MZZQV v Minister for Immigration - [2014] FCCA 1912

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQV v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1912

Catchwords:
MIGRATION – Application for judicial review of the Refugee Review Tribunal – Applicant a Pakistani national – issue of the Applicant’s relocation within Pakistan – whether the Applicant would face discrimination because of Pashtun ethnicity – whether the Tribunal failed to deal with an integer of the Applicant’s claim – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Januzi and Ors v Secretary of State for the Home Department [2006] 2 AC 426
MZYXP v Minister for Immigration and Border Protection (2013) 137 ALD 348
Minister for Immigration and Citizenship v Khadgiand Anor (2010) 190 FCR 248
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
SZMCD v Minister Immigration and Citizenship (2009) 174 FCR 415
SZSUY v Minister for Immigration and Border Protection and Anor [2014] FCCA 1

Applicant:

MZZQV

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1326 of 2013

Judgment of:

Judge Whelan

Hearing date:

3 April 2014

Date of Last Submission:

3 April 2014

Delivered at:

Melbourne

Delivered on:

29 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr Smyth

Solicitors for the Applicant:

Victorian Legal Aid

Counsel for the First Respondent:

Mr Hill

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

That the Application filed 21 August 2013 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1326 of 2013

MZZQV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 July 2013. That decision affirmed a decision by a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.

Background

The Applicant is a national of Pakistan who arrived in Australia on

1 July 2012 on a student visa. On 18 September 2012, the Applicant applied for a protection visa. This application was accompanied by a statutory declaration by the Applicant.[1] He claimed his life was in danger from the Taliban and referred to incidents between 2008 and 2011 in support of his claim.
[1] Court Book filed 3 October 2013, pp.27-29.
The Applicant was interviewed by a delegate of the Minister on

8 November 2012 and on 29 November 2012, the delegate found that the Applicant was not a person to whom Australia owes protection obligations under s.36 of the Migration Act1958 (Cth)

(“the Act”).
On 17 December 2012, the Applicant applied to the Tribunal for a review of the delegate’s decision. On 5 June 2013, the Applicant’s representative sent a submission to the Tribunal.[2] It was submitted that it was not possible for the Applicant to relocate safely anywhere in Pakistan; in particular, that it would be manifestly unreasonable to expect the Applicant to relocate to another city in Pakistan, and he would face discrimination across Pakistan on account of his Pashtun ethnicity.
[2] Court Book filed 3 October 2013 at pp.123-127.
The Applicant also provided a second statutory declaration dated

27 May 2013.[3] This included claims that:
·It was difficult for Pashtuns to move to different parts of Pakistan;
·The Applicant could not live somewhere like Islamabad; and
·The Applicant had no other family members in parts of Pakistan other than Swat Qaumi Ittehad (“the SQI”) who could support or assist him.
[3] Ibid at pp.138-143.
On 11 June 2013, the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter. On 18 June 2013, the Applicant’s representative provided further submissions and supporting documents.[4] This included submissions addressing the possibility of relocation, including a submission that he will face discrimination across Pakistan on account of his Pashtun ethnicity.
[4] Ibid at pp.154-174.
On 24 July 2013, the Tribunal affirmed the delegate’s decision.[5] On

