MZZRA v Minister for Immigration

[2014] FCCA 2715

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZRA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2715

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal (Tribunal) – whether applicant claimed before the Tribunal that he was at risk of harm for his involvement in a “lashkar” – whether the Tribunal, having not accepted the applicant’s evidence of the nature of his involvement in the “lashkar”, considered its finding the applicant took part in watches to look out for Taliban or extremist activity when assessing the risk of harm to the applicant if he were to relocate to Karachi – whether the applicant’s evidence about the killing of two people in Karachi formed an integer of his claim – whether the Tribunal’s not making a finding in relation to the applicant’s evidence indicates the Tribunal did not consider the evidence or failed to address the correct question – whether in assessing whether the applicant faced the risk of harm in Karachi if he were to locate there the Tribunal failed to consider the applicant was exposed to the risk of generalised harm – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 414

Applicant: MZZRA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1335 of 2013

Judgment of: Judge Manousaridis

Hearing date: 14 April 2014

Date of Last Submission: 6 June 2014

Delivered at: Sydney

Delivered on: 21 November 2014

REPRESENTATION

Solicitors for the Applicant: Mr Hassan
Asylum Seeker Resource Centre

Counsel for the Respondents: Ms Latif

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The applicant have leave to rely on the further amended application filed on 23 April 2014.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1335 of 2013

MZZRA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of Pakistan from Swat, claimed before the second respondent (Tribunal) that he had a well-founded fear of persecution by the Taliban and other extremist groups. He claimed his fear was based on his having been an active member of the Awami National Party (ANP), and his having participated in a defence committee known as a “lashkar”.

2. Although the Tribunal did not accept a number of important aspects of the applicant’s evidence, it did find the applicant had a well-founded fear of persecution in Swat. The Tribunal based its finding on country information relating to Taliban activity in Swat and in the province of Khyber Pakhtunkhwa (KPK). The Tribunal also relied on its accepting that the applicant was a supporter of the ANP; that the applicant held an anti-Taliban political opinion; and that the applicant, although not a member of a lashkar, took part in watches to look out for Taliban or extremist activity after the army managed to purge Swat from Taliban control.

3. The Tribunal, however, concluded the applicant would not face persecution or serious harm if he relocated to Karachi, and that it was reasonable for the applicant and his family to relocate there. The Tribunal arrived at that conclusion even though it accepted country information that showed the Taliban and other groups targeted members of the ANP in Karachi. It arrived at that conclusion because the Tribunal was satisfied that members of the ANP who were attacked in Karachi had a different profile from that of the applicant.

4. In a proposed further amended application for review, the applicant claims that, in concluding it was reasonable for the applicant to relocate to Karachi, the Tribunal made three jurisdictional errors: it failed to consider whether the applicant was at risk of harm for his involvement in the lashkar; it made no finding in relation to evidence the applicant gave that two persons whom the applicant knew had been killed in Karachi; and it failed to consider the risk to the applicant of generalised harm in Karachi.

5. The Minister does not oppose the Court’s granting the applicant leave to rely on the further amended application, and has made submissions on the grounds contained in that document. I therefore propose to grant the applicant leave to rely on the further amended application, and consider the grounds of review contained in that document. Before I consider those grounds, it will be necessary to describe the applicant’s claims for a protection visa, the course of proceedings before the Tribunal, and the Tribunal’s reasons for concluding that it was reasonable for the applicant to relocate to Karachi.

The applicant’s claims for protection

1. The asserted facts on which the applicant relied before the Tribunal for his claim for protection are as follows.

2. The applicant is a Pashtun, and a Sunni Muslim. He was born and lived in a town in Swat in the province of KPK. The applicant there operated a general store with the assistance of his brother. The applicant was also in the merchant navy which required him to be away from his town for extended periods of time.

3. In 2006 the applicant became an active member of the ANP. The ANP worked for the Pashtun people, advocating a more liberal and secular Pakistan. As a party member, the applicant put up posters, and arranged meetings and seminars. In 2008 the ANP gained power in the provincial assembly of KPK.

