SZSSM v Minister for Immigration & Anor
[2013] FCCA 1489
•11 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSSM v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1489 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Pakistan – Tribunal accepting the applicant’s claims but finding that he could relocate to Karachi to avoid the feared harm – whether the Tribunal erred in considering the issue of relocation considered. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A(2) |
| Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZSSM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 644 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr J Knackstredt |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
A writ of certiorari shall issue removing the record of the Refugee Review Tribunal decision made on 27 February 2013 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 644 of 2013
| SZSSM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 27 February 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Pakistan and had made claims for protection based upon his Shi’a Muslim religion. The following statement of background facts is derived from the submissions of the parties.
The applicant was born on 31 January 1982 and is a citizen of Pakistan.[1]
[1] Court Book (CB) 11 and 13.
The applicant arrived in Australia on 11 February 2012 as an irregular maritime arrival.[2] On 13 May 2012, the applicant was interviewed by an officer of the Minister’s Department, who subsequently made a decision pursuant to s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to permit the applicant to lodge an application for a protection visa.[3]
[2] CB 48.
[3] CB 70 and 85.
The applicant made an application for a protection visa dated 1 July 2012 to the Minister’s Department,[4] in which he claimed to have a well-founded fear of persecution in Pakistan based upon his Shi’a religion and his membership of a particular social group, namely “Shi’a Muslims who have fled Pakistan”.[5]
[4] CB 1 and 11.
[5] CB 55.5.
Accompanying this application was a statutory declaration setting out his claims.[6] In essence, the applicant claimed that:
[6] CB 51-56.
a)there has been an increase in religious intolerance, resulting in violence and killings, over the last 10 years in Pakistan;
b)due to the violence, attending a mosque could be life threatening for Shi’a Muslims. Despite this, the applicant did attend Friday prayers at his mosque when he could. He also used to participate in religious events, however, did not do so as much as he would like due to targeted attacks on Shi’a Muslims;
c)many villagers known by him have been killed as a result of targeted and general attacks on Shi’a Muslims;
d)in June 2007, his shop was near the blast zone of a suicide bomber in Idgar Market in Parachinar;
e)in February 2008, he was driving his mother to Parachinar hospital when a bomb went off. After dropping off his mother, he assisted ferrying people to the hospital. He later discovered that his shop had been severely damaged. He also learned that the attack targeted a prominent member of the Pakistan Peoples Party (PPP) who was a Shi’a Muslim;
f)he since relocated his store closer to his village, but later decided to flee Pakistan. Since his departure, there has been a blast in Khormi Bazaar, from where he regularly purchased stock for his business;
g)the Pakistan government is ill equipped to help Shi’a Muslims;
h)life in Kurram Agency is very difficult. It is surrounded by the Taliban and travel is dangerous. However, the attacks are not limited to that area, but occur throughout Pakistan;
i)he cannot relocate within Pakistan because he is recognisable as a Shi’a Muslim and his identity card states clearly that he lives in Kurram Agency;
j)he fears harm from the Taliban and other Sunni extremists (such as Laksha-e-Janghvi); and
k)he fears harm because of his religion (Shi’a) and membership of a particular social group (Shi’as who have fled Pakistan).
On 11 July 2012, the applicant attended an interview with a delegate of the Minister.[7] On 9 August 2012, the delegate refused the application on the basis that although the applicant’s claims were credible, he could avoid persecution in the future by relocating within Pakistan to a major city such as Karachi.[8]
[7] CB 85.
[8] CB 88 and 95 to 101 (Convention grounds); CB 102 to 104 (complementary protection).
On 28 August 2012, the Tribunal received an application for review of the decision of the Minister’s delegate.[9] On 21 September 2012, the Tribunal invited the applicant to a hearing.[10] On 7 November 2012, the applicant’s representative submitted a lengthy written submission, which took issue with the delegate’s finding about the reasonableness of relocation within Pakistan.[11] In particular, the agent:
a)highlighted language difficulties faced by the applicant were he to relocate;[12]
b)distinguished between the applicant’s ability to relocate to Australia with relocation within Pakistan;[13]
c)discussed the bleak nature of the applicant’s employment prospects in Pakistan;[14]
d)referred to country information concerning the extensive and increasing nature of attacks on Shi’as in Pakistan;[15]
e)discussed the importance of tribal ties and claimed that the applicant’s status as a Shi’a Pashtun meant that it was not reasonable for him to relocate;[16] and
f)made claims pertaining to complementary protection.[17]
[9] CB 105 to 111.
[10] CB 126 to 127, 134 to 136 and 138 to 140.
[11] CB 143.
[12] CB 147[33].
[13] CB 148[34]-[35].
[14] CB 148[36]-[38].
[15] CB 173-177[40]-[55].
[16] CB 153[56]-[65].
[17] CB 155-159.
On 9 November 2012, the applicant and his representative attended the hearing before the Tribunal.[18]
[18] CB 160 to 161.
The Tribunal’s reasons
In its reasons for decision, the Tribunal set out a detailed summary of the claims made by the applicant in his protection visa application and to the Minister’s delegate, as well as the evidence given by him at the Tribunal hearing.[19] It also summarised the written submissions made by the applicant’s representative.[20]
[19] CB 170 to 172.
[20] CB 178 to 181.
The Tribunal also set out a discussion of independent country information in relation to the position of Shi’as in Pakistan, the situation in the Kurram agency (which is the area in Pakistan from which the applicant was fleeing) and specific considerations in relation to Shi’as from Kurram agency living in Karachi.[21]
[21] CB 172 to 177.
The Tribunal accepted that the applicant was a credible witness and was a Pashtun Shi’a from Parachinar from the Bangash tribe as claimed.[22]
[22] CB 177[58].
The Tribunal accepted that conflict was taking place in the Kurram agency that resulted in loss of life (including through targeted attacks on the only road into the area). Accordingly, there was a real chance that the applicant would suffer serious harm for the essential and significant reason of his religion and adverse opinions imputed to him by Sunnis (and the Taliban and like Sunni extremist groups) who would wish to harm him if he were to return to Parachinar or, more broadly, the Kurram agency.[23]
[23] CB 177[58].
The Tribunal then asked itself “whether it may be reasonable for the applicant to relocate in Pakistan to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”.[24]
[24] CB 60.
In this regard, the Tribunal:
a)accepted that letters threatening harm had been left on his family’s land, that announcements were made by Sunnis in a nearby village that they should kill Shi’as, and that bombs had been left in the local area by Sunnis (including outside the applicant’s shop);[25]
b)held that the applicant did not have a profile such that he would be pursued in Karachi by the Taliban or those wishing to harm him or his tribe in his native area;[26]
c)stated that it did not have specific information about Pashtun Shi’as living in Karachi (in particular, that they have been the victims of harm);[27]
d)acknowledged that there have been attacks on Shi’as in Karachi, however, considered that the risk of the applicant suffering harm was remote, even accepting that he would want to practice his religion in Karachi “considering those attacks in the context of the size of the Shi’a population in Karachi”;[28]
e)stated that the applicant was well placed to find employment and establish himself in Karachi;[29]
f)concluded that “the applicant can reasonably be expected to relocate to Karachi where there is no appreciable risk of the occurrence of the feared persecution”.[30]
[25] CB 178[61].
[26] CB 178[61].
[27] CB 178[62].
[28] CB 178[63].
