SZSRD v Minister for Immigration
[2013] FCCA 1714
•25 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSRD v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1714 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal fell into jurisdictional error by failing to consider all relevant country information before it – whether the Tribunal failed to consider the Applicant’s claims in terms of s.36(2)(aa) of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A |
| Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 |
| Applicant: | SZSRD |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 537 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 3 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | P.M. Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 537 of 2013
| SZSRD |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 21 February 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Pakistan, arrived at Christmas Island by boat in January 2012. The Minister exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (the Act) to allow the Applicant to make an application for a protection visa. He lodged such an application on 8 June 2012.
In a statutory declaration accompanying his protection visa application the Applicant claimed that he was a Pashtun Shi’a Muslim and a member of the Turi tribe who had been born and raised in Parachinar in Kurram Agency in Pakistan. He claimed his father, an elder of the tribe who opposed the influence of the Taliban and supported unity with a Sunni tribe, had been warned and threatened by the Taliban. In October 2010 his father was kidnapped by the Taliban and the family was asked to pay a ransom. The Applicant claimed that while he was trying to raise the money to save his father, he was informed that he had been killed.
The Applicant claimed that shortly thereafter he travelled with his mother to Peshawar and that after five days in the city he was set upon by a group of people whom he knew were members of the Bangash tribe and the Taliban because of their accents. He claimed they tried to force him into a nearby car, but local Pashtun people helped him and the Taliban left without him. He claimed that after his return to Parachinar he was constantly harassed by the Taliban who threatened to kill him.
The Applicant claimed to fear harm from the Taliban if he returned to Pakistan as a member of the Turi tribe, a Shi’a Muslim, and because of his relationship with his father who had angered the Taliban. He claimed the authorities were unable to offer protection as they were not able to protect themselves from insurgent groups such as the Taliban. He also claimed that there was nowhere in Pakistan he could be safe, as he could be easily identified as a member of the Turi tribe from his dialect. He claimed that the Taliban were everywhere and hated the Turi tribe and that if he left his village he would not have protection from his tribe or the elders of his village.
The application was refused and the Applicant sought review by the Tribunal. He attended a Tribunal hearing. In a written submission in support of his review application, the Applicant’s solicitor/migration agent claimed that the Applicant feared persecution throughout Pakistan for reasons of his religion as a Shi’a Muslim, his imputed political opinion of opposition to the Taliban; his membership of the particular social group of the Turi tribe; and his membership of the particular social group of Shi’a Muslims from the Parachinar region of Pakistan.
Among other things, the Applicant’s advisor claimed that as independent information provided support for the view that there was a real chance the Applicant faced persecution throughout Pakistan, the issue of relocation did not arise. The advisor addressed the complementary protection criterion in s.36(2)(aa) of the Act, submitting, relevantly, that the Applicant feared that he would be killed, physically harmed and/or harassed by the Taliban and/or Sunni insurgent groups and/or their associated groups. Attached independent country information was said to confirm that the types of harm the Applicant feared were systematically applied to Shi’a Muslims and Turi tribe members in Pakistan. The attached summary of independent country information addressed matters such as the security situation in Pakistan, persecution of Shi’a Muslims in Pakistan, whether Shi’a Muslims were discriminated against in Pakistan society, persecution of members of the Turi tribe in Pakistan, political opposition to the Taliban and previous Tribunal cases on persecution of Shi’a Turis. It included extracts from particular items of independent country information as discussed further below.
The Tribunal Decision
In its reasons for decision the Tribunal set out the claims made by the Applicant and his advisor and the evidence given by the Applicant at the Tribunal hearing. It referred to items of independent country information about matters such as the position for Shi’as, the situation in the Kurram Agency and in Karachi and to the discussion of country information at the Tribunal hearing, both generally and in relation to the issue of whether the Applicant could relocate. While the possibility of relocation to Islamabad or Rawalpindi had been considered, the Tribunal recorded that for the purposes of the decision it relied on Karachi as the site of relocation.
The Tribunal recorded that it had put to the Applicant that Turis appeared to be living in Karachi; that younger members of that community had staged a protest there without incident; that approximately one third of the population of Karachi were Shi’as; and that while there had been attacks on Shi’as in that city (primarily on religious processions) given the size of the population the risk of the Applicant suffering harm there was remote.
The Applicant was recorded as responding that while there were many Shi’as living in Karachi, they were different from his tribe, and that the Taliban was particularly against his tribe, but not so much other Shi’as. He claimed that the Taliban could easily find him, as they contacted people in government to help them, that if he went to a mosque in any other city he would be known for his religion and that people would know from his speech where he came from and his tribe. He also claimed if he was stopped by police he would have to show his identification and his tribe and native area would be revealed.
The Tribunal referred to the fact that the Applicant had submitted a number of media reports which he said showed that people were kidnapped in Karachi, Islamabad and Rawalpindi and that he claimed that he could not be safe if Benazir Bhutto and other high ranking members of the Government had been targeted and killed, that the Government and the Taliban were “together” and that kidnappings and murders of Shi’as were not reported in the news.
In its findings and reasons the Tribunal found that the Applicant was a credible witness. It accepted that he was a Pashtun Shi’a who belonged to the Turi tribe. It also accepted as credible his account of his education, employment, participation in a rally in Islamabad, and that he was injured on one occasion when the Taliban fired a missile into a market. It accepted the Applicant’s account of his father’s work as an elder and member of Anjuman-e-Hussainia, and of the Taliban making threatening telephone calls to his father, kidnapping him and thereafter making threatening telephone calls to the family demanding a ransom.
The Tribunal also accepted the Applicant’s claims that after some time the Taliban said that they would kill his father and that his father had not been seen since. It accepted the Applicant’s account of being attacked by a group of Sunnis or Wahhabis who used to live in his native area and that he subsequently received a telephone call in which he was threatened with harm because of his father’s activities.
The Tribunal had regard to country information indicating that the conflict in the Kurram Agency continued with loss of life, including through targeted attacks on the only road into the area. On this basis it found there was a real chance the Applicant would suffer serious harm for reason of his religion and adverse opinions imputed to him by Sunnis (and the Taliban and like Sunni extremist groups) who would wish him harm if he were to return to Parachinar and more broadly to the Kurram Agency.
Hence the Tribunal considered whether it was reasonable for the Applicant to relocate in Pakistan to a region where there was no appreciable risk of the occurrence of the feared persecution, in particular whether it was reasonable for him to relocate to Karachi in the event that, objectively, there was no appreciable risk of the feared persecution in that city. In that context the Tribunal first had regard to country information indicating that almost a third of the population of Karachi were Shi’as and to the fact that, beyond a reference to a group called the Youth of Parachinar holding a protest in Karachi, it had no specific information about Pashtun Shi’as being harmed in Karachi, and that none had been provided by the Applicant or his advisor.