21 August 2013, the Applicant applied to this Court for review of the Tribunal’s decision.
[5] Ibid at pp.178-200.

The Tribunal’s decision

The Tribunal accepted that the Applicant was a Pakistani national. The Tribunal expressed some concerns about the credibility of the Applicant’s claims, and considered that some aspects of the Applicant’s claims had been embellished to strengthen his claims for protection.
The Tribunal accepted that the Applicant’s father was a member of the Koza Bandai Peace Committee, and that his uncle may have been a member for a short time before his death in August 2008. The Tribunal also accepted that the Applicant had been apprehended by the Taliban for listening to music on two occasions, and that the Applicant had been lashed on the second occasion.
The Tribunal was prepared to accept that the Applicant was involved in the Qaumi Aman Committee (“the QAC”) in 2011, prior to leaving Pakistan in 2012. However, the Tribunal did not accept that the Applicant was an active member of the QAC throughout the period of 2007 to 2010. Rather, the Tribunal found that his involvement with the QAC was limited. The Tribunal accepted that the Applicant suffered minor injuries in an attack by the Taliban on the QAC’s night patrol in November 2011.
The Tribunal rejected a submission that Pakistani nationals who have travelled to a Western country are implicated as spies. The Tribunal also did not accept that the Applicant would be identified as a failed asylum seeker in Pakistan, because he travelled to Australia on a student visa. The Tribunal noted that the Applicant claimed that he would have no family support if he was to return to Pakistan, because his family had applied to migrate to the United States. The Tribunal accepted that an application had been made but found that processing of that visa application had not commenced.
The Tribunal accepted that there was a real chance that the Applicant will be imputed with support from the Pakistani Army. The Tribunal accepted that militant extremists remain active in the Swat area, and the Applicant’s past membership of and activities with the QAC would be known to those extremists. As a result, the Applicant will be imputed with an anti-Taliban political opinion, which meant he faced a real chance of persecution in the reasonably foreseeable future in his home village and the Swat region more generally.
The Tribunal referred to country information, stating that police effectiveness in Pakistani varied greatly by district. It was reported that a considerable number of police in the Swat district had been driven out of their jobs by Taliban militants. The Tribunal then stated that, having accepted that the Applicant had a well-founded fear of persecution in his home village and the Swat region, the Tribunal must consider whether this well-founded fear extended to the country as a whole, and if not, whether it would be reasonable for the Applicant to relocate to a part of Pakistan where he did not have a well-founded fear of persecution.
The Tribunal found that the Applicant was able, as a matter of law, to relocate within Pakistan away from conflict areas. The Tribunal recorded the Applicant’s evidence that, when he was travelling to Islamabad in February 2012, he was searched and asked if he was Pashtun and asked to show his identification card and if he was Taliban and knew Taliban members. The Tribunal did not accept that the actions of the Pakistani authorities in conducting the security checks constituted ‘serious harm’ even when applied in a discriminatory fashion to a particular ethnic group.
The Tribunal rejected a submission that Taliban or other extremists who might be inclined to target the Applicant in his village or the Swat district would pursue him to Islamabad or Rawalpindi. The Tribunal also rejected the Applicants claim that he would be targeted in those cities on the basis of his Pashtun ethnicity.
The Tribunal rejected a submission that the Applicant would be “internally displaced in Pakistan and that he would face extreme deprivation of basic need, employment, protection from criminal violence amounting to degrading treatment”.[6] The Tribunal found that the Applicant was a young man who had completed his secondary education and undertaken some tertiary education, and who spoke both Urdu and English. The Tribunal did not accept that the Applicant would be unable to earn a living or access accommodation in Islamabad or Rawalpindi. The Tribunal also rejected a submission that it would be unreasonable to require the Applicant to relocate to a province were Pashtuns are discriminated against through demands for security documents based on the presumption that they are Taliban supporters. The Tribunal did not consider that these demands made it unreasonable for the Applicant to relocate.
[6] Court Book filed 3 October 2013, p.198 at para.61.

