SZSTE v Minister for Immigration
[2015] FCCA 178
•30 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSTE v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 178 |
| Catchwords: MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (RRT) – whether RRT correctly applied the relocation principle – whether in applying the relocation principle the RRT only considered whether the applicant had a well-founded fear of persecution in the place of relocation and would be able to find employment there – whether by finding that the applicant faced a remote risk of harm in the place of relocation the RRT acted irrationally or misapplied the “real chance test” – whether the RRT failed to consider material information – whether the RRT failed to correctly apply the correct legal tests for assessing claims based on complementary protection – whether there was before the Tribunal a “modification of behaviour” claim – jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2B)(a) |
| Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 MSSAD v Minister for Immigration and Citizenship [2013] FCA 879 MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 SYLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 942 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 SZSDP & Ors v Minister for Immigration & Anor [2013] FCCA 1647 SZSRQ v Minister for Immigration & Anor [2014] FCCA 2205 |
| Applicant: | SZSTE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 729 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 21 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The decision of the second respondent made on 8 March 2013 affirming the decision of the delegate of the first respondent made on 30 August 2012 not to grant the applicant a protection visa is quashed.
The second respondent determine according to law the application made to it to review the decision of the delegate of the first respondent made on 30 August 2012 not to grant the applicant a protection visa.
The first respondent pay the applicant’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 729 of 2013
| SZSTE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this application for judicial review, the applicant claims the second respondent (Tribunal) made a number of jurisdictional errors in affirming the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a protection visa.
The applicant’s claims for protection
The applicant’s claims for protection were based on the following alleged facts.[1] The applicant is a national of Pakistan. He is a Pashtun and a Shi’a Muslim. He was born in Parachinar in 1986, and grew up there. The applicant moved to Peshawar to undertake a Masters in Business Administration.
[1] CB29
In 2007 the Taliban killed the applicant’s uncle in Parachinar as a result of a bomb attack.[2] In 2008 the applicant travelled to Peshawar for his university admission. He travelled to Peshawar through Afghanistan rather than through Pakistan because the Taliban had erected roadblocks in Pakistan, and there was conflict in the area through which the applicant had to travel to get to Peshawar.[3] The Taliban threatened the university the applicant was attending.[4]
[2] CB30, [9]
[3] CB30, [10], [11]
[4] CB30, [12]
In around July or August 2010 the Taliban abducted a Shi’a student from the university who had participated in a protest against the Taliban in Islamabad. The student was released after his parents paid the Taliban a ransom.[5] A professor and another student were also abducted, but they have not been found.[6]
[5] CB30, [13]
[6] CB30, [13]
On 26 March 2011 a convoy in which the applicant was travelling from Peshawar to Parachinar came under attack from the Taliban. Many in the convoy, including the applicant’s brother, were injured; and many were killed or abducted.[7] In July 2011 the applicant heard a bomb explode outside the university hostel accommodation in Peshawar in which he lived. A few minutes after the explosion, the applicant went into the street and observed injured and dead people. Over twenty people were killed.[8] The applicant then decided to leave Pakistan.[9]
[7] CB30-31, [15]
[8] CB31, [18]-[21]
[9] CB31, [22]
The applicant fears he will be harmed and his life taken by the Taliban if he returns to Pakistan because it is not safe for Shi’a Pashtuns in Pakistan, particularly those who are educated intellectuals.[10] He cannot work in his profession after completing his Masters in Marketing because, being a Pashtun Shi’a, it is too dangerous for him to travel around Pakistan.[11] The applicant cannot relocate within Pakistan because there is no other area in Pakistan where he can be safe.[12]
[10] CB32, [25]. At CB29 [8], the applicant said he undertook a Masters in Business Administration.
