunal did not accept that the applicant would be pursued by the Taliban or of interest to them in Karachi.  It found (paragraph 81 CB250) that the applicant's profile was not significantly high for this to occur.

2. The Tribunal went on to say (paragraphs 84-85 CB251), having found that the risk of the applicant suffering harm in Karachi was remote, that:

   “84.  In addition, the applicant speaks both Pashtun and Urdu.  He is relatively well educated having completed high school and also a university degree.  He operated a petrol station business and has also done voluntary work as a teacher.  The Tribunal considers that in the light of those matters he should be well placed to be able to settle in Karachi and find employment there.

   85.  For all of these reasons, the Tribunal finds that the applicant can reasonably be expected to relocate to Karachi where there is not an appreciable risk of the occurrence of the feared persecution.  His fear of persecution in Pakistan is not well founded.”

3. The Tribunal went on at paragraphs 86-92 (CB251-252) to deal with submissions made by the representative at the hearing.  Given the grounds of appeal presently before the Court, those matters require no further attention.  The Tribunal went on at paragraphs 93-122 (CB252-256) to deal with the applicant's representative's submissions in writing.  Like Judge Driver in the decision of SZSSM v Minister for Immigration & Anor [2013] FCCA 1489 (“SZSSM”), I find the methodology of dealing with the submissions after the finding and reasoning slightly counterintuitive, but like his Honour I do not think that of itself this shows jurisdictional error.

4. The Tribunal's observations about the applicant's written submissions do not, given the findings already made, take the matter much further.  I note that the Tribunal did deal with a submission that the applicant could not reasonably be expected to relocate to Karachi because he had no common or familial or tribal network supports there.  The Tribunal said at paragraph 102 (CB253):

   “The Tribunal appreciates the applicant does not have friends and family in Karachi or networks which could assist him to settle there.  However, the Tribunal is not satisfied the applicant will be unable to subsist in Karachi given his level of education and work experience.  While the representative claimed the applicant's family were dependent on him, the applicant told the Tribunal that in fact they are managing to support themselves from savings accumulated through the sale of a petrol station business and family land.”

5. Finally the Tribunal dealt with the issue of complementary protection at paragraphs 123-131 (CB256-257).  The Tribunal accepted that there was a real risk that the applicant would suffer significant harm in the Kurram Agency (paragraph 124).  At paragraphs 126-127 the Tribunal said:

   “126.    The Tribunal has set out above its reasons for finding that the risk of the applicant suffering harm in Karachi is remote and so, for the same reasons, the Tribunal finds that there is not a real risk the applicant will suffer significant harm there.  As stated above, the applicant speaks Pashtun and Urdu; he is relatively well educated and has previous employment experience.  Accordingly he should be well placed to settle and find employment in Karachi notwithstanding the fact he does not have a network, family or friends in that city (as raised by the representative in the written submissions of 14 December 2012).

   127.    For all of those reasons, the Tribunal finds that it would be reasonable for the applicant to relocate to that city where there would not be a real risk that he will suffer significant harm.”

6. At paragraphs 129-131 (CB256-257) the Tribunal said:

   “129.In assessing the issue of the applicant relocating to Karachi to avoid persecution in the Kurram Agency and in terms of the complementary protection criterion it has taken into consideration the fact there is no country information reporting that Pashtun Shi’as from Parachinar are the victims of attacks or harm in Karachi.

   130.    The Tribunal exercises caution in taking that consideration into account when determining if the applicant can safely live in Karachi and whether it is reasonable to expect him to do so.  The Tribunal acknowledges the possibility that reports of Pashtun Shi’as being harmed there may not have been made or are not available.  However, attacks on Shi’as in Karachi are widely reported and there is ample available country information about that.

   131.Those reports disclose those attacks taking place on the basis of religion rather than because the victim was from a particular ethnic group or from a particular part of Pakistan.  In those circumstances, the Tribunal regards it as fair and appropriate to infer from that information and the absence of specific reports of Pashtun Shi’as from Parachinar being targeted in Karachi, that the risk of this applicant suffering harm there is remote.”