[29] CB 178[64].
[30] CB 178[65].
The Tribunal went on to state that it accepted that:[31]
a)the applicant would be identifiable as claimed;
b)the Taliban and others would want to harm the applicant because of his religious and tribal background;
c)they had a presence in Karachi;
d)attacks on Shi’as took place in Karachi (which attacks the authorities were unable to prevent).
[31] CB 179[71].
However, the Tribunal considered the risk remote because of the size of the Shi’a population. It also noted that it did not have reports that Pashtun Shi’as from Parachinar were being harmed in Karachi.[32]
[32] CB 179[72]; [74].
In relation to reports concerning increasing violence in Pakistan and on the “extensive” attacks on Shi’as, the Tribunal acknowledged the reports but noted that the attacks also related to ethnic and politically linked violence in addition to attacks on Shi’as.[33]
[33] CB 179[73].
It also noted that the applicant was not politically active.[34]
[34] CB 179[74].
The Tribunal then rejected the applicant’s claims relating to the reasonableness of relocation to Karachi at [75]-[87].[35]
[35] CB 179.
Finally, the Tribunal rejected the claims relating to complementary protection at [88]-[96].[36]
[36] CB 181.
As a result of its findings, the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa.[37]
[37] CB 183.
The present application
These proceedings began with a show cause application filed on 28 March 2013. The applicant now relies upon an amended application filed on 17 June 2013. The grounds in that application are:
1. The Tribunal engaged in jurisdictional error by misconstruing or misapplying the relevant legal test.
Particulars
a. The Tribunal found, inter alia, that the applicant was a Pashtun Shia from Parachinar (Tribunal Decision at [58]) and that “there is a real chance the applicant will suffer serious harm for the essential and significant reason of his religion … if he was to return to Parachinar”: [74]
b. In considering the issue of relocation to Karachi, the Tribunal found that:
i. there have been attacks on Shias in Karachi, in particular on religious processions and professionals but also other attacks including on a bus carrying Shi
’as (Tribunal Decision at [63] and [72]); andii. that the “the Pakistan government has been unable to prevent them” [ie such attacks] Tribunal Decision at [71].
c.Notwithstanding the findings in (b) above, the Tribunal found that “the applicant can reasonably be expected to relocate to Karachi where there is no appreciable risk of the occurrence of the feared persecution”: Tribunal Decision at [65].
d.In so doing, the Tribunal misconstrued or misapplied established legal principles relating to the assessment of refugee status under the Refugees Convention and the Act.
1A.The Tribunal engaged in jurisdictional error by misconstruing or misapplying the relevant legal test or by failing to ask itself the correct question.
Particulars
a.The Tribunal, when considering the question of relocation, failed to consider the following matters in the context of assessing the reasonableness of relocation (as distinct from making a finding as to whether the applicant faced an appreciable risk of the occurrence of the feared persecution):
i. the applicant was identifiable within Karachi as a Pashtun Shia from Parachinar;
ii. the Taliban and other Sunni extremist groups would want to harm him because of his religion and his tribal background;
iii. the Taliban and other Sunni extremist groups had a presence in Karachi;
iv. attacks on Shi’as had taken place in Karachi;
v. the Pakistan authorities were unable to prevent such attacks;
vi. it was possible that there were no members of the applicant’s tribe in Karachi to provide him with a network and protection.
b.Further and in the alternative, the Tribunal, when considering the question of internal relocation, failed to correctly apply the correct relocation test by failing to give consideration to the practical realities facing the applicant in Karachi. This would have included consideration of the effect/impact of the following matters upon the applicant (which it failed to do):
i. the matters set out in sub-paragraph (a)(i)-(v) above and the consequent impact on the applicant of relocating to a city where it was accepted that persons with a presence in the city would want to kill him (and had in fact attacked Shias in that city), that he was identifiable, and that the authorities were unable to prevent such attacks;
ii. the evidence advanced by the applicant to the effect that Shia Pashtuns were targeted within areas to which they relocated;
iii. the feelings of displacement and isolation, and other psychological issues, that would be faced by the applicant in Karachi in his particular circumstances (including language issues, the absence of other Pashtun Shias from his tribe, lack of protection and lack of a network).
2.The Tribunal engaged in jurisdictional error by misconstruing or failing to consider a claim or component integer thereof made by the applicant or squarely raised by the material before it.
Particulars
a.The applicant claimed that he feared persecution by reason of his membership of a particular social group of Shia Muslims who have fled Pakistan. The Tribunal failed to consider this claim.
b.There was a claim before the Tribunal that the applicant was from a Pashtun Shia tribe of Parachinar, who refused to allow the Taliban access to their area. This gave rise to a well founded fear of persecution on the part of the applicant in Pakistan (as a member of a particular social group) and/or it was a matter that went towards the reasonableness of internal relocation (for the purposes of ss 36(2)(a) and 36(2)(aa) purposes). The Tribunal misconstrued and/or failed to deal with these claims.
c.There was a claim before the Tribunal that the applicant was a Shia Pashtun. This gave rise to a well founded fear of persecution on the part of the applicant in Pakistan (as a member of a particular social group) and/or it was a matter that went towards the reasonableness of internal relocation (for the purposes of ss 36(2)(a) and 36(2)(aa)). The Tribunal misconstrued and/or failed deal with these claim.
d.There was a claim before the Tribunal that the incidences of attacks upon Shia Muslims were increasing rapidly across Pakistan. The Tribunal failed to deal with this claim.
3.The Tribunal engaged in jurisdictional error by misconstruing or misapplying the relevant legal test.
Particulars
The Tribunal misconstrued or misapplied the relevant legal test, in that it did not correctly construe and apply the test concerning whether the applicant held a ‘well founded fear’ of persecution. Based on its own findings (as set out in ground 1A(a) above), the Tribunal was obliged to conclude that the applicant held a well founded fear of persecution in Karachi.
4.The Tribunal engaged in jurisdictional error by failing to take into account a relevant consideration.
Particulars
The Tribunal failed to take into account a relevant consideration, being the evidence advanced by the applicant to the effect that Shia Pashtuns were targeted within areas to which they relocated.
5.The Tribunal engaged in jurisdictional error by adopting illogical or irrational reasoning, or otherwise misconstrued the claim put to it.
Particulars
a.The Tribunal accepted that the applicant was distinguishable from an ‘ordinary’ Shia in Karachi when it found that:
i. he was identifiable within Karachi as a Pashtun Shia from Parachinar and the applicant might lack the network and protection that other Shias, without his background, might have in Karachi;
ii. the Taliban and other Sunni extremist groups would want to harm him because of both his religion and his tribal background.
b.In the circumstances, the Tribunal engaged in illogical or irrational reasoning when it:
i. assessed the risk faced by the applicant in Karachi by reference to the risk faced by an ordinary Shias in Karachi, rather than consider the heightened risk it implicitly accepted that the applicant faced by virtue of its findings set out above;
ii. found that attacks took place on the basis of religion (and not because he was from a particular ethnic group or from a particular part of Pakistan): Tribunal Decision at [96]. This is directly inconsistent with its finding that the Taliban and other Sunni extremist groups, who had a presence in Karachi, would want to harm the applicant because of both his religion and his tribal background.
c.Further or in the alternative, the Tribunal’s reasoning process reveals a failure to correctly construe the applicant’s claims concerning his profile, thereby failing to deal with the claims put by the applicant and as apparent from the Tribunal’s own findings.