[11] CB32, [26]
[12] CB32, [27]
In a submission to the delegate, the applicant, through his advisers, submitted that his claim of well-founded fear was based on his being a Shi’a Muslim, his being a member of two particular social groups, namely, Shi’a Muslims who are well-educated university graduates and Shi’a Muslims from the Turi tribe, and on anti-Taliban and anti-Sunni extremist political opinions being imputed to him.[13] The submission quoted Tribunal country advice on the existence of “reports of Shi’ite Pashtuns being specifically targeted in regions where large numbers of Turi and Bangash internally displaced persons . . . have relocated”.[14]
[13] CB115
[14] CB118
Tribunal’s reasons
The Tribunal accepted the applicant was a credible witness.[15] The Tribunal therefore accepted the applicant’s claims that his uncle had been killed in 2007, that in March 2011 the Taliban had fired on the vehicle in which he travelled and in which his brother was injured, that he participated in some protests, and that a bomb exploded near the dormitory where the applicant lived killing and injuring people.[16] On the basis of these findings, and country information that indicates that the conflict taking place in the Kurram agency continues with loss of life through targeted attacks on the only road into the area, the Tribunal found there is a real chance the applicant will suffer serious harm for the essential and significant reason of his religion and adverse opinions that would be 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 and, more broadly, the Kurram agency.[17]
[15] CB299, [77]
[16] CB299, [78]
[17] CB299, [79]
The Tribunal then considered 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”.[18] The Tribunal:
a)noted it did not have specific information about Pashtun Shi’as living in Karachi, and in particular, about whether they have been the victims of harm, although country information indicates that almost one third of the population in Karachi is Shi’a;[19]
b)found that, although there had been attacks on Shi’as in Karachi on religious processions, and isolated reports about Shi’a professionals being killed there, and of a bus carrying Shi’as being attacked, having regard to the size of the Shi’a population in Karachi, the risks of the applicant suffering harm would be remote, even accepting that the applicant would want to practise his religion in Karachi, including attending religious processions;[20]
c)found that, although the Tribunal accepted the applicant had participated in demonstrations, and that others who had participated in those demonstrations had suffered harm, the applicant did not have a profile that would lead the Taliban pursuing him anywhere he might live in Pakistan, including Karachi;[21] and
d)found that the applicant is a well-educated and skilled individual who should be able to find employment in Karachi and settle there.[22]
[18] CB299, [80]
[19] CB299, [81]
[20] CB299-300, [82]
[21] CB300, [83]
[22] CB300, [84]
The Tribunal concluded that in “all of the circumstances” the “applicant can reasonably be expected to relocate to Karachi where there is no appreciable risk of the occurrence of the feared persecution”.[23] The Tribunal said that in “reaching that finding, the Tribunal considered the oral and written submissions of the representative (made to the Tribunal and the department) along with comments made by the applicant at the hearing when the issue of relocation was discussed with him and his fears about what he feared would happen to him if he returned to Pakistan”.[24]
[23] CB300, [85]
[24] CB300, [85]
The Tribunal then set out a number of submissions made by the applicant, including the following:
a)The applicant will suffer harm in Pakistan because he is easily identifiable as a Pashtun Shi’a of the Turi tribe from Parachinar, a tribe which is opposed to the Taliban, and, for that reason, is at greater risk from the Taliban than an ordinary Shi’a.[25]
b)The applicant was an educated person who had attended protests against the Taliban and attended an institution to which the Taliban is opposed.[26]
c)The Taliban and other extremist groups have a presence in Karachi and operate with impunity there.[27]
d)The applicant would practise his religion if he were to live in Karachi and, if he were to work as a marketing professional, he would interact with the public and his tribal origin and religion would be apparent to the public.[28]
e)There were targeted killings in Karachi.[29]
f)The applicant did not have social or family support outside his native area.[30]
g)The presence of anti-Shi’a propaganda on the internet made him feel nervous and mentally tortured.[31]
[25] CB300, [86]
[26] CB300, [87]
[27] CB300-301, [89]
[28] CB301, [91]
[29] CB301, [92]
[30] CB303, [115]
[31] CB304, [118]
In relation to these submissions, the Tribunal:
a)found that the risk of the applicant suffering harm in Karachi is remote and that, therefore, the applicant faces no real risk of suffering significant harm there;[32]
b)the applicant is well-placed to seek employment in Karachi even though the applicant does not have family support and does not belong to any social network in Karachi;[33] and
c)although the Tribunal acknowledged that “the applicant might be apprehensive about taking up residence in Karachi as well as the information put forward about violence there”, the Tribunal “is not satisfied that this would make it not reasonable to expect him to live there”.[34]
[32] CB305, [125], this being a general summary of the findings made at [93]-[111]
[33] CB304, [116]
[34] CB304, [119]
Grounds 1 and 1A – failure to apply “relocation principle”
The applicant claims the Tribunal did not apply the second limb of the “relocation principle”. The applicant relies on three overlapping grounds.