4. There were many Taliban in the applicant’s town and surrounding areas. However, most people in the area were against the Taliban. From around 2006, a number of people began to join a party, the Tehrik-i-Taliban Pakistan (TTP), which advocated jihad and violence. In 2007 the TTP/Taliban began to use violence against police and kidnapped wealthy people. Before April 2008, the TPP took over territory that included the applicant’s town, and acted as a government. The Pakistani army, however, retook control of some territory, including the applicant’s town. The applicant was away with the merchant navy when these events occurred, but he kept in contact with his family. The applicant was informed that his family had moved out of the town, but returned after the Pakistan army retook it.

5. In April 2008, when the applicant returned to his town, the situation was fairly normal. However, towards the end of 2008, the Taliban started killing spies and also kidnapping wealthy people and politicians. The Taliban posted videos of the people they abducted and then murdered them a few days later.

6. Because of his membership and participation with the ANP, the applicant feared for his safety, and he and his family moved to Mingora. The applicant then went to Karachi and lived there for two months in a merchant navy hostel. Shortly after the applicant arrived in Karachi, he directed his family to move to his father-in-law’s town in Qalagay-Kaudari. After one month there, they returned to the applicant’s town. About one month after that, the applicant boarded a ship and was away from Pakistan until October 2009.

7. In 2009, while the applicant was away, the Pakistani army mounted a large operation against the Taliban in Swat. The applicant’s family left the applicant’s town again, and this time went to Mardan. At the conclusion of the operations in August 2009, the applicant’s family returned to the applicant’s town. The Taliban had been cleared from the area.

8. Before the applicant returned, the Pakistani government suggested to locals that they organise a “lashkar”, that is, a group that would identify Taliban and kill them if they were resisting or, if not resisting, report them to the Pakistani authorities. The ANP worked side by side with the lashkar formed in the applicant’s town.

9. After the applicant returned to his town, members of the army came to his shop daily and asked about what was happening in the area with the Taliban. The local president of the ANP also came to the applicant’s shop to discuss matters relating to the Taliban.

10. About twenty days after he arrived, the applicant received a letter under his door from the Taliban. The letter accused the applicant of talking with the army about the Taliban, and his helping form the lashkar. The letter stated that if the applicant did not cease speaking with the army, he would be kidnapped and killed.

11. On 7 December 2009 three masked men came to the applicant’s house. After he recognised them to be Taliban, the applicant ran away, and the men shot and killed the applicant’s father. The next morning, the applicant heard what occurred, and he walked to Mingora to hide with relatives. The army imposed a curfew and, on the following day, the applicant returned to his town. The applicant then left for Karachi, and again sent his family to stay with his father in law in Qalagay-Kaudari.

12. Karachi had also become too dangerous for the applicant because the Taliban had run away to Karachi, many of which were from the applicant’s town, and the applicant received threats there as well. That led the applicant to leave Karachi and join his family in Qalagay-Kaudari, where he stayed for two to three weeks. He then returned to his town hoping to reopen his store, and send his children to school again.

13. On 27 March 2010, the applicant applied for a tourist visa to Australia. He did so because “I was scared for my life”. On 19 April 2010 the ANP had a meeting with the Peace Committee (AMN), which was a committee set up to bring peace between the army and the Taliban. After the meeting, two masked Taliban started firing on the building in which the meeting had taken place, killing two members of the AMN. After that incident, the applicant sent his family back to his father-in-law’s town. The applicant went to Mingora and after two of three days, the applicant escaped to Islamabad. He did not feel safe there, so the applicant returned to the hostel in Karachi. In Karachi, however, every day “there was another kidnapping or killing of a political person”.[1]  The applicant’s anxiety increased after he was informed that on 21 May 2010 another member of the AMN was assassinated. The applicant knew that person from his days at school.

    [1] CB378, [58]

14. The applicant was granted a tourist visa at the end of June 2010. He did not receive the visa until 12 July 2010 because of a flood. And after the applicant did obtain the visa, he did not leave for Australia until late September 2010. He delayed his departure because the merchant navy was slow in paying the applicant his wages.

15. After he arrived in Australia, the applicant received reports from his family that schools were being bombed and people were being killed. The applicant also heard reports of the Taliban succeeding in their targeted killings, where even in large cities like Karachi the Taliban had killed over 200 political leaders including more than 40 ANP members.