6.The Tribunal engaged in jurisdictional error by failing to correctly construe and apply s 36(2B)(a) of the Act.
Particulars
a.The question posed by s 36(2B)(a) is whether it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm. This is a different question to that posed by the question of relocation for the purposes of s 36(2)(a). The Tribunal, however, dealt with these two different tests in identical fashion without distinguishing the differing tests to be applied, thereby confounding the two;
b.Further and in the alternative, in relation to s 36(2B)(a), the Tribunal failed to consider factors relevant to the question of reasonableness (being those identified in ground 1A(b) above).
Particular 2(d) and Ground 4 were not pressed.
I have before me as evidence the court book filed on 1 May 2013.
The parties made oral and written submissions.
Consideration
The applicant’s contentions
Grounds 1 and 1A – relocation
These two grounds together challenge the relocation finding made by the Tribunal in two respects.
First, in MZYQU v Minister for Immigration[38], the Federal Court held that the decision maker engaged in jurisdictional error in circumstances where it treated persecution as the only level or kind of harm relevant to the reasonableness of relocation. At [61]-[62], the Federal Court stated:
In my opinion, therefore, the IMR’s error lay not in considering that a risk of “serious harm as required by s 91R(1)(b)” was relevant to relocation, but in implicitly treating such harm as the only level or kind of harm which could affect the reasonableness of relocation.
While the IMR’s reasons should not be read with over-zealous scrutiny, the failure to include the risk of generalised violence or harm due to personal circumstances in the list of relevant factors weighing against the reasonableness of relocation in [88] indicates that any harm that was not “serious harm as required by s 91R(1)(b)” was excluded from consideration in that context.
[38] (2012) 206 FCR 191; [2012] FCA 1032
The applicant submits that the Tribunal made a similar error in the present case. When one examines the relocation finding at [60]-[87], it is said to be apparent that, on the question of the level and type of harm that the applicant might suffer in Karachi, the Tribunal assumed (as it did in MZYQU) that only harm of the nature and degree of persecution was relevant to the assessment of reasonableness. This is particularly evident at [63], [79], [81], [84]-[86], where the Tribunal reiterated on a number of occasions in the assessment of the reasonableness of relocation that the applicant’s fear of persecution in Karachi was remote without any consideration as to the relevance of lesser degrees of harm.
Secondly, it is well established that, in considering the question of internal relocation, the Tribunal is obligated to give proper consideration to the issue of relocation as a practical matter by considering whether it would be reasonable to expect the person to relocate in view of all of the practical realities facing that person (see in particular Randhawa v Minister for Immigration[39] and also the authorities collected in MZYQU at [70]-[79]).
[39] (1994) 52 FCR 437.
The “practical realities” facing the applicant in Karachi are said to be:
a)the applicant was identifiable within Karachi as a Pashtun Shi’a from Parachinar;[40]
b)the Taliban and other Sunni extremist groups would want to harm him because of his religion and his tribal background;[41]
c)the Taliban and other Sunni extremist groups had a presence in Karachi;[42]
d)attacks on Shi’as had taken place in Karachi;[43]
e)the Pakistan authorities were unable to prevent such attacks;[44]
f)it was possible that there were no members of the applicant’s tribe in Karachi to provide him with a network and protection;[45]
g)Shi’a Pashtuns (such as the applicant) were targeted within areas to which they relocated;[46] and
h)the applicant faced psychological issues (particularly feelings of displacement and isolation) were he to relocate to Karachi.[47]
[40] CB 179[71].
[41] CB 179[71].
[42] CB 179[71].
[43] CB 179[71]. See also CB 176[49]-[52].
[44] CB 179[71].
[45] CB 180[79].
[46] CB 154-155[89].
[47] CB 148.
The applicant contends that the Tribunal did not deal with any of these matters at all when assessing the reasonableness of relocation and, accordingly, is said to have failed to address the practical realities facing the applicant were he to relocate to Karachi upon his return.
Ground 2 – failure to address claims
It is well established that a decision maker is required to correctly construe and consider claims (and component integers thereof) made by an applicant or apparent on the face of the material before it.[48] This includes claims that were expressly raised or squarely raised by the material.[49]
[48] see Htun v Minister for Immigration (2001) 194 ALR 244 per Allsop J (with whom Spender and Merkel JJ agreed) at [42]; Dranichnikov v Minister for Immigration (2003) 197 ALR 389; [2003] HCA 26 at [22]-[24], [27] per Gummow and Callinan JJ, [88]-[89] per Kirby J; [95] per Hayne J)
[49] NABE v Minister for Immigration(No 2) (2004) 144 FCR 1 at [58] to [61] per Black CJ, French and Selway JJ.
First, the applicant expressly claimed that he feared persecution by reason of his membership of a particular social group of Shi’a Muslims who have fled Pakistan.[50] The Tribunal did not deal with this claim at all.
[50] see statutory declaration at CB 55[35].
Secondly, the applicant claimed:
a)he was from a Pashtun Shi’a tribe of Parachinar that had refused to allow the Taliban access to their area, which led to the Taliban declaring his tribe to be an enemy that could be killed anywhere in Pakistan;[51] and
b)He was a member of a group consisting of Pashtun Shi’as.[52]
[51] CB 177[55].
[52] CB 153[56]-[65].
The Tribunal failed to deal with the above (such as in the context of assessing the applicant’s risk profile and in determining the question of reasonableness of relocation) in its decision.
Ground 3 – well-founded fear test
It is well established that, for a person to have a well-founded fear of persecution, the prospect of the person’s persecution if they are returned to their country must be possible but need not be probable. The fear will be well founded where there is a real chance of the feared persecution occurring. A fear will be well founded if it has a real basis, even if the probability of it occurring is low.
The applicant relies on Chan Yee Kim v Minister for Immigration[53] and Minister for Immigration v Guo[54].
[53] (1989) 169 CLR 379 at 389, 407 and 429.
[54] (1997) 191 CLR 559 at 572.
It is also well established that a finding of error will not be avoided simply because the Tribunal has commenced and concluded its reasons with correct statements of the law, but has, in the substantive part of its reasons, betrayed a reasoning process which is indicative of error.[55]
[55] see SRBB v Minister for Immigration (2003) 79 ALD 723 at [28]–[30] per Mansfield J. See also Paramananthan v Minister for Immigration (1998) 94 FCR 28.
In the present case, the Tribunal accepted that:
a)the applicant was identifiable within Karachi as a Pashtun Shi’a from Parachinar;[56]
b)the Taliban and other Sunni extremist groups would want to harm him because of his religion and his tribal background;[57]
c)the Taliban and other Sunni extremist groups had a presence in Karachi;[58]
d)attacks on Shi’as had taken place in Karachi;[59]
e)the Pakistan authorities were unable to prevent such attacks;[60]
f)it was possible that there were no members of the applicant’s tribe in Karachi to provide him with a network and protection;[61]
g)Shi’a Pashtuns (such as the applicant) were targeted within areas to which they relocated;[62] and
h)the applicant faced psychological issues (particularly feelings of displacement and isolation) were he to relocate to Karachi.[63]
[56] CB 179[71].
[57] CB 179[71].
[58] CB 179[71].
[59] CB 179[71]; See also CB 176[49]-[52].
[60] CB 179[71].
