MZZYC v Minister for Immigration

[2014] FCCA 2166

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZYC v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2166

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – whether Tribunal asked wrong question in respect of relocation – whether Tribunal failed to consider if relocation was reasonable in all the relevant circumstances – whether Tribunal’s decision was irrational – whether Tribunal erred in failing, in considering relocation, to address the interests of the applicant’s children – Tribunal not falling into jurisdictional error – application dismissed.

Legislation:

Migration Act 1958, s.36(2A)

SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
Januzi v Secretary of State for Home Department [2006] 2 AC 426
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352
NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) (2004) 144 FCR 1
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
MZZAD v Minister for Immigration and Citizenship [2013] FCA 879

Applicant: MZZYC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2313 of 2013

Judgment of: Judge Burchardt

Hearing dates: 18 & 24 July 2014

Date of Last Submission: 24 July 2014

Delivered at: Melbourne

Delivered on: 13 October 2014

REPRESENTATION

Counsel for the Applicant: Mr Albert

Solicitors for the Applicant: Hammond Migration

Counsel for the First Respondent: Mr Wood

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The Application is dismissed. 

2. The Applicant pay the First Respondent’s costs fixed in the sum of $8,141.50. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 2313 of 2013

MZZYC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 3 December 2013.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.

2. By a further amended application filed on 11 July 2014 (without leave of the Court but without substantive objection being pressed by the first respondent), the applicant asserts three grounds in respect of which it is asserted that the Tribunal fell into jurisdictional error.  All three grounds relate to the question of the possible relocation of the applicant within Pakistan. 

3. For the reasons that follow, I do not think that the criticisms advanced to the Tribunal’s reasoning are made out, and the application ought be dismissed. 

4. In the circumstances where the grounds of application turn upon a detailed consideration of the Tribunal’s factual findings, it is appropriate to commence by looking at what materials were in fact before the Tribunal.  

The Materials in the Court Book (“CB”)

1. The applicant’s initial protection claim and accompanying documentation is at page CB1-53.  His statutory declaration is at CB29-31.  The applicant asserted that he was an active supporter of the Awami National Party (“ANP”). 

2. The applicant further deposed that he worked for shipping companies from July 2006 (with intermittent gaps) until 20 June 2012 when he deserted his ship (in Australia). 

3. The applicant deposed to the disruption to this life caused by Taliban activities in the Swat Valley where he comes from, and his opposition to such activities as a member of the ANP. 

4. The applicant deposed to an incident in April 2009 when he was in Peshawar when a group of Taliban persons came to the family home looking for him and allegedly burnt the house down.  The applicant deposed that his brothers had fled the country, but that he remained in Peshawar and returned in 2009 to Swat following a claimed victory over the Taliban by the Pakistan Army. 

5. The applicant asserted that when he returned to Swat, he refused to provide the Pakistan Army with support against the Taliban and the “Army say anyone who does not provide them the support will be treated as Talib.”  He deposed that he re-joined his ship between January and August 2010, and was a member of a Jirga on return to Swat.  His participation in the Jirga was asserted to be, to an extent, likely to be perceived as opposed to Army interests.  He said that having ignored advice not to speak against the Army, he was shot in the left leg and injured in his back, and his mother was shot and killed.  The applicant asserted that a few days later, following surgery, he was sought by other people hiding their faces, who beat his father.  He asserts that he left for Karachi from Peshawar and never returned home.  He re-joined ship, but ultimately deserted on 20 June 2012.  The applicant asserted that his life was in danger from both the Taliban and the Pakistan Army, and that most of these people who spoke against the army at the Jirga were targeted, killed and he feared the same would happen to him. 

6. The applicant’s lawyers have forwarded a further tranche of material to the Tribunal which is set out at CB91-99.  The documentation forwarded by the lawyers, however, was designed essentially to support the assertions already made, such as the asserted death of the applicant’s mother at the hands of the Taliban. 

7. The decision record of the delegate of the first respondent who rejected the applicant’s application is at CB146-163.  The applicant’s claims for protection were summarised by the delegate at CB149-150.  These claims are entirely consistent with the materials already filed and appear to be a paraphrase of them.  I note that the applicant was interviewed by the delegate on 5 December 2012 in the company of his migration lawyer. 

