SZSEW v Minister for Immigration

[2013] FCCA 1181

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSEW v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1181

Catchwords:
MIGRATION – Persecution – review of recommendation made by Independent Protection Assessor (“Assessor”) that the applicant not be recognised as a person to whom Australia has protection obligations.

ADMINISTRATIVE LAW – Allegation that the Assessor misapplied the relocation principle and failed to take a relevant consideration into account.

Legislation:

Migration Act 1958, ss.36, 46A, 195A

Cases Cited:

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319

SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 53
SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18
SZFYV v Minister for Immigration & Citizenship [2007] FCA 304

Applicant: SZSEW

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: DR RON WITTON IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number: SYG 2649 of 2012

Judgment of: Judge Cameron

Hearing date: 8 August 2013

Date of Last Submission: 8 August 2013

Delivered at: Sydney

Delivered on: 27 August 2013

REPRESENTATION

Counsel for the Applicant: Mr T. Holmes

Solicitors for the Applicant: Wotton & Kearney

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2649 of 2012

SZSEW

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

DR RON WITTON IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Pakistan who arrived by boat at Christmas Island in April 2011. He lodged an application for a Protection Obligations Evaluation (“POE”) dated 14 June 2011 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).

2. By letter dated 8 August 2011 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Assessor”) who, on 15 March 2012, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. It can be presumed that the applicant was in detention at the time of the POE assessment and subsequent review.

3. The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.

4. It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Assessor: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].

5. The applicant has made an application to this Court for judicial review of the Assessor’s recommendation. He seeks a declaration that the Assessor’s recommendation was not made in accordance with law and an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Assessor’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].

6. For the reasons which follow, the application will be dismissed.

Background facts

1. The recommendation made by the Assessor was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 3 to 13 of those reasons and are relevantly summarised below.

Entry interview

1. The applicant made the following claims during his entry interview on 23 April 2011:

   a)he had lived in the Parachinar region of Pakistan and was a Pashtun Shia and a member of the Turi tribal grouping. He spoke Pashtun, Urdu and a “little English”;

   b)he left Pakistan because it was not safe and because he could not practise his religion and “life”;

   c)he had worked in a hotel in Peshawar that was owned by the Kurram Agency, his home district where a majority of Shias lived.  In 2008, the hotel was blown up by the Pakistan Taliban because the Kurram Agency defeated them and because there was a religious place inside the hotel where people from the agency used to go;

   d)the elders of the ISO group forced his brother to fight in Parachinar in 2010.  His brother was shot and killed because he had not been trained to fight and did not know what to do.  His brother did not fight voluntarily and told the group that he did not want to fight and would pay money in order not to.  People from the group told his brother that he was not a Shia and that they had enough money but needed people.  They were fighting because the Taliban wanted to take over Parachinar and on religious grounds;

   e)after his brother was killed in 2010, the group and Nawaz Agha, an elder in his area, wanted the applicant to replace his brother and fight.  The elders had groups who tried to get the youngsters together to fight.  He stated that that ten to fifteen people would approach young boys and force them to fight by stating that they would kill members of the boy’s family if he refused to fight;

   f)three or four times he paid a fine in order not to fight.  The people in his area turned against his family because they were sending their boys to fight but his family was not.  People said that his family were not behaving like Shias and that they had to go out and fight because it was their duty.  They threatened to set the family’s house on fire and to force them out of Parachinar;

   g)his family were in Nawaz Agha’s area and were usually approached by members of that group.  The last time the group approached his family was in September or October 2010;

   h)he had heard an announcement at a mosque that the group was not going to accept money and that they were going to force people to join them.  Consequently, he escaped to Australia the next day;

   i)if people did not fight, they were forced out of Parachinar.  Most people went voluntarily, however, if they refused, members of the group would enter their houses to take them to the border to fight;

   j)his father was threatened several times and was told that the group would kidnap his family and set fire to their house;

   k)he feared that the Taliban would take over Parachinar; and

   l)Pakistan had problems overall and he could not move to another area in Pakistan because wherever he went he would be recognised as a Shia of Parachinar.  He claimed that “nowhere is safe”.

