MZZSJ v Minister for Immigration
[2015] FCCA 264
•11 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZSJ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 264 |
| Catchwords: MIGRATION – Refugee Review Tribunal – extension of time application – relocation to Karachi – whether the Tribunal conflated the requirements of the test for relocation – whether the Tribunal made an error of the type identified in MZYQU and MZZJY. |
| Legislation: Migration Act 1958, ss.417, 477(1), 477(2) |
| Cases cited: M211 of 2003 v Refugee Review Tribunal (2004) 82 ALD 24; (2004) 212 ALR 520; [2004] FCAFC 293 Minister for Immigration and Border Protection v SZSCA and Another (2014) 314 ALR 514; [2014] HCA 45 MZYNA v Minister for Immigration and Citizenship and Another (2012) 127 ALD 276; [2012] FCA 159 MZYPW v Minister for Immigration and Citizenship and Another (2012) 128 ALD 520; (2012) 289 ALR 541; [2012] FCAFC 99 MZYQU v Minister for Immigration and Citizenship and Another (2012) 206 FCR 191; (2012) 133 ALD 276; [2012] FCA 1032 MZYXP v Minister for Immigration and Border Protection and Another (2013) 137 ALD 348; [2013] FCA 1352 MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 35 ALD 1; (1994) 124 ALR 265 Re Commonwealth of Australia and Anor; Ex parte Marks (2000) 75 ALJR 470; (2000) 177 ALR 491; (2001) 22(4) Leg Rep 2; [2000] HCA 67 SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 97 ALD 1; (2007) 237 ALR 634; [2007] HCA 40 SZLWB v Minister for Immigration & Citizenship [2009] FCA 1067 SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46 SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133 |
| Applicant: | MZZSJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1480 of 2013 |
| Judgment of: | Judge Riley |
| Hearing date: | 28 January 2015 |
| Date of last submission: | 28 January 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 11 February 2015 |
REPRESENTATION
| Counsel for the applicant: | FL Batten |
| Solicitors for the applicant: | Holding Redlich |
| Counsel for the first respondent: | Nick Wood |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The time for the filing of the application to this court be extended to
10 September 2013.
The decision of the Refugee Review Tribunal handed down on 14 May 2013 in matter number 1209647 be set aside.
The matter be remitted to the Refugee Review Tribunal for determination according to law.
The first respondent pay the applicant’s costs fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1480 of 2013
| MZZSJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for an extension of time in which to file an application seeking review of a decision made by the Refugee Review Tribunal. In that decision, the Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a protection visa.
Extension of time application
The Tribunal’s decision was made on 14 May 2013. Under s.477(1) of the Migration Act 1958 (“the Act”), any application to this court is to be filed within 35 days of the date of the Tribunal’s decision.
The application to this court was not filed until 10 September 2013. Consequently, the application was 84 days late.Under s.477(2) of the Act, the court has power to extend the time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so.
In considering whether to grant an extension of time, the court must consider:
a)the length of the delay;
b)the reasons for the delay;
c)the prejudice to the parties of the grant or refusal of an extension of time;
d)the public interest in there being an end to litigation about the efficacy of the acts or decisions of public bodies or officials; and
e)the merits of the substantive application.
The application was almost three months out of time.
The applicant explained in an affidavit affirmed on 19 December 2013 that:
a)the solicitors who assisted him before the Tribunal told him, about four days before the application to this court was due, that they could not challenge the decision;
b)a friend took him to a second firm of solicitors who charged him $1,100 to send a letter to the Minister;
c)after a while, the applicant saw a third firm of solicitors who told him he should have gone to court;
d)the applicant went back to the second firm of solicitors, paid them some money, and they filed an application.
The applicant is currently represented by a fourth firm of solicitors.
The applicant would obviously be significantly prejudiced if the extension of time is refused. The first respondent did not point to any prejudice to him from the grant of an extension of time.
However, the first respondent emphasised the public interest in there being an end to litigation about the efficacy of the acts or decisions of public bodies or officials.
The first respondent also noted that, in Re Commonwealth of Australia and Anor; Ex parte Marks (2000) 75 ALJR 470; (2000) 177 ALR 491; (2001) 22(4) Leg Rep 2; [2000] HCA 67, McHugh J said at [17] that a prolonged search for favourable legal advice is not ordinarily an adequate explanation for delay. What McHugh J actually said was:
An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two-month period for mandamus and the six-month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. …(emphasis added)
As can be seen, McHugh J tied the lack of favourable legal advice to the lack of prospects of success of the substantive application. That aspect of the matter is considered further below.