8. The delegate paraphrased the applicant’s claims at CB151-155 and concluded at CB155-156:

   “I accept that the applicant has a local profile due to his ANP membership and his involvement with the peace committee.  Based on country information as discussed above, I conclude that there is a real chance that the applicant could face serious harm from the Taliban on account of his actual or imputed political opinion if he were to return to Swat district, or anywhere in the KPK, in the reasonably foreseeable future.”

9. The delegate went on to consider relocation and said at CB156:

   “The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country:  Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1.  Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate within the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.  Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.  What is “reasonable” in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his country.  However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights.  The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense:  SZATV v MIAC [2007] HCA 40 and SZFDV v MIAC [2007] HCA 41, per Gummow, Hayne and Crennan, Callinan J agreeing.

   As discussed above in this decision record, I find that the applicant’s activities in opposition to the Taliban are highly localised.  I do not accept that the applicant has such a significant profile that he would come to the adverse attention of the Taliban throughout the whole of Pakistan. 

   I have considered whether it would be practicable and reasonable for the applicant to relocate to other parts of Pakistan.”

10. The delegate then considered a number of potential destinations including Karachi, Balochistan, the Federally Administered Tribal Areas (“FATA”) and the Punjab. 

11. In the ultimate, the delegate concluded that the Punjab province was likely to be safe for the applicant.  At CB159 the delegate said:

    “Overall, I do not accept there would be a threat to the applicant’s safety from the Taliban in an area such as Punjab province. 

    There is no country information before me that the applicant would be denied employment opportunities if he moved to another part of Pakistan such as Punjab province.  In addition to having an employment history in Pakistan, I note the applicant can read and speak in Urdu, the national language of Pakistan.”

12. As far as I can see, this is the only consideration given by the delegate to what might be described as the applicant’s personal circumstances, as apart from his risk of harm for Convention-related matters such as his ethnicity and ANP activity.  I note that the paraphrase of the applicant’s claims at CB149-150 does not suggest that the applicant articulated any such matters to the delegate.  His claims all related to his fear of the Taliban and the Army, although I note that the delegate recorded that the applicant worked as a seaman from January to August 2010. 

13. In the conclusion on relocation at CB160, the delegate said:

    “There are no legal barriers to prevent people moving to live elsewhere in Pakistan.  Article 15 of the Pakistan Constitution states:  “Every citizen shall have the right to remain in and, subject to any reasonable restrictions imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof.” 

    As discussed previously, I am not satisfied the applicant has a profile that would lead to him being targeted throughout the whole of Pakistan.  I find that his activities, and his profile, have been limited to his immediate locality. 

    Having weighed all the information before me, I find that it would be reasonable and practicable for the applicant to return to Pakistan and relocate outside KPK province, for example, to Punjab province.  I find that the chance the applicant would come to harm in another region such as Punjab province, is not more than a remote chance.”

14. The delegate went on to find that the applicant did not face a real chance of being persecuted for a Convention reason and that therefore he was not a person to whom Australia owed protection obligations. 

15. The delegate then considered the complementary protection criterion, noting that, in the delegate’s view, the risk threshold for determining a real risk of significant harm within the meaning of s.36(2A) of the Migration Act 1958 (“the Act”) involved a higher threshold than that of the well-founded fear threshold for assessing Convention claims.  The delegated found, at CB162:

    “There is nothing in the applicant’s claims to indicate that he would be at risk of any non-Convention related harm in Pakistan.  While I acknowledge that the overall situation in Pakistan is as such that generalised violence is an issue, the chances of the applicant personally being affected is remote, and therefore would not constitute a real risk.”

16. I have set out this paraphrase of the delegate’s findings at some length simply to illustrate that the matters pressed by the applicant before the delegate would not appear to have included the matters now pressed as the essential reasons for criticism of the ultimate decision that the applicant could relocate. 

17. The applicant submitted certain country information, recorded at CB237-241, which concerned extremist activity in Punjab.  He also submitted an undated written submission at CB242-245. 

18. At CB242, the submission pointed out that the applicant is married with six children, all of whom remain living in Pakistan, and the applicant’s claims were repeated in terms that do not require further paraphrase.  I note the only aspect of the relocation issue that was the subject of comment at CB244, which is sufficiently indicated by the following sentence:  “Therefore it is evident that political upheaval is prevalent throughout Pakistan and that the Taliban is targeting anti-Taliban politicians and those of high profile, such as the applicant.  Furthermore, it would not be ideal for the applicant to relocate within Pakistan as he has a young family.  This point was strongly considered and affirmed to be a genuine reason not to relocate in the case of 0909080 [2010] RRTA 88.”