Grounds of application

The Applicant claims that the Tribunal fell into jurisdictional error in that it failed to consider two integers of the Applicant’s claim. The integers the Tribunal failed to consider were that it would be unreasonable for the Applicant to be required to return to Pakistani because:
(i)he would be subject to discrimination on the basis of his ethnicity/appearance throughout Pakistan; and
(ii)he would be without family support outside the Swat Valley and/or at the suggested places of relocation.[7]
[7] Amended application filed 21 March 2014 at p.3.
The Applicant submitted that the Tribunal, at paragraph 54 of its decision, recorded that the Applicant “stated that he could not live in a place where he looked different and would be suspected of being a terrorist and that he would not get a house or a job”.[8] This reflects (though does not mirror perfectly) a claim made in writing by his representatives in their submission:
We further submit that [the Applicant] will face discrimination across Pakistan, including Punjab on account of his Pashto ethnicity. We submit that country information supports the view that Pashtuns can be imputed with support for the Taliban, and that this may not only impact [the Applicant’s] capacity to find housing or work, but could make him vulnerable to adverse attention from authorities.[9]
[8] Court Book filed 3 October 2013 at p.196.
[9] Ibid at pp.165-166.
It is the Applicant’s submission that:
[T]he Tribunal did not engage with the underlying contention he made, i.e. that the factors he raised as objections to relocation existed because of his Pashtu ethnicity/appearance – and so that he would “face discrimination across Pakistan”, making it unreasonable for him to be required to return. (Original emphasis).
It is insufficient to observe that [the Tribunal] deals with targeting “for serious harm” on the basis of ethnicity. “Serious harm” and “reasonableness” do not contemplate the same test . . . So, even if the applicant was not, on the Tribunal’s analysis likely to suffer “serious harm”, it could still be unreasonable to require him to relocate internally.[10]
Reasonableness needs to be determined on the basis of the matters that the Applicant actually points to.
[10] Applicant’s outline of submissions filed 21 March 2014, pp.5-6 at paras.19-20.
The Applicant also referred to parts of the interview between the Tribunal and the Applicant on 11 June 2013 (“the 11 June proceedings”). On page 32 of the transcript of the 11 June proceedings,[11] the Tribunal asks: “Are you saying that it’s not possible for you to go to Islamabad?”, and the Applicant responds:
How I will live in a place that those people, I look different and those people, if they find out I’m from Swat they will think that I’m also a terrorist. Nobody will give me a house, nobody will give me a job and they look bad towards me. How would I be able to live there? It’s impossible.[12]
[11] Affidavit of Chelsea Clark filed 21 March 2014, Annexure CC-1, p.32 at lines 27-28.
[12] Ibid at lines 30-33.
Further at page 37 of the transcript of the 11 June proceedings, the Applicant says:
I have not heard anyone that they move from Swat and they settle in Punjab very well and easily. Most of the people, no matter whatever suffering or situation, they are still in Swat because the Punjabi people will not give us a lend or a house to live in. My uncle who was just killed in April of this year, if he knew that I will live easily or safely in Punjab or other province, he may protect himself and live there safe. He already receive [sic] threat over the phone and say that, “Be ready, we will target you. We will hunt you any day or any minute,” but if he could have safety in Punjab he won’t be killed already.[13]
[13] Ibid, p.37 at lines 10-21.
The Applicant submits that, in the context in which these comments were made it plainly supports, “a claim of general discrimination which simply wasn’t dealt with by the Tribunal in its written reasons . . . the Tribunal simply doesn’t deal with what [the Applicant] call[s] the underlying contention”.[14]
[14] Transcript of proceedings of 3 April 2014, p.6 at lines 40-41 and p.7 at lines 16-17.
The Applicant submits that there was this discrimination point that was put and not dealt with:
[T]he particular matters that are referred to [by the Tribunal] are merely incidents or consequences of the more generalise [sic] discrimination that we say should have been dealt with in the terms in which it was put by the Tribunal.[15]
[15] Transcript of proceedings of 3 April 2014, p.7 at lines 21-24.
The second contention of the Applicant was that the Tribunal fell into jurisdictional error in that it failed to consider the Applicant’s claim that he would be without family support or family networks were he to go to one of the suggested places of relocation, which are many or several hundreds of kilometres from the location where all of his family are located.
The objection the Applicant actually put is found at page 130 of the Court Book:
It would be manifestly unreasonable to expect [the Applicant] to relocate to another city in Pakistan. The dangers he would face both while travelling and on arrival in an unfamiliar city where he has no supports, and the difficulties he would have finding work and safely accessing education would make the situation very difficult. Furthermore, we submit that relocating to a city in Pakistan alone without any family or community support is not reasonable in the circumstances of [the Applicant]. [The Applicant] is only 23 years old. His parents and siblings are awaiting visas to live permanently in the United States of America. His extended family reside only in the Swat Valley. It is submitted that it would be difficult for him to live without his parents and siblings, but it would be unreasonable to demand that he also live far away from any extended familial support he may have. In contrast, while it is conceded that [the Applicant] does not have any family support in Australia, he has provided sworn evidence that he does not feel as though he needs that same level of support in Australia as he feels safe here.[16]
[16] Court Book filed 3 October 2013.
The Tribunal’s reasoning was as follows:
·
First, it found that the Applicant’s family remained in

