SZQBC v Minister for Immigration & Anor

[2011] FMCA 563

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQBC v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 563

MIGRATION – RRT decision – Pakistani Hazari Shia fearing persecution – Tribunal found no real chance of persecution outside the province of Baluchistan – Tribunal found relocation within Pakistan reasonable and practicable – consideration of risk of serious harm less than a real-chance – no jurisdictional error shown in the Tribunal’s application of relocation principles – application dismissed.

Migration Act 1958 (Cth)

Plaintiff M13/2011 v Minister for Immigration & Citizenship [2011] HCA 23
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18

Applicant: SZQBC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 506 of 2011

Judgment of: Smith FM

Hearing date: 18 July 2011

Delivered at: Sydney

Delivered on: 18 July 2011

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: D'Ambra Murphy Lawyers

Counsel for the Respondents: Ms A Mitchelmore

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 506 of 2011

SZQBC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia on a student visa in November 2008, and gained a tertiary qualification at the end of 2009.  On 23 April 2010, he applied for a protection visa assisted by a migration agent.  In material submitted by the agent, including a statutory declaration of the applicant, he claimed to fear persecution if he returned to Pakistan.  

2. The applicant claimed that he had been born in Afghanistan, and brought to Pakistan by his parents while an infant.  His parents obtained naturalisation papers and settled in Quetta, where the applicant lived most of his life.  He worked for some years in the United Arab Emirates before coming to Australia.  The applicant claimed to be at risk of persecution in Pakistan or Afghanistan, by reason of his family membership, and his ethnic and religious identity as a Hazara Shia Muslim.  He claimed that the risk to his family and himself was heightened by reason of his father’s background of working with Western organisations in Pakistan, and also his father’s situation as a successful businessman.  He also claimed that a brother, who had disappeared in 2005, had been involved in anti-fundamentalist political activities, and that his relationship to his brother heightened his and his family’s risk.

3. The applicant’s agent submitted to the Department of Immigration and to the Tribunal a body of country information concerning the risk of harm to people of Hazara ethnicity and Shia religion in Quetta and its province of Baluchistan, and also generally through Pakistan.

4. A delegate interviewed the applicant on 19 August 2010, and made a decision on 16 September 2010 to refuse the visa.  The delegate addressed the applicant’s situation both in Afghanistan and Pakistan, if he returned to either country.  The delegate found that there was no real chance of serious harm in either country.  In relation to Pakistan, the delegate said that the applicant did not face a real chance of serious harm “in particular if he relocates to a safer part of Pakistan such as Multan where there is a Hazara community and no recent incidents of violence against the Shia community”.  The delegate also made other findings which it is unnecessary to consider. 

5. On appeal to the Tribunal, the applicant was further assisted by his agent, and attended a hearing held by video connection between a Tribunal member in Melbourne and a hearing room in the AAT in Adelaide on 11 November 2010.  Before and after the hearing, his agent submitted further statutory declarations from the applicant, and submissions and documents addressing, in particular, the risks facing the applicant in all parts of Pakistan if he returned there.

6. The Tribunal made a decision on 22 February 2011 which affirmed the delegate’s decision.  The Tribunal shortly set out the evidence given by the applicant at the hearing as well as in his statutory declaration attaching to the visa application.  The Tribunal noted that the applicant’s claims had been put on the basis of a well-founded fear of discrimination and persecution “due to his ethnicity (Hazara), nationality (Pakistani and Afghani), religious beliefs (Muslim Shia), and political social group (family)”. 

7. The Tribunal then set out the evidence given by the applicant at the Tribunal’s hearing.  This included the applicant’s evidence about his religion that:

   He is a Shia Muslim who claims to practice his religion, although, he does not attend mosque on a regular basis.  The last time he attended a mosque was before 2004 when he was in Pakistan.  He is not married.

8. The applicant told the Tribunal that his father was living in Karachi, following threats to him made in Quetta.  His mother had continued to live in Quetta with his uncle and sisters.  The applicant told the Tribunal that his father was “a wealthy man”, who did not work anymore, and the family relied on rent from four shops in Quetta owned by his father.

9. The Tribunal discussed the applicant’s education, his period of residence outside Pakistan, and the disappearance of his brother.  The applicant explained the discrimination which he encountered in getting his education. 