The Tribunal acknowledged that there had been attacks on Shi’as in Karachi, notably in religious processions in December 2009, February 2010 and September 2010, that there were isolated reports of Shi’a professionals being killed in Karachi and that a bus carrying Shi’as was attacked in August 2012. However it found that considering those attacks in the context of the size of the Shi’a population in Karachi, the risk of the Applicant suffering harm for that reason was remote.
The Tribunal then considered the Applicant’s claim that he was at risk anywhere in Pakistan because of his father’s activities and that people who had fathers who had played the same role as the Applicant’s father, had been kidnapped in other cities in Pakistan, namely Peshawar, Rawalpindi and Islamabad. The Tribunal acknowledged that the Applicant’s father had some profile in Parachinar as an elder and in relation to his activities for the tribal association and that he had been kidnapped in Peshawar by the Taliban whom he had opposed. It accepted that the Applicant had been attacked by a Sunni group in Peshawar in 2011 and threatened over the telephone that he would be harmed when he returned to Peshawar because of his father, and that this might go some way to supporting his claim. However it had regard to the fact that Peshawar was closer and more accessible to Parachinar than Karachi. The Tribunal was willing to accept that the Applicant would be at risk in Peshawar, but did not accept that he had a profile of such significance to the Taliban or other Sunni extremist groups that they would pursue him in Karachi or that he would be of interest to them in Karachi, beyond the fact that he came from a tribe which had refused requests from the Taliban to grant them access to the area occupied by that tribe.
The Tribunal accepted that for that reason the Taliban would no doubt perceive anyone who belonged to that tribe as being opposed to them, but had regard to the fact that it had no information that people from the Applicant’s tribe were harmed in Karachi. Further, while the Applicant claimed people in his position with parents who played a similar role to his father were the victims of kidnappings in Islamabad and Rawalpindi, the Tribunal stated that it had no country information that such persons were harmed in Karachi.
The Tribunal considered the fact that when it put to the Applicant that he could safely live in Karachi, he had submitted that the Taliban could easily find him there because they could contact people in the Government, that the Taliban and the Government worked together and that he was easily identifiable as a Pashtun Shi’a Turi from Parachinar and that the Taliban were particularly against them. The Tribunal accepted that the Taliban may have contacts in the government, but did not accept that this Applicant would be of such interest to the Taliban that they would pursue him in Karachi. It reiterated that it accepted that the Applicant was identifiable as he claimed and that the Taliban would perceive him as an opponent because his tribe had refused to assist them. However it had regard to the fact that there was no country information that people from the Applicant’s tribe (the Turi) were harmed in Karachi.
The Tribunal was also of the view that it was the profile of people like Ms Bhutto that had raised the risk of them being attacked by the Taliban and found that the fact that the Applicant did not have such a profile lowered the risk of him suffering harm.
Insofar as the Applicant claimed that kidnappings and murders of Shi’as and people from his tribe were underreported in the media, the Tribunal was of the view, having regard to cited information, that attacks on Shi’as in Pakistan were well reported. It found however that it was satisfied on the basis of the available information about the risk of harm in Karachi for Shi’as, as well as for Pashtun Shi’a Turis from Parachinar, that the risk in Karachi was remote.
In relation to the country information submitted by the Applicant the Tribunal stated (at paragraphs 88–94):
As stated above, at the hearing the applicant submitted a large number of the media articles which he said showed that people were kidnapped in Karachi, Islamabad and Rawalpindi. The vast majority of the articles submitted are reports of attacks by the Taliban and Sunni extremists in the Kurram Agency and, more generally, the north-west of Pakistan. The Tribunal accepts that the applicant’s fear of persecution in the Kurram Agency is well founded but these articles do not demonstrate that there is an appreciable risk of the occurrence of the feared persecution in Karachi.
Other issues discussed in these articles are the use of suicide attacks as part of an insurgency against the Pakistan government; collusion between the Taliban and Pakistani intelligence services and the use of social media by Sunni extremist groups to incite violence and hatred against Shi’as. The Tribunal acknowledges these articles do not demonstrate that the risk of harm for Shi’as and people from the applicant’s tribe in Karachi is any different from the Tribunal’s assessment discussed above.
Some articles discussed kidnappings of Turi’s living in Islamabad – Rawalpindi in December 2011. That was the only report of Turi’s suffering harm in those cities that was submitted. Further, those articles do not discuss or mention Turi’s in Karachi being harmed.
In addition, some of these articles discussed political violence in Karachi between supporters and workers of various political parties. However, the applicant does not belong to a political party and the risk of him suffering harm due to his political violence the Tribunal finds to be remote. Also included in this information were general reports about sectarian violence in Pakistan increasing, this information specifically mentioning Hazaras and Sufi’s being the victims of attack and not just Shi’as. Other reports refer to attacks on Shi’a religious processions in Karachi but the Tribunal is aware of these and has discussed them above.
Some articles claimed the Taliban and other extremist groups have a presence in Karachi and conduct recruitment and fund-raising there. While that may be so, the fact remains the Tribunal has no country information about Pashtun Shi’a Turi’s being harmed there and the Tribunal has considered available information about attacks on Shi’as in Karachi and, for the reasons given above, finds the risk of the applicant being harmed to be remote.
Finally, the applicant produced one document which was a schedule of attacks on Shi’as in January 2012, the source of this information not being clear. In this document, it was asserted that certain Shi’a individuals and an Imambargah were attacked in Karachi but no meaningful background is given to these attacks for the Tribunal to be certain about why they occurred.
The Tribunal is willing to accept that there could be more attacks on Shi’as than discussed in the country information presented earlier in this decision but the Tribunal could not conclude from the information put forward, considered in the context of the size of the Shi’a population in Karachi, that the risk of the applicant suffering harm is more than remote.
The Tribunal also had regard to the Applicant’s education and English language abilities, his claims that he spoke Urdu and Pashto and his experience running a business. It found that he should be well placed to settle in Karachi and establish himself there.
In all the circumstances the Tribunal found that the Applicant could reasonably be expected to relocate to Karachi where there was no appreciable risk of the occurrence of the feared persecution and where he did not have a well founded fear of persecution for any Convention reason.