his home village. This finding is open to the Tribunal and was, in fact, consistent with the Applicant’s evidence; and
·Second, the Tribunal found that it would be reasonable for the Applicant to return to Islamabad or Rawalpindi.
The Tribunal’s decision at pages 197-198 of the Court Book[17] does not deal with the objections the Applicant put. Instead, there is a finding of fact only with respect to the location of the Applicant’s immediate family. The Applicant submits that the Tribunal’s findings and reasoning was not responsive to the objection that the Applicant put.
[17] Ibid.

The First Respondent’s submissions

The First Respondent submitted the following.
Tribunal applied correct test of relocation: First, the Applicant will not be a refugee if it is reasonable (in the sense of practicable) for him to relocate to another part of his home country where he will not have a well-founded fear of persecution. The Tribunal correctly stated this test at CB 195, [50].
“Reasonableness” is question of fact: Second, the question of whether or not relocation is “reasonable” is a question of fact. Thus there would not be a jurisdictional error simply because the Tribunal made an error of fact on this issue – the question would be whether the Tribunal’s conclusion was “illogical or irrational”, or unreasonable in the sense of lacking an intelligible justification.
Failure to consider claims: Third, the [First Respondent] accepts that a failure by the Tribunal to consider a claim made by an applicant, or a claim that arises clearly on the material before it, will be a jurisdictional error. However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error does not mean that the Tribunal has not considered the applicant’s claim.
. . .
What amounts to “consideration”: Fourth, a related question is what amounts to “considering” an applicant’s claim for these purposes.
46.1.On the one hand, merely recording an applicant’s objections to relocation without analysis or resolution does not amount to “considering” those claims.
46.2On the other hand, an argument that the Tribunal has not addressed a claim “adequately” does not demonstrate any jurisdictional error.
. . .
The [First Respondent] submits that the correct test is whether the Tribunal gave each of the applicant’s claims “active intellectual engagement.[18]
[18] First Respondent’s Contentions of Fact and Law filed 28 March 2014, pp.6-7 at paras.40-42, 8-9 at paras. 46-47.
The First Respondent submits that the Tribunal did consider the Applicant’s claims: “The first matter is a claim that the Applicant would be subject to discrimination on the basis of his ethnicity and/or appearance. The Tribunal records this submission at CB 196”.[19]
[19] Ibid. p.9 at paras.49-50.
The Tribunal deals with the submission at page 198 of the Court Book where the Tribunal found that:
[T]he Applicant, as a young man of education who spoke Urdu and English, would be able to earn a living and access accommodation in Islamabad or Rawalpindi. The Tribunal also concluded at CB 198, [62] that discrimination (through demands for security documents) would not make relocation unreasonable.
These findings are responsive to the Applicant’s claim.
. . .
The fact that the Tribunal set out the relevant claim as part of its consideration of claims and evidence makes it difficult to infer that the claim was not considered.[20]
[20] First Respondent’s Contentions of Fact and Law filed 28 March 2014, p.9 at paras.51-52.
The reasons as set out in paragraphs 61 and 62 of the Tribunal’s decision “demonstrate “active intellectual engagement” with the Applicant’s claim . . . the claim was not simply recorded without analysis or resolution”.[21]
The First Respondent submits that the Applicant:
[21] Ibid, p.10 at para.52.2.
[A]ccepts that this principle of failure to take account of a claim is not an invitation to review the merits of the Tribunal’s reasoning, of course. And what that means is that if one is inferring that a claim has not been taken or understood because the reasons in one’s views don’t respond, there will be a point we say this case is at that point, when the submission, really, on close analysis, is the Tribunal didn’t consider the claim as put adequately.
. . .
… merely to say that the reasons are not a good response, or don’t respond adequately is not a jurisdictional error[22]
[22] Transcript of proceedings, 3 April 2014, p. 11 at lines 25-20.
. . .
to fail to refer to, or even to overlook evidence is not in itself jurisdictional error.[23]
[23] Ibid, p.13 at lines 32-33, quoting from SZSUY v Minister for Immigration and Border Protection and Anor [2014] FCCA 1, p.15 at para.48.