The first respondent also submitted that the applicant’s course of conduct in seeking Ministerial intervention indicated that he had abandoned any possibility of seeking judicial review. In support of that proposition, the first respondent referred to M211 of 2003 v Refugee Review Tribunal (2004) 82 ALD 24; (2004) 212 ALR 520; [2004] FCAFC 293 at [24] where the Full Court referred, apparently with approval, to an earlier decision of Goldberg J:
In Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21; (2004) 205 ALR 198 Goldberg J said at 202 [14] that the applicant’s course of conduct in making a s 417 application was indicative of a decision to abandon any course that would seek to challenge the decision of the tribunal on grounds available under the Act or otherwise at law. At 202-3 [15] his Honour said that the s 417 application in that case was not a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant’s conduct implicitly accepted that the tribunal’s decision was not to be the subject of challenge.
The remaining factor, being the prospects of success of the substantive application, is considered in detail below.
The applicant’s claims
The applicant is a citizen of Pakistan. He is a member of the Turi tribe, which is a Shia Muslim Pashtun tribe. He is from the Kurram Agency, which is in the Federally Administered Tribal Areas of Pakistan.
The applicant claimed to fear persecution by reason of:
a)his political opinion, being opposition to the Taliban;
b)his religion, being Shia Muslim; and
c)his membership of three particular social groups, being:
i)persons living in the Kurram Agency;
ii)persons living in the Kurram Agency who oppose the Taliban; and
iii)Shia persons living in the Kurram Agency who oppose the Taliban.
The Tribunal’s decision
The Tribunal considered that it did not appear from the applicant’s evidence that he had been targeted in the Kurram Agency. Nevertheless, the Tribunal accepted that there had been suicide bomb attacks in the applicant’s home area and there was sectarian violence in Pakistan generally. Ultimately, however, the Tribunal considered that it would be reasonable for the applicant to relocate to Karachi.
Ground of application
There is one ground of review in the application filed on 10 September 2013 and amended on 14 January 2014, which is:
The Refugee Review Tribunal failed to perform its statutory task under s 414 of the Migration Act 1958, and thereby committed jurisdictional error, when it failed to determine whether it was reasonable, in the sense of practicable, for the applicant to relocate to Karachi.
In Minister for Immigration and Border Protection v SZSCA and Another (2014) 314 ALR 514; [2014] HCA 45 the High Court said at [21], [25] and [30]:
21.The “internal relocation principle" is well-established. According to this principle, a person is not a refugee within the meaning of the convention if he could avail himself of the real protection of his country of nationality by relocating to another part of that country. …
…
25.The factum upon which the principle of relocation operates is that there is an area in the visa applicant's country of nationality where he or she may be safe from harm. In this matter it was found by the tribunal that Kabul was such a place. By analogy with the internal relocation principle, given the existence of a place within his country of nationality where the respondent would have no well-founded fear of persecution, it could not be concluded that he is outside Afghanistan and unable to return to that country owing to a well-founded fear of persecution if it could reasonably be expected that he remain in Kabul and not travel outside it. As in SZATV, it is the question of what may reasonably be expected of the respondent which must be addressed.
…
30.In Januzi, the House of Lords approved the approach of the Court of Appeal in E v Secretary of State for the Home Department as to the nature of the test to be applied to determine whether an asylum seeker could reasonably be expected to move to a safe haven within his or her country of nationality – that is, to internally relocate. In the respects relevant to this matter, the Court of Appeal said (citations omitted):
“Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there ... Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is 'outside the country of his nationality by reason of a well-founded fear of persecution'.”
The nature of the test was said to involve “a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker.” (citations omitted)
In SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 97 ALD 1; (2007) 237 ALR 634; [2007] HCA 40, Gummow, Hayne and Crennan JJ said at [11]:
The appellant points to the absence from the text of the Convention definition of any reference to relocation to a safe area within the country of nationality or a former habitual residence. He correctly submits that any notion of “relocation” and of the “reasonableness” thereof is to be derived, if at all, as a matter of inference from the more generally stated provisions of the definition.
In SZATV, their Honours said at [19] to [24]:
19.With these propositions in mind, it will be seen that the matter of “relocation” finds its place in the Convention definition by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for Home Department. His Lordship said (citations omitted):
“The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.”
