MZZKM v Minister for Immigration
[2014] FCCA 24
•17 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZKM v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 24 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal – refusal of a protection visa – whether the Tribunal erred in its consideration of whether or not it was reasonable for the Applicant to relocate in Pakistan – writ of certiorari issue – writ of mandamus issue – application remitted to Refugee Review Tribunal. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 91R |
| MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; (2012) 206 FCR 191; (2012) 133 ALD 276 SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 237 ALR 634; (2007) 81 ALJR 1659; (2007) 97 ALD 1 |
| Applicant: | MZZKM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 613 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 11 December 2013 |
| Date of Last Submission: | 11 December 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 17 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Smyth |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
That a writ of Certiorari issue quashing the decision of the Second Respondent made on 8 April 2013.
That a writ of Mandamus issue requiring the Second Respondent to hear and determine the application according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 613 of 2013
| MZZKM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
| REFUGEE REVIEW TRIBUNAL |
Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Refugee Review Tribunal made on 8 April 2013.
The decision of the Tribunal affirmed a decision of a delegate made on 18 January 2013 to refuse to grant the applicant a protection visa. The applicant’s case was presented before the Tribunal. The Tribunal generally found the applicant to be a credible witness and generally accepted his claims (paragraphs 34 and following).
Ultimately, the Tribunal concluded (at para.41) that there was a real chance that the applicant would face serious harm now or in the reasonably foreseeable future if he was to return to various places in Pakistan for convention reasons as a Shia Muslim from Parachinar, as a Turi tribe member and being imputed with having an anti-Taliban political opinion because of his background and relationship to his uncle who was a prominent Shia leader in Parachinar and Kurram.
The question that arises in this case is whether or not the Tribunal member appropriately determined the question of whether or not it was reasonable for the applicant to relocate within Pakistan. The Tribunal member identified the relevant test in the decision as follows:
42. Having determined that the applicant does have genuine fears FOR return to his home region, the Tribunal is required to consider whether the applicant could reasonably relocate to a separate part of Pakistan. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. [emphasis added]
The Tribunal member then turned to the first limb of the test, that is, identifying a location where a person could potentially relocate to avoid the risk of the occurrence of the feared persecution, saying:
43. The issue of whether it would be reasonable to expect an applicant to relocate within Pakistan only arises if the circumstances indicate that there is a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, that is, where the feared persecution is localised rather than nation-wide.
In this context, the Tribunal member identified the nature of the applicant’s claims with respect to persecution as follows:
44. The applicant states that he fears he will be persecuted across Pakistan because of his Shia background, because he comes from Parachinar, and because of his uncle’s prominent role. …
The Tribunal then went on to deal with these issues and, in particular, the claims relating to the applicant being a Shia Muslim at paras.45 to 47, but ultimately rejecting these fears as being fears that would be relevant in all areas of Pakistan (see paras.48 to 50). The tribunal concluded:
50. The Tribunal does not accept that Turis, Shias or Turi Shias from Parachinar are being targeted for harm in all of Pakistan. The Tribunal considers that there are areas of Pakistan that the applicant can relocate to where he will not be subject to persecution based on his Turi Tribe membership, Shia religion, previous domicile of Parachinar, relation to his uncle, or a combination of some or all of these Convention claims.
The Tribunal, at this point, then turns to the question of the reasonableness of relocating within Pakistan, having determined that there are alternative locations within Pakistan where the convention risk would not be a real risk to the applicant. In this regard, the Tribunal says:
51. Having determined that the applicant is able to relocate to a location in Pakistan where he will not be persecuted, the Tribunal then has to consider whether it is reasonable in all the circumstances for the applicant to do so.
52. The Tribunal put to the applicant personal information about his circumstances in relating to his relocating to other parts of Pakistan. This included his language skills, stated as being able to read write and speak English and Urdu, and speak Pashtu. The applicant is single with no dependents. He is well educated, and has established a business in the past as a taxi driver. Previously he had also been supported by the family farm and shops, as stated in his application. The applicant claims that his language skills are limited, that he has no family networks outside of Parachinar, that he has no wife, and that he will find it very difficult to find work because he is a Parachinar Shia, including his appearance, accent and ID card.
Having identified a number of the factors that bear upon the reasonableness of relocation, the Tribunal member then reached the following conclusions:
53. The Tribunal considers that in the circumstances of this applicant it is reasonable for the applicant to relocate to a different part of Pakistan where he will not face persecution. The applicant has a number of attributes that will allow him to establish himself in Pakistan. He has shown the capacity to develop his own business, has been educated to a degree level, has some capabilities in various languages and has previously been financially supported by his family in his endeavours. The Tribunal does not accept that the applicant’s appearance will draw any attention to him, or that any accent that is apparent when conversing with others will cause those people to whom he is conversing to identify the applicant as a Shia Turi from Parachinar or the nephew of a community leader from that region. The applicant’s ID card, which does identify the applicant’s home region, is produced on occasions when dealing with officialdom (entering Government buildings) and significant transactions, including renting property. The Tribunal does not consider that the use of his ID card will draw undue attention to the applicant as he will be using it at times of his choosing when going about his business and the having of the ID card does not mean that the applicant will be targeted for harm. The Tribunal considers that it is reasonable for the applicant to return to Pakistan to establish himself outside of the location where he faces persecution.