POE application

1. In a statutory declaration declared on 5 May 2011 in support of his application for a POE, the applicant made the following claims:

   a)he went to Karachi in 2007 to try to escape the conflict in the Parachinar area.  Whilst he was there, one of his friends from Parachinar was targeted and killed by Sepha Sehaba.  After the incident, he returned to Parachinar but the area was still very dangerous;

   b)in 2008 he worked in a hotel in Peshawar known to be occupied entirely by Shia people from Parachinar.  While he was there the hotel was targeted by a suicide bomber who detonated a bomb outside the hotel.  He was not injured but thirty or forty people were killed;

   c)as a result of the problems and constant conflict in Parachinar, the elders of the area formulated a policy whereby each family had to provide one young male to fight and protect the area from the Taliban and Sunni groups.  His family had previously paid someone else to go and fight instead of them but the elders of the community objected to this and told his father that he had to send the males in his family.  As tribal Pashtuns, his family had to comply with the orders from the elders otherwise they would have been targeted and punished by the tribe.  He later stated that the elders would confiscate or destroy a family’s property, would force the family out of the area or kill them if they refused to send a male to fight;

   d)as the family’s eldest male, his brother was forced to fight.  At the time his brother was a student at college and was not familiar with guns or weapons.  In late 2010 he was killed by the Taliban or Sunni forces and his body was brought back to their village;

   e)after his brother was killed, his parents knew that he would have to fight as he was the next eldest.  When the elders announced that the men whose turn it was to fight had to report for duty, his parents told him to get out of the area to save his life.  He was fearful for his life and his parents did not want to lose another son;

   f)he left Parachinar and travelled to Karachi where Shia Muslims were also being attacked and targeted.  He felt that he could not stay in Pakistan because there was nowhere in the country that was safe for Shia Muslims;

   g)he feared that the Taliban and Sunni Muslim extremists would kill him as they did not consider Shia Muslims to be true Muslims.  He claimed that Pashtun Shia Muslims were being targeted everywhere;

   h)he feared that the elders in his village would force him to fight and that he would be killed.  Around seven thousand Pashtun Shia from his area had been killed in the conflict in the four or five years prior to his statutory declaration; and

   i)the Pakistani Army and authorities had done nothing to protect or assist the Parachinar area.  Since roadblocks had been erected four or five years earlier, few supplies such as food and medicine had been brought into the area.

2. At his POE interview the applicant gave the following additional evidence in response to adverse country information put to him by the delegate:

   a)there had been so many peace agreements in Parachinar that he did not believe that a peace agreement brokered in February 2011 would work.  He stated that fighting had started five years earlier and that previous agreements had not lasted long;

   b)in response to the proposition that as the peace treaty had been signed there would be no need for the ongoing recruitment of a fighting force for the Turi tribe, he stated that he had spoken to his family ten to fifteen days earlier and they had told him that there were still incidents of fighting.  He stated that because the media and Red Cross had no presence there, information was hard to obtain.  The lack of media in the area also meant that the information that was presented was one-sided as Pashtuns were a very small minority;

   c)his fifteen year old brother had been taken to fight in the next town and government tanks were firing on people.  In March 2011 a convoy was abducted and people had been killed;  and

   d)since 2006 a lot of people had died.  The government of Pakistan had been involved and would not stop until it captured their villages and land.  Pakistan’s military intelligence agency, the ISI, was also complicit.

Proceedings before the Assessor

1. Prior to the applicant’s interview with the Assessor on 22 February 2012, his representative provided a submission dated 25 January 2012 which repeated the claims previously made by the applicant and provided additional country information about conditions in Pakistan.

2. During his interview with the assessor, the applicant made the following additional claims:

   a)when he was younger he had had to stop attending secondary school because of attacks which followed the start of the Sunni-Shia conflict;

   b)a lot of Shia people from his village and area had been targeted and killed in Karachi.  They had been targeted by many different Sunni groups including the MQM, Sipah Sahaba and the Lashkar Jangwi;

   c)since the conflict began in 2006 or 2007, the Pakistani government had not provided his home area with medicine, food or supplies and those items had had to be sourced from Afghanistan where many Turi had been killed.  Parachinar was surrounded by extremists and the roads were blocked;

   d)on 17 February 2012 many people were killed in a bomb blast in the Kurram Agency.  His father and younger brother had been inside the mosque that was targeted but were not hurt. The Pakistani government had been supporting extremist groups and had shot people helping victims of the bomb blast;

   e)there were always bomb blasts in Parachinar and the Pakistani authorities would not give the residents freedom of religion; and

   f)Turi people could be identified by their appearance and accent and could be easily targeted wherever they went in Pakistan.  The Pashtun language was different from the other languages in Pakistan.  There was no safe place for Shia Pashtun Turi.