…
21.Lord Bingham went on in Januzi to refer to the statement in the UNHCR Handbook (at [91]) (citation and footnote omitted):
“The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, 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.”
22.His Lordship, significantly both for Januzi and the present appeal to this Court, added (citation omitted):
“The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.”
…
23.The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a “hypothetical assumption”, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a “safe area” within the country of nationality as determinative of the existence of a well-founded fear of persecution.
24.However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. 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. (footnotes omitted)
Kirby J said in SZATV at [80] and [81]:
80.… internal 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. (footnotes omitted)
81.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 party 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. (footnotes omitted)
In SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133, Kenny J said at [73] and [74]:
73.It may be accepted that the requirement that a “fear” be “well-founded” in Art 1A(2), also “incorporates a consideration as to whether a claimant for refugee status can relocate within the country of his nationality so as to avoid persecution”: see MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 (‘MZYPW’) at [8], citing SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (‘SZATV’). The issue of relocation does, however, as the appellant said, raise the separate and distinct issue of reasonableness. … [Here, her Honour referred to paragraphs[23] to [24] of SZATV.]
74.Whether relocation to a particular place is reasonable raises different issues to those raised by the question whether a visa applicant faces a “fear of harm”. Unlike fear of persecution, reasonableness of relocation imports a question of practicability, the boundaries of which are different from fear of harm for a Convention reason and in the Convention sense, despite the question of harm in the Convention sense remaining relevant and thus being common to both analyses … . …
In SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46, Tracey and Foster JJ said at [124]:
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 … .
In Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 35 ALD 1; (1994) 124 ALR 265, Black CJ, with whom Whitlam J agreed, said at 443C–D:
… the extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant.
In the present case the applicant raised several issues, all of which were dealt with by the decision-maker. If the appellant had raised other impediments to relocation the decision-maker would have needed to consider these… .
In MZYXP v Minister for Immigration and Border Protection and Another (2013) 137 ALD 348; [2013] FCA 1352, Kenny J said at [61]:
… In relation to relocation, it was not correct to say, as the appellant did, that the tribunal’s inquiry was as to the “objective impact of the possible relocation” on him. Rather, the inquiry, though objective, was circumscribed by the case made by the appellant with respect to the relocation issue.
In MZYPW v Minister for Immigration and Citizenship and Another (2012) 128 ALD 520; (2012) 289 ALR 541; [2012] FCAFC 99, Flick and Jagot JJ referred to the quotation set out above from Kirby J’s judgment in SZATV and said at [9]:
... What was put in issue, and what must be accepted, was that the factors identified by Kirby J were not to be construed as a statutory list of considerations which must necessarily be taken into account in every case.
In MZYQU v Minister for Immigration and Citizenship and Another (2012) 206 FCR 191; (2012) 133 ALD 276; [2012] FCA 1032, Dodds-Streeton J said at [61] to [62]:
61.In my opinion, therefore, the IMR’s error lay not in considering that a risk of “serious harm as required by s 91R(1)(b)” was relevant to relocation, but in implicitly treating such harm as the only level or kind of harm which could affect the reasonableness of relocation.
62.While the IMR’s reasons should not be read with over-zealous scrutiny, the failure to include the risk of generalised violence or harm due to personal circumstances in the list of relevant factors weighing against the reasonableness of relocation in [88] indicates that any harm that was not “serious harm as required by s 91R(1)(b)” was excluded from consideration in that context.
In MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394, Davies J said:
12.Following the hearing, the applicant made supplementary submissions in writing on the relevance of SZSSM v Minister for Immigration & Anor [2013] FCCA 1489 (“SZSSM”). In short, it was submitted that facts of that case were “strikingly similar” with the applicant’s facts and that the reasoning in SZSSM was “directly and immediately applicable to Ground 4” of the judicial review application. It was submitted that the applicants in this case and SZSSM share the following features and claims:
(a) They are both citizens of Pakistan;
(b) They are both Shi’a Muslims;
(c) They are both ethnic Pashtuns from minority Pashtun Shi’a tribes;
(d) They are both from Parachinar;
(e) In both cases the Tribunal found that the applicants were credible witnesses; and
(f) In both cases the Tribunal found that the applicants could reasonably be expected to relocate to Karachi.