The Tribunal then considered the advisor’s written and oral submissions that the Applicant would suffer harm in Pakistan because of his religion and because the Taliban would impute adverse political opinions to him (because of his religion, his tribe which had opposed the Taliban, including the work of his father in that respect, and his membership of particular social groups made up of people of his religion and his tribe). It referred to the advisor’s submission that the Applicant was easily identifiable as a Pashtun Shi’a from the Turi tribe and from Parachinar and that he was therefore at risk of harm anywhere in Pakistan because many Sunnis from Parachinar had left the area and gone to live elsewhere in Pakistan and would form a network all over the country, so that it would only be a matter of time before they found him. The advisor had also submitted that the risk was increased because the Applicant was the oldest son in his family and because of his father’s activities, that the Taliban were in the Pakistani government and that there was no effective state protection for Shi’as.
The Tribunal stated that it had carefully considered these submissions. It accepted that the Applicant would be identifiable as claimed, that Sunnis from his native area now lived in other parts of Pakistan and that there would be among them people who would perceive the Applicant as an opponent because of the stance taken to the Taliban by his tribe. However the Tribunal also had regard to the fact that it did not have any reports indicating that Turi Shi’as from Parachinar were attacked in Karachi. It found that while the Applicant was the eldest son in his family and his father had been politically active in his native area, this did not give him such a profile that he would be pursued by the Taliban all over Pakistan. The Tribunal found that, for the reasons given, the risk of the Applicant suffering harm in Karachi because he was Shi’a was remote.
The Tribunal also addressed the advisor’s submissions that instability throughout Pakistan increased the risk of harm for minorities, including Shi’as. It accepted that sectarian violence, ethnic tensions and Sunni insurgency existed. However, while acknowledging that the government, military and extremist groups colluded, the Tribunal was not satisfied that the instability this created meant that there was an appreciable risk of the Applicant suffering harm in Karachi. It found the broad submissions that at some point in the future the Pakistani state would disintegrate and collapse were highly speculative. It pointed out that it must assess the risk for the Applicant based on available information about how people in his situation were treated in Karachi as the proposed site for relocation. On the available country information the Tribunal found that for the reasons given there was only a remote chance of the Applicant suffering harm in Karachi.
Relevant to the grounds relied on in these proceedings, the Tribunal addressed submissions from the advisor about attacks on Shi’as and security in Karachi as follows (at paragraphs 104–115):
From pages 14 – 18 of the written submissions, the representative referred to country information about attacks on Shi’as and general claims about that were made elsewhere in the submissions. This information includes reports of attacks on Turi’s (pages 22-26) and discusses attacks on Shi’as in various places in Pakistan and predominantly with respect to attacks in Balochistan (on Hazaras) and in the North West of Pakistan.
The representative made submissions and referred to country information regarding security in Karachi (see p10 - 12). In addition to the attacks on Shi’as as discussed in country information presented by the Tribunal earlier in this decision, the representative also refers to other incidents (attacks on Shi’as as in January 2011 and September 2012 and a planned attack in October 2012).
This information discussed conflict between Shi’a and Suni residents of that city and the presence of Sunni extremist groups there including the Taliban. This information also referred to violence between political parties and criminal syndicates. Some of this information contains speculation that violence in Karachi would be beyond the ability of the government and army to control.
The Tribunal has carefully considered the submissions and country information but they do not alter the Tribunal’s assessment of the risk for the applicant in Karachi. The Tribunal acknowledges that violence takes place in Karachi between political parties and related criminal syndicates. This is also related to tensions among the different ethnic groups in the city. However, the applicant has never been politically active and the risk of him suffering harm as a result of this violence is remote.
While the Tribunal acknowledges the violence that occurs in Karachi (and in Pakistan as discussed above), it is far too speculative to conclude that in the reasonably foreseeable future government control of Karachi will collapse as was claimed. The Tribunal acknowledges the presence of Sunni extremist groups in Karachi and the additional incidents put forward by the representative with respect to attacks on Shi’as in that city (including the more general information about attacks on Shi’as elsewhere in Pakistan and on Turi’s in the Kurram Agency).
However, when those matters are considered in the context of the size of the Shi’a population in Karachi, the fact remains that the risk of the applicant suffering harm there is remote.
The representative made submissions and referred to country information that Shi’as suffer discrimination in Pakistan (consisting of claims about gatherings and religious sites being attacked; the distribution of anti-Shi’a materials; the existence of blasphemy laws; the inability of the authorities to stop attacks and a repeat of information referred to elsewhere in the submissions about attacks on Shi’as in Pakistan). Reference was also made to employment rules in government departments requiring affidavits or religious correctness and similar requirements to obtain an identity card and passport.
While the applicant may have to declare his religion if seeking employment in the government, obtaining a passport or identity card, that will not threaten his ability to subsist in Karachi. The Tribunal acknowledges the information about attacks on Shi’as, their religious processions and their mosques; the fact the authorities have been unable to prevent them and the fact that anti-Shi’a materials have been distributed and that blasphemy laws exist in Pakistan.
However, as stated above, considered in the context of the size of the Shi’a population, these instances of harm do not satisfy the Tribunal that the risk of the applicant suffering harm in Karachi is anything more than remote. The representative submissions also referred to Pakistan having a weak and poor economy. As stated above, the applicant has an education and previous employment experience so he should be well placed to find employment in Karachi.
The representative stated Turi Shi’as were not welcomed by Shi’as living in other parts of Pakistan as they saw the Turi as increasing the risk that they could all be harmed by Sunni’s. While that might occur to this applicant in Karachi, the fact remains the Tribunal has no reports of people from his tribe and native area being the victims of harm in Karachi.
The representative referred to country information regarding the way in which the Taliban treats those it perceives as it opponents (pages 27-28). It was submitted that the Taliban were willing to impute hostile views to a person for minor and unintentional expressions of dissent and routinely harm those they perceive as hostile. The Tribunal has considered these claims and the information put forward to support them. The Tribunal accepts the claims made about the way the Taliban would treat those it perceives as opponents and how it forms the view that someone is an opponent.
However, that does not demonstrate that if the applicant was to live in Karachi there is an appreciable risk that he will suffer harm at the hands of the Taliban (or like extremist groups). The Tribunal has set out above its reasons for finding that the risk the applicant will suffer such harm in Karachi is remote.