The first is that, on a plain reading of paragraphs 80-122 of its reasons for decision, the Tribunal was concerned only with whether the risk to the applicant of persecution in Karachi was remote, and whether the applicant could obtain employment in Karachi;[35] and the Tribunal did not in terms state that when considering whether or not it was reasonable for the applicant to relocate to Karachi involved consideration of the practical realities of the applicant in his particular circumstances.[36]
[35] Applicant’s written submissions, [38]
[36] Applicant’s written submissions, [39]
The second ground on which the applicant relies for claiming the Tribunal did not apply the second limb of the “relocation principle” is that the Tribunal made findings which are relevant to the practical realities facing the applicant in Karachi and, therefore, the reasonableness of the applicant relocating to Karachi, but the Tribunal failed to take into account these findings when considering whether it was reasonable, in the sense of practicable, for the applicant to relocate to Karachi.[37] The findings the applicant submits the Tribunal made, but did not take into account, were as follows: there have been attacks on Shi’a religious processions in Karachi;[38] the applicant would want to practice his religion in Karachi, including attending religious processions;[39] Karachi has witnessed a number of large scale attacks on Shi’a targets since late 2009;[40] the Taliban and extremist groups have a presence in Karachi and are said to operate there with impunity;[41] there was a newspaper article dated March 2012 that Shi’a neighbourhoods in Karachi were visibly barricaded and fortified;[42] the Taliban would perceive a member of the Turi tribe or a Pashtun Shi’a from Parachinar as being opposed to that group;[43] probably most Pashtuns in Karachi are Sunni and may well sympathise with the Taliban and disapprove of the attitude the applicant’s tribe took towards the Taliban;[44] the Pakistan government has been unable to prevent attacks on Shi’as that have taken place in Karachi to date;[45] certain sectors of the non-Shi’a population in Pakistan may prefer not to employ Shi’as;[46] the applicant does not have family support in Karachi, and does not belong to any social network as such;[47] and the applicant might be apprehensive about taking up residence in Karachi.[48]
[37] Applicant’s written submissions, [40]-[43]
[38] CB299, [82]
[39] CB300, [82]
[40] CB297, [66]
[41] CB301, [94]
[42] CB297, [65]
[43] CB301, [93]
[44] CB302, [104]
[45] CB303, [108]
[46] CB303, [114]
[47] CB304, [116]
[48] CB304, [119]
The third ground on which the applicant relies for claiming the Tribunal did not apply the second limb of the “relocation principle” is that the Tribunal failed to consider a number of claims the applicant advanced in support of his objections to relocation that it was not reasonable for him to relocate anywhere in Pakistan.[49] The following were the submissions the applicant contends the Tribunal failed to consider:[50] there were significant anti-Shi’a groups throughout Pakistan who engaged in notable attacks, including on the roads;[51] there was a practice of checking identity cards and for evidence of ashura scarring on travellers to see if they were Shi’a;[52] if the Tribunal were to find that relocation was reasonable, the applicant “faced risks associated with travelling on roads”;[53] relocation was not reasonable or practicable because of discrimination, barriers in finding employment relating to the applicant’s tertiary education, his lack of social or family support outside Parachinar, and his identity as a practising Shi’a;[54] there was “[g]eneralised violence in Karachi”;[55] and the applicant’s evidence that it had become impossible “for me to afford basic expenditure here” and that there was no opportunity for work, and there was corruption everywhere in Pakistan.[56]
[49] Applicant’s written submissions, [44]
[50] Applicant’s written submissions, [45]
[51] Applicant’s written submissions, [45(a)]; CB254
[52] Applicant’s written submissions, [45(a)]; CB256
[53] Applicant’s written submissions, [45(a)]; CB259
[54] Applicant’s written submissions, [45(b)]; CB254
[55] Applicant’s written submissions, [45(b)]; CB256
[56] Applicant’s written submissions, [45(c)]; CB281. The statement from which this passage is taken does not indicate whether the applicant’s inability to afford basic expenditure related to Pakistan as a whole or Islamabad or in some other part of Pakistan.