3. After their interview, the Assessor wrote to the applicant inviting him to comment on whether it would be reasonable for him to relocate to another region of Pakistan where there would be no real chance that he would be persecuted. In a response dated 8 March 2012, the applicant’s representative submitted that relocation was not an option for the applicant and that he would be targeted wherever he went in Pakistan.  It was submitted that Shia Muslims were not protected in Pakistan and were subject to systematic attack.  The representative also submitted that the applicant had twice unsuccessfully attempted to relocate.

Assessor’s findings and reasons

1. After discussing the claims made by the applicant and the evidence before him, the Assessor found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Assessor consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. The Assessor was not satisfied that if the applicant returned to Pakistan, he would, in the reasonable foreseeable future, face a real chance of persecution by reason of his race, his religion, his membership of a particular social group, or for any other Convention reason.

2. The Assessor accepted that the applicant came from the Parachinar region of Pakistan, that his ethnicity was Pashtun, that he was a member of the Turi tribal grouping and that his religion was Shia Muslim.  He accepted that the applicant feared harm from Sunni extremists and feared forcible conscription by elders of the Turi tribe.  He accepted that the applicant went to both Karachi and Peshawar and had witnessed the anti-Shia violence he had claimed and also that sectarian violence occurred throughout Pakistan.  The Assessor accepted country information indicating a high level of Shia-Sunni conflict in the Kurram Agency such that there was a real chance the claimant might suffer serious harm by non-state agents there because of his religion.  He also accepted that such protection from that harm as was offered by the state and other bodies would not be effective.

3. Nevertheless, the Assessor found that the applicant could safely relocate to a variety of locations in Pakistan away from the Kurram Agency. In this connection, the Assessor made the following findings:

   a)large cities such as Karachi, Lahore and Islamabad were made up of people from all parts of the country, including Shia and ethnic minorities, who had relocated from other parts of Pakistan;

   b)the claimant did not have a profile, such as that of a Shia militant or government-associated agent, which could give rise to a real chance that he might be targeted elsewhere in Pakistan by Sunni extremists such as the Taliban and Sepa Sehaba; 

   c)the Assessor noted that a quarter of Pakistan’s population, i.e. some forty-three million Pakistanis, were Shia Muslims and that they were to be found in a variety of areas in Pakistan including major cities and towns; and

   d)while country information indicated that sectarian violence occurred throughout Pakistan, any harm that might be suffered elsewhere in Pakistan by individuals of no particular prominence, such as the applicant, would be in the nature of random violence as a result of sectarian conflict and animosity.

4. In light of the applicant’s lack of profile and in the absence of any country information supporting the proposition that there was a real chance that he might be pursued or harmed by members of the Turi tribe for reason of his refusal to be conscripted to fight the Taliban, or by other hostile elements from within the Kurram Agency, the Assessor also found that there was no real chance that the applicant would suffer serious harm on that account were he to relocate to another city or town at some distance from the Kurram Agency.  The Assessor noted in this connection the applicant’s concerns that his appearance and accent would identify him as a member of the Turi tribe and that that would give rise to him being targeted but found that this concern had already been addressed earlier in the reasons.

5. The Assessor considered that it would be reasonable for the applicant to relocate to another city or town.  He accepted that the applicant had a subjective fear of the random sectarian violence prevalent throughout Pakistan but found that it would be reasonable in the applicant’s circumstances, particularly having regard to his language and occupational skills, for him to relocate to a Pakistani city or town at some distance from the Kurram Agency.  In this connection, the Assessor noted that the applicant had already shown that he was willing and able to seek employment in Peshawar and in Karachi and that he spoke two of Pakistan’s national languages, Urdu and Pashtun, albeit with a regional accent.  The Assessor also considered that the applicant had shown that he had skills which made him readily employable in other areas of Pakistan.