The Tribunal referred to the advisor’s reference in written submissions to previous decisions of the Tribunal, differently constituted, in which the Tribunal was said to have found there was a real chance that applicants being Pashtun Shi’as from Parachinar would suffer persecution anywhere in Pakistan. One of these decisions had referred to the killing of an activist in Karachi by what appeared to be a Shi’ite student organisation in March 2011. The Tribunal found that this additional incident, considered with evidence of other attacks on Shi’as in Karachi, did not alter its view as to the risk of harm to this Applicant in Karachi. It acknowledged that the Tribunal in other cases had formed a view about the risk of harm for the particular applicant concerned based on the evidence and information before it. However having examined the evidence and country information before it, the Tribunal found that in Karachi there was no appreciable risk of the occurrence of the feared persecution and that the risk of the Applicant suffering harm in Karachi due to his religion, his tribe, his father’s activity and/or membership of the various particular social groups advanced was remote. It reiterated that as a relatively well-educated man with previous employment experience, the Applicant should be well placed to settle in Karachi and concluded that it was reasonable to expect him to relocate there and hence that his fear of persecution in Pakistan was not well-founded.
Finally, the Tribunal considered the complementary protection criterion and the advisor’s submissions in that respect. For the same reasons that it found the Applicant’s fear of persecution in the Kurram Agency to be well-founded, the Tribunal also found that there was a real risk he would suffer significant harm there. However the Tribunal pointed out that where it would be reasonable for the Applicant to relocate to an area of the country where there would not be a real risk that he would suffer significant harm, there was taken not to be a real risk he would suffer significant harm in that country.
The Tribunal continued at paragraphs 123–128:
The Tribunal has set out above its reasons for finding that the risk of the applicant suffering harm in Karachi is remote and so, for the same reasons, the Tribunal finds there is not a real risk the applicant will suffer significant harm there. As stated above, the applicant speaks Pashto and Urdu; he is relatively well-educated and has previous employment experience. Accordingly he should be well placed to settle and find employment in Karachi.
For all of those reasons, the Tribunal finds that it would be reasonable for the applicant to relocate to Karachi where there would not be a real risk that he will suffer significant harm.
Accordingly, for those reasons, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to the receiving country, Pakistan, there is a real risk that the applicant will suffer significant harm.
In assessing the issue of the applicant relocating to Karachi to avoid persecution in the Kurram Agency and in terms of the complimentary protection criterion it has taken into consideration the fact that there is no country information reporting that Pashtun Shi’as from Parachinar are the victims of attacks or harm in Karachi. The Tribunal had one report from December 2011 about Pashtun Shi’as living in Islamabad – Rawalpindi being the victims of kidnapping for ransom, but none about Pashtun Shi’as being harmed in Karachi.
The Tribunal exercises caution in taking that consideration into account when determining if the applicant can safely live in Karachi and whether it is reasonable to accept him to do so. The Tribunal acknowledges the possibility that reports of Pashtun Shi’as being harmed there may not have been widely made or are not available. However, attacks on Shi’as in Karachi are widely reported and there is ample available country information about that.
Those reports disclose those attacks taking place on the basis of religion rather than because the victim was from a particular ethnic group or from a particular part of Pakistan. In those circumstances, the Tribunal regards it as fair and appropriate to infer from that information and the absence of specific reports of Pashtun Shi’as from Parachinar being targeted in Karachi, that the risk of this applicant suffering harm there is remote.
The Tribunal concluded that it was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention or under s.36(2)(aa) of the Act and affirmed the decision not to grant him a protection visa.
Country information issue
The first ground in the application of 19 March 2013 is that the Tribunal fell into jurisdictional error by “failing to consider all of the relevant country information that was before it”. The particulars to this ground are as follows:
The Tribunal constructively had before it, in the form of “Country Advice” obtained by the Tribunal and maintained on its website (PAK37775) information that supported the Applicant’s claims, but it did not consider that information.
The document referred to in the particulars was published by the Refugee Review Tribunal on 14 January 2011 and is headed “Country Advice Pakistan” (referred to as the “Country Advice”). It takes the form of a response to the following question and request for information:
Are there any examples of members of the Turi tribe being targeted for harm in Pakistan’s major cities? Please provide recent, relevant information concerning the relocation of Shi’ite Pashtuns from FATA/NWFP to other parts of Pakistan.
The Applicant submitted that while the Tribunal had claimed on a number of occasions in its findings and reasons that it had had no country information that Pashtun Shi’as or Pashtun Shi’a Turis faced harm in Karachi (which it considered as the potential site for relocation within Pakistan) in fact the Country Advice contained information relevant to that issue. It was submitted that as a document produced and published by the Tribunal it was constructively before the Tribunal member at the time of making the decision in this case and that in the circumstances of this case the Tribunal was obliged to give consideration to the entirety of the Country Advice.
Reliance was placed on the fact that in two paragraphs on page 9 of the Country Advice (as part of the discussion of the situation in Karachi) it was stated (footnotes omitted):
Also included in the calculus of risk to Pashtun Shi’ites relocating to Karachi is the fact that the city is now considered the primary place of hiding for senior members of the Afghanistan Taliban, who the Shi’ite, Turi and Bangash have fought in Kurram. The US Congressional Research Service even states that there is a genuine possibility that the Afghan Taliban leader Mullah Omar is hiding in the city, with the support of Pakistan’s Inter-Services Intelligence (ISI) Agency. The Service states that the megacity’s small sprawl and large Pashtun suburbs “provide ideal hideouts for both Afghan and Pakistan Taliban fighters. Such militants are said to have established ‘mafia-like’ criminal syndicates in Karachi to raise millions of dollars to sustain their insurgencies through kidnapping, bank robberies, and extortion.” A November 2010 report in Foreign Policy states that the so called Quetta Shura, the ruling council of the Afghanistan Taliban, has actually been based in Karachi for over three years with the cooperation of the ISI.
The 2009 article published by Bloomberg states that while Karachi is home to working women, entrepreneurs in million dollar homes, shopping malls, cafes and “jeans clad teenagers”, districts of the city such as Sohrab Goth and Baldia Town openly display signs stating “Welcome welcome Taliban” and “Long live Taliban”. Fateh Muhammad Burfat, head of criminology at Karachi University, is quoted by Bloomberg arguing that “Karachi has more bombs, dynamite and Kalashnikovs than any other city in Pakistan.” Urban planner and author of “Understanding Karachi”, Arif Hasan states that “[t]he unmapped slums are perfect hiding places for Taliban seeking respite from the fighting … in a city as large as Karachi, anyone can hide.”
The Country Advice had been brought to the Tribunal’s attention by the Applicant’s advisor in an attachment to the written submission to the Tribunal of 31 October 2012. A substantial part of this Country Advice was quoted by the advisor under the heading “Persecution of the Members of the Turi Tribe in Pakistan”. The Applicant acknowledged that the quote included the first sentence from the paragraphs on page 9 of the Country Advice relied on in this ground.
The Applicant submitted that the Country Advice had been brought to the Tribunal’s attention and that the whole of it was constructively before the Tribunal as it was in fact a document of the Tribunal. In submissions the Applicant acknowledged that the Tribunal may have had regard to some part of this document, but contended that it did not consider what was stated on page 9 and submitted that in this respect it failed to have regard to relevant country information that was before it.