16. In his statutory declaration the applicant lodged in support of his application for a protection visa, the applicant described what he feared would occur to him if he were to return to Pakistan as follows:[2]

    I cannot go back to Pakistan because there is nowhere for me to live because the Taliban have moved to different places in Pakistan. Most of the Taliban are from my area so they know me. Killings happen every place in Pakistan including of people I know. Nowadays the Taliban are doing target killings and I cannot go back because of my involvement with the ANP and the ANP are mostly accused of starting a big operation against the Taliban. Also I have been targeted before.

    [2] CB379, statutory declaration, [70]

17. In a document provided to the delegate, the applicant’s representative made submissions about the reasonableness of the applicant’s relocating elsewhere in Pakistan. As understood by the Tribunal, the submissions drew attention to the extent of extremist group activity across Pakistan and the spread of their operations, including into Karachi.[3]

    [3] CB380, [28]

Course of proceedings before Tribunal

1. The applicant filed three statutory declarations in support of his application for review before the Tribunal. The first, which is dated 15 February 2012, addressed in detail matters on which the delegate relied for not granting the applicant a protection visa.[4] The statutory declaration dealt with the delay between the date on which the applicant was granted his tourist visa and the date he left Pakistan, difficulties with the interpreter, and relocation. The statutory declaration also contained matters relevant to whether the applicant had a political profile sufficient for him to be at risk of harm by the Taliban.

   [4] CB262-272

2. On that topic, the applicant referred to his best friend, Rustam Khan, having been killed by the Taliban in a house he was staying in Karachi[5]. The applicant stated Mr Khan was a member of the ANP, although he did not hold any senor position within that party. The applicant also referred to Ilyas Khan being killed “whilst he was in Karachi”.[6] The applicant said that Ilyas Khan “had been helping the army and the Lashkar since his house had been completely destroyed by the Taliban”.[7]

   [5] CB266, [15]

   [6] CB268, [25]

   [7] CB268, [25]

3. The second statutory declaration is dated 6 June 2012. The applicant submitted this declaration after the first hearing with the Tribunal which took place on 21 May 2012.[8] It sought to address the Tribunal member’s “difficulty in believing that I had a profile, as I have already outlined, people with the same profile as me with the same involvement in the party have been killed. It is not only people in high positions that are targeted, people like me are easier to target”.[9] The applicant again referred to his friend Rustam Khan having been “killed by the Taliban in Karachi” even though the applicant’s friend “was also a seaman” who had spent similar amounts of time in Swat.[10] The applicant also said:[11]

   I was in the Lashkar, which was a group of people from the area that the government set up to assist the Army in identifying the local people and those who were not local. I organized the Lashkar patrols at night and also the changeover between patrols.

   [8] CB300-302

   [9] CB300, [2]

   [10] CB301, [3]

   [11] CB302, [6]

4. The third statutory declaration is dated 25 July 2012.[12] The applicant stated that a person by the name of Sher Ali, an uncle of the applicant’s friend, Rastam Khan, was killed by the Taliban in Karachi. Sher Ali was a seaman with whom the applicant had worked. The applicant said Sher Ali was “like me, an activist and member of the ANP”.[13] The applicant also said that after the death of Sher Ali, the applicant was informed that Shujaat Ali, the brother of the president of the peace committee in the applicant’s village, had been killed by the Taliban in Karachi.[14] The applicant said Shujaat Ali came from the applicant’s village who also had been involved in the “Peace Committee”, but who was in hiding in Karachi. The applicant said:

   The murder of Sher and Shujaat has made me very fearful. Sher was a seaman like me, who worked for the same company as me and like me was a member of the ANP. Sher had a low profile within the ANP like me and did not hold an official position such as Secretary or Union Council President. He was just an activist like me. The fact that someone with such a low profile like Sher was killed makes me very fearful of returning to Pakistan because if the Taliban are targeting people with low profiles such as Sher I am sure I will also be targeted. Whilst the Taliban still target high profile ANP members, those members generally are protected by security and are more difficult to harm. People such as Sher and I are very easy for the Taliban to kill as we have no security to protect us and the police are not able to protect us because they do not have the resources to offer us protection.

   Shujaat is about four or five years younger than me and fled from the same village as me in the SWAT valley, but the Taliban killed him [in] Karachi. This makes me fear that if the Taliban can track down Shujaat in Karachi and kill him then there is nowhere I would be safe in Pakistan.

