MZZWL v Minister for Immigration

[2014] FCCA 1987

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZWL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1987

Catchwords:
MIGRATION – Protection visa – whether reasonable and practicable for applicant to relocate – application for judicial review dismissed.

Legislation:  
Migration Act 1958

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: MZZWL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2048 of 2013

Judgment of: Judge Jones

Hearing date: 26 August 2014

Date of Last Submission: 26 August 2014

Delivered at: Melbourne

Delivered on: 26 August 2014

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Counsel for the Respondent: Mr Brown

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 26 November 2013 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 2048 of 2013

MZZWL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. This is an application for judicial review of a decision by the Refugee Review Tribunal, (“the Tribunal”) dated 31 October 2013, affirming a delegate of the first respondent’s decision to refuse to grant the applicant a protection (Class XA) visa, which I will refer to as the visa.

Background

1. The applicant is a 37 year old national of Pakistan, a Sunni Muslim of Pashtun ethnicity from Peshawar, Khyber Pakhtunkhwa, KP, province.  He arrived in Australia on 3 July 2010 on a subclass 572 student visa, which remained valid until 1 September 2012.  The applicant travelled back to Pakistan on 27 January 2012, returning to Australia on 14 March 2012.  He lodged an application for the visa on 27 August 2012, and this application is set out in the Court Book at pages 1 to 49. 

2. The grounds for judicial review which are set out in the application filed by the applicant in this court on 26 November 2013 are as follows: 

   (1) The decision of the Refugee Review Tribunal is made without              justification and is affected by jurisdictional error.  Particulars: 

   (a) The Tribunal has erred in its conclusion that it would be reasonable and practicable for the applicant to relocate to one of the larger towns or cities in the Punjab or Sindh if he returned to Pakistan. 

   (b) The Tribunal has failed to consider the principle of a more general notion of protection by that country, in this case, Pakistan, and with persecution in the defined sense. 

   (c) The Tribunal has erred in its conclusion of the complementary protection criterion in section 36(2)(aa) in that there is sufficient evidence to conclude that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm, including generalised violence and being unable to rely on the protection of the state in all areas of Pakistan and not just KP. 

Applicant’s claims

1. Turning to the claims of the applicant made in these proceedings, they are, in my view, having read all the documentary material, fairly set out by the Tribunal in its decision record.  There are, first, the statements made by the applicant in his application for the protection visa, and those are specifically contained in Court Book 7 to 11.  The claims are summarised by the Tribunal in its decision record -  at paragraph 7, at Court Book 178, as follows:

   (a) 2009 was the worst year of his life due to the terrorism and bombings and conflict between the army and the Taliban that occurred in Peshawar and throughout the KP province.  These events caused him to want to leave Pakistan and study abroad. 

   (b) he comes from a moderate and liberal family where the education of women is encouraged and social values are respected.  His older sister, Wagmar, is a US citizen and works for the Voice of America, VOA, as a producer and broadcaster.  His other sister, Maliha, lives in the Czech Republic and works for Mashaal Radio.  Both of his sisters’ work covers issues in Afghanistan and Pakistan, which are often critical of the Taliban. 

   (c) In early 2011, his parents had received death threats over the telephone from the Taliban which referred to the children working as spies for the USA.  His father ignored the calls but then later received threatening letters from the Taliban. 

   (d) He went to see his parents in January 2012.  When he was there, he received a threat over the telephone from the Taliban, who accused him for working for the USA.  On 20 February 2012, he was driving in a car with his mother when Taliban fighters shot at the car, but they escaped and the bullets only went into the car boot.  After that happened, he went into hiding. 

   (e) The Taliban told his father that sooner or later they would punish him with death because his children are spies.  His parents left Pakistan for a couple of months after he returned to Australia, as they were also afraid of being attacked by the Taliban.  The Taliban think he is working abroad and as a spy for the USA and their allies.   

2. The next claims identified by the Tribunal are claims derived from an interview by the applicant with the Minister’s delegate on 18 October 2012.  These are set out at paragraph 9 of the Tribunal’s decision record, Court Book 179, and I quote:

   (a) His family received an undated letter from the Taliban in November 2011.  His father warned him about going back in early 2012, but he wanted to see his family. 

