SZSSY v Minister for Immigration
[2014] FCCA 748
•17 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSSY v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 748 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal misapplied a test, failed to ask a necessary question correctly, failed to take a relevant consideration into account and reached a decision which was based on illogical or irrational reasoning. |
| Legislation: Migration Act 1958, ss.36, 46A, 91R, 474 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 MZYQU v Minister for Immigration & Citizenship (2012) 206 FCR 191 MZYPW v Minister for Immigration & Citizenship (2012) 289 ALR 541 SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 SZSSM v Minister for Immigration & Border Protection [2013] FCCA 1489 |
| Applicant: | SZSSY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 700 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 11 & 24 March 2014 |
| Date of Last Submission: | 24 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the First Respondent: | Mr B. Kaplan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 700 of 2013
| SZSSY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Pakistan who arrived in Australia by boat on 19 December 2011. On 30 April 2012 the first respondent (“Minister”) decided to exercise his power under s.46A(2) of the Migration Act1958 (“Act”) to allow the applicant to lodge an application for a protection visa. The applicant subsequently lodged an application for a protection visa on 5 May 2012 alleging that he feared persecution in Pakistan because of his religion, ethnicity and membership of a particular social group. On 17 August 2012 the applicant’s application was refused by a delegate of the Minister. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
Section 36 of the Act relevantly provides:
36 Protection visas
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A)A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)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; or
(b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
…
Section 91R of the Act relevantly provides:
91R Persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person's life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person's capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
…
Article 1A(2) of the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), relevantly defines a refugee as any person who:
… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-14 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Protection visa application
The applicant made the following claims in a statutory declaration in support of his protection visa application:
a)he was a Pashtun Shi’a Turi from Parachinar in the Kurram Agency area of Pakistan;
b)the Taliban carried out attacks in his home area and blocked the roads. While he was at university in Peshawar he had rarely been able to travel to his home area because it was dangerous;
c)in March 2011 while he was travelling to his home area with his cousin, their convoy was attacked by the Taliban and his cousin kidnapped. His cousin was never released because he held a Master’s degree in physics and the Taliban did not release educated Shi’a students;
d)while he was at university, as a ruse to kidnap them for ransom, Sunni people would call Shi’a students and tell them to go to certain locations to collect money allegedly sent by their parents. His university had been close to an area which was mainly populated by members of a Sunni extremist group;
e)his uncle worked as a journalist for a local Pashtun television station and had received a letter from the Taliban threatening to kill him, his family and his close relatives. If he returned to Pakistan he would be harmed because he was a member of his uncle’s family; and
f)if he returned to Pakistan he would be harmed because of his membership of the particular social group of “educated Shi’a Moslems vulnerable to kidnapping”. He would also be harmed because of his religion.
Tribunal proceedings
Prior to the applicant’s appearance before the Tribunal, his representatives provided submissions dated 14 November 2012. Although referred to, these were not separately summarised in the Tribunal’s reasons. They were, however, reproduced in the court book, Exhibit 1. In them, the applicant’s representatives submitted that it would be unreasonable to expect the applicant to relocate within Pakistan because:
a)country information indicated that Shi’as were generally persecuted throughout Pakistan;
b)his identity documentation and his accent when speaking Urdu would easily identify him as a Shi’a Muslim from the Turi tribe;
c)his Shi’a surname distinguished him from Sunni Muslims;
d)he had no employment experience in Pakistan and would therefore suffer a significant degree of employment discrimination which would be aggravated by his social and cultural differences;
e)if he received financial support from his family, this could be discovered by local insurgents (in Islamabad) who would be likely to kidnap him for ransom money;
f)his family was likely to be targeted by the Taliban if his cousin who had been kidnapped refused to comply with the Taliban’s demands;
g)in mid-2010 his uncle had been interviewed on television and had discussed in depth the atrocities committed by the Taliban in the Kurram Agency. In August 2011 his uncle received a letter from the Taliban threatening him and his family and he, the applicant, had been pursued by unknown individuals, presumably Taliban members acting on that letter;
h)he had no friends or family outside the Kurram area; and
i)the growing pace of rural-urban migration in Pakistan was putting pressure on basic facilities and services, including access to education, employment, housing, clean drinking water and sanitation. It had also led to increased crime rates.