10. The Tribunal also referred in its statement of reasons to a discussion with the applicant concerning possible relocation in Pakistan:

    38.    The Tribunal asked the applicant why he could not relocate to another part of Pakistan or Afghanistan particularly given that he has demonstrated the ability to live away from his family both in the UAE and in Australia and that his father had moved to Karachi. The Tribunal noted that the applicant had lived away from Pakistan for a considerable time and that he had no particular profile in his home area of Quetta. He said that Karachi is unsafe; there have been killings of Hazaras in Karachi; Hazaras are considered to be infidels throughout Pakistan; in Karachi there is conflict between various Shia groups. He said that wherever he goes in Pakistan he will be identified as a Hazara and therefore as a Shia. He said that there was no safe place for Hazaras in Pakistan.

    39.    The Tribunal asked the applicant why his father did not take the family to Karachi with him and he said this was because it would have been hard to make such arrangements, his economic burden would be greater and he would not be able to look after the family. He said that his father's situation is getting worse and the killings in Pakistan are increasing.

11. The Tribunal, over five pages, summarised “Independent information about conditions in Pakistan relevant to the applicant’s claims”.  This included consideration of the size and location of the population of Hazaras and Shia Muslims in Pakistan, reports of attacks on Hazaras and Shias in Baluchistan and other locations in Pakistan, and the effectiveness of the police and other authorities in Pakistan.

12. In its ‘findings and reasons’, the Tribunal accepted that the applicant is a Hazara and that he is Shia and, implicitly, that he is a Pakistani by citizenship.  It said:

    71.    Independent information confirms the applicant’s general claim about the situation in his home district of Quetta and paints a very concerning picture of life there.  Country information indicates seemingly continual attacks on Hazara Shia’s by Balochs and the Taliban in the area leading to large numbers of killings and kidnappings.  It is an extremely dangerous place.

    72.    The Tribunal has concluded that there is a real chance that the applicant could face serious harm if he were to return to Quetta or anywhere in Baluchistan where there has also been serious sectarian and politically motivated violence and where extreme interpretations of Islam have been imposed.  The Tribunal considers that the reasons the applicant could be harmed in Quetta because he is Shia and Hazara, and he comes from a wealthy family.  The Convention reasons of religion as a Shia, his imputed religion as a Christian, race (ethnicity), his membership of particular social group (being his wealthy family) and imputed political opinion (because of his brother’s activities) arise when considering what he might face if he were to return to Quetta. 

13. The Tribunal found that the applicant would not be “seen as being Afghani but rather as a Hazara Shia” if he returned to Pakistan.  The Tribunal considered the history of his brother’s reported activities and departure from Pakistan in 2005, and it did not accept the applicant had any profile that would “associate him with his brother or his views”. 

14. The Tribunal then discussed the risks facing the applicant in other parts of Pakistan outside Baluchistan.  The Tribunal noted submissions from the applicant’s agent “on the question whether it would be reasonably and practicable for him to live elsewhere in Pakistan where there would not be a real chance that he would be persecuted for Convention reasons”.  The Tribunal noted:

    76.    According to the country information referred to in paragraphs 64 -67 above there are places in Pakistan where every aspect of life is not overwhelmed by tribal and sectarian conflict and a fear of extremist religious groups as it has been in the applicant’s area of Quetta, although several localities have experienced violent attacks by extremist groups including against Hazara and Shia targets.  Furthermore, persons such as the applicant who are able to speak English and the national language Urdu could conceivably live and work throughout the country, particularly in major cities such as Karachi, Lahore and Rawalpindi.

15. The Tribunal then posed the issues for consideration in the following manner: 

    77.    The relevant questions for the Tribunal to address are whether there is a real chance that the applicant would face persecution for a Convention reason if he were to move to another area of Pakistan, and whether in his particular circumstances, it is reasonable for him to do so.

    78.    The Convention reasons of religion, imputed political opinion and membership of a particular social group arise from these claims of what might become of the applicant if he were to return to live in an area of Pakistan other than the Quetta area (the area where the Tribunal considers that his fear of persecution is well-founded).

16. The Tribunal then discussed the risk facing the applicant in other parts of Pakistan as follows: 

    79.    A critical issue underpinning aspects of the applicant’s claim to fear persecution elsewhere in Pakistan is the growing presence of fundamentalism, including the Taliban and like organisations, in many parts of the country.  There is no doubt that there has been  a growth in extremist sentiment over recent years and that it presents a major challenge to the government and the police and security authorities whose response is of uneven  effectiveness.  The outlook for Pakistan is poor but support for religious extremism and the Taliban as it exists in Pakistan is far from universal.  There is a large and growing opposition movement made up of people who do not support extreme interpretations of Islam and which protests against it and presses the authorities to do better at containing it.