19. A further submission on the applicant’s behalf is at CB251-253.  Once again, the material about relocation concentrated on the risk the applicant faced as an ANP member and an anti-Taliban politician.  The phrase about the family just referred to was repeated in terms. 

20. The Tribunal wrote to the applicant extending an invitation to comment on information at CB256-257, but while this clearly indicated difficulties with the applicant’s Convention claim and his credibility generally, it did not touch upon the matters that have now been advanced in this proceeding. 

21. A further written submission from the applicant’s advisors is at CB264-266.  It also raised the question of the applicant’s anxiety, depression and ongoing post-traumatic stress disorder (“PTSD”).  It is asserted at CB265 relevantly:

    “We submit that should the Applicant be forced to return to Pakistan as a result of an unsuccessful application, there will be severe concerns relating to his safety and well-being and mental health as a result of his involvement in the National Peace Committee.”

22. The report from the treating psychologist is at CB267 which confirmed that the applicant suffered PTSD.  It should be noted that the primary emphasis of the report, like the submission, went to the question of the applicant’s capacity accurately to remember things in the light of his mental health.  

The Decision of the Tribunal

1. Having set out an overview of the claim and the applicable law at CB272, the Tribunal came to deal with the applicant’s credibility and claims at CB273-280.  The Tribunal commenced by making reference to the nature of the statutory task at paragraphs 11-13 (CB273).  It will be necessary for me to return to the authorities in due course, but I would observe, if I may, that those paragraphs seem to me to set out a clear comprehension by the Tribunal Member of the nature of the task to be undertaken. 

2. While the Tribunal referred at paragraph 14 to significant concerns about the applicant’s credibility, the Tribunal accepted at paragraph 16 the fact of the applicant’s symptoms of PTSD, acute stress, general anxiety and depression and accepted that this would affect the applicant’s ability to recall details of traumatic events and his memory generally.  Nonetheless, the Tribunal found that insofar as the psychologist’s report went to corroborate the applicant’s account of events, this was a matter for the Tribunal and the report was given little weight. 

3. The Tribunal went on to detail the applicant’s personal background at CB274-280.  Given the matters now pressed, it is important only to note those aspects of the Tribunal’s decision that dealt with the matters of present moment. 

4. At paragraph 18, CB275, the Tribunal recorded:

   “… The Tribunal further accepts the applicant’s evidence that he married in 1991 and that his wife and their three sons and three daughters aged between two and seventeen remain in a village in Swat with the applicant’s father, some 20 km away from the town of Mingora.”

5. At paragraph 22, the Tribunal recorded:

   “The Tribunal accepts that the applicant commenced working for merchant ships in July 2006, working at sea between July 2006 and April 2007; March until November 2008; January until August 2010 and September 2011 until his desertion in Australia in June 2012.  The Tribunal accepts that he returned to Kanju in 2000 or 2001 and remained there until his next voyage in 2006.  The Tribunal accepts the applicant’s written and oral evidence to the effect that he was on ships for most of the time between 31 December 2006 to 31 January 2009, returning to Kanju once during this period and that he remained in Kanju until about 14-15 days before he departed Pakistan on 26 May 2012, travelling first to China where he boarded a ship which later travelled to Australia, arriving in June 2012. …”

6. The Tribunal went on, despite not accepting a number of the applicant’s assertions on credibility grounds, that the applicant faced a real chance of persecution in the reasonably foreseeable future in his home village and the Swat region more generally, for reason of his anti-Taliban political opinion. 

7. The Tribunal then dealt with State protection at CB280-281.  I note that the Tribunal did not regard it as necessary to consider whether the applicant faced a well-founded fear of serious harm on his basis of the ANP.  At CB282-285, the Tribunal dealt with the issue of relocation in terms.  In paragraph 47 (CB282), the Tribunal had this to say about the law:

   “In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country if, under all the circumstances it would not be reasonable to expect him or her to do so.  The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country.”

8. At paragraph 49, the Tribunal recorded:

   “The applicant is a forty-three year old man from Kartyar, Swat of Sunni religion and Pashtun ethnicity.  He is married with six children between the ages of two and seventeen.  He states in his visa application that he speaks and reads Urdu and Pashto and reads and speaks English.  He has given evidence that he has been college educated to year 12 level and has worked on the family farm in Katyar since 1993 and as a merchant seaman since 2006.”.