The Minister, on the other hand, submits that:
a)the Tribunal correctly understood and applied the relocation test as explained by the High Court in SZATV v Minister for Immigration and Citizenship[57] and SZFDV v Minister for Immigration and Citizenship,[58] and the Tribunal’s analysis of the applicant’s objections to relocation was comprehensive;[59]
b)the applicant’s submissions are based on an incorrect understanding of the relocation principle, namely, that there is a strict delineation between the factors that go to the first limb of the relocation test and the second limb of that test;[60]
c)the matters the Tribunal considered when determining the reasonableness of the applicant’s relocating to Karachi responded to the objections to relocation raised by the applicant and, therefore, it could not be criticised for considering those objections in assessing the risk of the applicant suffering harm in Karachi;[61]
d)the Tribunal did not ignore its own findings;[62] and
e)the Tribunal considered all of the applicant’s claims and objections to relocation,[63] and as to the applicant’s contention that the Tribunal failed to consider the claim based on danger of travelling to or from Parachinar, the applicant made no such claim to the Tribunal.[64]
[57] (2007) 233 CLR 18
[58] (2007) 233 CLR 51
[59] Minister’s written submissions, [26]
[60] Minister’s written submissions, [29]
[61] Minister’s written submissions, [29], relying on SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at 438-439 [124] (Tracey and Foster JJ).
[62] Minister’s written submissions, [33]
[63] Minister’s written submissions, [42]-[46]
[64] Minister’s written submissions, [35]-[41]
Issues
The following issues arise on these competing submissions:
a)Did the applicant make to the Tribunal the claims and objections on relocation the applicant submits that he made to the Tribunal?
b)If (a) is answered in the affirmative, did the Tribunal consider the claims and objections?
c)Did the Tribunal in any event properly apply the relocation principle to the applicant’s claims for protection?
Did the applicant make the claims he asserts he made to the Tribunal?
The claims the applicant submits he made to the Tribunal in relation to the reasonableness of relocating in Pakistan are those I have identified in paragraphs 15 and 16 of these reasons. There is no issue that the applicant made the claims I have identified in paragraph 15 of these reasons. And the Minister accepts that the applicant made all but one of the claims I have identified in paragraph 16 of these reasons.
The claim the Minister does not accept the applicant made to the Tribunal is that the applicant “faced risks associated with travelling on roads”.[65] The applicant submits that claim is to be found in the following passage from the applicant’s written submissions to the Tribunal:[66]
In the event that [the] Tribunal member is to find that such relocation is relevant, we submit that it is unreasonable to expect [the applicant] to relocate. If [the applicant’s] family were to reunite with [the applicant] in a new location or if [the applicant] was to endeavour to see his family, the risks involved in travelling the roads to and from Parachinar are significant.
[65] Applicant’s written submissions, [45(a)]
[66] Applicant’s written submissions, [45(a)]; CB259
In my opinion, this passage is not a claim to the effect that the applicant “faced risks associated with travelling on roads”. Nor is it a submission to the effect that relocating to Karachi or to any other part of Karachi would require the applicant to travel by road and thus expose him to the risks associated with such travel. The submission was limited to risks to which the applicant will be exposed if he were to travel to and from Parachinar if the applicant were to decide to visit his family in Parachinar or if he were to decide to reunite with his family at some place other than Parachinar. The submission appears to assume that if the Tribunal were to find it is reasonable for the applicant to relocate to some part of Pakistan, either the applicant would seek to visit his family in Parachinar or, if the applicant were to reunite with his family and move with his family to another part of Pakistan, he would first travel to join his family in Parachinar before he and his family would relocate to another part of Pakistan.
Did the Tribunal consider the claims the applicant made to the Tribunal?
There is no issue that the Tribunal considered each of the claims I have identified in paragraph 15 of these reasons. The applicant’s complaint about those claims is that the Tribunal failed to consider the claims conformably with the relocation principle. I consider later in these reasons whether the Tribunal did so or not. In this section of my reasons, I consider whether the Tribunal considered the claims I have identified in paragraph 16 (other than the alleged claim of risk of travel by road) and the claim I have identified in paragraph 21 of these reasons.