In particular, the solicitor for the Applicant contended that the paragraphs on p.9 of the Country Advice were supportive of the Applicant’s claims that as a Pashtun, Shi’a or Pashtun Shi’a Turi, he faced harm in Karachi were he to relocate there. It was pointed out that on numerous occasions the Tribunal had referred to an absence of information indicating that Pashtun and Turi Shi’as were at risk of harm in Karachi. Such remarks were said to indicate that the Tribunal had not had regard to what was said in the part of the Country Advice in issue, not only because it was specifically stated that there was a calculus of risk to Pashtun Shi’ites relocating to Karachi (the portion cited by the Applicant’s advisor), but also because the Country Advice went on to address what was said to be the seriousness of the risk in Karachi from Afghani and Pakistani Taliban fighters in circumstances where the Country Advice had already stressed that the particular groups to which the Applicant belonged were in particular danger from Afghan and Pakistani Taliban fighters. It was submitted that the necessary inference to be drawn from the entirety of the Country Advice was that there was a risk to a person such as the Applicant as a Pashtun and Turi Shi’a Muslim in Karachi and that there was in fact information that there was such a risk of which the Tribunal appeared not to be aware because it did not appear to have taken the entirety of the Country Advice into account.
In submissions in reply the solicitor for the Applicant also mentioned that on pages 9 to 10 of the Country Advice it was reported that Pashtuns in Karachi who had been hurt in religious, political or ethnic violence may be denied medical treatment in hospitals because of political pressure from other political groups once they were identified as Pashtuns.
While this is not a case in which there is an issue as to whether the Tribunal had regard to the most recent information available (see SZJTQ and Others v Minister for Immigration and Citizenship and Another (2008) 172 FCR 563; [2008] FCA 1938), the Applicant referred to the views expressed by Riethmuller FM in considering whether a Tribunal had considered recent information in MZYTS v Minister for Immigration & Anor [2012] FMCA 1109 to the effect that the Tribunal’s general reference to receipt of a submission and recent supporting information not referred to in the decision was sufficient engagement with the material to demonstrate that the Tribunal had regard to, took into account or at least considered, the more recent material referred to by the Applicant. I note that on appeal the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 suggested that a “failure to consider” may not be an appropriate description of the jurisdictional error arising in such circumstances (at [31]–[36]) as the error, if established is “a failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Migration Act” (at [31] and see [46]).
More generally, in support of the proposition that the Tribunal had to have regard to the whole of the Country Advice (not only those parts cited by the Applicant’s advisor) the Applicant relied on the remarks of Mason J in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40 at [20]–[21] as follows:
…it would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense, this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. This conclusion is all the more compelling when the decision in question is one which may adversely affect a party’s interests of legitimate expectations by exposing him to a new hazard or new jeopardy.
Insofar as an apparently more restrictive approach was taken in Applicant S76 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1107 in which the document in question was a US Department of State Report, the Applicant submitted that the fact that the document in question in this instance was a document of the Tribunal itself distinguished this case.
It was submitted that as the Country Advice was in the nature of a country guidance note and was a Tribunal document it could be said to be constructively before any member who constituted the Tribunal in a particular case.
It was also submitted that the case was distinguishable from SZRJH v Minister for Immigration & Anor [2012] FMCA 798 in which Driver FM considered a similar assertion of a failure to have regard to evidence in Tribunal country advice that was said to be constructively before it. His Honour accepted that the Applicant had not established that the Tribunal did not have regard to the information in question having regard to the fact that s.430 of the Act does not require the Tribunal to list everything it looks at, but only the material or other evidence on which it based its material findings of fact. Hence the mere absence of a reference to some material did not give rise to an inference that the Tribunal did not consider it. His Honour also found that the country advice in question was not directly relevant to the circumstances in issue before the Tribunal. However the Applicant relied on the observation by Driver FM in SZRJH at [28] as follows:
I do not rule out the possibility that the Tribunal may in particular circumstances come under an obligation to have regard to relevant country advice prepared by the Tribunal for the assistance of members of the Tribunal and at least constructively available to those members.
The solicitor for the Applicant also referred to SZRMA v Minister for Immigration & Anor [2012] FMCA 949, a case involving a report and recommendation of an independent merits reviewer. Driver FM found that the reviewer had failed to afford the applicant procedural fairness in that he failed to consider relevant material, being a country guidance note for Iran from the Department of Immigration, that was current at the time of the review. That case had proceeded on the basis that such material (and other material) was apparently not before the reviewer. Driver FM raised the issue of whether it was open to conclude that the document ought to have been taken to have been constructively before the reviewer. The Minister was said to have expressed the view that there was no room for the notion of constructive notice to operate (at [74]) and to have relied on remarks of Whelan FM in MZYPK v Minister for Immigration& Anor [2012] FMCA 95 at [55] to the effect that there was no basis for finding that a reviewer was constructively aware of everything relevant to the situation in the country in question that may or may not be in the Department’s possession. However Driver FM was of the view (at [76]) that while the statement by Whelan FM may be accepted as a general proposition:
[C]ountry guidance notes, which are prepared by the Minister’s Department and the Tribunal expressly to guide decision makers, fall into a special category. Before relying on the Tribunal’s “Country Advice for Iran” published on 9 August 2010 the Reviewer should have checked whether a more recent country advice for Iran was available. The country guidance note issued by the Minister’s Department in 2011 contained updated material at least partially supportive of the applicant’s claims.
Driver FM found in SZRMA that it could not be safely concluded that reference to the up to date guidance note would not have affected the outcome and found that the reviewer had fallen into error in failing to have regard to it.
The First Respondent submitted that this ground failed on its facts and that the Court should not infer that the Tribunal failed to have regard to the Country Advice. It was submitted that the Tribunal clearly did have regard to the Country Advice in question and that, consistent with the remarks of Riethmuller FM in MZYTS at [16], a reference to submissions containing references to a document may in particular circumstances be a sufficient engagement with the underlying country information. This submission was put on the basis that such a reference would be sufficient to amount to consideration of the underlying country information referred to therein provided there was the necessary active intellectual engagement required by cases by Tickner and Others v Chapman and Others (1995) 57 FCR 451.
It was also submitted that it was not, in any event, necessary for the Tribunal to refer expressly to the particular paragraphs within the Country Advice in issue as it submitted that the paragraphs now relied on in ground one were not, in fact, as crucial as was contended for by the Applicant. It was pointed out that the Applicant’s advisor, although aware of the Country Advice, did not see those parts of the Country Advice referred to in the Applicant’s submissions as sufficiently relevant to extract in submissions.