9. At paragraph 51-52 (CB282-283), the Tribunal continued:

   “51.  As discussed with the applicant at hearing, the Pakistan Constitution states that, “[e]very citizen shall have the right to remain in and, subject to any reasonable restrictions imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof.”  The Tribunal finds that the applicant is able as a matter of law to relocate within Pakistan away from conflict areas, including his home area of Katyar village, Swat district.  At hearing the Tribunal discussed with the applicant the possibility that he could safely relocate to a city such as Islamabad or Rawalpindi.  The applicant stated that he could not safely do so because Punjab is the main location for the Taliban and that Prime Minister Bhutto and the Governor in Ankali were both killed in Punjab.  The Tribunal discussed with the applicant the delegate’s finding that his own profile was not such that he would be pursued to other parts of Pakistan by the Taliban.  The applicant stated that the Taliban doesn’t require high profile but will target ANP members anyway. 

   52.  The Tribunal noted at the hearing that independent sources did not indicate that ANP members were being targeted by the Taliban in Islamabad or Rawalpindi.  The applicant stated that he would be targeted because of his Pashtun ethnicity and that according to Punjabi people, all Pashtuns are terrorists, telling the Tribunal that when the Army wanted to clear Swat, the Punjabi people wouldn’t let people in.  The Tribunal put to the applicant that independent sources did not indicate that people from Swat couldn’t travel and reside freely throughout Pakistan at present.  The applicant stated that he would need to show his National Identity card to rent a house and would be easily identified as Pashtun, with the result that nobody would provide him with a home to rent.  He stated that he would also be targeted by the ISI in Islamabad or Rawalpindi and that he would be killed by the Army who would identify him as Pashtun when he showed his National Identity Card.”

1. The Tribunal went on to deal with this last point and found, at paragraph 53 (CB 283), that:

   “… The Tribunal does not accept that the actions of the Pakistani authorities in conducting security checks constitutes ‘serious harm’, even in circumstances where they are discriminatorily applied to a particular ethnic group, in this case Pashtuns.”

2. The Tribunal went on, at paragraphs 54-60, to consider whether the applicant faced a real chance of serious harm on the basis of his political activities, Pashtun ethnicity or moderate Sunni Muslim beliefs.  At paragraph 60 (CB 284), the Tribunal found:

   “On the evidence before it, the Tribunal does not accept that the applicant faces a real chance of serious harm in Islamabad or Rawalpindi, either on the basis of his political opinion opposing the Taliban, his membership of and activities with the Swat Quami Jarga, his ANP activities in Swat or any similar ANP activities he may undertake in those cities in the foreseeable future.  Nor does the Tribunal accept on the evidence before it that the applicant will be targeted for harm in Islamabad or Rawalpindi on the basis of his Pashtun ethnicity or moderate Sunni beliefs in the foreseeable future.”

3. The gravamen of what the Tribunal had to say is at paragraphs 61-64, (CB284-285), as follows:

   “61.  Having made this finding, it is necessary to consider whether it would be reasonable for the applicant to relocate to Islamabad or Rawalpindi.  It is submitted in this regard it is unreasonable to expect the applicant to relocate to another city in Pakistan as he has a young family.  As noted above, the Tribunal has accepted that the applicant is married with six children between the ages of two and seventeen.  In that respect, the Tribunal was referred to an earlier decision of this Tribunal (differently constituted) in relation to which it is submitted that “This point was strongly considered and affirmed to be a genuine reason not to relocate.”  Such decisions are not binding on the Tribunal which is required to consider the reasonableness of relocation in the particular circumstances of the applicant before it.  In any case the Tribunal rejects the submission that the Tribunal’s decision in that earlier case can be in any way characterised in the way suggested by the applicant’s representatives.  While the Tribunal accepts that the applicant does not wish to relocate his family within Pakistan, the Tribunal does not accept that the applicant’s family circumstances make such relocation unreasonable. 

   62.  The Tribunal has considered the applicant’s evidence that he will be discriminated against by non-Pashtun people living in other areas of Pakistan who will assume he is a terrorist, making it difficult for him to rent a house or find work.  The Tribunal does not accept that to be the case, noting that the applicant lived in Karachi for twelve months prior to departing Pakistan in 2012. 