13.In SZSSM, the FCC held that the Tribunal fell into a similar error as that identified in MZYQU (2012) 206 FCR 191. In MZYQU, Dodds-Streeton J held that an independent merits reviewer (“IMR”) had failed to address the correct question in assessing whether it was reasonable for the appellant to relocate to Kabul in that the IMR had treated any harm which was not “serious harm” within the meaning of s 91R(1)(b) of the Act as irrelevant to the issue of relocation. Her Honour found that the IMR fell into legal error by limiting consideration of the risk of violence to the applicant to whether the applicant was at risk of serious harm as required by s 91R(1)(b). …
…
21.I accept the submission for the applicant that the Tribunal conflated the two limbs of the relocation test, namely “appreciable risk” and “reasonableness”, by finding that the applicant could be reasonably expected to relocate to Karachi “where there is not an appreciable risk of the occurrence of the feared persecution”. In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 Gummow, Hayne and Crennan JJ stated that what is “reasonable” in the sense of practicable must depend upon the particular circumstances of the visa applicant and the impact upon that person of relocation of the place of residence within the country of nationality. This criterion was recently affirmed by the High Court in Minister for Immigration and Citizenship v SZSCA [2014] HCA 2014. In the present case, the Tribunal dealt with the position of Shias generally in Karachi but did not consider the practical realities facing the applicant, as a person at risk of attack in Karachi because of his religion. In so doing, the Tribunal wrongly elided the question posed by the “reasonableness” criterion with the inquiry, is there a lack of “appreciable risk” of harm? The conclusion that the chance of harm is not more than remote dealt only with the consideration as to whether objectively there is an appreciable risk of persecution for a Convention reason in Karachi, but did not deal with the question as to whether it is reasonable, in the sense of practical, to expect the applicant to live there faced with a risk of violence and where he would lack protection from the authorities, as the Tribunal accepted. The same considerations do not necessarily apply to both limbs. The fact that the risk of harm may be remote does not necessarily answer the question whether it is reasonable, having regard to the personal circumstances of the applicant, to expect the applicant to face that risk. The Tribunal was obliged to consider the practical realities for the applicant in determining whether it is reasonable to expect him to relocate. It did not do so, and in failing to do so fell into jurisdictional error.
In relation to the level of detail required in the consideration of the reasonableness of internal relocation, in SZLWB v Minister for Immigration & Citizenship [2009] FCA 1067, Besanko J said:
37.The Tribunal referred to the appellant’s significant skills and business acumen which it said would allow the appellant to work and provide financially for his family in another part of India. The Tribunal referred to the fact that the appellant did not have dependents who required him to remain specifically in Calcutta. The Tribunal expressly said:
“... it would be reasonable having regard to all the applicant’s circumstances, for him to relocate to one of a number of other areas in India.”
38.It seems clear then that the Tribunal addressed the issue of whether it would be reasonable, in the sense of practicable, for the appellant to relocate to other areas in India.
The appellant refined his submission by suggesting that the Tribunal had not addressed reasonableness because it had not addressed whether the appellant could support his family during an establishment period for a new business.
It seems to me that, in truth, this is not a contention that the Tribunal has not addressed a necessary element of a claim, but rather a contention that the Tribunal has not addressed the matter adequately. It seems to me that, even if made out, the contention does not amount to jurisdictional error.
In any event, I do not think the criticism of the Tribunal’s approach is justified. The Tribunal considered the appropriate issues at the appropriate level. It referred to the appellant as a “talented businessman” with “significant skills and business acumen” and it concluded that it would be reasonable, “having regard to all the applicant’s circumstances”, for the appellant to relocate to one of a number of other areas in India. I do not think the Tribunal was required to consider the issues at a level of detail involving consideration of a start up period for a business.39.The appellant made an alternative submission to the effect that there was no evidence to support the Tribunal’s finding of reasonableness in the sense of practicability. That submission must be rejected because it is clear that the Tribunal asked itself the right question and there was material upon which it could reach its conclusion.
The correctness of the Tribunal’s conclusion is not a matter of jurisdictional error.In MZYNA v Minister for Immigration and Citizenship and Another (2012) 127 ALD 276; [2012] FCA 159, Gordon J said at [47]:
The matters referred to by the appellant, in substance, are not contentions that the tribunal has not addressed a necessary element of a claim but contentions that the tribunal has not addressed a matter adequately. A failure to address a matter adequately does not amount to an error going to jurisdiction: SZLWB. …
The applicant submitted that:
The Tribunal failed to apply the correct test because the Tribunal member conflated the test to being one simply of whether or not the applicant would face a real risk of persecution in Karachi rather than independently identifying as the second step of the test whether or not it would be reasonable for the applicant to so relocate.