[61] CB 180[79].
[62] CB 154-155[89].
[63] CB 148.
As the above authorities establish, a fear is well founded if there was a real basis for the fear, as distinct from being merely assumed or mere speculation. Given these findings, it cannot be the case that the applicant’s fears could properly be characterised as merely assumed or mere speculation. There was, on the Tribunal’s findings, an objective foundation for the claimed fear. The applicant contends that the Tribunal’s conclusion that the fear was “remote” or that there was a lack of an appreciable risk reveals a misapprehension as to the meaning of well-founded fear.
It should also be noted that the critical reasoning of the Tribunal was, in essence, that there was a large Shi’a population in Karachi. The applicant asserts that to rely on the number of Shi’as as diluting the risk so as to render it remote also reveals a misapprehension as to the correct test because it shows that the Tribunal was engaging in a calculation of the probability or prospects of the applicant being harmed as opposed to determining the existence of an objective foundation of the fear. It accepted that the risk had a foundation in fact, but the probability of it occurring was low. This is the type of calculation as to prospects that the High Court in Chan and Guo warned against. It involved a departure from what the High Court indicated was the correct question, namely the identification of an objective basis for the fear as distinct from assessing its probability or prospects.
The applicant also contends that the Tribunal’s reasoning also leads to the absurdity that it accepted that some members of the group would be subject to violent acts, but the fear held by every member of that group is to be regarded as remote. Such a conclusion reveals the imposition of a threshold that was far too high when determining whether the claimed fear was well-founded.
Ground 5 – Misconstruction of claim
The applicant claimed, and the Tribunal accepted, that:
a)he was identifiable within Karachi as a Pashtun Shi’a from Parachinar;[64]
b)he came from a relatively small tribe and lacked the network and protection that other Shi’as, without his background, might have had in Karachi;[65] and
c)the Taliban and other Sunni extremist groups would want to harm him because of both his religion and his tribal background.[66]
[64] CB 179[71].
[65] CB 180[79].
[66] CB 179[71].
The applicant contends that it was implicit in the above findings that the applicant had a heightened risk profile compared to the “average” Shi’a in Karachi. He was identifiable, there was a group that wanted to harm him for both tribal and religious reasons, and he lacked the ordinary protective networks other Shi’as had.
First, in these circumstances, the Tribunal, by dealing with the applicant’s fear of harm in Karachi with reference to the circumstance of the ordinary Shi’a, is said to have failed to properly construe the claim before it in a manner analogous to Dranichnikov (ie it rejected the applicant’s claims with reference to an over broad group).
Secondly, alternatively, in view of the applicant’s profile as found by the Tribunal, he contends that it made no sense, and was illogical or irrational in the reviewable sense as defined in Minister for Immigration v SZMDS[67] for the Tribunal to dispose of the applicant’s fear of harm in Karachi with reference to Shi’as in Karachi in general.
[67] (2010) 240 CLR 611.
Thirdly, additionally, it is also noted that the Tribunal, in rejecting the claim of complementary protection, considered it significant that attacks in Karachi took place on the basis of religion rather than because of the location in Pakistan from where the victim came.[68] This conclusion is said to be illogical or irrational in view of its earlier finding that the Taliban and other Sunni extremists in Karachi wanted to harm the applicant because of both his religion and tribal background.[69] If the Tribunal accepted that there were Sunnis who wished to harm him in Karachi for both religious and tribal background reasons, it makes no sense for it to later conclude that attacks in Karachi were premised on religion only.
[68] CB 183[96].
[69] CB 179[71].
Ground 6 - failure to distinguish complementary protection criteria from convention criteria
The Tribunal dealt with the complementary protection claim as follows[70]:
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 that there is not a real risk the applicant will suffer significant harm there. As stated above, the applicant speaks Pashto and Urdu and he has previous employment experience. Accordingly he should be well placed to settle and find employment in Karachi. (emphasis added)
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.” (emphasis added)
[70] CB 181-182[91]-[92].
First, the applicant contends that what is immediately apparent is the lack of any attempt to distinguish between the concepts of well-founded fear (for a Convention claim) and of significant risk (for a complementary protection claim). To the contrary, the Tribunal specifically treats the tests as synonymous: it reasons that the risk of harm is remote and so, for the same reasons, there is not a “real risk”. One conclusion leads to the other insofar as the Tribunal is concerned. This the applicant contends is not an appropriate approach and reveals a failure to correctly construe and apply the legislation.
Secondly, s.36(2B)(aa) of the Migration Act obliged the Tribunal to consider the reasonableness of relocation, yet it limited its consideration to matters of employment and language in circumstances where many other matters were raised by the applicant or on the material before the Tribunal as to why it was not reasonable for him to relocate to Karachi (these are detailed above). By unduly limiting its inquiry, the Tribunal is said to have failed to ask itself the right question or apply the right test.
The Minister’s submissions
Grounds 1 and 1A – alleged misconstruction
As noted above, under these grounds, the applicant complains that the Tribunal erred in:
a)deciding that it was reasonable for the applicant to relocate to Karachi; and
b)failing to consider a number of matters in its assessment of whether or not relocation was reasonable.
The Minister contends that the Tribunal’s statement of the internal relocation principle was correct. In particular, the Tribunal correctly identified that the relevant question was whether it would be: [71]
reasonable for the applicant to relocate in Pakistan to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (SZATV), [21]–[24] (Gummow, Hayne and Crennan JJ, Kirby and Callinan JJ substantially agreeing).
[71] CB 178.2.
Having correctly identified the relevant principle, the Tribunal applied it by considering the applicant’s personal circumstances and the risk that he would be subjected to persecution in Karachi, and in so doing referred to a number of particular matters that were raised by the applicant or which arose from independent country information. In particular, the Tribunal considered the following matters:[72]
a)one-third of the population of Karachi is Shi’a;
b)the applicant would be identifiable in Karachi as a Shi’a from Parachinar and extremist groups would want to harm him for that reason;
c)there was no information that suggested that Shi’as from Parachinar were specifically targeted in Karachi, although there had been isolated attacks against Shi’as generally in Karachi which the government had not been able to prevent;
d)over 1,000 people had died in Karachi due to ethnic, sectarian and politically-linked violence;
e)given the isolated nature of previous attacks, the large Shi’a population and the fact that the applicant was not politically active, there was no appreciable risk of the applicant suffering harm in Karachi because of his religion;
f)the applicant was bilingual and could easily find employment as a tailor in Karachi;
g)the absence of a tribal network in Karachi for the applicant would not prevent him from finding employment or living in Karachi; and
h)there was nothing to prevent the applicant from practising his religion in Karachi.
[72] CB 178.5 to 181.5.
In summary, the Minister submits that each of the matters alleged by the application as having been overlooked by the Tribunal was specifically considered. In considering those matters and deciding that it would be reasonable for the applicant to relocate, the Tribunal correctly applied the internal relocation principle. The fact that the applicant disagrees with the Tribunal’s conclusions is not a basis upon which to allege jurisdictional error. The Tribunal’s conclusions are matters for it.[73]
[73] NAHI v Minister for Immigration [2004] FCAFC 10 (NAHI), [10] (Gray, Tamberlin and Lander JJ); Lee v Minister for Immigration [2005] FCA 464, [27] (French J)
Ground 2: alleged failure to consider a claim or component integer thereof
Under this ground, as understood by the Minister, the applicant complains that the Tribunal failed to consider his claims that he feared persecution on the basis of his alleged membership of three particular social groups, namely:
a)Shi’as who have fled Pakistan (the First Group);
b)Pashtun Shi’as from Parachinar who refused to allow the Taliban access to their area (the Second Group); and
c)Pashtun Shi’as (the Third Group).