   63.  The Tribunal has accepted that the applicant suffers from symptoms of PTSD, stress and general anxiety and depression that affects his sleep, concentration and memory.  At the hearing the applicant gave evidence that he had been having counselling for four months and that he was not taking any medication.  Mr Hayden’s report states that the applicant has responded well to acceptance and commitment therapy, relaxation therapy and cognitive behaviour therapy.  The Tribunal accepts that the applicant may not be able to readily access such therapy if he returns to Pakistan and relocates to a major urban centre such as Islamabad or Rawalpindi.  However the available medical evidence does not suggest that the applicant’s mental health will deteriorate should he be unable to access that treatment and the Tribunal does not accept on the evidence before it that the applicant’s mental health makes it unreasonable for the applicant to relocate within Pakistan. 

   64.  The Tribunal finds that the applicant is a forty year old man who has completed his schooling and is a speaker of both Urdu and Pashto.  He has been employed as a merchant seaman since 2006.  In all of the circumstances, the Tribunal does not accept that the applicant would be unable to earn a living or access accommodation in Islamabad or Rawalpindi.  For the reasons set out above, the Tribunal has not accepted that the applicant will be targeted for harm in Islamabad or Rawalpindi on the basis of his Pashtun ethnicity or his past opposition to the Taliban.  The Tribunal accepts that the applicant and his family do not wish to relocate within Pakistan.  However the Tribunal finds that it is reasonable for the applicant to relocate within Pakistan and that the applicant’s chance of being harmed by the Taliban or other extremist groups outside of Khatyar and the Swat region in Khyber Pakhtunkhwa is remote and, accordingly, not well-founded.  The Tribunal therefore finds that the applicant does not hold a well-founded fear of persecution if he returns to Pakistan, now or in the reasonably considerable future.”

4. The Tribunal then went on to consider the complementary protection regime.  The Tribunal noted the written submissions filed at the Tribunal hearing, that the applicant would be at a real risk of being exposed to cruel and inhuman punishment and repeated its finding that the applicant did not face such a risk, at paragraph 68.

5. I note that at paragraphs 69-73 (CB286), the Tribunal held:

   “69.  However the Tribunal has accepted there to be a real chance that the applicant will be targeted for serious harm by the Taliban and other militant extremists in his village of Khatyar and the Swat region more generally.  In MIAC v SZQIB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.  It follows that the Tribunal accepts there to be a real risk that the applicant will be suffer significant harm from the Taliban as a necessary and foreseeable consequence of the applicant being removed from Australia to his village of Khatyar or the Swat region more generally. 

   70.  However s.36(2B)(a) of the Act provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.  That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ, Callinan J agreeing. 

   71.  In this case, for the reasons set out above, the Tribunal has found that it would be reasonable for the applicant to relocate to an area of Pakistan such as Islamabad or Rawalpindi where there would not be a real risk that the applicant will suffer significant harm from the Taliban or other militant extremists on the basis of his political opinion or on any other basis claimed.

   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.  Therefore the applicant does not satisfy the criterion set out in s.36(2)(a). 

   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).”

6. The Tribunal went to affirm the decision of the delegate not to grant the applicant the visa he sought.

The Relevant Law

1. Both parties seem to me to agree that the test in respect of relocation is whether relocation is a reasonable, in the sense of practicable, response to the fear of persecution in the sense set out by the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (“SZATV”).  Where they disagreed was how that test might be applied to the circumstances of this case. 

2. Counsel for the applicant submitted that it might be unreasonable to relocate for a reason unrelated to the Refugees Convention and that there is no need for the applicant to be targeted for such an unreasonableness to occur.  Counsel for the first respondent submitted there were two questions.  First, is there a Convention risk if relocation occurs?  Only if there is not it was submitted does the issue of reasonableness arise.  Counsel further submitted that the Tribunal was required to assess the issue of reasonableness on the basis of the objections that the applicant actually raised and not generally.  This submission was given emphasis because it was submitted the applicant was now pressing matters not raised before the Tribunal.

3. In reply counsel for the applicant submitted that there is only one question, whether it is reasonable to relocate and that the two questions do not arise.

4. In SZATV Gummow, Hayne and Crennan JJ said at [23]-[24] and following:

   “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.”

5. The plurality went on to consider and adopt, as it seems to me, the observations of Lord Bingham in Januzi v Secretary of State for Home Department [2006] 2 AC 426. The plurality observed at [25]:

   “It is true that the Convention is concerned with persecution in the defined sense, not with living conditions in a broader sense.”