   (b) The men who attacked him on 20 February 2012 had beards and looked like the Taliban.  They signalled him to pull over but he refused and they fired shots at the car, damaging the boot.  The men gave up their chase when he reached a heavy traffic area.  They went into hiding after that incident.  They were too afraid to tell relatives or friends about it because it could have exposed their location.

   (c) His parents and two siblings continue to reside in Pakistan.  His sister, Wagmar, had returned to Pakistan in an official capacity for VOA on more than one occasion and had travelled to Pakistan with her three children.  His mother has cousins and uncles in the USA, one of whom his sister lives with in Maryland.  His brother lives in the UK with his family.

3. The final claims identified by the Tribunal derive from a further statement made by the applicant, dated 20 September 2013, which was filed with his material for the purpose of the proceedings before the Tribunal.  These are set out at Court Book 120 to 127 and are summarised in the Tribunal’s decision record at paragraph 12, Court Book 180, and are as follows, and I quote:

   (a) After his father retired from the army, he joined the Awami National Party, ANP.  During the war on terrorism, the ANP was a ruling party and the Taliban attacked its members.  His father was an active member of the ANP. 

   (b) The applicant joined and was a member of the ANP and attended rallies and meetings and campaigned very actively for the ANP.  He was involved in the 2009 election campaign.  When he left Pakistan, the ANP was a ruling party.  However, it is now Tehrak in the south. 

   (c) His family used to visit his father’s home village of Dir two or three times a month for a few days.  However, there were large numbers of Taliban in Dir and there were many attacks on ANP members in Dir, which caused his village to stop visiting Dir.  Some of the ANP members from Dir came to stay at the applicant’s house in Peshawar. 

   (d) One of his friend’s cousins became a Taliban commander. 

   (e) After he left Pakistan, the Taliban called his family and sent letters to them and harassed his family.  In 2011, his family home was attacked by people who fired bullets into the walls, and the window on the first floor was smashed.  A police report was made and the police came to the house but they were too afraid to do anything. 

   (f) When he returned in 2012, he received a number of telephone calls with threats accusing him of working as a spy for the USA.  He also received threatening letters from the Taliban. 

   (g) His family made complaints to the police, but the police were also afraid of the Taliban. 

   (h) His sister only returned once to Pakistan, and that was just before he went back in 2012.  His parents left for three months after he returned to Australia in 2012 as they were afraid. 

   (i) He completed the protection visa application without assistance and he forgot to include a number of things.  He was depressed after his return in 2012.

Tribunal Decision

1. I now turn to the Tribunal decision, and in doing so, I note, firstly, that the applicant has filed, on 10 July 2014, what is titled Applicant’s Contentions of Fact and Law that address his grounds for review identified earlier, and that the Minister has also filed, the first respondent’s Outline of Submissions, and that was done on 12 August 2014.  In the course of my judgment, I will, of course, refer to those submissions by both of the parties. 

2. But firstly, I will turn to the Tribunal decision itself.  Having set out the applicant’s various claims, the Tribunal set out in some detail the evidence before it at the hearing conducted on 4 October 2014.  I note here that the applicant appeared on that date and gave evidence through an accredited Pashtun interpreter.  His migration agent also attended his hearing, as did a friend of the applicant. 

3. From paragraph 13 to 34 of the Tribunal’s decision record, which is set out at Court Book 180 to 185, the Tribunal set out the questions it asked of the applicant, the concerns that it expressed to the applicant in relation to inconsistencies that it thought had arisen from the various information provided by the applicant, and questions of implausibility in relation to some of the applicant’s claims and on which it later relied on. 

4. It also referred to, in the course of the questioning of the applicant, independent information, namely, country information, in relation to certain matters such as the position of the ANP itself and the targeting of, for instance, journalists who would be seen as working for foreigners outside the state of Peshawar.  I say that because of the particular claims raised by the applicant. 

5. Relevantly, because of the grounds of review raised by the applicant, the Tribunal at paragraph 34, Court Book 185 raised with the applicant the question of relocation.  The Tribunal at paragraph 34 stated that it asked the applicant to comment on why it would be difficult for him to live in another part of Pakistan outside the PK province, such as in the Punjab or Sindh.  The applicant responded that his life would be in danger throughout Pakistan. 