The First Respondent also referred to how the Applicant put the claim as set out at page 130 of the Court Book.[24] In making the claim of discrimination on the basis of Pashtu ethnicity, the representative identified how this discrimination manifests itself, e.g. suspicion from people could make it difficult to find work or housing. The Tribunal has clearly addressed the specific manifestations of the discrimination. The First Respondent submits that:
[T]he reasonableness of relocation does take into account certain burdens on one life that result from discrimination but it cannot be a guarantee to be utterly free from discrimination, so in that context the main duty of the Tribunal is to deal with the specific manifestations of the alleged discrimination that would make relocation unreasonable.[25]
[24] Court Book filed 3 October 2013.
[25] Transcript of proceedings of 3 April 2014, p.18 at lines 28-32.
The First Respondent referred to those sections of transcript of

the 11 June proceedings at pages 32 and 37 which were relied upon by the Applicant. The First Respondent submits that the matters raised were dealt with at paragraphs 61-62 of the Tribunal’s decision and stated:
[I]f a person makes a claim of general discrimination and says, “Here’s the things that I can point to that demonstrate that discrimination,” and one answers those, it can’t be that the Tribunal is then required to think of other ways in which a person might face discrimination that hasn’t been put.[26]
[26] Ibid, p.19 at lines 39-42.
With respect to the second claim in relation to family support, the

First Respondent submits that, at paragraph 59 of its decision, the Tribunal summarises what appears in the Applicant’s submissions at page 130 of the Court Book. At paragraph 60 of the decision, the Tribunal deals with the claim that the Applicant’s immediate family will be in the United States.
The second finding is at paragraph 61 of the Tribunal decision. The First Respondent submitted: “[I]f one goes back to the claim as put on page 130 – it’s talking about the difficulties the applicant would have in finding work and safely accessing education”.[27] In paragraph 61 of the decision, the Tribunal also deals with the Applicant’s age and the

First Respondent submitted that: “in the Tribunal’s way of thinking, being a single 23 year old is actually - makes it easier for one to relocate then [sic], say, … a man with a family to support”.[28]
[27] Ibid, p.21 at lines 43-45.
[28] Ibid, p.22 at lines 6-8.
The third issue raised by the Applicant at page 130 of the Court Book, talks about it being unreasonable for him to live far away from extended family support, although he acknowledges living away from family support in Australia as he feels safe here. The Tribunal has, in fact, dealt with this issue at the end of paragraph 56 of its decision, where:
[T]he Tribunal rejects the applicant’s claims that the Taliban or other extremists that may be inclined to target the applicant in [his] village or the Swat district more generally will pursue him to Islamabad or Rawalpindi.[29]
[29] Court Book, p.197 at para.56.
The Tribunal therefore, as a matter of fact, found that the Applicant did not have a well-founded fear of persecution in those places of relocation. The First Respondent submitted:
[T]here are some claims that are so central that they have to be rebutted expressly, and there are other claims that are - can be dealt with at a more general level or that are matters of detail that need not be referred to line-by-line …”[30]
[30] Transcript of proceedings of 3 April 2014 , p.24 at lines 28-30.
Again, the First Respondent submits the Tribunal has recorded the Applicant’s claim and its reasons demonstrate “active intellectual consideration”[31] of the claim. The cases relied upon by the Applicant do not suggest that an absence of family or other support networks at the place of relocation will always make relocation unreasonable. It is necessary to consider the particular circumstances of the Applicant which the Tribunal did in this matter.[32]
[31] Ibid, p.16 at line 8.
[32] First Respondent’s Contentions of Fact and Law filed 28 March 2014, p.11 at para.56.