The applicant’s representatives also provided:
a)the applicant’s uncle’s identity card and an identity card relating to his work as a journalist;
b)a “Relationship Certificate” certifying the applicant’s relationship with his uncle and stating that the applicant’s uncle was a journalist for a television channel; and
c)a letter purportedly from the Taliban threatening the applicant’s uncle and his family.
The applicant appeared before the Tribunal on 15 November 2012 and made the following claims:
a)his family in Parachinar had never been attacked but their movements were restricted because roads had been closed due to the conflict. His mother was unwell but could not travel to obtain treatment;
b)one of his relatives had been shot by people he suspected were members of the Taliban;
c)there were many Sunnis in his area and so he did not like to go to the mosque there but if he did not go people would say he was not a Muslim and he would be at risk;
d)he attended school in Parachinar until 2003. He then attended school in Peshawar until 2005 after which he undertook private study in order to matriculate. He then went to university in Peshawar until December 2010 when he completed his studies;
e)while at university he had twice received telephone calls telling him to go to a particular location to pick up a parcel from his family, however, he knew that it was a ruse used by the Taliban to lure students in order to kidnap them for ransom;
f)seven people were killed in March 2011 when the convoy in which he was travelling was attacked. The convoy returned to Peshawar and did not continue the journey to Parachinar;
g)on one occasion in September 2011 he was followed back to university by three men he suspected were Taliban but he escaped them;
h)he completed his studies in December 2010 but remained in Peshawar until October 2011, when he left Pakistan. During that period he had been unemployed and had stayed in his accommodation most of the time because he had been afraid of the Sunnis in his area and because of the Taliban presence in the city;
i)prior to the television interview, his uncle had made documentaries and filed reports about the situation of Turis in Parachinar and the abuses committed by the Taliban;
j)the Taliban hated people from his ethnic group because they would not allow the Taliban access to the Parachinar area in order to reach Afghanistan;
k)he was easily identifiable as a Shi’a because of the marks on his body. As a Turi Shi’a he would not be able to find work or survive in Pakistan and would not have the means to purchase property;
l)he could not live in Islamabad or Rawalpindi because in late 2011 he had heard that Turi students were being attacked there. He knew of three Turi people who had been kidnapped in Islamabad - Rawalpindi and feared that that could happen to him. He also could not go to Islamabad because there were extremist Sunni groups operating there, his ethnic group did not have a community there and could not buy property there;
m)he could not live in Karachi because he was light-skinned and so the Mohajirs would be able to identify him as a Pashtun and would kill him. Even if he lived with other Pashtuns in Karachi, they would say he was a Turi and against the Taliban. Half of the Pashtuns in Karachi were Sunnis and supported the Taliban in its conflict with the Shi’as in Parachinar so they too would want to harm him;
n)the Taliban hated highly educated people like him and they hated the English language, which he could speak. He feared that he would be kidnapped because the Taliban kidnapped educated people to translate for them; and
o)he was working in Australia and remitted money to his family in Pakistan.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention or s.36(2)(aa) of the Act.
Based on country information indicating that the conflict in the Kurram Agency continued and that people had died from targeted attacks on the only road into the area, the Tribunal found that there was a real chance that the applicant would suffer harm because of his religion and adverse opinions imputed to him by Sunnis and the Taliban who would wish to harm him if he returned to Parachinar.