6. The Tribunal also asked him to comment on why he could not go to the police if he was in some danger in Punjab or Sindh, and the applicant responded that the police cannot protect themselves and they would not be able to help him.  The Tribunal also asked the applicant why his family had not been targeted outside Peshawar, and he responded that they were in hiding. When the Tribunal asked the applicant why his sister and family had not been targeted in Islamabad, the applicant responded  that the Taliban did not know where she is. 

7. The Tribunal put to him that in his circumstances, that is, his personal circumstances as an educated person with a variety of work skills and experience, his ability to speak, read and write in English, Urdu and Pashto and coming from a relatively wealthy family, it would appear reasonable to the Tribunal that he could relocate to one of the large towns or cities in Punjab or Sindh, where he could find work and accommodation.  The applicant responded that he could not relocate because it was too dangerous. 

8. The Tribunal also noted that it received further documents following the hearing.  These related to the applicant’s claims that he was an active member of the ANP, and two birth certificates in relation to his sisters. 

9. The findings and reasoning of the Tribunal commenced at Court Book 186, and I summarise them briefly as follows. 

10. The first finding is in paragraph 38 at Court Book 187, and that is, the Tribunal found that he was a national of Pakistan and assessed his claims against Pakistan.  The second finding is set out in paragraph 39 at Court Book 187, and that was that the Tribunal accepted that he is a Pashtun Sunni Muslim who was born in Peshawar, which is where he resided with his family up until his departure to Australia in July of 2010. 

11. The Tribunal also accepted the applicant’s evidence that after finishing school, he began working with Mobilink in Peshawar, where he worked as a customer service officer from 1996 to 1999, as an accounts assistant from 2001 to 2003, as a finance officer from 2003 to 2009, and then for six months before coming to Australia, he worked with Salalah Travel as an accounts officer. 

12. The third finding of the Tribunal is set out at paragraph 43 at Court Book 188, where the Tribunal accepted that Wagmar Jalawan, one of his sisters, works for VOA Deewa Radio and is a US citizen and lives and works in Washington, USA.  It also accepted and hence found that Maliha Amirzadah works for the Radio Free Europe’s Radio Mashaal and lives and works in Prague, Czech Republic.

13. The next finding of the Tribunal is set out at paragraph 48, Court Book 189, and that is that the Tribunal accepted and hence found that the applicant and his father were members of the ANP.  It noted in so doing:

    The applicant’s evidence, which it accepts, is that neither he nor his father had any particular role in the ANP other than being regular members and that he was not harmed, threatened or mistreated for reasons relating to his association with the ANP.  

14. The Tribunal also accepted his evidence that his last involvement with the ANP was in August 2009. 

15. However, the Tribunal went on to find against the applicant’s claims that he and his father were threatened by the Taliban, that there were attacks on his home by the Taliban, and that when he returned to Pakistan in early 2012 and was driving with his mother in a car, that the applicant was attacked by the Taliban.

16. In broad brush, the findings of the Tribunal against the applicant in relation to these claims were because the Tribunal, as it indicated at paragraph 49 of its decision record, found that the applicant was not a credible witness.  It stated at paragraph 49 that:

    As discussed with the applicant at the hearing, the inconsistencies in the evidence he gave at different times and the implausible nature of certain aspects of his claims about the threats and attack from the Taliban and his subsequent return to Peshawar caused the Tribunal to have concerns with his reliability as a witness and the overall credibility of his claims.    

17. By way of example, an implausibility that the Tribunal found was the fact that the applicant would have returned to Pakistan in early 2012 after the alleged death threats by the Taliban, and the implausibility of his father, who had received death threats, encouraging, or even allowing, I should say, his son to return.  The inconsistencies in the applicant’s evidence identified by the Tribunal were the differences in his evidence to the Department, in his statement made in his application for merits review and the evidence that he gave at the hearing. 

18. I should note here that the Tribunal was very careful at paragraph 53, Court Book 191, to deal with the applicant’s claims that part of the inconsistent evidence would be explained by the fact that he was depressed on returning from Pakistan, that he did not have a lawyer to assist him, and the Tribunal stated that it had regard to Tribunal’s guidance on the assessments of credibility. 