The applicant also complains that the Tribunal failed to consider his claim that incidences of attacks upon Shi’a Muslims were increasing rapidly across Pakistan.
It is only where a claim is clearly articulated or “clearly arises on the materials” before the Tribunal that it is elevated into an “integer” that must be considered. This has been explained as a requirement that the particular claim arise “squarely” on the material before the Tribunal, or, in other words:[74]
The question, ultimately, is whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.
Alleged membership of the First Group
[74] NABE v Minister for Immigration (2004) 219 ALR 27 (NABE), [58]–[60] (Black CJ, French and Selway JJ).
The Minister submits that the complaint about the Tribunal’s failure to consider the applicant’s membership of the First Group ought to fail for two reasons.
First, the group “Shi’a Muslims who have fled Pakistan” is not capable of being characterised as a particular social group for the purposes of the Refugee Convention and the Migration Act. In Applicant S v Minister for Immigration[75] (Applicant S), Gleeson CJ, Gummow and Kirby JJ held (at [36]):
[D]etermination of whether a group falls within the definition of ‘particular social group’ in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a ‘social group’ and not a ‘particular social group’. As this court has repeatedly emphasised, identifying accurately the ‘particular social group’ alleged is vital for the accurate application of the applicable law to the case in hand. (emphasis added)
[75] (2003) 217 CLR 387.
In the present case, the description of this particular social group is fully coextensive with persons identifying themselves as adherents to Shi’a Islam. Rather, the difference with that broader group appears to be comprised by nothing more than the fact that members have allegedly been persecuted on religious grounds and have left their country of origin (presumably to seek asylum) as a result. It therefore fails the test set forth by the High Court in Applicant S.
Secondly, although the claim to belong to this social group was raised in the initial application, it was not repeated or even referred to as part of the Tribunal review. In those circumstances, the applicant ought to be taken to have abandoned this claim.[76]
Alleged membership of the Second and Third Groups
[76] SZEIV v Minister for Immigration [2006] FCA 1798, [34] (Bennett J).
The Minister submits that the Court should decline to find that the Tribunal failed to deal with these alleged “integers” of the applicant’s claims for the following three alternative reasons.
First, the claim to belong to these groups was not expressly made by the applicant in his protection visa application, in his interview with the delegate or before the Tribunal. The only references made by the applicant to his status as a Pashtun Shi’a from Parachinar were:
a)a brief reference by the applicant during the Tribunal hearing, which was made in the course of a discussion as to whether or not he would continue to be persecuted if he were to move to Karachi;[77] and
b)more general references in a written submission made to the Tribunal by the applicant’s representative – once again, on the issue of the reasonableness of internal relocation – to the possibility of Pashtun Shi’as having developed a “group identity”.[78]
[77] CB 177.5.
[78] CB 153.
In those circumstances, bearing in mind that the applicant was represented, these “claims” did not “squarely arise” on the material before the Tribunal[79].
[79] NABE [58]–[60] (Black CJ, French and Selway JJ); NAVK v Minister for Immigration [2004] FCA 1695, [15] (Allsop J); Dranichnikov v Minister for Immigration (2003) 197 ALR 389, 405 (Kirby J)
Rather, they appear to be ex post facto reinterpretations of the applicant’s claims. However, the applicant’s claims are to be assessed as at the time they were made. As Gleeson CJ said in Appellant S395/2002 v Minister for Immigration[80] (Appellant S395) (at [1]):
[T]his court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.
[80] (2003) 216 CLR 473
Secondly, a fair reading of the Tribunal’s reasons[81] indicates that these aspects of the applicant’s claims were considered in any event. In particular, the Tribunal expressly considered that:
a)the applicant is a Pashtun Shi’a from Parachinar;[82]
b)the applicant was from a small tribe which had refused to assist the Taliban;[83] and
c)it did not have any information before it that would indicate that Pashtun Shi’as were specifically targeted for harm in Karachi.[84]
[81] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272–3 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[82] CB 177.9.
[83] CB 177.5, 178.10.
[84] CB 178.4, 179.6.
Thirdly, even if the applicant can establish that these aspects of his claims squarely arose but were not considered (which the Minister denies in light of the above), the Tribunal’s ultimate findings and conclusions subsumed any need to make particular findings about each individual aspect of those claims.[85]
[85] WAEE v Minister for Immigration (2003) 75 ALD 630 (WAEE), [47] (French, Sackville and Hely JJ)
In particular, the Tribunal accepted that the applicant had been persecuted on the basis of his religion. It also extensively considered the applicant’s background as a Pashtun Shi’a in the context of its consideration of the reasonableness of internal relocation. In those circumstances, the Tribunal’s ultimate findings in relation to the risk of the applicant being subjected to persecution if he were to relocate to Karachi would not have been any different had it specifically recognised the applicant as belonging to the Second or Third Groups.
Alleged failure to consider increasing attacks against Shi’as
The applicant’s further complaint under this ground about the Tribunal’s failure to consider information about increasing levels of attacks against Shi’as in Pakistan is said by the Minister to be misconceived. That aspect of the applicant’s claims was specifically identified, considered and disposed of by the Tribunal.[86]
[86] CB 179.3 and 179.7.
In light of the above, this ground is, in the Minister’s submission, in truth, a further complaint about the merits of the decision.[87]
[87] NAHI [10].
Ground 3: alleged misconstruction or misapplication of the well-founded fear test
The Minister submits that the Tribunal’s statement of the law and its application of the well-founded fear test was devoid of legal error. It was entitled to consider the evidence for itself and to draw its own conclusions based upon that evidence, within the relevant legal framework.
The Tribunal’s findings about the existence of a well-founded fear were informed by its consideration that the applicant could relocate internally within Pakistan, in which event the risk of harm would be “remote”. This process of reasoning was unremarkable and was open to it. The Tribunal was certainly not “obliged” to draw the conclusion for which the applicant contends.
The Minister submits that this ground is a complaint about the merits of the decision and ought to be dismissed.
Ground 5 – illogicality
The Minister characterises this ground as a complaint that the Tribunal failed to apply its finding that he was a “special” Shi’a in coming to its conclusion that he could reasonably relocate to Karachi to avoid persecution.
The suggestion that the applicant was a ‘special’ Shi’a was never made before the Tribunal and this ground therefore falls foul of the principle expressed by Gleeson CJ in Appellant S395 at [1].
Moreover, there was no evidence before the Tribunal that would have enabled it to reach a conclusion that the applicant was in a class of Shi’as that was specifically targeted in Karachi, or that any attacks took place against Shi’as in Karachi otherwise than on the basis of their religion. Indeed, the Tribunal identified this fact on a number of occasions.[88] In those circumstances, the Tribunal was entitled to draw its conclusions based upon the general evidence before it about the treatment of Shi’as in Karachi. There was nothing illogical or irrational in that approach, and it cannot be described as reasoning which no reasonable decision-maker would have employed or which is not supportable on logical grounds.[89]
[88] See, for example, CB 178.4, 179.6.