Proceedings in this Court

1. The grounds of the application commencing these proceedings were pleaded as follows:

   1.The decision of the Independent Protection Assessment Reviewer involved an error of law.

   Particulars

   (a)The Reviewer concluded that the applicant would not suffer harm for a convention reason if he were to locate to another part of Pakistan (the Relocation Principle applied).

   (b)As a consequence the Reviewer concluded that the applicant was not a person to whom Australia owed protection obligations.

   (c)The Reviewer failed to identify any location in the applicant’s home country in which he would be able to relocate in order to avoid suffering harm.

   (d)The Reviewer failed to, and was unable to, properly consider the legal criteria surrounding the application of the relocation principle, as he had not identified any location within the country in which the applicant would be able to relocate.

   2.The decision of the Independent Protection Assessment Reviewer failed to take into account a relevant consideration, being an integer of the applicant’s claim, namely that the applicant is a member Pashtun Turi social group.

   Particulars

   (a)The Reviewer correctly identified that the applicant was a Pastun Turi. However, he failed to consider the applicant’s membership of this social group.

   (b)In determining the applicant was able to relocate within Pakistan the Reviewer did not consider the ability of Pashtun Turi to be safe within Pakistan.

   (c)The Reviewer did not consider the vulnerability of a Pashtun Turi within Pakistan.

Ground 1

1. The burden of the first ground of the application was that the Assessor was obliged, before being able to find that the applicant could relocate within Pakistan, to identify a particular location to which it would be reasonably practicable for him to relocate.  The applicant submitted in this regard that the obligation to identify such a location could be inferred from the reasons of Black CJ in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 53. Relevantly, the Chief Justice said:

   … the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.

   This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. … (at 442)

2. The applicant submitted that the two limbs of the relocation test could only be properly considered by reference to a specific location rather than more generally.  He submitted that as the Assessor had not suggested that all of those parts of Pakistan which were not the applicant’s home area were suitable for relocation, he must have had some location, which he did not identify, in mind.

3. It is true that in Randhawa Black CJ stated that it would be wrong to take “the general approach that there must be a safe haven somewhere” but his Honour did so in the context of the decision-maker failing to give the issue “more specific attention” (at 443).

4. Contrary to the applicant’s submissions, the relocation doctrine is not necessarily concerned with one specific location to which relocation might be reasonable.  To approach the matter in that way distracts attention from what is really in issue which is, relevantly, whether an applicant has a well-founded fear of persecution in his or her country of nationality. As Black CJ said in Randhawa:

   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. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders. (at 441)

   That passage was part of a larger passage from Randhawa quoted with approval in SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 at 22-23 [10] per Gummow, Hayne and Crennan JJ.

5. The relocation principle is no more than a manifestation of the principle stated by Black CJ that a person is not entitled to protection under the Convention if protection is available to them in their country of nationality. Put another way, even if a person does have a well-founded fear of persecution in one part of their country of nationality, protection obligations under the Convention will not be enlivened if there is somewhere else in that country where the fear would not be well-founded.

6. In this case the Assessor found that as long as they were “at some distance from the Kurram Agency”, there were many places in Pakistan, particularly towns and cities, where the applicant would not have a well-founded fear of persecution for a Convention reason.  By doing so he avoided taking the general approach criticised by Black CJ that somewhere in Pakistan there had to be a safe haven for the applicant.  He was not required to do more: SZFYV v Minister for Immigration & Citizenship [2007] FCA 304 at [11].

7. The Assessor’s finding was sufficient to discharge his obligation to consider whether the applicant had a well-founded fear of persecution throughout Pakistan such that internal location was not reasonably practicable for him.

Ground 2

1. In the second ground of his application the applicant alleged that the Assessor had not considered his claim that, as a Turi, there was nowhere safe for him in Pakistan.

2. In many respects, the applicant’s claim as a Turi was linked with his claims as a Pashtun Shia.  Those latter aspects of the applicant’s claims were relevantly addressed above in the context of the first ground of the application.  To the extent that the applicant’s claims turned on him being a member of the Turi tribe, the Assessor expressly addressed this as the summary of his reasons appearing above at [17] shows.

3. For these reasons, the second ground of the application is not made out.

Conclusion

1. The applicant has not demonstrated that the Assessor’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  27 August 2013