The Tribunal went on to determine whether it was reasonable for the applicant to relocate to another part of Pakistan. It found that he could reasonably be expected to relocate to Karachi where there was no appreciable risk of him facing the persecution he feared. In reaching its finding the Tribunal:
a)acknowledged that there been attacks on Shi’as in Karachi during religious processions in December 2009, February 2010 and September 2010, that there had been isolated reports of Shi’a professionals being killed and that a bus carrying Shi’as had been attacked in August 2012. However, considering those attacks in the context of almost one-third of the population in Karachi being Shi’a, it found that the risk of the applicant suffering harm was remote, even accepting that he would want to practise his religion in Karachi, including by attending religious processions. The Tribunal found that the applicant would be free to attend a mosque in Karachi and that the risk of him suffering harm for practising his religion there was remote; and
b)also found that although the applicant had no employment experience in Pakistan, he had a university degree and spoke Urdu, Pashto and some English and would therefore be well-placed to seek employment and settle in Karachi.
The Tribunal then considered the applicant’s objections to moving to Karachi and concluded, notwithstanding those objections, that it was reasonable to expect him to relocate there. In that connection the Tribunal:
a)acknowledged country information submitted by the applicant’s representatives which showed that Shi’as had been attacked in Pakistan, that literature had been distributed urging that they be killed and that the government had been unable to prevent attacks on Shi’as in Karachi. However, it found that, overall, country information indicated that the applicant was most likely to suffer harm attending a religious procession or while in a public place where Shi’as gathered. Considering the size of the Shi’a population in Karachi, the Tribunal found that the risk of the applicant suffering harm there because of his religion was remote;
b)accepted that the applicant was identifiable as a Shi’a and Pashtun Turi from Parachinar and would be perceived as an opponent of the Taliban by it and other Sunnis. It also accepted that the Taliban and like groups had a presence in Karachi. However, it went on to note that there was no evidence before it that Pashtun Shi’a Turis had been harmed in Karachi and found that the risk of the applicant suffering harm as a Shi’a was remote;
c)noted that that there was no evidence before it that Pashtun Shi’as were harmed in Karachi, including by being denied employment. It found that while the applicant might not be able to buy property in Karachi, would not have a tribal network and would have to compete with others for access to services, he was relatively well-educated, spoke three languages and would be well placed to find employment there;
d)accepted that the applicant’s uncle had received threats from the Taliban, that the applicant had been followed by some men, possibly because of the Taliban’s threats to his uncle, and that he might belong to the claimed social group of his uncle’s family, but found that the applicant was not politically active in Pakistan and would not have his uncle’s profile. It did not accept that the Taliban’s threats to harm his uncle and his family gave the applicant a profile such that he would be pursued by the Taliban in Karachi;
e)noted that country information indicated that the Shi’a professionals targeted for harm in Karachi were doctors and lawyers and that high-level academics and universities were attacked by the Taliban in Peshawar. However, it found that the applicant did not fall into any of those categories and although it accepted that his cousin, the holder of a Master’s degree, had been kidnapped, it also found that the applicant had not suffered harm as a result of that and that his association with his cousin did not mean that he was at risk of harm in Karachi;
f)noted that country information indicated that violence between ethnic groups in Karachi predominantly took place between supporters of the political parties that represented them. It therefore found that because he was not politically active, the risk of the applicant suffering harm from the Mohajirs was remote; and
g)found that as the applicant had given evidence that he was supporting his family, it was unlikely that they would send him money which would then result in him being targeted for ransom. It found the fact that there had been instances where Turis had been kidnapped in Islamabad did not mean that there was an appreciable risk of it occurring in Karachi.
Proceedings in this Court
In his second further amended application the applicant alleged:
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 Shi’a from Parachinar (Tribunal Decision at [78]) 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”: Tribunal Decision at [79].
b.In considering the issue of relocation to Karachi, the Tribunal found that:
i. there have been attacks on Shi’as in Karachi, in particular on religious processions and professionals but also other attacks including on a bus carrying Shi’as (Tribunal Decision at [82], [92] and [94]); and
ii. “the [Pakistani] government has been unable to prevent the attacks on Shi’as that have taken place in Karachi”: Tribunal Decision at [97].