… the Tribunal considered the first limb of the reasonableness test – whether there was no appreciable risk of the occurrence of the feared persecution – but did not consider, as it was required to do, the second limb – whether it was reasonable in the sense of practicable for the applicant to relocate to Karachi. … the Tribunal committed jurisdictional error by conflating the two limbs of the relocation test ... .
The Tribunal relevantly said in relation to the issue of relocation in its reasons for decision:
16.I accept that there are problems in the Upper Kurram Agency and that suicide bomb attacks have taken place in Parachinar as referred to by [the applicant] and his representatives. However, as I explained to [the applicant], I have to consider whether he will be safe from the persecution which he fears in his home in the Kurram Agency if he relocates to some other part of Pakistan. As I put to him, he has completed his Matriculation, he said in his original application that he spoke both Pashto and Urdu and he has worked as a teacher and a taxi driver. As I likewise put to him, there are no barriers to internal movement within Pakistan apart from the restrictions that apply to certain areas for security reasons.
[The applicant]asked me to show him a place in Pakistan which was safe for Shia people. He said that in Gilgit, Quetta, Karachi and Parachinar and other parts of Pakistan Shia Muslims were being targeted and were being killed. He said that for them it was too difficult to live somewhere else because they were the only major Pashtun tribe that held Shia beliefs and they could be distinguished easily in any other part of Pakistan because of their language or accent, their names, and the fact that the way they prayed and practised their religious rituals was different from Sunnis. He also said that they would be asked for their National Identity cards (which showed their residential addresses) anywhere they went.
17.As I indicated to [the applicant], I accept that he will be able to be distinguished as a Shia Muslim but Shia Muslims constitute over 20 per cent of the population in Pakistan or around 40 million people in total. [The applicant] referred to the fact that he was a Shia Muslim from the Kurram Agency and he said that the entire area was being encircled by the Taliban because the people there were against the activities of the Taliban and were not allowing the Taliban to pass through their areas. He repeated that nowhere in Pakistan was safe for him for those reasons. As I put to him, however, tens of thousands of Pashtuns have moved to Karachi. [The applicant] said that there was conflict between the Pashtuns and the Punjabis in Karachi: the Punjabis were targeting the Pashtuns. He said that the majority of the Pashtuns who were living in Karachi were Sunni and he was Shia and that he would be targeted by both the Punjabis and the Pashtuns because of his religion. He said that he did not have any home in Karachi and he did not have any means of work there so it would not be possible for him to live there.
18.As I put to [the applicant], however, he has worked as a teacher and as a taxi driver so he has skills with which he could obtain work in Karachi. He speaks Urdu, the language spoken by the Mohajirs in Karachi, as well as Pashto, the language spoken by the Pashtuns.
[The applicant] said that he would not feel safe in Karachi. He said that it would have been much easier for him to have found a home in Karachi and he could have found a job there easily but he would not have been free there because he would still have been confined. He said that he would not be able to worship in front of the public or to show his National Identity card to someone else. He said that he would not tell Punjabis that he was Pashtun and he would not dare to tell Pashtuns that he was a Shia from the Kurram Agency.
19.After I asked [the applicant] who had told him that there was conflict between Punjabis and Pashtuns in Karachi, he said that he could see the news all the time on television about the insecure situation in Karachi. As I noted, there are problems with political violence in Karachi but they do not involve Punjabis. The Mohajirs are the dominant community in Karachi and the Pashtun party, the Awami National Party, is fighting the Mohajir party for control of districts in Karachi. Punjabis are not involved.
[The applicant] said that he referred to anyone who spoke Urdu as a Punjabi.
20.As I put to [the applicant], the evidence available to me does not suggest that Shia Muslims in Karachi are afraid to carry out their religious observances. [The applicant] said that there were many parties and organisations like the Lashkar-e-Jhangvi and others which were involved in killing Shia people all over Pakistan. However, as I put to him, in that context I have to look at his situation as one Shia Muslim among the 40 million Shia Muslims in Pakistan. As I put to him, I consider that the chance of his being caught up in one of these acts of sectarian violence is very remote. [The applicant] said that his life would be at risk and he would not feel safe in Karachi or other areas of Pakistan. He said that if he had wanted to live his life with risk he could have continued his life in Parachinar. He repeated that he wanted to live freely and he said that he was tired of war and insecure situations. He referred to a suicide attack on an imambargah (a Shia mosque) and he said that he would not be able to practise his religion freely.