   [12] CB306-308

   [13] CB306, [3]

   [14] CB306, [4]

5. The applicant attended two hearings before the Tribunal, one on 21 May 2012, and one on 17 May 2013. At the first hearing, the applicant gave evidence on a number of matters: the population of his town; the disruption the conflict in Swat caused to his children and assets; his involvement with the ANP, particularly given his long absences from Pakistan while serving in the merchant navy; the nature of the posters he put up and the meetings and seminars he arranged; the applicant’s involvement with the lashkar; the letters the applicant claimed he received from the Taliban; the death of the applicant’s father; the applicant’s stays in Karachi; how the applicant travelled inside Pakistan; and the reasonableness of the applicant’s relocating to Karachi  or Islamabad. The Tribunal recorded the applicant’s evidence on that question as follows:[15]

   The applicant said that his life was in danger everywhere in the country. He had been coming to Australia since 1997 and could have sought asylum years ago but that the situation more recently had been so bad that he could not return to his country and that was because his life would be in danger. The applicant talked about the security situation in Karachi, including violence perpetrated by the MQM^[[16]] and the killing of Pashtuns and referred to rich people being able to have guards. He said that one of his friends Rustam had been killed in 2011 in Karachi. The applicant also told of other instances where people had been killed and said that the Taliban had spies.

   [15] CB388, [47]         

   [16] Muttahida Qaumi Movement

6. At the second hearing, the applicant was asked about the ANP posters the applicant claimed he put up, and the applicant’s involvement with the lashkar, and the reasonableness of relocation. In addition, the applicant’s representative made a number of submissions about what country information revealed about, among other things, the reasonableness of the applicant relocating.

The Tribunal’s reasons

1. The Tribunal accepted the applicant was from the town he claimed he was from; that he was married and had five children; that he worked in the merchant navy since 1997 which involved him being away from home for up to 10 months almost every year until 2009; that the applicant was in Pakistan from March 2005 until June 2007, then left and returned in April 2008, and was again away from December 2008 until October 2009; and that the applicant had a shop in his town, a house, and agricultural land.[17] The Tribunal also accepted that there has been terrible violence in Swat, noting that independent country information indicated that some 2 million people were displaced, and that casualties were very high.[18]

   [17] CB404-405, [104]-[105]

   [18] CB405, [106]

2. The Tribunal found, however, that “important aspects of what has been submitted in support of the applicant’s claims are not credible”.[19] Those aspects concerned the applicant’s involvement with the ANP and his coming to the adverse attention of Taliban or like extremists in his home area.[20] Although the Tribunal accepted the applicant supported the ANP, the applicant “at best greatly exaggerated the nature and extent of his involvement with the party”.[21] The Tribunal considered that, at most, the applicant was a supporter of the ANP who may vote for the ANP at elections.[22]

   [19] CB405, [108]

   [20] CB405, [108]

   [21] CB406, [111]

   [22] CB406, [113]

3. Although the Tribunal accepted there were large numbers of people in the applicant’s town who were opposed to the Taliban, and that the applicant was one of those people, it found the applicant’s understanding of the lashkar and the peace committee to be vague, and his evidence of his involvement with the lashkar confused.[23] Nevertheless, the Tribunal was “prepared to accept that he took part in watches to look out for Taliban or extremist activity after the army managed to purge Swat from Taliban control”.[24] The Tribunal found the applicant’s account of informing the army about the Taliban hiding in the area and doing so when army personnel frequently came to his shop, or when he was in the army base to be “very unconvincing”;[25] and, ultimately, untrue.[26]

   [23] CB406-407, [114]-[115]

   [24] CB407, [115]

   [25] CB407, [116]

   [26] CB407, [118]

1. The Tribunal also did not accept that the applicant received letters from the Taliban, as he claimed. The Tribunal found that the letters the applicant submitted to the Tribunal were concocted.[27] Nor did the Tribunal accept the applicant’s evidence that on 7 December 2009 the Taliban came to his house looking for him.[28]

   [27] CB407, [117]

   [28] CB408, [121]

2. The Tribunal summarised its findings on the applicant’s evidence as follows:[29]

   [T]he Tribunal has accepted that the applicant supports the ANP; that he holds an anti-Taliban political opinion; and that he took part in some watches organised by the lashkar to look out for Taliban or extremist activity. The Tribunal does not accept that the applicant had any active role with the ANP; that he gave information to the army; that the Taliban threatened to harm him and came looking for him as he has claimed in December 2009 or at any other time. The Tribunal does not accept that the character of the applicant’s activity and profile was of a kind to spark such interest on the part of Taliban people or like extremists and the Tribunal does not accept that the applicant was in any way targeted in Swat although it accepts that the prevailing security situation there may have led the applicant to be afraid.