The grounds of application

Ground 1.  The Second Respondent erred in applying the ‘real chance’ and the ‘real risk’ tests.

1. Before traversing this ground I make some brief general observations.  I accept the submission of the first respondent that it is necessary to read the Tribunal's decisions fairly and as a whole.  I further accept that each case is to be considered on its own facts.  I likewise accept that it is well established that a decision of this sort should not be trawled through with an eye overly attuned to the identification of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). In the end it is a matter of looking at what the Tribunal did in a fair way and seeing whether it properly discharged the function it was required to discharge.

2. While the applicant's written and oral submissions referred in passing to the complementary protection obligation in this regard, the primary submission made was that the Tribunal fell into error by:

   “13.  It appears from this tract of reasoning that if the applicant had claimed fear of serious or significant harm on the basis of being Shi’a but not a Pashtun Turi Shi’a from Parachinar, the Tribunal would likely have assessed the risk that faced him as much higher.  This constitutes an error.

   14.  Contrary to the exercise of reasoning that it appears to have undertaken, the Tribunal is not required to find that the applicant will be persecuted on the basis of a combination of the Convention grounds claimed ("Pashtun Turi Shi’a from Parachinar"); rather, it is sufficient that the applicant face a real chance of persecution on the basis of one or more of the claimed grounds (i.e. Pashtun or Turi Shi’a or from Parachinar)” (paragraphs 13 and 14 of the written submissions filed 8 October 2013).

3. It was submitted (paragraph 19) that it is not required that each and every integer of a claim be made out in order to establish a well-founded fear of persecution.

4. I would indicate that I accept the force of that submission so far as it goes.

5. In oral submissions the point was made that the Tribunal found that there was no real risks to the applicant in Karachi.  There was no evidence as to the particular circumstances of Turi Pashtun Shi’as from Parachinar but the Tribunal also found that the number of Shi’as in Karachi was large enough for any risk to the applicant to be remote.  It was submitted that there was a logical gap between these two positions.

6. The submissions of the first respondent filed 25 October 2013 point out (paragraph 4.5) that the Tribunal correctly set out the definition of the term "refugee" and that the Tribunal has correctly indicated the law in its introductory remarks.

7. At paragraphs 4.6-4.9 the first respondent submitted:

   “4.6. The Tribunal's statement of applicable legal principle does not disclose any error.  In this regard; 

   (a)  a person's fear of persecution will be well founded if it is shown that there is a “real chance” that it will occur; and

   (b) a “real chance” of persecution excludes a far-fetched or remote possibility of persecution.

   4.7. The Tribunal's findings and reasons do not disclose any departure from its correct statement of principle.  In particular, the Tribunal found that, in Karachi, there was no appreciable risk of the occurrence of the harm which the applicant feared.  The Tribunal found that the possibility of the applicant suffering harm in Karachi was “remote”.  On the material before the Tribunal, it was open to the Tribunal to do so.

   4.8. Once the Tribunal had found that the possibility of the applicant suffering harm in Karachi was remote, it followed that there was not a real chance that the applicant would suffer that harm.  It was therefore open to the Tribunal to conclude that the applicant's fear of harm was not well founded.  The Tribunal's reasoning in respect of this conclusion does not disclose any misapplication of the pertinent legal principles.

   4.9. The same legal principles relevantly govern consideration of “real risk” for the purpose of the visa criterion in s 36(2)(aa). Assessment of the existence of that risk involves ascertaining whether or not there is a real chance that a person will suffer harm and, in particular, significant harm. As observed at paragraph 4.6 above, it is well established that a real chance of harm excludes a far-fetched or remote possibility of harm.”