54. The Tribunal finds that the applicant does not face a real chance of serious harm amounting to persecution for the convention reasons of race, religion, membership of a particular social group or political opinion in Pakistan. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons.
The applicant argues that the Tribunal failed to apply the correct test in that it is alleged that the Tribunal member conflated the test to being one simply of whether or not the applicant would face a real risk of persecution in alternative locations within Pakistan, rather than independently identifying as the second step of the test whether or not it would be reasonable for the applicant to so relocate.
There was no dispute before me that the tests for persecution under the convention are different from the test of reasonableness to relocate as discussed by the High Court in SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 237 ALR 634; (2007) 81 ALJR 1659; (2007) 97 ALD 1 and by the Federal Court, for example, in the recent decision in MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; (2012) 206 FCR 191; (2012) 133 ALD 276.
Counsel for the applicant carefully identified a number of factors in the reasoning process contained in paras.53 and 54, which he argued indicated that the Tribunal member considered the question of reasonableness through the prism of whether or not there was a real risk of convention harm. In this regard, he identified that, in the first sentence of para.53, there is reference to a different part of Pakistan where the applicant will “not face persecution”.
He also identified that the second sentence of the paragraph dealt with factors that could also be covered by the relevant part of s.91R dealing with subsistence. He argued that the third sentence of the paragraph related to the convention based claim with respect to ethnic identity and his familial identity. Counsel also argued that the question of the ID card, as discussed, again related back to the convention-based fears. He then pointed to the last sentence where the summary finding with respect to reasonableness is made but with a reference to persecution at the end of the sentence. Counsel also pointed to the last sentence in para.54 which summarises, overall, that “accordingly” the applicant would not have a well-founded fear of persecution for the reasons set out above.
Viewing these matters, in isolation or cumulatively when one reads the decision as a whole, does not persuade me that the Tribunal member incorrectly identified or applied the test in the way discussed in SZATV or MZYQU. Indeed, it seems to me that, on a fair reading of the reasons, the tribunal member has intellectually separated the questions of identifying an area or region where the applicant would not be at risk of convention-based harm from other factors that would bear upon the reasonableness to relocate, as can be seen by the fact that the other factors are specifically discussed in paras.51 and 52.
Although, in this case, the overall findings at paras.53 and 54 all relate to factors that could well potentially fall within the various definitions and sections relating to the question of a protection visa, persecution, as well as a reasonableness to relocate, it does not of itself show that the Tribunal member erred in this regard. However, the applicant’s case did not end at that point and was developed further by reference to the transcripts.
The applicant argued that the Tribunal did not specifically consider his Shia religion, although it appears to me, as is apparent from the quotes above, that this was adequately considered in the context of the case.
Similarly argument was made that the Tribunal member had raised with him the difficulty that the applicant would have in finding a Parachinar wife if he were not living in that region and that this was only briefly touched upon by the tribunal at para.52.
To the extent that the question of finding a wife of a particular ethnic background was raised, it seems to me that it was sufficiently dealt with by the Tribunal in that they identified the issue about the fact that the applicant has no wife and the reality is that it is difficult to conclude that that could be a reason to show that a person could not relocate as, even if he were to be granted a protection visa and come to Australia, he would face the same difficulties about not living in a region where there were women of the particular ethnic group that he would seek to marry.
The most significant issue raised in this regard was the claim that relocation was unreasonable as a result of the generalised violence in Pakistan. Reference was made to material contained in, or attached to, submissions of the advisor as appears at court book pages 160, 161 and 169 (by way of example). At court book page 161, there is discussion of such levels of violence that even the United Nations withdrew from its program to attempt to vaccinate the children of Pakistan against polio. At court book page 161, there are lists of incidents that occurred in a variety of cities throughout Pakistan. At court book 169, there is discussion of the risk of an overall deterioration in the foreseeable future in Pakistan.
Importantly, in the course of discussion and at the tribunal hearing, as is evidenced by the transcript which was obtained in this case, the question of General Afzalas was specifically raised by the applicant. At page 17 of the transcript, the following exchange took place:
[Tribunal Member]: Yes. But that’s in Quetta and I’m not thinking that you could go to a place like Quetta. I mean if you could not go back to Parachinar, I’m not thinking of a place like Pashawa or Quetta or places like that. I mean there are other parts of Pakistan which [are] certainly don’t have the same level of violence that is happening in that part of Pakistan.
THE INTERPRETER: You can show me where I can go or where I will go. Until 3 March, there was explosion or bomb blast in Karachi, that how many people got killed.
Later in the transcript, the applicant was again directed to the question of relocation and sought to reinforce his claim by reference to the example of the Australian Cricket team’s attitude to travel to Pakistan. At that point, the following exchange took place:
[Tribunal Member]: … Okay. As I’ve said to you, the significant issue in this matter is the matter of relocation and whether you could relocate to an alternate part of Pakistan.