Legal Considerations

There was general agreement between the Applicant and the

First Respondent in relation to the principles which should be applied by the Tribunal in determining whether relocation in a particular case is reasonable. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, the Full Court of the Federal Court considered that:
Although the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country.[33]
The Court nevertheless considered that a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country if under all the circumstances it would not have been reasonable to expect him to do so.
[33] (1994) 52 FCR 437.
The concept of what was ‘reasonable’ was considered by the

High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18. The joint judgement of Gummow, Hayne and Crennan JJ found that:
What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.[34]
In a separate judgment, Kirby J found as follows:
[I]nternal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven. Nor if the evidence indicates that there are other and different risks in the propounded place of internal relocation; or where safety could only be procured by going underground or into hiding; or where the place would not be accessible on the basis of the applicant’s travel documents or the requirements imposed for internal relocation.
An inability or unwillingness on the part of the national authorities to provide protection in one part of the country may make it difficult to demonstrate durable safety in another part of that country. In some circumstances, having regard to the age of the applicant, the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable. In each case, the personal circumstances of the applicant; the viability of the propounded place of internal relocation; and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution, will need to be weighed in judging the realism of the hypothesis of internal relocation.[35]
[34] (2007) 233 CLR 18, p.27 at para.24.
[35] (2007) 233 CLR 18, pp.42-43 at paras.80-81.
In Januzi and Ors v Secretary of State for the Home Department [2006] 2 AC 426, the House of Lords considered:
[T]hat the question whether it would be reasonable or unduly harsh to expect a claimant to relocate was to be assessed by considering whether he could live a relatively normal life in the place of relocation, judged by the standards generally prevailing in his country of nationality and could reach that place without undue hardship.[36]
[36] [2006] 2 AC 427 at p.427.
Lord Bingham of Cornhill, in considering the meaning of ‘lead a relatively normal life without facing undue hardship’ looked at the UNHCR guidelines and referred to the following in relation to the question of economic survival:
If the situation is such that the claimant would be unable to earn a living or to access accommodation, or medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative. It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence … If, for instance, an individual would be without family links and unable to benefit from an informal social safety net, relocation may not be reasonable, unless the person would otherwise be able to sustain a relatively normal life at more than just a minimum subsistence level.
If the person would be denied access to land, resources and protection in the proposed area because he or she does not belong to the dominant clan, tribal, ethnic, religious and/or cultural group, relocation there would not be reasonable.[37]
[37]Ibid at pp.448-449.
His Lordship went on to say, “[t]hese guidelines are, I think, helpful, concentrating attention as they do on the standards prevailing generally in the country of nationality”.[38]
[38] Ibid at p.449.
It is now generally accepted that the test for relocation is, whether it is practicable in the particular circumstances of the particular applicant. The answer to that question in turn depends upon the framework set by the particular objections raised to relocation. The Tribunal is not obliged to consider all theoretical possibilities, including the question of whether or not an applicant would continue to behave in a way which might attract persecution.[39]
[39] SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
Further, the Tribunal is not required to give a line by line refutation of the evidence for the claimant either generally, or in those respects where there is evidence that is contrary to findings of material facts made by the Tribunal. If it is clear that the Tribunal did, in fact, consider the Applicant’s claims as a component of the reasonableness of relocation, it is not open to the Court to reassess the merits of the matter after it has been duly considered by the Tribunal.[40]
[40] MZYXP v Minister for Immigration and Border Protection (2013) 137 ALD 348.
The personal circumstances of an applicant are relevant to the ‘reasonableness’ of relocation only to the extent that they affect its ‘practicability’. Consideration of reasonableness therefore does not necessarily require the Tribunal to work through a list of an applicant’s personal characteristics and family situation in every case. In any event, the failure to mention such matters in the statement of reasons does not establish that they were not considered; merely that they were not regarded as having any weight.[41]
[41] SZSUY v Minister for Immigration and Border Protection and Anor [2014] FCCA 1
In considering if a Tribunal has given active consideration to an applicant’s claims, the reasons for decision should show an active intellectual engagement on the part of the Tribunal. This should take into account that such reasons are meant to inform and are not to be scrutinised by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[42]
[42] Minister for Immigration and Citizenship v Khadgiand Anor (2010) 190 FCR 248, quoting the Full Court in Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1.