   [29] CB408, [121]

3. Given the Tribunal had found the applicant held an anti-Taliban opinion, and the security situation in Swat was uncertain, it concluded there was a real chance the applicant will suffer harm amounting to persecution if he were to return to Swat. That is so because the “prevalence of violence and the number of serious and deadly attacks by militants in the area, along with their continued presence, has stretched the capacity of the army and the police to provide a reasonable level of protection”.[30]

   [30] CB409, [125]

4. The Tribunal then considered whether the applicant could reasonably relocate to Karachi. First, it considered, and found, there was not a real chance the applicant would suffer harm if he were to relocate to Karachi. That is so for a number of reasons.

   a)The Tribunal did not accept the applicant is a person “who has been of any interest at all to the Taliban and like extremists (the Tribunal has rejected the claim that the Taliban threatened and came looking for him in Swat) and does not accept that he would be identified as a person of interest, or sought out, by extremists in Karachi”.[31]

   b)Although the Tribunal accepted there was a greater than remote chance the applicant would come to the adverse attention of the Taliban if he returned to Swat, “the character of the applicant’s activity and profile in Swat is not of a kind which would see these people looking out for him or tracking him down elsewhere”.[32]

   c)Although the applicant holds an anti-Taliban opinion, and will continue to do so if he returns to Pakistan, that opinion will not bring the applicant to the attention of the Taliban or other extremists. That is so because the persons who have been attacked in Karachi by the Taliban “have been outspoken secular politicians; moderate or liberal religious scholars, and local tribal chiefs”, characteristics which the Tribunal found the applicant did not share.[33]

   d)The applicant’s originating from Swat was not a factor which would affect his safety in Karachi.[34]

   [31] CB410, [133]

   [32] CB410, [133]

   [33] CB410, [134]

   [34] CB411, [137]

5. Next, the Tribunal considered whether it “is reasonable, in the sense of practicable and in his particular circumstances, for the applicant to relocate and live in another place in Pakistan if he were to return to his country”.[35] The Tribunal referred to the factors the applicant had raised as relevant to the reasonableness of relocation, these being the security situation elsewhere in Pakistan, including Karachi, the applicant’s having a wife and five children to move to and settle in Karachi, and the applicant’s physical and mental health.

   [35] CB411, [140]

6. The Tribunal accepted there are terror and other attacks in many parts of Pakistan, and Karachi has long been a city where there are ethno-political and sectarian attacks. There were, however, over 18 million inhabitants in Karachi, and the people most at risk were “ANP and MQM people, gang members, political and religious leaders, and certain people who are members of minority religious groups”.[36] The Tribunal said it understood the applicant’s concern about the potential for violence, but the Tribunal assessed “there is no appreciable risk that the applicant would come to harm as a result of such violence there”.[37]

   [36] CB412, [142]

   [37] CB412, [143]

7. The Tribunal also realised it would not be easy for the applicant to settle in Karachi with his family; but the reasonableness of relocation was not to be judged by whether the quality of life in the proposed place of relocation “meets the basic norms of civil, political and socio-economic rights”.[38] The Tribunal noted the applicant speaks, reads, and writes Pashto, Urdu, and English, languages that are used in Karachi; he knows his way around the city; he has assets in Swat, and has worked and earned money in various ways. For these reasons the Tribunal could see no reason why the applicant could not find employment in Karachi to establish and support his family.[39]

   [38] CB412, [145]

   [39] CB412, [145]

8. As for the applicant’s claimed mental health, the Tribunal was satisfied medications and medical services are available in Karachi, and considered it was very speculative that the applicant’s depression would worsen if he were to relocate to Karachi.[40]

   [40] CB412-413, [146]

9. Finally, the applicant considered whether the applicant satisfied the criterion specified in s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). The Tribunal found that, for the reasons it found there was a real chance the applicant would face persecution if he returned to Swat, there was a real risk the applicant could suffer significant harm if he returned to Swat. And, for the reason it relied on for concluding it was reasonable for the applicant to relocate to avoid persecution in Swat, the Tribunal concluded it was reasonable for the applicant to relocate to Karachi to avoid the risk of significant harm in Swat.