6. In SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 Tracey and Foster JJ said at [124]:

   “The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR 437 at 442–443, especially at 443C-D.”

7. In the relatively recent decision of MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352 Kenny J set out the remarks from Randhawa at [60[ and commented on them at [61] as follows:

   “[60] In the earlier decision of the Full Federal Court in Randhawa Black CJ considered the nature of the inquiry imposed on the Tribunal when considering whether relocation was “reasonable”. At 443 his Honour said:

   In the present case, the delegate recognised the width of the inquiry required by considering whether the appellant’s Sikh culture prevented him from relocating in India. Once the question of relocation had been raised for the delegate’s consideration she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but 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 but having regard to the issues raised by the appellant and to the material that was before the decision-maker on the issue of relocation she was entitled to come to the conclusion that the appellant could reasonably be expected relocate elsewhere in India.

   [61] Black CJ’s approach continues to be an accepted statement of the law in this area. The Tribunal’s consideration of relocation in this case had to be referrable to the case that the appellant made with respect to relocation or “the framework set by the [appellant’s] particular objections … to relocation”: see SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 (‘SZMCD’) at 439 [124] (Tracey and Foster JJ). 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.”

8. Bearing these authorities in mind I think the better view, to the extent that it may make any difference, is that there is only one relocation test.  In considering relocation it is whether it is reasonable in the sense of practicable (as explained by the High Court in SZATV) for the applicant to relocate.  Self-evidently, if the applicant faces risk of Convention-based harm in the place of relocation then the applicant is not likely to be excluded from the operation of the Convention.  Nonetheless, drawing upon the relatively straight forward articulation of the test set out by the High Court in SZATV, it seems in my view appropriate to regard this test simply in the terms in which the High Court explained it. 

9. Against this introduction I now come to consider each of the grounds in terms.

Ground 1 - The Second Respondent erred by asking the question, namely would the Applicant suffer serious harm in the place of relocation?  Alternatively, the Second Respondent failed to ask the right question, namely was relocation reasonable in all of the circumstances?

1. Both the written and oral submissions of the applicant asserted that the Tribunal asked itself the wrong question.  It was asserted (paragraph 16 written submissions) that the Tribunal demonstrated that it had asked itself the wrong question by:

   “a.assessing whether the Applicant’s relocation would be reasonable by asking whether they would be the subject of Convention-based harm in Islamabad or Rawalpindi;

   b.failing to consider the generalised risk from terrorism to the Applicant’s family in Islamabad or Rawalpindi;

   c.failing to consider the impact any of the potential harms or difficulties for the Applicant would have on his family who, the Tribunal held, could move with him.”

2. An instance of this mistake was said to arise from the Tribunal’s treatment of the question of security checks by the Pakistani authorities.

3. A further alleged error was a failure to consider an integer of the applicant’s claim that relocation was unreasonable, namely the fact that the applicant’s family of eight were to be at risk of non-targeted public violence.

4. Criticism was made of the fact that the Tribunal allegedly failed properly to deal with the material forwarded by the applicant to the Tribunal, to the effect that the security situation in Punjab is extremely serious, and failed to refer to the material forwarded.  It was submitted that in combination or alone the factors the Tribunal failed to properly consider illustrate the failure of the Tribunal to apply the appropriate test.

5. In oral submissions the Court was taken in some detail to the materials before the Tribunal to which I have already referred.

6. The written and oral submissions for the first respondent as already indicated took issue with the formulation of the test.  The submissions then responded to the matters asserted now to have been overlooked and it was strongly submitted that the applicant himself had not raised any of these objections.  It is submitted at paragraph 20 that the applicant made only three objections, as a Pashtun, a person with anti-Taliban opinions and the short submission that “it would not be ideal for the applicant to relocate within Pakistan as he has a young family.”

7. In oral submissions counsel referred the Court to the decision of the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) (2004) 144 FCR 1. I note the observation of the Full Court at [60], in considering the extent to which it is necessary for the Tribunal to advance on the basis of the matters actually advanced by the applicant, where the Full Court said:

   “His Honour, in our view, correctly stated the position when he said (at [18]):

   [18] The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.

   This does not mean that the tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.”

8. What the Tribunal said as to the test, already partly referred to, is at paragraphs 47-48 (CB282) as follows:

   “47.  In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so.  The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. 