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 [84].
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 Shi’a from Parachinar: CB204 at [87].
ii. the Taliban and other Sunni extremist groups had a presence in Karachi: CB204 at [87].
iii. the Taliban and other Sunni groups would perceived [sic] the applicant as an opponent: CB204 at [87].
iv. attacks on Shi’as had taken place in Karachi: CB203 at [82].
v. the Pakistan authorities were unable to prevent such attacks: CB205 at [97].
vi. it was possible that the applicant may have to go to Karachi without the tribal network he would have in his native area: CB206 at [103].
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 perceive him as an opponent and had in fact attacked Shi’as in that city, that he was identifiable, and that the authorities were unable to prevent such attacks: CB204-5 at [87] and [97].
ii. the evidence advanced by the applicant to the effect that Shi’a 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 Shi’as from his tribe, lack of protection and lack of a network).
2.…
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 Shi’a Pashtuns were targeted within areas to which they relocated.
5.The Tribunal engaged in jurisdictional error by adopting illogical or irrational reasoning, misconstruing the claim put to it, by proceeding on the basis of a finding or unstated assumption unsupported by evidence, or by failing to take into account a relevant consideration.
Particulars
a.The Tribunal accepted that the applicant was distinguishable from an ‘ordinary’ Shi’a in Karachi when it found that he was identifiable within Karachi as a Pashtun Shi’a from Parachinar (CB204 at [87]) and the applicant might lack the tribal network that he would have in his native area in Karachi (CB206 at [103]).
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 Shi’a 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): CB207 at [112].
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 and/or the proceeding on the basis of a central finding or unstated assumption unsupported by the evidence; and/or engaging in illogical or irrational reasoning. In particular:
i. The applicant claimed that he feared persecution as a member of a particular social group by virtue of being a member of his uncle’s family as a consequence of the uncle reporting on Taliban atrocities on television. The Tribunal did not correctly construe this claim and ask itself whether the applicant feared persecution by virtue of his membership of this group but, rather, asked itself whether the applicant himself had a sufficient political profile that would attract adverse attention from the Taliban in his own right. In doing so, it misconstrued and failed to deal with the claim as put by the applicant;
ii. Further and in the alternative, the Tribunal proceeded on the basis of an unstated finding or assumption that, to attract persecution at the hands of the Taliban, the applicant himself had to personally hold a sufficiently high political profile to warrant their interest (and that the Taliban would not pursue him merely because he was a relative of his uncle). This unstated finding or assumption was central to its rejection of this aspect of the applicant’s claim. However, there was no evidence capable of supporting this finding or assumption and it was contrary to the material before the Tribunal;
iii. Further or in the alternative, the Tribunal engaged in illogical or irrational reasoning when it held that the applicant’s fear of persecution as an ordinary Shia in Karachi was remote, despite having made the findings set out at ground 1A(a) above or, in the alternative, made this finding without taking into account a relevant consideration (namely the said 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 of relevant [sic] to the question of reasonableness (being those identified in ground 1A(b) above).
The second ground of the second further amended application was not pressed.
Grounds 1 and 1A
Ground 1 of the application alleged that the Tribunal had misapplied the Convention test and that this could be inferred from the fact that although it had acknowledged attacks on Shi’as in Karachi and the inability of the government of Pakistan to prevent them, the Tribunal nevertheless found that it was reasonable to expect the applicant to relocate there. Ground 1A alleged that the Tribunal had misapplied the test relevant to whether relocation by the applicant to Karachi was reasonable and also failed to consider certain factual matters ostensibly relevant to the reasonable practicality of relocation.
The applicant submitted that the Tribunal had assumed that only harm of the nature and degree of persecution was relevant to the assessment of the reasonableness of his postulated relocation to Karachi. He submitted that this was revealed by what he said were statements essentially to that effect in paras.80, 84 and 104 of the Tribunal’s decision record. In those paragraphs 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.