    80.    When looking at the overall security situation in Pakistan and analyses of it, the Tribunal must keep in mind the particular circumstances of the applicant and what might become of him if he were to return to live in another part of Pakistan in the reasonably foreseeable future.  That a country is in trouble on a number of fronts as is Pakistan is an important factor to consider but it does not necessarily follow that an applicant will have a well-founded fear of persecution within the meaning of the Refugees Convention.

    81.    The Tribunal has considered the elements of the applicant’s claims individually and cumulatively.  He is a Hazara Shia from a wealthy family in the Quetta area.  He might have physical features which identifies his place of origin but the Tribunal does not accept that these features will have any appreciable impact on what might become of him upon return.  Further, in recent years, the applicant has travelled in and out of Pakistan and has not suffered any harm or threats.

    82.    Independent information indicates that some 20 per cent of Pakistan’s Muslims are Shia and depending on which population figure are relied on there would be between 17 and 26 million Shia followers in the country.  This demography is relevant to assessing whether there is a real chance of the applicant coming to serious harm on account of his religion.  There have been attacks on mosques, on Shia processions and on certain prominent Shia people over many years including very recently.  Around a hundred people were killed, and many more injured, in attacks in Quetta and Lahore on Shia in September 2010, by far the worst violence outside FATA and NWFP in the year.  The Tribunal has considered information which points to a failure on the part of the Pakistan government and its police and security agencies to effectively wipe out sectarian violence.  Police corruption is widespread and police effectiveness varies from place to place.

    83.    There will doubtless be further attacks against Hazara and Shia targets as there have been for a long time but in the Tribunal’s assessment the chance that the applicant would be at one of the thousands of Shia mosques where there was such an attack, and so seriously harmed, is remote. 

    84.    Nor does the Tribunal accept that the profile of the applicant and his activities when he lived in Quetta are of a kind which would have extremists from Quetta or Baluchistan generally pursuing him or tracking him down.  The Tribunal does not accept that the applicant, being a junior member of a wealthy Hazara family or the son of a man who is thought to have converted to Christianity, would be so potent as to prompt the mounting of any pursuit or tracking of him by those he fears in Quetta or Baluchistan outside of this area. 

    85.    In summary, the Tribunal considers that there is not more than a remote chance that the applicant would face persecution on account of his religion, his race (ethnicity), his membership of a particular social group (being his family) or his imputed political opinion in the reasonably foreseeable future if he were to return to live elsewhere in Pakistan, away from Quetta and Baluchistan. 

17. The Tribunal also discussed the practicability of the applicant living elsewhere in Pakistan outside Baluchistan:

    86.    The applicant has demonstrated that he is capable of finding a suitable job and supporting himself away from his home base through his work in the UAE.  He speaks Dari, Urdu, and English and has demonstrated the resourcefulness to live away from home for a number of years.  The Tribunal does not consider that there is evidence to indicate that the applicant would not be able to find accommodation and employment if he were to return to Pakistan and note that it is likely his family will support him.  The Tribunal further notes the report from the United States Department of State International Religious Freedom Report for 2009: Pakistan, release on 26 October 2009, referred to in paragraph 50 where it states that Shia leaders were not subject to discrimination in the civil service and that no specific discrimination against Shia people in relation to employment or education was reported in the 2008 edition of this report. Accordingly, the Tribunal finds that the applicant will be able to find employment and a place to live away from Quetta and Baluchistan.

18. The Tribunal then concluded:

    87.    While the applicant might be unhappy to have to settle in another part of Pakistan, in all the circumstances the Tribunal finds it reasonable for him to do so.

    88.    The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa.

19. The applicant’s grounds of review are set out in an amended application as follows: 

    1.The Tribunal erred in its consideration of whether the applicant could relocate to an area of Pakistan other than Baluchistan.

    Particulars

    (a)Failure to consider whether it would be reasonable to expect the applicant to relocate, given the Tribunal’s findings that Sunni fundamentalism was increasing in Pakistan and that attacks on Shiites occur in many areas of the country, albeit that the chances of the applicant himself being harmed may not be sufficient to say that his fear of persecution is well founded.

    (b)Failure to consider whether the applicant has a well founded fear of persecution for reason of the targeted killing of Hazaras or Shia Muslims in places other than Mosques in Pakistan outside Baluchistan.

    (c)Failure to consider information which the Tribunal was required to consider pursuant to s.424(1) of the Migration Act and submissions to the effect that Hazaras and Shia Muslims are targeted for attack by radical Sunni Muslims in places other than Mosques in Pakistan outside Baluchistan.

    (d)Failure of the Tribunal, in the circumstances of this case, to specify where in Pakistan it would be reasonable for the applicant to relocate.