THE INTERPRETER: Because the Australian cricket team …. and none of the people from all over the world can go to Pakistan, because there is no security.
[Tribunal Member]: Yes, but unfortunately, that’s not the test that I have to apply, of the Australian cricket team going to Pakistan. It’s whether you, as a citizen of Pakistan, can return and go to another part of Pakistan where you will not be persecuted.
This latter passage from the transcript is of particular relevance. It appears from the comments by the Tribunal member that, at that point at least, the Tribunal member had conflated the test of reasonableness to relocate with the test for persecution. However, that was during the course of the hearing and even if, at that point, the tribunal member had conflated the two tests – clearly they had unpackaged them into the two separate parts by the time that the decision was made. It would not be unusual for a decision maker to have some lack of clarity about the precise operation of the law in an area during the course of a hearing which is clarified before the point of making a decision. That, in isolation does not, in the context of this case, seem to me to show an error.
However, the case develops further. Counsel for the applicant points to the fact that there was no discussion of generalised violence by the tribunal member when considering whether or not it was reasonable for the applicant to relocate within Pakistan. Counsel for the Minister could only point to the discussions by the tribunal member in the decision at paras.58-59 when dealing with the complementary protection regime as a location where the tribunal member had turned their mind to generalised violence in this decision. Those paragraphs provided:
58. The Tribunal has determined that the applicant does not have a real chance of serious harm in relation to his Convention claims. The Tribunal has gone on to consider whether there is a real risk that the applicant will suffer significant harm. The Tribunal does not accept that the applicant or his family faces a real risk from the Taliban and/or Sunni extremist groups due to his Turi background, Shia religions, family associations or Parachinar background. The applicant has claimed that he will be targeted across Pakistan because of his circumstances, but has not satisfied the Tribunal that this will occur, for the reasons provided earlier the Tribunal does not accept that there is a real risk outside of Pakistan and there are areas that are outside the place of localised harm where the applicant can relocate to. The Tribunal considers that the applicant will be able to practice his religion, find work, establish a home and support himself in parts of Pakistan where he will not be harmed because of his Shia Turi Parachinar background.
59. The Tribunal does not consider that the country information supports this claim. The Tribunal considers the weight of the country information, as shown above, to show that while there are sporadic incidents of violence in Pakistan, it is not so prolific as to cause the applicant to be at real risk of significant harm. There are incidents of violence in locations such as Rawalpindi and Islamabad, targeting political and military figures, but as shown in the country information provided by the applicant, security forces in these cities have been successfully foiling and limiting the violence perpetrated. The Tribunal finds that there is not a real risk that the applicant will suffer significant harm for these reasons. [emphasis added]
It is apparent from reading the paragraphs that the test being applied at that point was whether or not the generalised violence amounted to “a real risk of significant harm” within the meaning of s.36(2), that is, the complementary protection obligations. It seems to me that this cannot be reasonably read as having been the same test as the test of reasonableness to relocate, for two very significant reasons.
First, the reasoning that is set out by the High Court in SZATV with respect to the Refugee Convention, and as applied in more recent cases such as MZYQU, would by analogy be equally applicable to the question of whether or not a ‘real risk of significant harm’ is the same test as the test for reasonableness to relocate. Secondly, when one turns to s.36(2B)(a), the section clearly contemplates a consideration of the “reasonableness” of relocation as a requirement separate from the identification of a risk of significant harm for the operation of that section. Were they to be the same tests, one would have expected that the section could have been shorter and not mentioned the word “reasonable” at all.
It was conceded by counsel for the applicant that generalised violence could be sufficient for the purpose of determining it was unreasonable to expect a person to relocate. Counsel sought to argue that there will be considerable overlap between a risk of significant harm and facts and circumstances that may make it unreasonable to relocate. I accept this proposition, however the difficulty with it is that the considerable overlap is insufficient in this context. Clearly, the two tests are not the same and there may well be circumstances which are not sufficient to reach the test for significant harm for the purpose of the complementary protection provisions but may be sufficient when taken in the context of the case as a whole, or with other factors, some of which have been raised in this case at paras.51-52, to ultimately persuade the tribunal member that it is not reasonable to expect a person to relocate. I make clear that, in this particular case, I do not make any finding nor intend any inference to be drawn as to any view about what the ultimate outcome may or may not be.
As a result of this reasoning, it is apparent that the tribunal member either did not turn their mind to generalised violence in making a determination as to the reasonableness of the applicants relocating within Pakistan or, if one reads the comment at p.24 of the transcript together with the reasons, potentially, the tribunal member did not accept that generalised violence could be a relevant consideration for the purpose of whether or not it was reasonable to expect a person to relocate.
It is not necessary for me to determine which of these two potential errors occurred if I am satisfied that at least one of them must have come to pass. In the circumstances of this case, I am so satisfied and it is therefore appropriate to grant the applicant relief in the usual form.
I therefore make orders accordingly.
I note the parties have previously confirmed, via email to Chambers, that costs will follow the event.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 17 January 2014
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