19. It nevertheless found that the applicant, in its view, would have been expected to be able to give consistent evidence about key matters involving the threats made against him and to him and his family and the attack on his family home, and the fact that he was not able to do so reflects poorly on his credibility and his reliability as a witness.

20. The next finding of the Tribunal was then, therefore, consequently set out at paragraph 54 of the decision record, Court Book 191, and that is as follows:

    “considered cumulatively, the concerns the Tribunal holds about the reliability of the applicant’s evidence about these matters leads it to find that he is not a reliable witness and that the account of events he gave about his father and family and himself receiving threats from the Taliban and his family home being attacked is not true.  In other words, the Tribunal did not accept that claim.”

21. The Tribunal set out at paragraph 55 that it did not accept the fact that the applicant’s father received telephone calls or letters from the Taliban or that the applicant’s family home in Peshawar was attacked and bullets were fired into the house. 

22. The Tribunal dealt with information provided by the applicant at paragraph 56 of its decision record, and that being an undated handwritten letter in Pashto, which he had provided to the Department. 

23. The Tribunal took note of the relative ease of obtaining false and forged documents in Pakistan.  Having found that the applicant was not a reliable witness, who fabricated his claims about the Taliban having an adverse interest in him and his family, the Tribunal did not accept that the letter was issued and written by the Taliban and given to his family, and hence placed no weight on that document as a piece of corroborative evidence.

24. Further, in light of its findings that the applicant was an unreliable witness who fabricated his claims about the Taliban, the Tribunal stated that it placed no weight on statements from his immediate family members who have a vested interest in the outcome of the application and can reasonably be considered partial. 

25. The next finding of the Tribunal is set out at paragraph 58 of its decision at Court Book 193, and that is that it accepted that the applicant and his mother were subjected to an attempted armed robbery or abduction by two men on motorbikes in Hayatabad at about 7.00pm on 20 February 2013(sic), who fired gunshots into the back of their car.  However, the Tribunal found that this was not an attack by the Taliban, but that it was more plausible that it was a random attack motivated by money and not political or any other reason related to his family. 

26. The next finding of the Tribunal is set out paragraph 59, and that is that it did not accept the applicant’s claim that:

    Following the attempted robbery, he and all his family went into hiding or that his family remained in hiding. 

27. Notwithstanding that the Tribunal found that the applicant and his mother had been subjected to a robbery or abduction, the Tribunal found, at paragraph 62 of its decision record, Court Book 194, that it did not consider that the frequency of such attacks demonstrates that the chance of the applicant being subjected to an attempted robbery or abduction in the reasonably foreseeable future is anything but remote, and that there is real chance of him suffering serious harm in that way.

28. Notwithstanding these findings, the Tribunal did accept that, the evidence before it, that his sisters worked for foreign radio stations and that he and his father were members of the ANP, and this reflects its earlier findings, and this particular repetition is set out at paragraph 63 of its decision record. 

29. The Tribunal then went on to set out claims that it accepted and which were significant in it finding that the applicant had met the test of persecution for a Convention reason, complementary protection, subject to, of course, the relocation question. This is set out at paragraphs 65 and 66 of the Tribunal’s decision record at Court Book 195.  It stated:

    Nevertheless, on the evidence before it, including that his father had worked for the army for a number of years and his associations with the ANP and that his family is relatively wealthy, the Tribunal is prepared to accept that the applicant’s claim that his father and family are well known in the Peshawar area, and in those circumstances, the Tribunal cannot confidently dismiss the possibility that the information about his sisters’ work will come to the attention of the Taliban or some other anti-US extremist group in the reasonably foreseeable future.  Were that to happen, having considered the independent information about hostile and violent attitudes to such reporters, particularly female reporters, the Tribunal cannot dismiss as remote the chance that the applicant might come to the adverse attention of that same group for the reasons of his membership of the particular social group of his family and the imputed anti-Taliban or pro-US political opinion.  Accordingly, for these reasons, the Tribunal accepts that while either one or both of his sisters work for foreign-based media organisation that reports on the situation in Afghanistan and Pakistan involving the Taliban, because of his family being well known in the Peshawar area, there is a real chance he would come to the adverse attention of the Taliban or some other anti-US extremist group and suffer serious harm for reasons of his membership of the particular social group of his family and an imputed anti-Taliban or pro-US political opinion. 