First ground - failure to consider risk of harm arising out of involvement with lashkar

1. As I say in paragraph 4 of these reasons, the applicant relies on three grounds of review. The first two are contained in paragraphs (b) and (c) respectively of the particulars to ground 2 of the proposed further amended application. The first of these two grounds is as follows:

   In its assessment of relocation, the Second Respondent failed to ask itself the correct questions and/or failed to consider an integer of the applicant’s claims.

   Particulars

   (a)The Second Respondent accepted that the applicant had been involved in the lashkar (peace committee).

   (b)In its assessment of relocation the Second Respondent failed to consider whether the applicant was at risk of harm for his involvement in the lashkar (peace committee).

2. The ground stated in particular (b) assumes the applicant claimed, or the Tribunal should have concluded from the material that was before it that the applicant claimed, that he was at risk of harm in Karachi because of his involvement with the lashkar. That, however, is not what the applicant claimed before the Tribunal.

3. The applicant claimed he had a particular profile that would attract the interest of the Taliban and other extremists in Karachi, and that the applicant acquired that profile because of what he claimed he did when he was in Swat. The applicant relied on a number of matters as giving rise to that profile – his membership of the ANP and the activities the applicant claimed he undertook as a member of the ANP, his involvement with the lashkar, and in particular his evidence that he organised night patrols and changeovers between patrols, the applicant’s having received threatening letters from the Taliban, and the applicant’s father having been killed in the course of Taliban men looking for the applicant. The Tribunal did not accept most of the applicant’s evidence on these matters, including the applicant’s evidence that he organised night patrols and patrol changeovers.

4. The Tribunal did accept, however, that the applicant took part in watches to look out for Taliban or extremist activity after the army managed to purge Swat from Taliban control. The question that must be considered, therefore, is whether the Tribunal took that finding into account when assessing the risk of the applicant suffering harm in Karachi from the Taliban or other extremists. In my opinion, the Tribunal did, and the relevant findings are contained in the following passage from the Tribunal’s reasons (emphasis added):[41]

   The Tribunal accepts that there has been a growing presence of Taliban and like religious extremists in Karachi. It does not however accept the applicant is a person who has been of any interest at all to the Taliban and like extremists (the Tribunal has rejected the claim that the Taliban threatened and came looking for him in Swat) and does not accept that he would be identified as a person of interest, or sought out, by extremists in Karachi. The Tribunal notes that its assessment is that the chance that he could come to the adverse attention of Taliban people if he were to return to Swat is not great but could not be said to be remote having regard to the unsettled security environment there. But the character of the applicant’s activity and profile in Swat is not of a kind which could see these people looking out for him or tracking him down elsewhere.

   [41] CB410, [133]

5. The words “the character of the applicant’s activity and profile in Swat” refer to the character of the applicant’s activities in Swat as found by the Tribunal. That includes the Tribunal’s finding that the applicant took part in watches to look out for Taliban or extremist activity after the army managed to purge Swat from Taliban control. As submitted by the Minister, the Tribunal determined whether the applicant would be exposed to harm in Karachi “on the basis of the applicant’s profile as found”.

6. In my opinion, therefore, the ground stated in paragraph (b) of the particulars to ground 2 fails.

Second ground – failure to make finding

1. The second ground on which the applicant relies is that stated in paragraph (c) of the particulars to ground 2 of the further amended application:

   In its assessment of relocation, the Second Respondent failed to ask itself the correct questions and/or failed to consider an integer of the applicant’s claims.

   Particulars

   (a)The Second Respondent accepted that the applicant had been involved in the lashkar (peace committee).

   .    .    .