[89] Minister for ImmigrationvSZMDS (2010) 240 CLR 611, [40] and [53] (Gummow ACJ and Kiefel J), [130]–[131], [135] (Crennan and Bell JJ)).
Ground 6: Alleged misconstruction or misapplication of s.36(2B)(a) of the Migration Act
Application of the “real risk” test
The statutory criterion for the application of the internal relocation principle in the context of the complementary protection criterion required the Tribunal to be satisfied, among other things, that there would be no “real risk” of significant harm if the applicant were to relocate to Karachi.
The Minister submits that it is unlikely that there is any practical difference between this test and the internal relocation test that applies under the Convention (see SZATV). Even if there is a difference, the Tribunal’s finding that the risk of the applicant coming to harm in Karachi was “remote” is said to be sufficient to satisfy both tests.[90] The Minister contends that there is no error in this approach.
Reasonableness of relocation
[90] See the Tribunal’s reasons, at CB 181.10.
The Minister further submits that the applicant’s additional complaint that the Tribunal failed to properly consider the reasonableness of relocation is similarly misconceived.
The Tribunal had already considered all of the relevant factors in its consideration of the reasonableness of relocation under the Refugees Convention criterion. The Tribunal’s brief summary of that consideration in the context of its findings on the complementary protection criterion does not disclose any error, particularly bearing in mind that the Tribunal’s reasons are to be read fairly and that an inference that the Tribunal has failed to consider an issue is “not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”.[91]
Resolution
[91] WAEE [47].
Grounds 1 and 1A – relocation
The Tribunal decision turned on the issue of relocation. The Tribunal accepted the applicant as a credible witness[92] and accepted the essential elements of his claims in relation to his home district. At [60][93], after accepting that there was a real chance that the applicant would suffer serious harm because of his religion in his home district and more generally the Kurram agency, the Tribunal said:
The Tribunal must therefore turn to the issue as to whether it may be reasonable for the applicant to relocate in Pakistan to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.
[92] CB 177[48] .
[93] CB 178.
After considering the country information regarding circumstances in Karachi, including the circumstances of Shi’as, the Tribunal concluded at [65]:[94]
In all of the circumstances, the Tribunal finds that the applicant can reasonably be expected to relocate to Karachi where there is no appreciable risk of the occurrence of the feared persecution. In reaching that finding, the Tribunal considered the written submissions of the representative along with comments made by the applicant at the hearing when the issue of relocation was discussed with him.
[94] CB 178.
It is odd that the Tribunal reached the conclusion before discussing the submissions of the applicant’s representative but nothing turns on that. The Tribunal considered those submissions at [66]-[87]:[95]
[95] CB 178-181.
In this respect, the representative referred to country information asserting that population censuses did not record the particular sect or branch of the Muslim population so it was hard to say whereabouts in Pakistan populations of Shi’as lived. While that may be so, there is nevertheless country information mentioned above that gives approximate estimates of the number of Shi’as living in Karachi. The fact that it is an estimate does not mean that it can be simply disregarded or ignored.
It was submitted that the applicant comes from a small tribe which has refused to assist the Taliban. This has led to them being attacked by the Taliban and other Sunni’s in the north-west of Pakistan. According to the applicant it has led to the Taliban declaring that people from the Pashtun Shi’a tribes are the enemy and are to be attacked and killed anywhere in Pakistan.
It was submitted that the Taliban and extremist groups have a presence in Karachi; it was likely that extremist groups were responsible for the killing of Shi’a professionals in that city and other attacks, in particular, on religious processions in which ordinary Shi’as going about their daily lives were being targeted. The applicant would be easily identifiable as a Shi’a and also as a Pashtun Shi’a from Parachinar (through the accent on his Urdu).
It was submitted therefore, in view of all of those matters, that the applicant would suffer harm in Karachi from Sunni extremist groups. It was also submitted that the risk to the applicant in this respect is raised because sectarian violence in Pakistan is increasing including attacks on ordinary Shi’as with the government unable to protect them.
In this respect, the representative referred to a country advice published on 27 May 2011 stating that targeted attacks on Shi’as in Pakistan were too extensive to catalogue. The applicant claimed life was unbearable for Shi’as in Pakistan. The representative referred to country information from August 2012 stating that 1,100 people had died in Karachi in what was described as ethnic, sectarian and politically linked violence.
The Tribunal accepts that the applicant would be identifiable as claimed and also that the Taliban and other Sunni extremist groups would want to harm him because of his religion and his tribal background. The Tribunal also accepts that the Taliban and these extremist groups have a presence in Karachi, attacks on Shi’as have taken place there and the Pakistan authorities were unable to prevent them.
However, as stated above, the Tribunal does not have reports that Pashtun Shi’as from Parachinar are harmed in Karachi. While Shi’as in Karachi have been attacked, particularly professionals and religious processions, the Tribunal remains of the view that, in the context of the size of the Shi’a population in that city, the risk of the applicant suffering harm (as a Pashtun Shi’a who will practice his religion, attend a mosque and religious processions) is remote.
The Tribunal acknowledges the general claims about sectarian violence increasing in Pakistan and that the number of attacks on Shi’as in Pakistan generally is extensive. However, the Tribunal must look at the situation in Karachi and the Tribunal has referred to country information discussing attacks on Shi’as from as early as 2009. The Tribunal acknowledges the reference to over 1000 people dying in Karachi from violence but notes that this is not just due to attacks on Shi’as but also what was referred to as “ethnic” and “politically linked” violence.
The applicant has not ever been politically active. There is a sizeable Pashtun population in Karachi and the Tribunal has no reports of Pashtun Shi’as being harmed there. Overall, the Tribunal considers there is not an appreciable risk of the occurrence of the feared persecution in Karachi.
Submissions about reasonableness
The representative made submissions and referred to country information about the limited availability of what was described as quality or decent employment in Pakistan, particularly so for those with no skills or social networks. It was submitted that the language of Urdu was only spoken by 7.6% of the population and 44% of the population spoke Punjabi.
It was further submitted that the applicant's tribe was small and would not be represented in Karachi. He would, therefore, not have a tribal network to help him find employment in Karachi; such a network being significant for Pashtuns from his native area and the applicant claiming he would have no one to protect him in Karachi. It was submitted the applicant no longer had the business he was operating in his native area or the tools he would need to do that work.
While all over Pakistan the language of Urdu may not be spoken by the majority of the population, the Tribunal has to consider the reasonableness of expecting the applicant to relocate to Karachi. There is a sizeable Pashtun population there. Further, the applicant said he can speak both Pashtun and Urdu. While he may not have the so-called tools he was using to operate his tailoring business in his native area, he has the skills nevertheless.
The Tribunal acknowledges that well paid employment may not be widely available in Pakistan. However, as someone with training and experience operating a business in a particular skill, the applicant should be relatively well-placed to be able to find employment to enable him to subsist and live in Karachi.
The Tribunal acknowledges that the applicant comes from a tribe that is relatively small compared to the general population of Pakistan. It may be that there are not members of that tribe in Karachi to provide him with a network and protection as such. However, the Tribunal considers that the absence of a tribal network would not prevent the applicant from finding employment to enable him to live in Karachi. While he referred to having no one to protect him, the Tribunal, for the reasons given above, finds there is no appreciable risk of the occurrence of the feared persecution in Karachi.