The first claim the applicant submits the Tribunal failed to consider is that “[t]here were significant anti-Shia groups throughout Pakistan who engaged in notable attacks, including on the roads”.[67] The applicant submits this claim was made in the following passage from the applicant’s written submissions to the Tribunal:[68]
The significant membership of Anti-Shia groups and notable attacks in various regions, including on the roads, commensurate with the prevalent use of social media by such groups to propagate their anti-Shia ideology, presents no place within Pakistan that is a safe haven for someone of [the applicant’s] identity. Hence, there continues to be a real risk for [the applicant] of being harmed if he is to relocate within Pakistan.
[67] Applicant’s written submissions, [45(a)]
[68] CB254
It is true the Tribunal did not refer specifically to this passage of the applicant’s written submissions. That is not surprising. The claim is expressed with great generality. What the Tribunal did do is consider, and make findings in relation to, the particular matters on which the applicant relied for submitting it was not reasonable for the applicant to relocate anywhere in Pakistan. I have set out most of those findings in paragraphs 9 and 12 of these reasons.
The second claim the applicant submits the Tribunal failed to consider is that there is a practice of checking identity cards and for evidence of ashura scarring on travellers to see if they are Shi’a.[69] The applicant submits this claim was made in the following passage from the applicant’s written submissions to the Tribunal:[70]
The practice of checking identity cards and checking of ashura scarring on travellers to determine if they are Shia is notable. Such practice is a cause for [the applicant’s] fear and is also a reason he feels he cannot relocate within Pakistan to avoid the harm.
[69] Applicant’s written submissions, [45(a)]
[70] CB256-7
The Tribunal did not refer to this passage. The Tribunal did refer, however, to the applicant’s submission that he was “easily identifiable as a Turi Pashtun Shi’a from Parachinar because of his accent and identity documents”,[71] and the Tribunal accepted that “the applicant’s tribal origins and his religion would be identifiable as claimed”.[72] On the basis of these passages from the Tribunal’s reasons, I am not prepared to infer that the Tribunal did not consider the claim made in the passage I have set out in the previous paragraph.
[71] CB300, [86]
[72] CB301, [93]
The third claim the applicant submits the Tribunal failed to consider is that relocation was not reasonable or practicable because of discrimination, barriers in finding employment relating to the applicant’s tertiary education, his lack of social or family support outside Parachinar, and his identity as a practising Shi’a.[73] The applicant submits this claim is made in the following passage from the applicant’s written submissions to the Tribunal:[74]
If the Member finds a viable place for [the applicant] to internally relocate where there is no appreciable risk of the occurrence of [the applicant’s] feared persecution, we submit that [the applicant’s] experience of discrimination and barriers in finding employment relating to his tertiary education, his lack of social or family support outside of Parachinar, and his identity as a practicing Shia Muslim would make relocation not reasonable, nor practicable for [the applicant].