1. It stated, in relation to its findings, however, that both the applicant and his father were members of the ANP, that it did not accept – and this is set out at paragraph 67, Court Book 196 – that:

   There is a real chance he, would suffer serious harm for reasons relating to his or his father’s ANP membership or affiliation in the reasonably foreseeable future.

2. The Tribunal turned to the question of state protection for the applicant and found, at paragraph 69 of its decision record:

   Given the nature and seriousness of the violence against journalists and other targets of the Taliban in the KP province, together with the weight of the independent information indicating that authorities in Pakistan are struggling to contain that violence, the Tribunal accepts that the State of Pakistan cannot meet the level of protection which its citizens are entitled to expect, as discussed in MIAMA, the respondents, S152 (2004) 222 CLR 1.  For those reasons, the Tribunal accepts the applicant faces a real chance of serious harm for the reasons of his membership of the particular social group of his family and an imputed anti-Taliban or pro-US political opinion if he returns to the Peshawar area now or in the reasonably foreseeable future.

3. The Tribunal then turned its consideration to the question of relocation, which is the issue upon which the applicant bases, it appears to the Court, at least, its primary grounds of review.  The Tribunal fairly set out at paragraph 71 of its decision record the claims of the applicant, which were that the risk he faced from the Taliban because of his sisters’ work and his family connection extended throughout the country, and that as a Pashtun from Peshawar who was a member of the ANP, he would be in danger everywhere.  He claimed his father was well known and that he would be identified as being from his family wherever he went.

4. The Tribunal then, at paragraph 72 at Court Book 196, referred to the independent information before the Tribunal that was discussed with the applicant and stated that:

   It does not indicate that family members of journalists have been tracked down and targeted outside their homes because of their connection to the journalist.

5. That quote is from paragraph 72 of Court Book 196 to 197.  The Tribunal set out at paragraph 73(Court Book 197):

   The evidence before the Tribunal does not indicate that his family, are known outside the KP province of Pakistan or that they have a profile outside of Peshawar area. 

6. It went on:

   The Tribunal does not accept that the applicant or his family are known outside the KP province in Pakistan or that they have a profile outside of the Peshawar area that would cause him to be recognised by his name or features as a member of the particular social group of his family, and in the circumstances, it considers the chance of him being identified outside the KP province as a member of the particular social group of his family to be remote and farfetched.  In the circumstances, the Tribunal considers that the chance of him being connected to either of his sisters in an area outside the KP province where his family are not known and have no profile to be farfetched and remote.  For the reasons on the evidence and information before it, the Tribunal considers the chance of the Taliban tracking him down outside the KP province in the reasonably foreseeable future to be remote and farfetched. 

7. The Tribunal also turned its attention and consideration to the applicant’s claim that as an ANP member and a Pashtun from Peshawar he would be subject to serious harm wherever he went in Pakistan.  The Tribunal noted that:

   As discussed with the applicant at the hearing, the independent information before the Tribunal does not indicate that in the recent past, Pashtuns have been targeted and harmed for reasons of the ethnicity or because they were from Peshawar or ANP members who had assisted in past election campaigns.  (7[74)

8. It noted that the ANP now held only one seat in the national assembly.  It noted the independent information indicating that one to five million Pashtuns live in the city of Karachi and there were Pashtun communities in other parts of Pakistan, including in many of the large towns or cities in the Punjab or Sindh, and that that information did not indicate that they were targeted for reasons of the ethnicity or real or imputed ANP membership. 

9. Having considered the information, the Tribunal found at [74] that it did:

   It does not accept that for reasons of his Pashtun ethnicity, or because he is a Pashtun from Peshawar, or an ANP member, or an ANP member who has assisted in past election campaigns, or for any of these factors in combination together, there is a real chance he would suffer serious harm outside the KP province in Punjab or Sindh.

10. The Tribunal then turned its consideration to the particular circumstances of the applicant, and this was done at paragraph 76 of the decision record at Court Book 198.  It referred to his particular circumstances, which were as follows:  that he was an educated person with a variety of work skills and experience and ability to speak, read and write in English, Urdu and Pashto, that he comes from a relatively wealthy family, and that it would appear reasonable, that on this basis he could relocate to one of the large towns or cities in the Punjab or Sindh, where he could find work and accommodation. 