…
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 the comments made by the applicant at the hearing when the issue of relocation was discussed with him.
…
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 and where the risk of the applicant suffering harm is remote. Accordingly, his fear of persecution in Pakistan is not well founded.
The applicant also submitted that the Tribunal failed to include the risk of generalised violence in Karachi or harm to him there as factors relevant to the reasonableness of his relocation to that city.
Contrary to the applicant’s submissions, paras.80 and 84 and the first sentence of para.104 were concerned with articulating the two considerations relevant to determining whether the applicant might reasonably be expected to relocate: whether he had a well-founded fear of persecution in Karachi and, if not, whether relocation there was practicable for him. The Tribunal committed no error in considering whether the applicant would have a well-founded fear of Convention-related persecution in Karachi as a necessary part of its consideration of whether he could reasonably be expected to relocate there. So much is clear from SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 at 26-27 [23]-[25] where Gummow, Hayne and Crennan JJ held that the practicality of relocation depended, amongst other things, on the applicant in question not having a well-founded fear of persecution for a Convention reason in the potential place of relocation.
Consequently, the Tribunal’s conclusion that the applicant would not have a well-founded fear of Convention-related persecution in Karachi could not, on its own, provide a sufficient basis for the Tribunal to conclude that relocation there was practicable. In this regard, Flick and Jagot JJ noted in MZYPW v Minister for Immigration & Citizenship (2012) 289 ALR 541 at 545 [9] that, when assessing whether relocation is practicable in the particular circumstances of a given applicant, the decision-maker:
… may consider factors such as:
· “other and different risks in the propounded place of internal relocation”, including risk of violence for non-Convention reasons; and
· “the absence of family networks”.
Justice Dodds-Streeton also held in MZYQU v Minister for Immigration & Citizenship (2012) 206 FCR 191 that “serious harm” of the sort defined in s.91R(2) of the Act which, in combination with other considerations, would justify the grant of a protection visa if inflicted for a Convention reason, is not the only level or kind of harm which can affect the reasonableness of relocation.
Subject to the fact that the Convention is concerned with persecution in the defined sense, not with living conditions in a broader sense (SZATV at [25]), the practicability of any postulated relocation is dependent on the particular circumstances of a given applicant and the impact on him or her of that postulated relocation, not only on the absence of a fear of Convention-related persecution. That is to say, even if there is a location in a particular applicant’s country of nationality or habitual residence where there is no appreciable risk of the occurrence of the feared persecution, the applicant in question will be entitled to protection under the Convention if it would be “unduly harsh” (see SZTAV at [25]) to expect him or her to live at that location or to travel there. As alluded to earlier, Australia’s protection obligations are specified in part by s.91R of the Act which relevantly delimits those obligations to Convention-related persecution involving “serious harm” to a person. It would be unduly harsh, and thus not “reasonable in the sense of practicable” (SZATV at [23]), to expect a person, in order to avoid Convention-related serious harm in a particular place, to relocate (one might say, be driven) to a different place and to endure there conditions or circumstances which, although not imposed or brought about there for a Convention reason, would nevertheless amount to serious harm as defined by s.91R(2). Logically, protection under the Convention must extend to such situations.
In cases of postulated relocation, protection under the Convention also extends to situations involving conditions which would not amount to serious harm for the purposes of s.91R(2): MZYQU at 201 [60]–[61]. That is to say, conditions which would not engage Australia’s protection obligations if brought about as a direct consequence of Convention-related persecution, may attract those obligations if they exist in a postulated place of relocation. In each case it is a matter for the decision-maker to decide whether the conditions associated with a postulated place of relocation, even if not amounting to serious harm, are such that relocation there is not practicable.
Nevertheless and notwithstanding those considerations, the scope of any inquiry into the practicability of relocation will be determined by the objections to relocation which a particular applicant may make:
The test for relocation is whether it is practicable in the particular circumstances of the particular applicant … The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR 437 at 442-443, especially at 443C-D. (SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at 438-439 [124]).