   48.  Having accepted that the applicant has a well-founded fear of persecution in Khatyar village and the Swat region, the Tribunal must consider whether the well-founded fear of persecution extends to the country as whole, and if not, whether it would be reasonable for the applicant to relocate to a part of Pakistan where he does not have a well-founded fear of persecution.”

9. While that expression of the matter arguably conflicts with what I have earlier said about the nature of the relocation test, it is not in my view objectionable.  It is plainly reasonable to decide whether a person will face the same persecution throughout an entire country, because if he or she does it is clear that the applicant will attract Convention protection throughout the whole country.  Axiomatically the question of relocation absent Convention harm raises different considerations. 

10. I do not think that the way the Tribunal formulated the test of itself suggests any error.

11. The Tribunal considered the applicant’s circumstances as a person with his political profile at paragraphs 51-60 of the decision (CB 282-284).  That consideration flowed directly from the way the applicant had himself advanced his case as an ANP activist, with past difficulties with the Army and as a person of Pashtun ethnicity. (The Jirga attendance for these purposes forms part of that grouping although the Tribunal dealt with it separately). 

12. The Tribunal came to the view that the applicant would not face such a risk in Islamabad or Rawalpindi.  In dealing with the materials the Tribunal noted at paragraph 54 (CB283):

    “The Tribunal has considered the independent sources submitted at hearing relating to the Punjabi Taliban indicating that the Punjabi network was active in Punjab and supporting Taliban elements from Pakistan’s tribal regions to conduct attacks in cities as Islamabad, Rawalpindi and Lahore.”

1. The criticism the Tribunal paid no regard to the materials forwarded by the applicant seems to me not to be made out, but even if it was, a failure to avert to it in circumstances where the Tribunal was clearly alert to the issue raised and dealt with it on the basis of country information (even if not provided by the applicant) does not to my thinking disclose jurisdictional error.

2. While it is true that the Tribunal dealt with the question of violence in Islamabad and Rawalpindi very much on the basis of the applicant’s claimed particular disadvantages (ANP membership, Jirga activity, ethnicity as a Pashtun) that is because that was the basis upon which the applicant himself advanced it.  I do not think that the claim now put forward, namely that the applicant and his family face an unacceptable risk of harm on the basis of generalised violence was articulated with sufficient clarity for it to be jurisdictional error for the Tribunal not to have dealt with it.  Indeed it seems to me implicit in the Tribunal’s findings that the Tribunal regarded Islamabad and Rawalpindi as places to which it would be reasonable for the applicant to relocate and this finding necessarily suggests the Tribunal did not think that the applicant would face a serious risk of harm there. 

3. In so far as complaint is made that the Tribunal fell into error by not dealing with the applicant’s claims in relation to his family, nothing has been said to suggest that this matter achieved any greater element of emphasis than the two very short identical passages that I have already referred to earlier.  I note from paragraph 61 of the Tribunal’s reasons (CB284) the Tribunal clearly understood that “it is submitted in this regard it is unreasonable to expect the applicant to relocate to another city in Pakistan as he has a young family.”  As noted above, the Tribunal has accepted that the applicant is married with six children between the ages of two and seventeen. 

4. The Tribunal concluded however:

   “… While the Tribunal accepts that the applicant does not wish to relocate his family within Pakistan, the Tribunal does not accept that the applicant’s family circumstances make such relocation unreasonable.”

5. I note this is a brief process of reasoning, but given the brevity of the way in which the matter was articulated it does not seem to me to be jurisdictional error for the Tribunal to have formed that conclusion.  At paragraphs 62-64 (CB285) the Tribunal dealt with other aspects of the applicant’s personal circumstances including his employment history (to which I shall return) and it is clear that the Tribunal formed the view that in all the circumstances it was not unreasonable for the applicant to relocate.  I further note that at paragraph 64 the Tribunal made a generalised finding in relation to harm in the following terms:

   “… However the Tribunal finds that it is reasonable for the applicant to relocate within Pakistan and that the applicant’s chances of being harmed by the Taliban or other extremist groups outside of Khatyar and the Swat region in Khyber Pakhtunkhwa is remote and, accordingly, not well-founded.”

6. That finding was made in a general way and not limited to the applicant’s particular attributes and might reasonably be taken to have applied at least implicitly to the applicant’s family.

7. Reading the Tribunal’s reason fairly and as a whole I do not think that the Tribunal fell into jurisdictional error in this regard.