For the reasons that follow I agree that this ground fails on the facts. It has not been established that the Tribunal failed to have regard to the Country Advice. Hence it is not necessary to determine whether the notion of constructive notice is applicable in relation to Tribunal Country Advice or to address the manner in which a “failure to consider” would reveal a jurisdictional error (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [98] and [111]).
First, it is relevant to have regard to the nature of the Country Advice and the advisor’s submission. The Country Advice of 14 January 2011 was a response to a Tribunal question seeking information on any examples of members of the Turi tribe being targeted for harm in Pakistan’s major cities and a request for recent relevant information concerning the relocation of Shi’ite Pashtuns from FATA/NWFP (the Federally Administered Tribal Areas / North West Frontier Province) in which, as the delegate recorded, the Kurram Agency is located.
The Country Advice commenced by stating (consistent with the Tribunal’s findings) that “no sources have been located that state that the Shi’ite Pashtun Turis have been specifically targeted for harm outside of their home region of Kurram Agency” although there were “reports of Shi’ite Pashtuns being specifically targeted in regions where large numbers of Turi and Bangash internally displaced persons…have relocated”. The Advice outlined the background to the treatment of Turi tribe members (who were said to be Pashtuns but, unlike the overwhelming majority of Pashtuns almost exclusively Shi’ite (in contrast to Sunni Pashtuns and Taliban)).
In their submission of 31 October 2012, the Applicant’s solicitors cited and quoted extensive portions from the Country Advice. Three paragraphs of the “Background” part of the Advice were set out in full as a background as to the treatment of Turi tribe members, although the advisor’s submission did not quote the initial statement in the Country Advice about the absence of information about targeting of Sh’ite Pashtun Turis outside the Kurram Agency. The advisor’s submission then referred to other country information relevant to the issue of persecution of members of the Turi tribe in Pakistan, before returning to the Country Advice in question and setting out some 16 paragraphs from the Country Advice which were said to outline the risks of harm for members of the Turi tribe in various Pakistani cities. After quoting part (but not all) of the Country Advice discussion of what was said to be the situation for members of the Turi tribe in Kohat, Hangu, Peshawar, and Dera Ismail Khan, the submission set out part of what the Country Advice said under the heading Karachi. It did not include the reference to the proportion of Pashtuns and Pashtun Shi’as in the Karachi population, but did quote the Country Advice reference to the absence of any reports stating that Shi’ite Pashtun tribes and sub-clans such as the Turi had been specifically targeted for harm in Karachi, although there were numerous examples of both Shi’ite groups and individuals being targeted for harm for ethnic and sectarian reasons. Also extracted were references to recent examples of mass attacks on Shi’ites in Karachi in the first six months of 2010, which were said to be part of a wider campaign of such killings across Pakistan.
The parts of the Country Advice quoted in the advisor’s submission in relation to Karachi concluded with the first sentence of the first paragraph relied on in this ground in relation to the need to include in the calculus of risk to Pashtun Shi’ites the fact that Karachi was considered the primary place of hiding for senior members of the Afghanistan Taliban who the Shi’ite Turis and Bangash fought in Kurram. In other words, the extracted paragraphs from the Country Advice included in the advisor’s submission included information relating to the presence of Taliban members in Karachi. It did not include the balance of this and the next paragraph in the Advice which elaborated on the presence of the Taliban hiding in Karachi.
Turning to the Tribunal’s reasons for decision, it is apparent that the Tribunal expressly considered the advisor’s submissions at various points. First, in describing the review application the Tribunal explained that the submissions of 31 October 2012, as well as the oral submission, were dealt with in the findings and reasons section of the decision.
Under the heading “Country Information section”, the Tribunal set out country information on a number of issues, including the position and proportion of Shi’as generally in Pakistan and the situation in the Kurram Agency. It also referred to primary sources of information in relation to the situation in Karachi for Shi’as from the Kurram Agency. Much of the country information cited by the Tribunal in this part of its reasons post-dated the information contained in or referred to in the Country Advice of 14 January 2011. This is consistent with the requirement, acknowledged by the Applicant, that an administrative decision-maker is to make his or her decision on the basis of the most current material “available” at the time of the decision.
The Tribunal did refer to information from an article in the July 2010 Jamestown Foundation publication “Terrorism Monitor” to the effect that Shi’a Muslims reportedly constituted 30 per cent of Karachi’s population. Notably, this report was also referred to in the Country Advice in relation to Karachi (although this part of the Country Advice was not quoted in the advisor’s submissions). While the fact that the Tribunal referred to a source of information also referred to in part of the Country Advice not quoted in the advisor’s submissions does not of itself lead to an inference that the Tribunal had regard to the whole of the Country Advice it is relevant as part of all the circumstances.
Relevantly, in its reasons for decision, in having referred to the advisor’s submissions which cited the Country Advice, in setting out applicable country information the Tribunal not only referred to the Jamestown Foundation source cited in the Country Advice but also effectively paraphrased part of the Country Advice in relation to Karachi, referring to the fact that “no information was located indicating what proportion of Karachi’s Pashtun population observed Shi’a Islam”.
Further, the Tribunal cited March 2010 country information also cited in the Country Advice included in the advisor’s submissions about examples of large scale attacks on Shi’a targets, in particular, attacks on Shi’a religious processions. The submission did not contain the footnotes in the Country Advice which contained references to the source of such information. The Tribunal also noted (as did the part of the Country Advice cited by the advisor) that Shi’a professionals had been targeted, albeit the Tribunal went on to refer to more recent country information in that respect.
As well as referring, consistent with the Country Advice, to information about attacks on Shi’as as in Karachi the Tribunal also referred to the absence of specific information about Pashtun Shi’as being harmed in Karachi. This is not inconsistent with the parts of the Country Advice relied on in this ground.