Conclusions

The Applicant’s claims with respect to internal relocation are set out at pages 128 to 131 of the Court Book.[43] The Applicant cites:
[43] Court Book filed 3 October 2013.
·The capacity for the Taliban to reach targets outside of the Swat Valley, including in Islamabad and Rawalpindi;
·The targeting and harassment he faced in travelling to Islamabad;
·The dangers he would face both while travelling to, and on arrival, in an unfamiliar city where he has no supports;
·The difficulties he would have finding work and accessing education, relocating without any family or community support;
·His young age;
·His parents and siblings are awaiting visas to live in America;
·His extended family live only in the Swat Valley;
·Discrimination across Pakistan because of his Pashto ethnicity;
·Members of the public would be suspicious that he had connections with the Taliban on account of him being a Pashtun from Swat; and that
·Pashtuns can be imputed with support for the Taliban which could not only make it difficult for the Applicant to find housing or work but could make him vulnerable to adverse attention from authorities.
In a statutory declaration made by the Applicant on 27 May 2013,[44] he referred to the following matters:
·The Applicant was worried that he would be “considered to be a spy” because he had been living in a Western country; “[t]he Taliban have spies everywhere – it is unrealistic to think that they would not know where I have been . . . ”.[45];
·“In previous times, it was somewhat easier for Pashtuns to move to different parts of the country. However nowadays, other people are very suspicious of Pashtuns”.[46] If he were to go to the Punjab, “people would be suspicious that I am affiliated with the Taliban, and this would make it difficult to rent a house, or find a job”.[47];
·It would be obvious that he is Pashtun, not only from his language but from his dress and physical features; he does not speak Punjabi and his Urdu is only very basic;
·When going to Islamabad, he was pulled off the bus by a policeman who asked him what he was doing, when he would be returning to Swat and if he knew certain people who they said were Taliban: “This happens all the time . . . in Pakistan. It is very distressing for me to be pulled aside and be treated like a criminal or a terrorist”.[48]; and
·His family have applied to migrate to America; if he were to return to Pakistan he would be on his own. He has extended family in Swat but not in other parts of Pakistan; the authorities cannot protect him.
[44] Court Book filed 3 October 2013 at pp.138-144.
[45] Ibid, p.140 at para.16.
[46] Ibid, p.141 at para.21.
[47] Court Book filed 3 October 2013, p.141 at para.21
[48] Ibid, p.142 at para.24.
At the Tribunal hearing, the Applicant stated that he started his higher education in Peshawar but only studied for two semesters because “I was not feeling safe and my family asked me not to stay there as well”.[49] When asked why he was not feeling safe, the Applicant replied, “Because I was alone and were against the Taliban beforehand and given us a warning. Therefore I was not feeling safe in Peshawar”.[50]
[49] Affidavit of Chelsea Clark filed 21 March 2014, Annexure CC-1, p.9 at lines 32-33.
[50] Ibid at lines 38-40.
The Applicant later made the comments referred to at paragraphs [20] to [21] above.
When asked by the Tribunal member about fearing harm based on his ethnicity he responded, “Of course, because I’m Pashtun. In Punjabi they make fun of Pashtun people. They make a lot of fun and they abuse Pashtun people. In this regard there is so much harm because of my ethnicity as a Pashtun”.[51]
[51] Ibid, p.33 at lines 15-17.
In submissions provided after the hearing, the Applicant’s representative raised country information about terrorist groups in the Punjab who worked closely with the Taliban and repeated previous submissions in relation to the Applicant facing discrimination across Pakistan because of his Pashto ethnicity, raising information about excessive demands for security documents to which Pashtuns were subjected.[52]
[52] Court Book filed 3 October 2013 at pp.154-166.
The Tribunal, in its reasons for decision, did not accept that Pakistani nationals who have travelled to a western country are implicated as spies.[53] The Tribunal accepted that the Applicant’s family had made an application for a US visa sponsored by the Applicant’s father’s brother but did not accept that a visa had been granted nor that the processing of the visa had commenced.[54] At paragraphs 49-63 of its decision, the Tribunal set out the principles with respect to relocation.[55]
[53] Ibid, p.191 at para.33.
[54] Ibid, p.192 at para.37.
[55] Ibid at p.195.
At paragraph 52 and following, the Tribunal made the following findings:
·The Applicant was a Pashtun from Swat and aged 23;
·He was not married and had no dependants;
·He speaks, reads and writes Urdu and English;