In terms of practising religion, it was submitted that most Pashtuns in Karachi are Sunni and almost all Shi’as in Pakistan are not Pashtuns. Therefore, the applicant would not have a community with which to comfortably practice his religion. The applicant claimed in his statutory declaration that it was due to the fear of being harmed and religious intolerance that he could not attend religious gatherings as much as he would have liked.
While most Shi’as in Karachi are presumably not Pashtun, that does not mean (and available country information does not assert) that the applicant would be prohibited from attending a mosque or a religious procession and actually practising his religion in Karachi. The Tribunal acknowledges he may have felt afraid in his local area to practice his religion but, for the reasons given above, notwithstanding his fear, the Tribunal finds there is not an appreciable risk of the occurrence of the feared persecution in Karachi.
In his declaration the applicant claimed to have been in a state of shock and disbelief and feeling emotional, distraught and also withdrawn when he lived his native area due to attacks by the Taliban there. The Tribunal can understand that the applicant and no doubt a lot of the Shi’a population felt that way in Parachinar. However, notwithstanding those feelings the applicant was able to operate a business relocating that to an area close to his home after some time. The Tribunal considers that he can seek employment in Karachi to settle there.
Finally, the representative referred to two previous decisions of this Tribunal (differently constituted) in which the Tribunal found that the Pashtun Shi’a applicants in those cases could not safely live in Karachi. The Tribunal has considered these decisions but notes that the applicants concerned are not Pashtun Shi’a from Parachinar but, rather, come from another part of Pakistan.
In one case, the Tribunal referred to country information stating that Pashtuns had been killed in Karachi but, as stated above, the Pashtun population in Karachi is sizeable. The Tribunal does not have reports of Pashtun Shi’as from Parachinar being harmed there and has given reasons above why it considers there is not an appreciable risk of the occurrence of the feared persecution in that city.
The representative referred to comments made by the Tribunal in one of these decisions about the prevalence of sectarian violence in Pakistan; what was said to be the dangerous security and political situation there as well as the adverse attitude held by Sunni Moslems towards Shi’as. The Tribunal acknowledges the prevalence of sectarian violence in Pakistan, how that affects people's general security and the adverse attitude of Sunni’s as referred to.
However, none of those matters persuade the Tribunal that the risk of the applicant suffering harm in Karachi is anything more than remote. For the reasons given above, the Tribunal finds that there is not an appreciable risk of the occurrence of the feared persecution in that city.
In the decisions referred to by the representative, the Tribunal formed a view about the level of risk for the applicants concerned based on their particular circumstances. The Tribunal has, in the present case considered the particular circumstances of this applicant as well as available country information about the risks to him in his native area and in Karachi. For the reasons given above, the Tribunal finds that it is reasonable to expect the applicant to relocate to Karachi where there is not an appreciable risk of the occurrence of the feared persecution. (emphasis added)
It is apparent from those paragraphs that the Tribunal reasoned, in not accepting the submissions of the representative that, although he would be identifiable as a member of his tribe from the Kurram agency in Karachi (for reasons of language and accent) he would not be at appreciable risk in Karachi because the available information did not point to members of the applicant’s tribe or region as being especially at risk in Karachi. While the available country information pointed to Karachi being a violent place and there being periodic outrages against Shi’a Muslims there, the Tribunal reasoned that the attacks on Shi’as, while targeted for reasons of religion, were sporadic and, given the size of the Shi’a population in Karachi, the risk to the applicant was negligible. The Tribunal noted at [37][96] the various estimates of the Shi’a population in Pakistan and concluded that Shi’as constituted about 15 per cent of the total population of Pakistan, distributed unevenly across the country. The Tribunal noted in particular that Shi’as constitute about 30 per cent of the population of Karachi,[97] that is, double the proportion of Shi’as generally in Pakistan.
[96] CB 172-173.
[97] CB 175[47].
Underlying the Tribunal’s reasoning is the rather broad proposition that there is safety in numbers. That broad proposition, if it was the basis of the Tribunal decision, is problematic. First, the assessment of risk is not one that can be approached with mathematical precision. The issue is whether the applicant would be at real risk of harm in Karachi for reason of his religion or any other Convention reason. The risk, and the fear relating to it, may be real notwithstanding a low probability of harm facing any individual.
Secondly, the proposition that a person facing persecution in a country may relocate to a particular locality where others like him are also located in large numbers begs the question of why there is a concentration of people with the same attributes in one location. The answer may have nothing to do with the question of persecution but, on the other hand, there may be a connection between the concentration and the feared persecution. If people facing persecution in a country gather together for mutual protection in one particular locality in the country it does not logically follow that they can find safety by so doing. The very concentration of the persecuted minority in one place is apt to attract the adverse attention of their persecutors. Further, the aggregation of a persecuted minority in one place may simply prove the well-foundedness of the collective fear of persecution. The Tribunal in this case did not address the question of whether the concentration of Shi’a Muslims in Karachi is coincidental or whether it is a consequence of persecution.
Notwithstanding these cautionary observations, I am not persuaded that in this case the Tribunal fell into error simply by concentrating on the numbers of Shi’as in Karachi in dealing with the issue of relocation. The Tribunal was entitled to find, as it did, that the applicant could avoid the risk he faced in his home district and in the Kurram agency more generally by relocating to Karachi. That risk was not a risk related simply to his religion but also to his tribal affiliation and the animosity of Sunni militants in his home region. The risk the applicant faced in Karachi was a more general one, based on his religion and more generalised violence. It was apparent from the country information before the Tribunal that the applicant, as a Shi’a Muslim in Karachi, would face some risk. The risk was not personal to him but was primarily a risk of being caught up in an attack by Sunni extremists on his co-religionists. The Tribunal reasoned, on the basis of the available information, that this risk was so small it could be discounted. Further, the Tribunal reasoned that much of the violence in Karachi was not based on religion but was rather linked to ethnic and political issues which (by inference) had no connection to the applicant.[98]
[98] CB 179[73]
The Tribunal understood and for the most part applied correctly the test for relocation. Further, the Tribunal for the most part addressed appropriately the issues bearing on the question of whether it was reasonable (in a sense of being practicable) for the applicant to relocate to Karachi. It would, in my view, be a distraction from that assessment for a decision maker to revisit issues of a Convention related risk that should be addressed in considering whether a person might avoid a real risk of harm through relocation. On the other hand, as was pointed out by the Federal Court in MZYQU, a decision maker cannot ignore or discount a claimed risk of harm in considering the practicability of relocation, by the simple expedient of finding that the risk is not “serious harm” as defined in s.91R of the Migration Act. By extension of that reasoning, neither could the Tribunal ignore or discount harm by reference to the other limitations in s.91R, in particular because the risk is not Convention related or that the applicant would not be personally targeted. The Tribunal noted at [73] the risk of generalised violence in Karachi but discounted it as being “ethnic” and “politically linked” in part. The Tribunal needed to take into account the risk of generalised violence facing the applicant in Karachi in considering the practicability of him relocating there.
In my view, the Tribunal fell into a similar error as that identified by the Federal Court in MZYQU and this amounted to a jurisdictional error. In that case at [58]-[62] Dodds-Streeton J said:
The IMR did not, in my view, treat the question whether the appellant was at risk of serious harm as the sole determinant or test of the reasonableness of his relocation. Nevertheless, in my opinion, the IMR erred in that he treated any harm which was not “serious harm as required by s 91R(1)(b)” as incapable of relevance to the reasonableness of relocation.