8. The written submissions go on to deal with the aggregation of the various integers (at paragraph 4.12) as follows:

   “The applicant otherwise asserts that the Tribunal was wrong to assess the risk or chance of harm faced by him as a result of his status as a “Pashtun Turi Shi’a Muslim from Parachinar”.  However, the Tribunal was entitled, and even obliged, to give cumulative consideration to the applicant's claims in this way.  This was one of the very ways in which the applicant advanced his claims before the Tribunal.”

9. In my view, this aspect of the controversy falls to be considered against the following two central findings the Tribunal made about this aspect of the matter.  The Tribunal found, and there appears to be no challenge to this finding, that there was a paucity of information about the circumstances of Turi tribesmen from Parachinar who were Shi’as and who lived in Karachi.  This is so notwithstanding that there appeared to be, according to the country information, an appreciable number of such persons in Karachi.  In my view, the Tribunal can scarcely be criticised for not making findings in the absence of such detailed information.

10. What the Tribunal did do was take the information that was available to it, namely information about Shi’as generally and draw inferences from it.  In those circumstances, in my view, this was a reasonable application by the Tribunal of such information as was available to it.  On any view of course the applicant is a Shi’a in any event.

11. In my view, a fair reading of the Tribunal's decision as a whole does not suggest that the Tribunal unfairly assessed the applicant only as, as it were, a composite of his various claimed integer elements.  It certainly considered the applicant in that way, but in my view the Tribunal's reasoning was unobjectionable in as much as it shows a process of engaging properly with the evidence that was to hand.

12. I will deal in more detail with the decision of Judge Driver in SZSSM later, and would say that while I share his Honour's reservations about the proposition that there is safety in numbers, I reach the same conclusion as his Honour did that this aspect of the reasoning does not disclose jurisdictional error.

Ground 2. The Second Respondent 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 the law.

1. I accept the applicant's submission (paragraphs 27-28 written submissions) that the relevant issue in this case is whether there is a real risk that the applicant will suffer significant harm if returned to Pakistan.

2. As articulated in the applicant's written submissions the argument here appears to suggest that the Tribunal having found that the State was unable to protect its citizens from sectarian violence (paragraph 115 CB255) the Tribunal erred in failing to consider whether such a failure "constitutes an arguable real risk of arbitrary deprivation of life, and would give rise to protection obligations" (paragraph 38 applicant's written submissions).

3. In my view, the submission of the first respondent at paragraph 4.22 of the written submissions is correct.  The submission reads:

   “In this regard, the Tribunal's findings in respect of the criterion in s 36(2)(a) were sufficiently broad to apply equally to the criterion in s 36(2)(aa).  In particular, the Tribunal made findings in respect of the criterion in s 36(2)(a) which were directed not only to the risk of persecution but, rather, the risk of any harm at all, whether serious, significant or otherwise.”

4. The Tribunal clearly understood what the complementary protection criterion was.  The Tribunal accepted that the applicant faced a real risk of significant harm in the Kurram Agency (paragraph 124 CB256).

5. The Tribunal, in my view, correctly set out the test at paragraphs 125-126 (CB256) as follows:

   “125.    However, 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, then there is taken not to be a real risk that an applicant will suffer significant harm in that country.

   126.The Tribunal has set out above its reasons for finding that the risk of the applicant suffering harm in Karachi is remote and so, for the same reasons, the Tribunal finds there is not a real risk the applicant will suffer significant harm there...”

6. In summary, the Tribunal found that while there were undoubtedly some element of security risk in Karachi, and that those risks were interrelated with a failure of the State to be able to protect its citizens, there was not as a matter of fact a real risk or significant risk of harm to the applicant.  Minds would disagree as to whether that finding was appropriate, but in my view the Tribunal turned its mind correctly to the question it was required to decide.  Its process of doing so does not, in my view, reveal jurisdictional error.

Ground 3.  The Second Respondent erred in law by misapplying the law regarding State protection.