In this proceeding the applicant pointed to a number of matters which might have been relevant to whether relocation to Karachi was practicable for him but which he did not raise with the Tribunal in that context. The Tribunal did not need to consider such matters.
In their written submissions of 14 November 2012, summarised above at [9], the applicant’s advisers set out a number of objections to relocation within Pakistan. In response to the Tribunal’s suggestion at its hearing that relocation to Karachi was open to him the applicant’s objections were that:
a)Mohajirs would identify him as a Pashtun because of his light skin and would kill him;
b)he would also be identifiable as a Pashtun Shi’a from Parachinar because of the marks on his body and his accented Urdu and, because his tribe opposed the Taliban, he would be harmed wherever he went;
c)he feared that the Taliban would kill him because of his uncle’s outspokenness;
d)Pashtuns were killed in Karachi whether or not they were involved in the conflict between the political parties representing the Mohajirs and the Pashtuns;
e)if he were to live amongst the Pashtun community in Karachi he would be singled out as a Turi “and against the Taliban” and harmed on that account; and
f)he feared harm because he was educated, a matter which would be exacerbated by being identified as a Turi from Parachinar.
As already noted, the Tribunal concluded that the applicant did not have a well-founded fear of persecution in Karachi. It also dealt at considerable length with the applicant’s objections to living there, in reasoning reflecting the principle to be derived from SZTAV and the guidance given by SZMCD, concluding that he would not face harm in Karachi of the sort or for the reasons he advanced. Importantly, it did not test his claims against the s.91R(2) test of serious harm.
That is to say, the Tribunal considered whether the applicant’s fears of Convention-related persecution in Karachi were realistic and whether, even if they were not, the objections he raised satisfied it that it would be unduly harsh to expect him to relocate there. It was open to the Tribunal to conclude that the objections to relocating to Karachi which the applicant raised did not satisfy it that it was not practicable for him to relocate there. In so doing, the Tribunal did not misapply the relevant tests, apply an incorrect test or fail to consider issues to which it should have had regard.
For those reasons grounds 1 and 1A are not made out.
Ground 2
As noted earlier, the second ground was not pressed.
Grounds 3-5
In grounds 3 to 5 of the application the applicant alleged that the Tribunal’s conclusions that he did not have a well-founded fear of persecution in Karachi and that it was reasonable for him to relocate there were illogical or irrational, manifested a misunderstanding or misconstruction of the Convention test or arose out of a failure to take a relevant consideration into account.
As the applicant identified, the Tribunal did accept that:
(a)Sunni extremist groups had a presence in the city and that Shia neighbourhoods were barricaded and fortified (CB200[59]);
(b)Karachi had witnessed a number of large scale attacks on Shia targets since late 2009, including their religious processions (CB20[60]-[62]);
(c)the Pakistan government had been unable to stop attacks on Shias in Karachi and elsewhere (CB205[97]);
(d)the Applicant was identifiable as a Pashtun Shia from Parachinar and that he would be perceived as an opponent of the Taliban by that group and other Sunnis and that the Taliban and other like groups had a presence in Karachi (CB204[87]);
(e)the Applicant’s uncle had received threats from the Taliban including to the effect that members of his family would be killed, and the Applicant had been followed around in Peshawar following the interview that triggered these threats (CB204[89]-[90]).
However, it also relied on other evidence to conclude that such matters did not lead to a finding that the applicant had a well-founded fear of Convention-related persecution in Karachi or that it was not practicable for him to relocate there.
Given the evidence before it, it was open to the Tribunal to conclude that the applicant did not have a well-founded fear of persecution in Karachi and I am of the view that the applicant’s complaint is in substance no more than an objection to the Tribunal’s fact-finding. Further, the relevant conclusion was not one which no reasonable tribunal would have reached on the same evidence. In those circumstances, there is no basis to infer that the conclusion in question arose out of a misunderstanding of the relevant test.