21.While I accept that [the applicant] is a member of the Turi tribe, a Shia Muslim Pashtun tribe, and that there is conflict between the Turi tribe and the Bangash tribe, the Haqqani network, the TTP and other Sunni militant groups in the Kurram Agency, I do not accept that this means, as submitted his representatives, that it would be unreasonable for [the applicant] to relocate anywhere else in Pakistan. There is nothing in the independent evidence available to me to suggest that members of the Turi tribe formerly living in the Kurram Agency are being targeted in Karachi for reasons of their membership of that tribe or for reasons of their race (Pashtun), religion (Shia Muslim) or their imputed political opinion (opposed to the Taliban or to other Sunni militant groups). There is likewise nothing in the independent evidence available to me to suggest that [the applicant] will be at any greater risk than any other Shia Muslim of being attacked for reasons of his religion because he is a Pashtun or specifically because he is a member of the Turi tribe or because he has previously been living in the Kurram Agency if he relocates to Karachi.
As I indicated to him, I accept that there are problems with political violence in Karachi but I do not accept on the evidence before me that there is a real chance that he will be persecuted in the context of this political violence for reasons of his race (Pashtun), his religion (Shia Muslim), his membership of the Turi tribe, the fact that he has been living in the Kurram Agency or the combination of those factors if he settles in Karachi now or in the reasonably foreseeable future.
22.I accept that there is a problem of sectarian violence in Pakistan but, as I put to [the applicant], I consider it appropriate to assess his situation in this regard as one of around 40 million Shia Muslims in Pakistan. I consider that there is only a remote chance of his falling victim in one of the incidents of sectarian violence such as the attack on an imambargah to which he referred. I do not accept on the evidence before me that there is a real chance that he will be persecuted for reasons of his religion or that he will be prevented from practising his religion freely if he settles in Karachi now or in the reasonably foreseeable future.
23.I have considered whether in all the circumstances of the case it would be reasonable to expect [the applicant] to settle in Karachi. Although he initially said that he did not have any home in Karachi and that he did not have any means of work there, he conceded that he could have found a home in Karachi and he could have found a job there easily. As referred to above, he has worked as a primary school teacher and a taxi driver in the past and he speaks both Pashto and Urdu. Although his representatives referred to evidence suggesting that Urdu was the mother tongue of less than eight per cent of the population of Pakistan, it is the language spoken by the Mohajirs, the dominant community in Karachi. [The applicant] said that he would not feel safe in Karachi but for the reasons given above I do not accept that he will be at any greater risk than any other inhabitant of Karachi in the context of the ethnic, sectarian and political violence in Karachi because he is a member of the Shia Muslim Pashtun Turi tribe who has previously been living in the Kurram Agency. I consider on the evidence before me that the chance of his being persecuted in the context of the violence in Karachi is remote.
Conclusion
24.I do not accept that there is a real chance that [the applicant] will be killed or seriously harmed or mistreated by the TTP, other Sunni militant groups, Sunni Muslims more generally, other Pashtuns or members of other ethnic groups for reasons of his membership of the Turi tribe, his political opinion (opposed to the Taliban or to other Sunni militant groups), his religion (Shia Muslim) or his membership of any of the three particular social groups referred to in his statement accompanying his original application - ‘[t]hose persons living in the Kurram Agency’, ‘[t]hose persons living in the Kurram Agency who oppose the Taliban regime’ and ‘[t]hose Shia persons living in the Kurram Agency who oppose the Taliban regime’ - if he returns to Pakistan and settles in Karachi now or in the reasonably foreseeable future. I have considered the totality of [the applicant’s]circumstances as a member of the Turi tribe, a perceived opponent of the Taliban and other Sunni militant groups, a Pashtun and a Shia Muslim who has previously been living in the Kurram Agency, but even taking into account the cumulative effect of all these circumstances I do not accept that there is a real chance that he will be persecuted if he returns to Pakistan and settles in Karachi now or in the reasonably foreseeable future. (emphases added) (footnotes omitted)
It is customary for the Tribunal to deal with relocation issues by:
a)firstly, concluding that the applicant faced a real risk of persecution in his home region; and
b)secondly, considering whether the applicant faced a real risk of persecution in other areas of his country; and, if not,
c)thirdly, considering whether it would be reasonable for the particular applicant to relocate to an area where he would not face a real risk of persecution.