·He has finished secondary school and has undertaken some tertiary studies; and
·The Applicant, as a matter of law, is able to relocate within Pakistan away from conflict areas.
The Tribunal did not accept that:
·The actions of the Pakistani authorities in conducting security checks constituted ‘serious harm’ even in circumstances where they are discriminatorily applied to Pashtuns;
·The Applicant had a profile outside of his home region such as to bring him to the attention of extremists or than the Taliban would be motivated to pursue him in other parts of Pakistan; or
·The Applicant’s claims that he would be targeted in Islamabad or Rawalpindi on the basis of his Pashtun ethnicity.
The Tribunal then turned to consider if it would be reasonable for the Applicant to relocate to Islamabad or Rawalpindi.
·First, the Tribunal stated that it did not accept that the Applicant’s family will have left Pakistan if he returns now or in the reasonably foreseeable future.
·Second, the Tribunal then considered that because he was a young man who had completed his schooling, had some tertiary education and spoke both English and Urdu it did not accept that the Applicant would be unable to earn a living or access accommodation in Islamabad or Rawalpindi.
·Third, the Tribunal found that it was not unreasonable for the Applicant to relocate to Islamabad or Rawalpindi because he was discriminated against through demands for security documents based on the assumption that he was a Taliban supporter.
It is apparent that the Tribunal made a specific finding that the Applicant would not be targeted in Islamabad or Rawalpindi because of his Pashtun ethnicity. It dealt with the issue of adverse attention from the authorities finding that it was not unreasonable for the Applicant to relocate on that basis. It further made a specific finding that it did not accept that he would be unable to earn a living or access accommodation. These findings addressed the specific issues raised by the Applicant with respect to his concerns about discrimination on the basis of his ethnicity. The more general complaints of discrimination made by the Applicant were that Punjabi people made fun of Pashtuns and abused them and that they “look bad”[56] towards him.
[56] Affidavit of Chelsea Clark filed 21 March 2014, Annexure CC-1, p.32 at line 33.
The Tribunal could not be expected to consider such generalised claims in its consideration of whether it was reasonable for the Applicant to relocate. In its assessment of the Applicant’s claim that it was not reasonable for him to relocate because he would be subject to discrimination on the basis of his ethnicity, it was reasonable for the Tribunal to concentrate on the matters which the Applicant raised as manifestations of such discrimination. To do otherwise would involve the Tribunal in speculating about hypothetical situations in which the Applicant might find himself but not specifically raised by the Applicant.
With respect to the Applicant’s claim that the Tribunal did not consider that the Applicant would be without family support outside the Swat Valley and/or at the suggested places of relocation, it is clear that beyond finding that the Applicant’s family would not have left Pakistan, the Tribunal in its findings did not expressly refer to the impact on the Applicant of relocating to a place where he did not have family. The Tribunal did however, refer to the Applicant’s age, his education and language skills and to the fact that he had lived in Australia for some 12 months without family support. It also did not accept that he would be unable to find work or accommodation in Islamabad or Rawalpindi. The Tribunal also expressly found that the Applicant did not have a well-founded fear of persecution outside of the Swat Valley.

The authorities do not suggest that the absence of family networks or other social support will always be relevant to determining if relocation is unreasonable.[57] Further, the fact that the Tribunal fails to mention such matters in the statement of reasons does not establish that they were not considered, merely that they were not regarded as having any weight.[58]
[57] See Kirby J in SZATV v Minister for Immigration [2007] 233 CLR 18 who, at para.80 premises his comments on the issue with the words “In some circumstances”.
[58] See SZSUY v Minister for Immigration and Border Protection & Anor [2014] FCCA 1
It appears to me that the Tribunal raised the Applicant’s claims in this regard but considered them to be less significant that his other characteristics e.g. his age and single status, his level of education, his capacity to read and speak both English and Urdu and his ability to live away from his family in Australia.
For these reasons I am not satisfied that the Tribunal fell into jurisdiction error by failing to consider an integer or integers of the Applicant’s claim.
The application is therefore dismissed.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate:

Date: 29 August 2014