Moreover the Tribunal considered what may happen if the Applicant returned to Pakistan (and relocated to Karachi) by considering the individual and distinctive features of his claim (see Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 at [73]–[76] per Gummow and Hayne JJ). In so doing it considered and evaluated the material put forward by the Applicant in support of his claim, including relevant parts of information referred to in the Country Advice. In its findings and reasons the Tribunal considered the advisor’s submissions, including not only general submissions about instability in Pakistan and the risk of harm for minorities, including Shi’as, but also more specific claims. It addressed the fact that the advisor had referred to country information about attacks on Shi’as in general and had provided information including reports of attacks on Turis in cities other than Karachi. This is clearly a reference to the part of the advisor’s submissions that extracted paragraphs from the Country Advice. The Tribunal also referred to the submissions and country information provided regarding security in Karachi, conflict between Shi’a and Sunni residents of Karachi and (importantly) the presence of Sunni extremist groups there, including the Taliban, collusion between the Taliban and Pakistani intelligence services and to the presence and fundraising activities of the Taliban in Karachi (referred to in the part of the Country Advice in question relied on in this ground). The Tribunal acknowledged that there was information in relation to violence between political parties and criminal syndicates and referred to speculation that violence in Karachi would be beyond the ability of the government and army to control. Such consideration is consistent with having regard to the Country Advice. The Tribunal specifically stated that it had carefully considered the submissions and country information and gave reasons why this material did not alter its assessment of the risk for the Applicant in Karachi. It also cited more recent information than that surveyed in the Country Advice.
Of particular relevance, having regard to the part of the Country Advice relied on by the Applicant, the Tribunal acknowledged the presence of Sunni extremist groups in Karachi and incidents put forward by the representative with respect to attacks on Shi’as in that city, but concluded that when such matters were considered in the context of the size of the Shi’a population in Karachi, the risk of the Applicant suffering harm there was remote.
The Tribunal also acknowledged information about attacks on Shi’as, their religious processions and mosques and the fact that the authorities had been unable to prevent them and that anti-Shi’a materials had been distributed and blasphemy laws existed. However it found that, considered in the context of the size of the Shi’a population in Karachi, these instances of harm did not satisfy it that the risk of the Applicant suffering harm in Karachi was anything more than remote.
The Tribunal referred to the advisor’s submissions, including the particular parts that contained the extracts from the Country Advice in assessing any risk of harm the Applicant might face in Karachi as a Shi’ite Pashtun Turi. It referred to the information in such a manner that it cannot be inferred that the Tribunal failed to take into account and engage with the Country Advice. The fact that the Tribunal failed to refer expressly to the Country Advice in relation to the issues canvassed therein, as distinct from the advisor’s submissions, information contained therein and primary sources cited and information contained in the Country Advice, is not such as to lead to an inference that the information contained therein was overlooked or not considered.
Moreover, the Tribunal’s reference to the absence of specific information that Pashtun Shi’as or members of the Applicant’s tribe, the Turi tribe, were harmed or were the victims of violence in Karachi was consistent with the Country Advice itself, which commenced by stating that no sources had been located that stated that Shi’ite Pashtun Turis had been specifically targeted for harm outside of their home region of Kurram Agency. The Country Advice does not contain information contrary to the Tribunal’s views in that regard in the paragraphs extracted by the advisor or in the paragraphs relied on by the Applicant.
Insofar as the Applicant contends that the Tribunal’s error was in not having regard to the particular paragraphs relied on in support of this ground, the Tribunal referred to those parts of the advice by way of reference to the submissions from the advisor which extracted certain parts of the advice, including the first sentence of one of the paragraphs now relied on by the Applicant. The Tribunal also considered the particular issue of the risk to the applicant from the Taliban in Karachi, the issue raised in that part of the country information. Neither as a general principle, nor in the particular circumstances of this case, was it necessary for the Tribunal to refer expressly to particular paragraphs of the Country Advice now relied on by the Applicant. Further, the Applicant’s advisor, clearly aware of the Country Advice, did not seek to put before the Tribunal anything more than the first sentence of the paragraphs now relied upon, notwithstanding that the submission included a considerable number of paragraphs from the Country Advice. In any event, it cannot be suggested that the Tribunal is under an obligation to make express reference to every paragraph in a document, even if it is a Tribunal document and even if the document can be regarded as one of which it has constructive notice. I note that there is no contention in this case that the Tribunal fell into error in failing to have regard to more recent country information consisting of the parts of the Country Advice relied on by the Applicant.
Insofar as the Applicant suggested that the Tribunal failed to deal with the question of violence against Shi’as generally, the Tribunal acknowledged the presence of Sunni extremist groups in Karachi and referred to incidents put forward by the Applicant’s representative with respect to attacks on Shi’as in that city. It dealt with that issue in its findings and reasons having regard to the large size of the Shi’a population in Karachi. Importantly, it also dealt with the specific issue of a fear of the Taliban in Karachi. It was not necessary for the Tribunal to refer to the particular parts of the Country Advice now relied on by the Applicant about the presence of the Taliban in Karachi, the potential for violence in Karachi and the ability of the Taliban to hide in Karachi. This information was not such that the Tribunal’s failure to refer to it amounted to a failure to consider all of the relevant country information that was before it (insofar as it was under any obligation to do so).
As the First Respondent submitted, the Country Advice was a secondary source which collated information from other sources for the assistance of the Tribunal. This is not a case in which there is any suggestion that the Tribunal failed to have regard to the most recent country information before it. The fact that the Tribunal cited primary sources and referred to the advisor’s submissions containing extracts from the Country Advice does not give rise to any inference that the Tribunal failed to consider it, or more pertinently, the information contained therein. Having regard to the material before the Court I am not satisfied that it has been established that the Tribunal failed to have regard to the Country Advice in the manner contended for by the Applicant.
Further, insofar as there is any contention that the Tribunal failed to have regard to relevant considerations, that is not made out on the material before the Court. The Tribunal considered the integers of the Applicant’s claims in the sense considered in Re Minister for Immigration and Multicultural and Indigenous Affairs and Another;Ex parte Applicant S134/2002 (2003) 211 CLR 441; [2003] HCA 1 at [34] and [40]. It identified the factual questions involved in a consideration of such claims. It evaluated the evidence before it, including the Country Advice, insofar as relevant to the performance of its statutory task.
It is not necessary to determine when a “failure to consider” would demonstrate a jurisdictional error, as it has not been established that the Tribunal failed to consider the Country Advice (however now see Minister for Immigration and Border Protection v MZYTS at [63]–[70]).
Ground one is not made out.
Complementary Protection Issue
Ground two in the application is that the Tribunal “failed to properly consider the applicant’s claims in terms of section 36(2)(aa) of the Act”. The particulars to this ground are as follows:
In considering whether there might be a real risk of the Applicant suffering serious harm in Karachi, the Tribunal considered only whether there was a risk he would suffer harm as a Pashtun Shi’a from Parachinar, while acknowledging that attacks on Shi’as in Karachi were widely reported.
As the Applicant acknowledged, for the purposes of the complementary protection criterion in s.36(2)(aa) of the Act there is taken not to be a real risk of significant harm if the decision-maker is satisfied it would be reasonable for the Applicant to relocate to an area of the country where there would not be a real risk of significant harm (see s.36(2B)(a)).