11. The Tribunal notes that the applicant said he could not relocate because it was too dangerous for him.  However, the Tribunal found, for the reasons it observed earlier and I have referred to, that it does not accept there is a real chance he would suffer serious harm outside the KP province in the Punjab or Sindh on the basis the applicant has claimed.  It also stated at [76]:

    It does not accept, on the evidence and information before it, that there is a real chance of him suffering serious harm from generalised violence if he relocated to one of the large cities or towns in the Punjab or Sindh.

12. The Tribunal’s findings in relation to relocation are set out at paragraph 77 and are as follows:

    Having carefully considered his particular circumstances, the Tribunal considers that as a Sunni Muslim who can speak English, Urdu and Pashto, who is highly educated and has considerable work experience, who has been able to adapt to life in a foreign country such as Australia, who comes from a relatively wealthy family who is supportive of him and his situation, it would be reasonably practicable for the applicant to relocate to one of the large towns or cities in the Punjab or Sindh if he returns to Pakistan.

13. The Tribunal then turned to consider the complementary provisions contained in section 36(2)(aa), and stated at paragraph 80 of its decision at Court Book 198:

    In light of its earlier reasons with regard to there being a real chance that while either one or both of his sisters work for foreign-based media organisation that reports on the situation in Afghan and Pakistan involving the Taliban, there is a real chance he would come to the adverse attention of the Taliban or some other anti-US extremist group and suffer serious harm.  The Tribunal considers that there are substantial grounds for believing there is a real risk he would suffer significant harm in that way in the Peshawar area. 

14. The Tribunal then went on to consider the question of relocation at paragraph 81.  It repeated, in essence, the particular circumstances of the applicant and stated that it formed the view that it would be reasonable for the applicant to relocate to one of the large towns or cities in the Punjab or Sindh if he returned to Pakistan.  I should note here that at paragraph 80, the Tribunal also considered the applicant’s claim which he has made all along that there is a real risk he will suffer significant harm, including from generalised violence outside of the KP province in the Punjab or Sindh. The Tribunal stated that it considered there were no substantial grounds for believing that there was such a real risk. 

15. As a consequence of its findings, the Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant his protection visa. 

Grounds for Judicial Review

1. As the applicant was self-represented in these proceedings, I asked him questions in relation to his understanding as to the nature of the Court’s function in judicial reviews of this kind.  He stated that he understood that the Court’s function was not to conduct a merits review but to determine whether the Tribunal’s decision was affected by jurisdictional error.

2. Whilst he said this, I am not clear that the applicant was, in fact, seeking a judicial review, because when he made his oral submissions, he indicated that he was not satisfied that the Tribunal considered his case and referred to various bits of evidence that the Tribunal considered which he believed was not properly considered by the Tribunal in his favour. 

3. In addition to the grounds raised in his application and dealt with in his contentions of fact and law, which I will shortly turn to, the applicant raised a ground of review which is that the Tribunal failed to provide him with a copy of the country information it relied on, and hence he was denied natural justice.  Although that was not raised in his application and, in one sense, it is unnecessary for the Court to deal with it, I will deal with that point, as well. 

4. Turning to the applicant’s submissions filed on 10 July 2014. The submissions, firstly, deal with his ground, which is (b) of the particulars, that is, that the Tribunal has failed to consider the principle of the more general notion of protection by that country, in this case, Pakistan, and with persecution in the defined sense.  I agree with the Minister’s submissions that it is somewhat difficult to understand what this ground, in fact, means. 

5. Looking at the Contentions of Fact and Law, it appears to the Court – and this is at paragraph 8 of the Contentions of Fact and Law – that he is submitting that his claims demonstrate that has is a real chance of being persecuted on grounds of political opinion.  Having set out in some detail the Tribunal’s decision, I am satisfied that the Tribunal, in fact, did consider his claim that he would be persecuted on grounds of his political opinion, both in respect of an imputed political opinion, namely, from his relationship with his sisters, and also the question of his political opinion arising from his membership of the ANP. 