20. In this written and with oral submissions, counsel for the applicant attempted to identify three jurisdictional errors which he sought to locate in the reasoning of the Tribunal which I have set out above.  He said that the three errors were referrable, respectively, first, to paragraph (a), secondly, to paragraphs (b) and (c), and thirdly, to paragraph (d) of the particulars to the ground of the application.

Particular (a)

1. Counsel’s argument in relation to particular (a) contended that the Tribunal had erred by segregating the two issues of risk outside Baluchistan and the practicability of relocation outside that province. 

2. Counsel referred to the principles concerning relocation established in the Federal Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 and subsequent cases, and accepted by the High Court in SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 at paragraphs [23] to [26]. These principles require a decision maker to address the risk of persecution faced by the applicant in all parts of the country of nationality, and, in the event that a real chance of persecution was found to be localised to one area of the country, to examine the practicability or reasonableness of expecting the claimant to relocate to a safer area.

3. In SZATV, the Tribunal made a finding that the applicant could avoid persecution by relocating, without consideration of the geographic extent of the risk of persecution of the appellant as a journalist everywhere in Ukraine if he continued in that occupation.  In the High Court, the majority implied that an assessment of the risk facing the appellant by reason of his occupation was “insusceptible of a differential assessment based on matters of regional geographies”, and held that the Tribunal had “sidestepped consideration” of what might reasonably be expected of him with respect of his relocation, by expecting him to move from his previous residence in Ukraine and avoid persecution by living ‘discreetly’ (see [26] and [32]).  This was an “error of law going to an essential task of the Tribunal”.

1. Counsel for the present applicant accepted that the present Tribunal’s reasoning, prima facie, properly commenced with an assessment of the geographic extent of the risks facing the applicant in Pakistan, by finding that a real chance of serious harm faced the applicant in “Quetta or anywhere in Baluchistan.”  The Tribunal then properly considered whether this risk extended to other parts of Pakistan.  However, counsel submitted that the Tribunal’s formulation in paragraph 77 of its reasons of the two questions: of risk in another area; and of reasonableness of relocation, and its discussion in paragraphs 78 to 87 addressing those two questions, had raised a “false dichotomy”.  This resulted in the Tribunal failing to address within the question of reasonableness of relocation a consideration of the risk, albeit – on its findings - less than a real chance, facing the applicant of serious harm outside Baluchistan.  Counsel did not refer me to any authority where such an error has been addressed or found on judicial review. 

2. Counsel for the applicant did not submit that it was not open, as a matter of law, to a decision maker to find that Australia’s protection obligations do not arise, if a person is able to avoid a real chance of persecution in a discrete area of the country of nationality by relocating to another area where a risk also exists but at a level which is less than a ‘real chance’.  Moreover, in my opinion, the authorities on principles of relocation do not support that proposition. 

3. On my understanding of the reasoning in Randhawa and SZATV, it is not necessary for a decision maker to find that a totally safe area exists in the country of nationality, before finding that a claimant’s well-founded fear of persecution is localised, and for that reason finding the availability of effective protection in his or her country of nationality.  In my opinion, SZATV holds no more than that the Tribunal cannot apply the ‘relocation principle’ without first considering whether the risk of a real chance of persecution is ‘susceptible of a differential assessment based upon matters of regional geography’.   If it finds that it is, then the Tribunal must also consider the practicability and reasonableness of relocating to the safer area taking into account all that this might entail in the claimant’s individual circumstances.

4. Considering the present Tribunal’s reasoning, I am not persuaded that it made any error when finding that Australia’s protection obligations were not engaged, notwithstanding its finding as to the existence outside Baluchistan of a risk of serious harm to the applicant, which was, in the Tribunal’s language, “no more than a remote chance,” and therefore, implicitly not a “real chance….if he were to return to live elsewhere in Pakistan, away from Quetta and Baluchistan.” 

5. In my opinion the Tribunal expressly addressed the issue required to be addressed under SZATV, and did so without revealing legal or jurisdictional error.  The geographical distinction in relation to risk which it drew appears to me to have been open to it on the material before it. 

6. It was, in my opinion, clearly open to the Tribunal, and probably required by SZATV, for it to assess the risks of serious harm facing the applicant outside Baluchistan, before making findings as to other matters relating to the reasonableness and practicability of relocation by the applicant.  I am not persuaded that the structure of the Tribunal’s reasons reveals the adoption of a “false dichotomy” nor of legal error given any other label.  I would not draw the inference that the Tribunal overlooked the implications of its finding that no area of Pakistan would be totally safe for the applicant, when finding that it was reasonable for him to settle in another area of Pakistan.  Once it found that the risk outside Baluchistan was ‘remote’, it was open to it to find that relocation was reasonable, provided that it also addressed the applicant’s other relevant circumstances.