Thus, at [84], the IMR apparently dismissed the appellant's objections to relocation based on lack of protection and violence on the basis that harm which was not “serious harm as required by s 91R(1)(b)”could not constitute a valid objection in that context.
The IMR's observations at [84] fortify the impression that he considered that the risk of levels or kinds of harm other than “serious harm as required by s 91R(1)(b)” could not affect the question of the reasonableness of relocation. The IMR at [84] acknowledged that returnees could suffer “generalised violence” or could be harmed due to “personal circumstances that set them apart”, but stated that there was no evidence that someone of the appellant's profile would be subjected to serious harm (emphasis added) as a returnee. The IMR did not consider the impact of the risk of harm in the form of generalised violence or harm (of an unspecified nature or level) due to personal circumstances on the reasonableness of the appellant's relocation. By inference, the IMR proceeded on the basis that unless the harm were serious harm within the meaning of s 91R(1)(b), it was unnecessary to do so.
In my opinion, therefore, the IMR's error lay not in considering that a risk of “serious harm as required by s 91R(1)(b)” was relevant to relocation, but in implicitly treating such harm as the only level or kind of harm which could affect the reasonableness of relocation.
While the IMR's reasons should not be read with over-zealous scrutiny, the failure to include the risk of generalised violence or harm due to personal circumstances in the list of relevant factors weighing against the reasonableness of relocation in [88] indicates that any harm that was not “serious harm as required by s 91R(1)(b)” was excluded from consideration in that context.
While in this case the Tribunal did not expressly limit its consideration of the risk of violence to the applicant engaging s.91R(1), that limitation was inherent in its reasoning. In considering the practicality of relocation, the Tribunal discounted the risk of violence which did not engage that provision, either because of a lack of a Convention nexus, or because of a lack of systematic and discriminatory conduct.
I find that these grounds have been established.
Ground 2 – did the Tribunal overlook an element or integer of the applicant’s claims?
I accept that the applicant included in his original written claims the assertion that he feared persecution by reason of his membership of the particular social group of “Shi’a Muslims who have fled Pakistan”. I also accept that that claim was not specifically dealt with by the Tribunal. In my view, however, the Tribunal did not have to consider that claim. First, if the applicant made the claim by reference to his past experiences in Pakistan then the particular social group claim added nothing to his claims based upon his religion. Further, as the Minister correctly points out in his submissions, a particular social group cannot be constructed based upon the fear of persecution. If the claim was based upon the applicant’s past experiences in Pakistan, the inclusion of the element of flight simply points to that fear.
I have considered the possibility that the applicant’s claim might have been intended to be a sur place claim. If so, it would have been based on occurrences since the applicant left Pakistan. The claim would have had to have been elaborated upon by the applicant and he was completely silent on that. If the claim was intended to be a sur place claim, it was not advanced with the particularity necessary to require its consideration.[99]
[99] Dranichnikov v Minister for Immigration (2003) 197 ALR 389.
I reject the balance of this ground for the reasons advanced by the Minister at [62]-[68] above.
Ground 3 – misconstruction or misapplication of the relevant legal test
I agree with the Minister that this ground amounts to an attack upon the merits of the Tribunal decision. Further, it cannot be seriously contended that only one outcome of the review was open to the Tribunal on the basis of the material before it and its conclusions on the relevant questions of fact.
Ground 5 – did the Tribunal engage in illogical or irrational reasoning?
As has been observed in the past by the High Court[100] a complaint of irrationality or illogicality is often simply an expression of strenuous disagreement with a decision. I have expressed above my own concern with the proposition (if it were to be advanced) that safety can necessarily be found in numbers. However, I agree with the Minister in his submissions summarised above at [76] that the applicant in this case has not satisfied the legal test for irrationality or illogicality established by the High Court in SZMDS. I reject this ground.
[100] Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 [40].
Ground 6 – did the Tribunal err in considering the complementary protection criterion?
The Tribunal dealt with the issue of complementary protection in the following way:[101]
[101] CB 181-182[88]-[96].
Complementary protection
The representative made submissions as to how the various terms of the complementary protection criterion should be interpreted. It was submitted that there was no “internal flight alternative” available to the applicant and so there was a real risk he would suffer significant harm in Pakistan.
The Tribunal has considered the representative’s submissions regarding the complementary protection criterion. For the same reasons that the Tribunal finds the applicant’s fear of persecution in the Kurram Agency to be well founded, the Tribunal also finds that there is a real risk he will suffer significant harm there. In assessing whether or not there is a real risk, the Tribunal notes that the risk must go beyond mere theory and suspicion.[102]
However, 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 the applicant will suffer significant harm, then there is taken not to be a real risk that an applicant will suffer significant harm in that country.
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 and he 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 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 complementary 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 exercises caution in taking that consideration into account when determining if the applicant can safely live in Karachi and whether it is reasonable to expect him to do so. The Tribunal acknowledges the possibility that reports of Pashtun Shi’as being harmed there may not have been 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. (emphasis added)
[102] Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 at [67].
The applicant’s essential complaint here is that the Tribunal’s reasons disclosed error by focusing upon the applicant’s religion, ethnicity, and place of origin in Pakistan, rather than upon the risk of harm generally in Karachi. The applicant’s argument is well made that it is an error for the Tribunal to conflate the tests of persecution and complementary protection. Further, I accept that it is an error for consideration of complementary protection to be infected by considerations relevant only to the issue of persecution.
Claims of complementary protection must be considered on the basis of the statutory criterion and the qualifications to it. The relevant statutory references are contained in [16]-[18] of the Tribunal’s reasons:[103]
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise 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 the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
[103] CB 170.
It is apparent from those paragraphs that the Tribunal understood the relevant test but I am persuaded that it failed to apply it. It is obvious from the country information and submissions before the Tribunal that the risk of significant harm facing the applicant in Karachi was the risk of death or serious injury as a result of generalised religious, political or ethnic strife there. It was apparent that the risk was a risk of harm at the hands of non State actors which the Pakistani authorities could not prevent.
In considering the complementary protection criterion, the Tribunal needed to grapple with at least two questions:
a)Did the applicant satisfy s.36(2)(aa) by reference to subsection (2A)?
b)In that connection, did subsection (2B) apply?
It is not clear from the Tribunal’s reasoning whether the Tribunal was dealing with the first question or the second. Viewed generously and as a whole, the Tribunal’s reasons appear to be based on the proposition that the applicant did not qualify for complementary protection because of the application of s.36(2B)(a). The difficulty is that the Tribunal appears to have applied the same reasoning process on relocation to the complementary protection issue as it applied to the question of whether the applicant should be recognised as a refugee. This is apparent from the Tribunal’s reasons at [91] and [96].
In order to deal with the issue of complementary protection, the Tribunal needed to consider the risk of generalised violence which it had discounted at [73] in considering the applicant’s claims to be a refugee. The Tribunal could not limit its consideration to those refugee claims. Further, in considering the risk of generalised violence the Tribunal could not avoid consideration of s.36(2B)(c) of the Migration Act.
I agree with the applicant’s submissions that the Tribunal fell into error in dealing with the complementary protection criterion. For that reason and because of the Tribunal’s error in dealing with the relocation issue in relation to the applicant’s claims under the Refugees Convention, he should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 November 2013
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