Ground 2 - The Second Respondent’s decision was vitiated by error on the question of the reasonableness of the Applicant’s relocation to Islamabad or Rawalpindi because it was irrational.

1. As advanced in both written and oral submissions the applicant’s complaint here is essentially to the effect that the Tribunal’s decision as to relocation was irrational because the applicant’s employment history as a farmer and merchant seaman could not reasonably support the proposition that he could relocate to Islamabad or Rawalpindi, both of which are a very long way from the sea and might reasonably be thought not to have any opportunities for farming.  A detailed analysis of the Tribunal’s observations are set out at paragraph 25 of the applicant’s written submissions and in particular at paragraph d thereof.  These criticisms were advanced in oral submissions also.  It was put that there was a complete mismatch in the relocation cities as a result of the applicant’s prior work experience.  It was submitted the applicant would not be able to return to his work as a seaman because he deserted ship.  It was put that the Tribunal accepted the state of the applicant’s mental health and that the findings that he could therefore find work in Rawalpindi or Islamabad were plainly such that no reasonable, rational person could reach them. 

2. Counsel for the first respondent noted, as was in fact agreed by the applicant, that the bar for finding of irrationality is very high.  It was submitted that the Tribunal responded to the matters that the applicant raised and that the issues now raised about the applicant’s skills as a seaman or farmer were simply not agitated by him.  It was further submitted that the Tribunal consider the medical evidence in the context of a question of practicability of relocation. 

3. My conclusion can be put shortly.  In my opinion the applicant simply did not articulate the specific matters as to his employability in Islamabad or Rawalpindi that are now stressed.  The Tribunal responded directly to the matters the applicant did raise and in my view the findings made by the Tribunal were open to it.  The Tribunal expressly turned its mind to the applicant’s health difficulties (paragraph 53, CB285) but concluded on the evidence that the applicant’s health did not make it unreasonable for him to return to Pakistan.  Minds could readily differ as to whether this was so or not but to suggest that such a finding was one that no rational person could arrive at is not in fact in my opinion made out.

Ground 3 - The Second Respondent erred by failing to consider whether, pursuant to s 36(2B)(a) of the Act, it was ‘reasonable’ for the Applicant to relocate to a place if relocation to that place was not in his children’s best interests.

1. This claim of course brings into play the complementary protection regime and the possibility of significant harm being suffered by an applicant.

2. It was submitted by the applicant that consideration of this issue must include consideration by reference to the applicant’s children.

3. Skilful but to my mind somewhat over-complex submissions were advanced to the effect that the Migration Act 1958 (“the Migration Act”) connoted a necessity for the Tribunal to bear in mind Australia’s Convention obligations in respect to the Convention on the Rights of the Child. An endeavour was made to take the Court to a second reading speech to support this proposition. I declined to take that material because the terms of the legislation seemed clear to me on their face.

4. In my opinion if Parliament had intended the Migration Act to establish the circumstances of children of an applicant as a defined criterion Parliament would have said so.

5. I note that in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 Marshall J observed at [39]-[40] that in considering reasonableness in the context of the complementary protection regime it was appropriate to consider cases such as SZATV.  As his Honour observed:

   “The Tribunal considered whether relocation was reasonable and practicable in the particular circumstances of the applicant and the impact upon him of relocation within his country in reliance on SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51. Although those cases do not deal with the complementary protection regime, they deal with the question of the reasonableness of internal relocation, being a matter directly addressed by s 36(2B)(a) of the Act. It was appropriate for the Tribunal to draw guidance from these decisions.”

6. Marshall J’s observations were quoted with apparent approval by Dodds-Streeton J in MZZAD v Minister for Immigration and Citizenship [2013] FCA 879.

7. In reply counsel for the applicant sought to differentiate or qualify the force of those decisions.

8. In my view the observations of Marshall J supported as they were by Dodds-Streeton J are binding upon me until further Full Court authority says otherwise.

9. In this case the Tribunal, as indicated above, was clearly alert to the issues raised by the circumstances of the children as part of the issue of the reasonableness (and interrelated practicability) of relocation.  The Tribunal addressed these matters in terms albeit as indicated only briefly. 

10. In my view the Tribunal did not fall into jurisdictional error in not further considering the circumstances of the children by reference to the international Convention obligations to which the applicant referred. 

Conclusion

1. As none of the applicant’s grounds of application are made out the application must be dismissed with costs. 

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  13 October 2014