In this case the Tribunal accepted that there was a real risk of significant harm to this Applicant in his home area but found there would not be real risk of significant harm in Karachi. It was submitted, however, that the Tribunal’s finding as to the reasonableness of relocation was based solely on the fact that the Applicant spoke Pashto and Urdu, was “relatively well educated” and had previously employment experience and that these attributes meant that the Applicant “should be well placed to settle and find employment in Karachi”.
The Applicant submitted that in coming to this conclusion the Tribunal erred in failing to give any consideration to the Applicant’s claims that he was easily identifiable as a Pashtun and Turi. It was submitted that in determining the reasonableness of relocation to Karachi the Tribunal had to consider whether such factors would affect his ability to settle and find employment there, instead of considering only what were said to be the general circumstances of a Shi’a living in Karachi.
It was pointed out that in Minister for Immigration and Citizenship v MZYYL and Another (2012) 207 FCR 211; [2012] FCAFC 147 the Full Court of the Federal Court had held at [33] (albeit in relation to paragraph 36(2B)(b) of the Act) that the inquiry in section 36(2B) was “not at large”. Rather it was said to be:
[A]n inquiry into the particular circumstances that appertain to the non-citizen whose application for a visa is under consideration.
The Applicant submitted that the Tribunal had failed to inquire into and consider the particular circumstances of the Applicant, including his ethnicity, the background from which he came, his claims about his likely identification as a Pashtun and the fact that the Tribunal had accepted as credible his claims about personally being in danger from the Taliban. It was contended that such matters should have been addressed in relation to the reasonableness of relocation in considering whether there would not be a real risk of significant harm in Karachi.
As explained in oral submissions, the Applicant contended that it was not sufficient for the Tribunal to discuss the situation of Pashtun Shi’as or Shi’as generally, but rather that it had to deal with the particular circumstances appertaining to the Applicant, including the claims the Tribunal had accepted in relation to his particular risk from the Taliban.
The First Respondent accepted that consideration of relocation under s.36(2B)(a) of the Act requires the Tribunal to consider the Applicant’s individual circumstances, but submitted that the Tribunal did not err in the manner contended for by the Applicant.
Whether considered in the terms expressed in the particulars to ground two, in the Applicant’s written submissions, or as appeared to be reformulated in oral submissions, it has not been established that the Tribunal failed to consider the Applicant’s claims in the manner required under s.36(2)(aa) of the Act.
The Tribunal’s findings in relation to relocation in the context of the complementary protection criterion properly set out the applicable test. It then referred to its earlier and detailed reasons for finding that the risk of the Applicant suffering harm in Karachi was remote, before stating that for the same reasons it found there was not a real risk the Applicant will suffer significant harm there. It was open to the Tribunal to have regard to such findings (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774).
Insofar as the Applicant took issue with the fact that the Tribunal then referred to his personal characteristics, in particular his ability to speak Pashtu and Urdu and his education and employment experience, this should not be seen in isolation. Read fairly and as a whole (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259), the Tribunal also clearly had regard to its earlier findings in relation to the Applicant’s circumstances and the risk of the Applicant suffering harm in Karachi. It understood that it was necessary to consider whether, objectively, there was no appreciable risk of the feared harm in Karachi. It summarised relevant findings in relation to such risk. That summary is to be seen in light of the detailed earlier findings in which the Tribunal had considered the Applicant’s claims as put to it.
It is relevant to note that according to the Tribunal’s account of the hearing, the Tribunal put to the Applicant that one third of the population of Karachi was Shi’as and that while there had been attacks on Shi’as in the city (primarily religious processions), given the size of the population the risk of him suffering harm there was remote. The Applicant then drew a distinction between the Shi’as living in Karachi and his tribe, which he said the Taliban were particularly against. He claimed the Taliban could easily find him and that he would be known for his religion and also from his speech and name and marks on his body.
In its findings and reasons the Tribunal addressed not only the risk to the Applicant in Karachi as a Shi’a, but also had regard to his particular circumstances as a Pashtun Shi’a Turi and as the son of a father with a profile and as someone who was at risk in his home area. It specifically considered and rejected the Applicant’s claims that he was at risk anywhere in Pakistan because of his father’s activities on the basis that it did not accept he had a profile of such significance to the Taliban or other Sunni extremist groups that they would pursue him in Karachi. The Tribunal considered whether he would be at risk of harm from the Taliban simply as belonging to a tribe that was perceived as opposed to the Taliban. The Tribunal dealt with the Applicant’s contentions that he was easily identifiable as a Pashtun Shi’a Turi from Parachinar and that the Taliban were particularly against them. It did not accept that this Applicant would be of such interest to the Taliban they would pursue him in Karachi, notwithstanding that it accepted that he was identifiable as claimed and that the Taliban would perceive him as an opponent.
The Tribunal also considered the Applicant’s claims about the risk to high profile people, but saw the Applicant as not having such a profile. It considered more general claims in relation to the risk of harm in Karachi for Shi’as, as well as Pashtun Shi’as and Shi’a Turis from Parachinar.
Moreover, under the heading Complementary Protection, the Tribunal again referred to the fact there was no country information before it reporting that Pashtun Shi’as from Parachinar were the victims of attacks or harm in Karachi.
In circumstances where the Tribunal had already held that it was unlikely the Applicant would suffer harm of any kind if he relocated to Karachi and that he could could reasonably be expected to relocate to Karachi having regard to the extensive consideration of his particular circumstances, including his status as a Shi’a Pashtun Turi, it was not necessary for the Tribunal to repeat its findings when it came to consideration of relocation for the purposes of the complementary protection claims. The Tribunal had considered the Applicant’s specific circumstances in the context of his refugee claims, but, relevantly, rejected the premise upon which his complementary protection claims were based (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47] and SZSGA).
If the complaint in ground two is a complaint that the Tribunal failed to have regard to the Applicant’s particular characteristics as a Pashtun Shi’a from Parachinar (and not simply as a Shi’a) it is clear that the Tribunal did not fall into this error. If the complaint is intended to be reversed, and it is rather that the Tribunal should have addressed the position of Shi’as generally, when regard is had to its decision as a whole, it did so. Furthermore, as indicated, the Tribunal also considered the Applicant’s position as a person whose father was a tribal leader and hence exposed to real risk of persecution from the Taliban in his home area. As indicated, it was open to the Tribunal to refer to its earlier findings in the context of addressing the complementary protection criterion. It did not fail to inquire into the particular circumstances that appertained to the Applicant. Ground two is not made out.
As no jurisdictional error has been established on either of the bases contended for by the Applicant the application must be dismissed.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Barnes.
Date: 25 October 2013
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