1. This ground was not pressed beyond the written submissions at hearing.

2. It is sufficient to say that I accept the submission of the first respondent.  There was no need for the Tribunal to consider State protection in circumstances where it had found that the applicant did not in fact face harm whether in the form of a real risk of serious harm or a real risk of significant harm.

Ground 4.  The Second Respondent erred in considering whether the applicant could relocate within Pakistan to avoid

a)persecution for a Convention reason (s 36(2)(a)); and/or

b)a real risk of significant harm (s 36(2)(aa)).

1. In the written submissions, the applicant's submissions concentrated on the failure of the second respondent to consider the lack of family support available to the applicant if he relocates and the linguistic differences that would identify him as a member of the Turi tribe.  The written submissions also complain that:

   “54.The Tribunal at [102] errs in law by stating that it is “not satisfied that the applicant will be unable to subsist in Karachi”.  This is a significantly higher standard than the well-settled threshold of “reasonable in the sense of practicable”. 

   55.Further, the Tribunal failed to consider meaningfully the “material and psychological wellbeing” aspects of the reasonableness of relocation, turning its mind only to whether he would be able to subsist in a financial and economic sense” (paragraphs 54 and 55 of the applicant's written submissions).

2. The written submissions go on to assert that the Tribunal failed to consider whether relocation would prevent the applicant from the risk of significant harm for a non-Convention reason, this being the kind of harm contemplated by the complementary protection provision (paragraph 57 of the applicant’s written submissions).

3. The first respondent's submissions assert, in my view correctly (paragraph 4.30) that the criticism that the Tribunal failed to consider the lack of family support of the applicant is flatly contradicted by the Tribunal's reasons (see, for example, paragraph 126 CB256).

4. Likewise, the Tribunal was well aware that the applicant's accent might be such as to identify him.

5. The criticism of the Tribunal's phraseology in saying that it was "not satisfied that the applicant will be unable to subsist in Karachi given his level of education and work experience" (paragraph 102 CB253) in my view is to fix upon one particular phrase in a way that is not a fair reading of the Tribunal's reasons as a whole.  Looked at properly, it is clear, in my view, that the Tribunal was well aware of the test for relocation, namely, whether it is reasonable and practicable in the applicant's circumstances to do so.

6. Further, I do not think that it can be fairly said that the Tribunal utterly ignored the question of the applicant's psychological wellbeing in the event of relocation.  The applicant did not in fact raise these matters in terms, but a fair reading of the Tribunal's decision, in my view, suggests that the Tribunal had regard to the applicant's circumstances in a broad and general way.

The decision of Judge Driver in decision SZSSM

1. Both parties have forwarded written submissions about this case.  It had a number of striking factual similarities with this one.  The applicant understandably emphasised those similarities and invited the Court to draw the same conclusions as Judge Driver.  Equally unsurprisingly the first respondent sought to emphasise points of differentiation.  It was further hinted, albeit perhaps not actually stated in terms, that Judge Driver’s decision was wrong.

2. With respect, I do not think that Judge Driver’s decision was clearly wrong and I would apply it if it were directly applicable here.  The difficulty is of course that each case turns on its own facts.  I do not accept the criticisms advanced by the first respondent in supplementary submissions filed 16 December 2013 at paragraphs 2.7 and 2.15 as to Judge Driver’s process of reasoning.  I am not prepared to find that that decision was wrong and should not be followed.

3. What needs to be born in mind however, is that although I do of course have Judge Driver’s decision, which does set out those aspects of the materials which his Honour felt were necessary to be addressed for him to come to a decision, I do not have the court book in that case and the entirety of the materials available to his Honour.  And indeed I do not have the entirety of the Tribunal's decision with which his Honour dealt in that decision.  Each of these cases, I say at the risk of repetition, is required to be attended to according to its own particular facts and circumstances.  While there are clearly striking similarities between SZSSM and this case, in the ultimate it seems to me that I should determine the matter on its own facts and I have done so.

Conclusion

1. For the above reasons, the application is not made out and will be dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  4 February 2014