   (c)The Second Respondent . . . failed to make a finding as to the deaths of the applicant’s friend Shujaat Ali and Ilyas Khan who were allegedly killed in Karachi because of their involvement in the lashkar (peace committee).

2. The Tribunal did not make any finding about the applicant’s evidence concerning the killing of Shujaat Ali and Ilyas Khan. The applicant submits this failure indicates one of two things: either the Tribunal did not consider the applicant’s evidence as relevant; or the Tribunal did not consider the applicant’s evidence at all. Either way, the applicant submits, the Tribunal made a jurisdictional error. If the Tribunal did not consider the applicant’s evidence to be relevant, that would indicate the Tribunal did not address the question it was required to address. If, on the other hand, the Tribunal did not consider the evidence at all, that would indicate the Tribunal did not properly exercise the power to review conferred on it by s.414 of the Act.

3. The applicant’s submissions assume the Tribunal was obliged to consider the applicant’s evidence about the killing of Shujaat Ali and Ilyas Khan and to consider the applicant’s evidence with a view to deciding whether to accept or not accept that evidence. The basis of that assumption is the assertion that it was an “essential integer of the Applicant’s claims . . . that relocation was not reasonable in his case because Shujaat Ali and Ilyas Khan . . . who were also involved in the lashkar had been targeted and killed by the Taliban in Karachi”.[42] In other words, the applicant asserts it was an essential element or integer of the applicant’s claim that Shujaat Ali and Ilyas Khan were killed in Karachi because of their involvement in the lashkar.

   [42] Applicant’s Submissions re: Further Amended Application [4]

4. In my opinion, it was not an essential element of the applicant’s claim for protection (including his claim it was not reasonable to relocate to Karachi) that Shujaat Ali and Ilyas Khan were killed in Karachi because of their involvement in the lashkar. The applicant could have succeeded on his claim for protection if the Tribunal was not satisfied the killings occurred, but was satisfied of other aspects of the applicant’s evidence, such as his evidence that he received threatening letters from the Taliban, or that the Taliban went to the applicant’s home looking to kill him. Equally, the applicant could have failed in his claim even if the Tribunal was satisfied the killings occurred. Thus, the fact the Tribunal did not make any finding in relation to the applicant’s evidence about the killings of Shujaat Ali and Ilyas Khan does not by itself indicate the Tribunal made any jurisdictional error. Is there anything in the material before me to indicate the Tribunal did not consider the applicant’s evidence or that the Tribunal made no findings in relation to that evidence because the Tribunal did not ask itself the correct question? In my opinion, that question must be answered in the negative.

5. First, the Tribunal referred in general terms to the applicant’s having pointed to “reports of a large number of murders, by Taliban and like extremists, of ANP people and people who helped the army”.[43] The Tribunal also set out in its reasons the claims the applicant made concerning the deaths of Shujaat Ali[44] and Ilyas Khan.[45] It is not reasonably open to conclude in the light of this that the Tribunal did not at the very least familiarise itself with the evidence, and reflect on whether it should make any findings on the basis of it.

   [43] CB408, [122]

   [44] CB390, [54], third bullet point

   [45] CB384, [25]

6. Second, the evidence before the Tribunal suggests that each of Shujaat Ali and Ilyas Khan had a profile that exposed them to a risk of harm whereas the applicant’s profile, as found by the Tribunal, was one that did not expose the applicant to a risk of harm. Thus, it was open to the Tribunal to conclude that whether or not Shujaat Ali and Ilyas Khan were killed by the Taliban was not probative of whether the applicant would face the risk of harm he claimed he would face in Karachi.

7. According to the applicant, Ilyas Khan “had been helping the army and the Lashkar since his house had been completely destroyed by the Taliban”.[46] Ilyas Khan was one of a number of people the applicant identified who helped the army. The applicant said that “[t]hese people were targeted by the Taliban because providing information to the army often resulted in Taliban members being found and killed by the army and the Taliban were trying to stop those who helped the army”.[47] The Tribunal, however, considered “the applicant’s claims of helping the army with information in the way he claimed to be untrue”.[48] Thus, it was reasonably open to the Tribunal to conclude that a characteristic that exposed Ilyas Khan to the risk of harm, namely, helping the army, was a characteristic not shared by the applicant.