Nextly, what the applicant alleged in ground 4 was a relevant consideration was in fact no more than a matter of evidence. The evidence in question was contained in the applicant’s advisers’ written submissions of 14 November 2012 and the Tribunal made specific reference to it in para.84 of its decision record under the heading “Findings and Reasons”.
But, more relevantly, the Tribunal’s reasons disclose that it considered the applicant’s particular circumstances in the context of his postulated relocation to Karachi, as it was required to do. It was not required to consider the issue more broadly as the particular of ground 4 implied.
The applicant also alleged in ground 5 that the Tribunal’s finding that he did not have a profile that would attract Taliban persecution in Karachi, notwithstanding the threats made to his uncle and his family, was:
… premised on an unstated finding that, for the Applicant to attract persecution at the hands of the Taliban, he himself had to personally hold a sufficiently high political profile to warrant their interest (i.e. the Taliban would not pursue him merely because he was a relative of his uncle).
He submitted that there was no evidence to support that finding
There is no substance to this allegation. The applicant referred to paras.89 and 90 of the Tribunal’s decision. Paragraph 89 said:
The Tribunal accepts that the applicant’s uncle received threats from the Taliban because of the interview he gave in Islamabad and that the applicant was followed by some men on one occasion in Peshawar after his uncle gave an interview and therefore, possibly, because of that. However, even accepting the applicant belongs to the claimed particular social group, he himself was not politically active in Pakistan and would not have had the profile of his uncle.
However, the truly relevant passage was para.90 where the Tribunal said:
While the Taliban may have made a threat to the uncle to harm him and his family, the Tribunal does not accept that this would give the applicant a profile such that he would be pursued by the Taliban in Karachi because of his association with his uncle.
The Tribunal should be understood to be saying that before being targeted by the Taliban a person would have to have a “profile” or some characteristic which would cause that targeting and that although the applicant had no independent political profile of his own, he alleged that being his uncle’s nephew meant that he was part of the particular social group of his uncle’s family and that that gave him such a profile. The Tribunal was simply not persuaded that that was so.
For those reasons grounds 3 to 5 are not made out.
Ground 6
Ground 6 of the application alleged that the Tribunal failed to undertake a separate consideration of the applicant’s situation, including the reasonableness of him relocating to Karachi, by reference to the complementary protection criteria found in s.36(2)(aa) and (2B) of the Act.
The relevant part of the Tribunal’s reasons is found in paras.106 and 107 of its decision record:
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. In addition, the applicant is relatively well educated and can speak Pashto, Urdu and some English. Accordingly he should be well placed to settle and find employment in Karachi.
In para.53 of his written submissions the applicant said:
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 is not an appropriate approach and reveals a failure to correct [sic] construe and apply the legislation.
(emphasis in original)
The Tribunal did not conflate the Convention and complementary protection tests. It found that the evidence to which it had already referred in the context of the applicant’s Convention-based claims also supported a conclusion that the applicant would not face a risk of significant harm were he to relocate to Karachi. It was open to it to do so.
The applicant suggested, by reference to SZSSM v Minister for Immigration & Border Protection [2013] FCCA 1489, that the Tribunal should have, but failed, to consider whether a situation of generalised violence in Karachi engaged Australia’s complementary protection obligations in his case. The applicant’s claims were not ones of generalised violence but specific reasons why he said he could not relocate to Karachi and the Tribunal considered those matters. In any event, in light of the terms of s.36(2B)(c), it is difficult to see how generalised violence would engage Australia’s complementary protection obligations, whether in an applicant’s home area or in a place of possible relocation.
In the final paragraph of his written submissions the applicant said:
Further, section 36(2B)(aa) of the 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, it failed to ask itself the right question or apply to [sic] right test.
For reasons already given, I am not persuaded that the Tribunal did limit its enquiry in the manner alleged.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 17 April 2014
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