7. In my opinion, the Tribunal’s reasoning, read fairly, shows it properly identifying and addressing the legal issues in relation to relocation.  I am therefore not persuaded that the applicant’s submissions addressed at particular (a) should be upheld.

Particulars (b) and (c)

1. The applicant’s counsel’s arguments addressing particulars (b) and (c) invited the Court to adopt an interpretation of the Tribunal’s reasons whereby, at paragraph [83], the Tribunal focussed its consideration of the risk facing the applicant outside Quetta and Baluchistan, purely by reference to his risks of serious harm from an attack on a Shia mosque. 

2. However, in my opinion, the Tribunal’s reasoning is not susceptible of that analysis.  In particular, in paragraph [82], the Tribunal clearly considered more broadly the risks facing Shia Muslims and Hazara Shias throughout Pakistan, in particular, by reference to the broad range of country information concerning a variety of violent incidents over recent years.  Paragraph [83], in my opinion, should be read in that context, as simply discussing one aspect of the risks which might be faced by the applicant, were he to attend a Shia mosque if he returned to Pakistan and lived outside Quetta and Baluchistan.  It did not do so in any exclusive or conclusive manner.  

3. I therefore am not persuaded by the submissions in support of paragraphs (b) and (c).

Particular (d)

1. In relation to particular (d), the applicant’s counsel sought to develop, as I understood it, the contentions argued in relation to particular (a), but by reference to the recent judgment of Hayne J in Plaintiff M13/2011 v Minister for Immigration & Citizenship [2011] HCA 23. In that case, his Honour considered reasoning by a delegate concerning a Malaysian national, in which the delegate had accepted that the applicant had a well-founded fear of religious persecution which had been inflicted by “elements within her local community”.  The delegate refused a protection visa on a conclusion that:

   I can find no reason as to why she would not be able to relocate within Malaysia, in order to seek greater anonymity, distance from her aggressors, and adequate protection.

2. In his Honour’s opinion, as I understand it, the delegate’s reasoning made the same error which had been found in SZATV, that is, of not addressing whether the applicant’s fears of future religious persecution were confined to a particular location.  His Honour said:

   [22]. When the delegate's reasons are read as a whole, it is evident that the particular circumstances of the plaintiff were not considered by the delegate in forming the opinion that she could relocate to avoid the risk of persecution. So much follows from the delegate not knowing from where the plaintiff would have to relocate. The particular circumstances of the plaintiff not having been considered, the delegate did not correctly identify a question that had to be answered in determining whether there was a real risk of the plaintiff suffering persecution on account of her religious beliefs if she were to return to Malaysia. By not correctly identifying the relevant question, the delegate made a jurisdictional error.

   His Honour had earlier noted that the delegate had not identified the location where the plaintiff had been previously living and incurring persecution and also “a place to which the plaintiff could relocate” (emphasis to ‘to’ given by his Honour, see paragraph [19]).   There was therefore a failure to address and consider whether the risk of the applicant facing a real chance of religious persecution in Malaysia had in the past been, and in the future would be, localised to her past place of residence and persecution.

3. In the context of the matter before his Honour, I do not read his Honour as suggesting that the identification of an area of lesser risk in a country, that is, lesser than a real chance, is required to be identified by a delegate with any particular degree of precision, before applying the principle of relocation.  As I understand the authorities, what is needed is that the decision-maker must be satisfied that the real chance of persecution facing the applicant if he returned to his country of nationality would be localised to a particular area, so as to allow a geographic distinction in relation to other areas presenting only a lesser risk of the feared persecution.  I do not consider that Hayne J intended to suggest that any particular precision is needed in all cases when defining the geographic areas of a localised real chance of persecution, nor when defining the areas of lesser or no risk.

4. I therefore do not accept that the present Tribunal, having identified the area of heightened risk amounting to a real chance of Convention-related persecution facing the present applicant as being “Quetta and Baluchistan,” was bound to identify with more precision the areas where it envisaged that the applicant could relocate so as not to incur a real chance of persecution for Convention reasons in Pakistan. 

5. For all the above reasons, I am not persuaded that the Tribunal’s discussion or application of principles of relocation reveals error of jurisdiction.  Taking into account all of the submissions that were made to me today, I have not found jurisdictional error affecting this Tribunal decision. 

6. It is therefore a privative clause decision, and I am bound to dismiss the application.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  29 July 2011