   [46] CB384, [25]

   [47] CB384, [25]

   [48] CB407, [118]

8. As for Shujaat Ali, the applicant said he was “involved in the Peace Committee” in the applicant’s town.[49] There was country information which the Tribunal apparently accepted that “[p]olitical elders and leaders of anti-Taliban peace committees of Swat are a key target of the Taliban because they played a key role in assisting law enforcement agencies in the operation against the militants”.[50] At the first hearing before the Tribunal, however, the applicant said that he was not a member of the peace committee.[51] And, in any event, the Tribunal did not accept the applicant had any involvement in the lashkar other than to take part in watches to look out for Taliban or extremist activity after the army managed to purge the Swat from Taliban control. Thus, it was also open to the Tribunal to conclude that the characteristics of Shujaat Ali which exposed him to a risk of harm were not shared by the applicant.

   [49] CB307, [5]

   [50] CB397, [79]

   [51] CB387, [41]

9. It is for the applicant to satisfy the Court that the Tribunal did not make any findings in relation to the applicant’s evidence about the killing of these men because it did not ask itself the correct question. Given, however, that it was reasonably open to the Tribunal to find that the applicant did not share the characteristics of the profiles of Shujaat Ali and Ilyas Khan, and for that reasons, the killing of these men in Karachi is not probative of whether the applicant would face the risk of harm in Karachi, I am not prepared to infer that the Tribunal did not make findings about their deaths because it did not ask itself the correct question.

10. For these reasons, therefore, the second ground also fails.

Third ground

1. The third jurisdictional error the applicant claims the Tribunal made is that set out in ground 1 of the proposed further amended application:

   In its assessment of relocation, the Second Respondent failed to consider the risk to the applicant of ‘generalised harm’ in Karachi.

   Particulars

   (a)The applicant claimed that relocation was not reasonable as country information confirmed the general lawlessness and escalating violence and insecurity in Pakistan and in particular Karachi.

   (b)The Second Respondent erroneously confined its inquiry into the reasonableness of relocation to whether the applicant was at risk of serious harm for a Convention reason.

   (c)The Second Respondent failed to consider the claim that the applicant was at risk of generalised violence in Karachi and failed to undertake an assessment or evaluation of the relevant country information.

2. By this ground the applicant claims the Tribunal did not consider the applicant’s claim that it was unreasonable for him to relocate elsewhere in Pakistan because of general lawlessness and, to the extent the Tribunal did consider the claim, the Tribunal assessed the claim by reference to whether the applicant would be exposed to a risk of harm that was serious harm for a Convention reason.

3. In my opinion, the Tribunal did consider the applicant’s claim and, in so doing, did not restrict its consideration of the reasonableness of relocation by reference to the risk of serious harm arising from a Convention reason. The question the Tribunal asked was whether “the security situation elsewhere in Pakistan, including Karachi” rendered it unreasonable for the applicant to relocate to Karachi.[52] And that is the question the Tribunal answered.

   [52] CB412, [141], first bullet point.

4. The Tribunal first described the effect of the evidence on the security situation in Karachi. The Tribunal said the evidence showed that Karachi “has long been a city where there are ethno-political and sectarian attacks”, and that it was an “explosive cocktail”.[53] The Tribunal then noted that in assessing the security situation in Karachi, it was necessary to consider the number of people killed and injured in light of the population of Karachi (over 18 million), and the kinds of people most at risk of coming to harm, namely, ANP and MQM members, gang members, political and religious leaders, and certain people who are members of minority religious groups.[54] Finally, the Tribunal concluded that, although the Tribunal understood the applicant’s concerns about the security situation in his country, including Karachi, “its assessment is that there is no appreciable risk that the applicant would come to harm as a result of such violence there”, and the Tribunal did “not consider that the poor security situation prevailing in Pakistan makes it unreasonable for an individual such as the applicant to return and live in a place other than his home area, such as Karachi”.[55]

   [53] CB412, [142]

   [54] CB412, [142]

   [55] CB412, [143]

1. The third ground, therefore, also fails.

Conclusion and disposition

1. The applicant has not established the Tribunal made any jurisdictional error. Accordingly, I propose to grant the applicant leave to rely on the further amended application, but dismiss it. I also propose to order that the applicant pay the Minister’s costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  21 November 2014