6. The Tribunal considered this evidence carefully.  It reached its decision.  And it appears to the Court that, in fact, what the applicant is seeking is a reconsideration of the merits of his case, and this, of course, is impermissible merits review, which the Court cannot engage in, and I refer to the decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at page 272.

7. As the Minister points out at paragraph 33 of the Minister’s outline of submissions, the Tribunal, in fact, did find in favour of the applicant in terms of his imputed anti-Taliban political opinion because of his relationship with his sisters. The Court is satisfied that there is no jurisdictional error arising from this ground of review. 

8. The applicant’s Contentions of Fact and Law then deal with ground (c) of the applicant’s particulars, which is that the Tribunal erred in its conclusion of the complementary protection criterion in that there is sufficient evidence to conclude that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm, including generalised violence and be unable to rely on protection of the state in all areas of Pakistan and not just the KP. 

9. It appears that the essence of this ground of review is set out, so far as the Court can ascertain, at paragraph 11(j) of the Contentions of Fact and Law, wherein it is stated:

   The applicant fears that he will be subjected to assault, harassment, kidnapping and even death because he is a support of the ANP.  The country information shows that a person does not need to have a high profile or be politically significant to attract that sort of retribution in Pakistan.  The assault and murder of ordinary persons are efficient tools of oppression for not just governments of all persuasions but non-state agents, as well.

10. In fact, as I indicated by traversing in some detail the Tribunal’s decision, it did consider the issue of generalised violence.  It dealt with the applicant’s claims based on its earlier findings and found that there were reasonable grounds for believing there was a real risk because of the imputed political opinion if he remained in Peshawar but not if he relocated to other areas of Pakistan, and further, that it was reasonable and practicable for the applicant to do so, having regard to his particular circumstances.  

11. I agree with the submissions of the Minister which are set out at paragraphs 36 to 38 of the first respondent’s submissions that this ground is, in essence, a disagreement with the Tribunal’s complementary protection visas.  The Tribunal considered, as I said, the question of generalised violence.  It considered the applicant’s particular claims and considered the question of relocation.  I am satisfied that the complementary protection findings were open to it on the materials.  It appears to the Court that once again the applicant is asking the Court to engage in a merits review, which is not a permissible function of the Court in a judicial review proceedings.

12. Particular (a) to the applicant’s grounds for review are that the Tribunal erred in its conclusion it would be reasonable and practicable for the applicant to relocate to one of the larger towns or cities in the Punjab or Sindh if he returned to Pakistan.  At paragraph 13, the contentions of fact and law state:

    The Tribunal in its conclusions failed to take into account his family language, culture, ancestral links, cuisine, tradition, friends, employment and other links which are peculiar to the KP province.  

13. The Contentions of Fact and Law refer to various decisions of the Full Federal Court and also the High Court in relation to the approach to be adopted with respect to relocation. However, the real point is that the applicant, firstly, failed to raise these issues before the Tribunal.  I have looked at the Tribunal decision very carefully and on the Tribunal’s decision record, which is not disputed by the applicant, there is no evidence to suggest that the applicant raised these particular issues. 

14. His concern, as far as I can ascertain from the evidence he presented to the Tribunal and recorded in the Tribunal’s decision, was largely the generalised violence that would still exist outside of Peshawar.  In fact, as the Minister has pointed out, notwithstanding this the Tribunal, nevertheless did go on to consider the particular circumstances of the applicant, these were his level of education, his employment history, his qualifications, his linguistic skills and the assistance that he would be expected to be provided from his family to find accommodation elsewhere. 

15. These were findings that were open to the Tribunal on the evidence, and I am satisfied that the Tribunal considered all the claims of the applicant in relation to relocation and went further and considered the particular circumstances of the applicant.  I am, therefore satisfied that the Tribunal did not err in its findings as to relocation.  This ground for review, therefore, is not made out. 

16. Consequently, for the reasons I have set out, I am satisfied that the Tribunal decision is not affected by jurisdictional error, and I will make the following orders:  firstly, that the application filed by the applicant on 26 November 2013 be dismissed;  and second, that there be an order for costs. 

    RECORDED   :   NOT TRANSCRIBED

17. My first order is that I have dismissed the application filed by you.  My second order will be that the applicant pay the respondent’s costs in the sum of $6646. 

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  2 September 2014