The Tribunal does not appear to have followed that course in this case. The Tribunal said in paragraph 15 of its reasons for decision that it did not consider that the applicant was being targeted by anyone in the Kurram Agency. That appears to have been intended to amount to a finding that the applicant did not face persecution in his home region, being the Kurram Agency.
In any event, the Tribunal then said, in paragraph 16 of its reasons for decision, that:
… I have to consider whether [the applicant] will be safe from the persecution which he fears in his home in the Kurram Agency if he relocates to some other part of Pakistan.
The Tribunal proceeded to consider that question. It concluded in paragraphs 21 and 22 of its reasons for decision that the applicant did not face a real risk of persecution in Karachi for any of the reasons that had been raised. The Tribunal said:
21.… I do not accept on the evidence before me that there is a real chance that he will be persecuted in the context of this political violence for reasons of his race (Pashtun), his religion (Shia Muslim), his membership of the Turi tribe, the fact that he has been living in the Kurram Agency or the combination of those factors if he settles in Karachi now or in the reasonably foreseeable future.
22.… I do not accept on the evidence before me that there is a real chance that he will be persecuted for reasons of his religion or that he will be prevented from practising his religion freely if he settles in Karachi now or in the reasonably foreseeable future.
The Tribunal then had to consider whether it would be reasonable for the applicant to relocate to Karachi. The Tribunal said in paragraph 23 of its reasons for decision that it had done so. The Tribunal said:
I have considered whether in all the circumstances of the case it would be reasonable to expect [the applicant] to settle in Karachi. …
In considering whether it was reasonable for the applicant to relocate to Karachi, the Tribunal was obliged to consider the particular objections raised by the applicant expressly or raised clearly on the materials.
The first objection raised by the applicant was that he did not have a home or job in Karachi. However, the Tribunal noted at paragraph 23 of its reasons that the applicant conceded that he could easily have found a home and job in Karachi. That objection was adequately considered.
The second objection raised by the applicant concerned his languages. He said he spoke Pashto and Urdu. The Tribunal noted at paragraph 23 that Urdu is the language spoken by the Mohajirs, the major community in Karachi. That objection was adequately considered.
The third objection raised by the applicant was that he would not be able to freely and openly practice his religion in Karachi. In relation to this objection, the Tribunal said at paragraph 20 of its reasons for decision:
… the evidence available to me does not suggest that Shia Muslims in Karachi are afraid to carry out their religious observances. … (footnote omitted)
That objection was adequately considered.
The fourth objection raised by the applicant was that he would not be safe in Karachi. In relation to this objection, the Tribunal said at paragraphs 23 and 24 of its reasons for decision:
23.… I consider on the evidence before me that the chance of [the applicant] being persecuted in the context of the violence in Karachi is remote.
24.… I do not accept that there is a real chance that he will be persecuted if he returns to Pakistan and settles in Karachi now or in the reasonably foreseeable future. (emphases added)
The references in the last paragraph to the chances of the applicant being persecuted in Karachi are a clear indication that the Tribunal applied the wrong test in its consideration of the question of the reasonableness of the applicant’s relocation to Karachi. The fact that there might not be a real risk of persecution of a particular person in a particular place does not necessarily mean that it would be reasonable for that person to relocate to that place.
Consequently, I consider that the Tribunal made an error in this case of the type identified in MZYQU and MZZJY. That error is a jurisdictional error.
I note for the record that the first respondent submitted that MZZJY was wrongly decided, if it means, as I understand it to mean, that a conclusion that a risk of persecution is remote in a particular place for a particular person does not answer the question of whether it is reasonable to expect that person to live in that place. In any event, MZZJY is binding on this court.
Conclusion
In view of the jurisdictional error made in this matter, I consider that an extension of time ought to be granted. I have formed that view, even though the delay was significant and the applicant applied to the Minister under s.417 of the Act, rather than immediately pursuing his application in this court, because the consequences to the applicant of refusing the extension of time are potentially very grave. For the reasons expressed above, I consider that the application ought to be allowed with costs. There will be orders accordingly.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 11 February 2015
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