[73] Applicant’s written submissions, [45(b)]
[74] CB254
I accept the Minister’s submissions that the Tribunal did consider the matters raised in this claim. The Tribunal addressed the applicant’s claim of discrimination because he was a Shi’a by acknowledging there were areas in Karachi where anti-Shi’a sentiment may exist;[75] and it addressed the applicant’s claim of having no family support or social network in Karachi by acknowledging these matters, but finding that they did not render unreasonable the applicant’s relocation to Karachi.[76]
[75] CB304, [116]
[76] CB304, [116]
The fourth claim the applicant submits the Tribunal failed to consider is there was “[g]eneralised violence in Karachi”.[77] The Tribunal did consider that claim.[78]
[77] Applicant’s written submissions, [45(b)]
[78] CB302, [101]-[103]
The fifth claim the applicant submits the Tribunal failed to consider is the applicant’s evidence that it had become impossible “for me to afford the basic expenditure here” and that there was no opportunity for work, and there was corruption everywhere in Pakistan.[79] It is true the Tribunal did not specifically refer to the claim that the applicant could not afford basic expenditure. Read in context, however, the substance of that claim was that the applicant could not afford basic expenditure because he could find no employment in Islamabad due to his being discriminated as a Shi’a. The Tribunal dealt with that claim. It found that the applicant’s having been denied employment on one occasion in Islamabad did not satisfy the Tribunal that the applicant would be denied employment in Karachi because of his Pashtun ethnicity, tribal background or religion;[80] and that the applicant is well-placed to seek employment in Karachi.[81] The Tribunal also considered the claim of corruption.[82]
[79] CB281
[80] CB303, [113]
[81] CB304, [116]
[82] CB303, [112]
I now turn to the claim the applicant made relating to the risks of travelling by road to and from Parachinar. The Tribunal described the applicant as claiming that he would want to travel back to his native area to see his family.[83] That does not accurately describe the applicant’s claim. The applicant’s claim was that if he decided to reunite with his family in some place other than Parachinar, or if he decided to visit his family, he would have to travel to and from Parachinar. Nevertheless, the Tribunal’s description of the applicant’s claim captured the gist of it, namely, that, if the applicant were to relocate, he might wish to travel to and from Parachinar. By considering the claim the Tribunal described the applicant made, the Tribunal considered the claim that the applicant might wish to travel to and from Parachinar.[84]
Did the Tribunal consider the applicant’s claims in the manner required by the relocation principle?
[83] CB304, [117]
[84] CB304, [117]
In SZSRQ v Minister for Immigration & Anor[85] I considered the scope of the relocation principle and the approach a decision-maker should take when determining whether the relocation principle applies in any given case. I adhere to what I there said about the relocation principle. In particular, I adhere to the opinion that there are two limbs to the relocation principle so that, when considering the relocation principle, a decision-maker must address the following two questions:
a)Having accepted that the visa applicant has a well-founded fear of being persecuted for one of the reasons specified in Article 1A(2) of the Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (Convention) if he or she returned to a particular region of the country of his or her nationality, is there a different region in that country where, objectively, there is no appreciable risk of the occurrence of the feared persecution?
b)If (a) is answered in the affirmative, is it reasonable, in the sense of practicable, to expect the visa applicant to be sent to that other region having regard to:
i)the particular circumstances of the visa applicant,
ii)the circumstances the visa applicant would reasonably be expected to face in the place of relocation, and
iii)the impact on the visa applicant of being sent to the place of relocation?
[85] [2014] FCCA 2205 at [31]-[45]
Paraphrasing what Branson J said in SYLB v Minister for Immigration and Multicultural and Indigenous Affairs,[86] to have properly considered whether the relocation principle applied to the applicant in the case before me, the Tribunal was obliged to review the personal circumstances of the applicant. It was also obliged to consider the circumstances that he could be expected to face should he return to Pakistan and relocate to Karachi. Having undertaken these two steps the Tribunal was then obliged to make a judgment about whether it would be unreasonable to expect the applicant, having regard to his personal circumstances and the circumstances that he could be expected to face in Karachi, to avail himself of the diplomatic or consular protection of Pakistan on the basis that he would relocate to Karachi.
[86] [2005] FCA 942 at [27]
The Tribunal did not undertake these tasks. As is reflected in my summary of the Tribunal’s reasons, the Tribunal approached the question of the reasonableness of the applicant relocating to Karachi by first assessing the risk of harm the applicant would face if he were to relocate to Karachi and whether he would be able to find employment there. Having satisfied itself that the risk of harm to the applicant was remote, and that he was well placed to find employment and settle there, the Tribunal concluded it was reasonable for the applicant to relocate to Karachi.
To have properly applied the relocation principle in relation to the applicant, the Tribunal ought to have addressed a question along the following lines. Given that:
a)the applicant has fled from a region in Pakistan in which the applicant has a well-founded fear of persecution because he was a Pashtun Shi’a Muslim to whom there would be imputed an anti-Taliban and an anti-Sunni extremist opinion;[87] and
b)the applicant is well educated and has undertaken voluntary forms of employment in Pakistan before,[88] and
c)there have been attacks on Shi’a religious processions in Karachi;[89] the applicant would want to practise his religion in Karachi, including attending religious processions;[90] Karachi has witnessed a number of large scale attacks on Shi’a targets since late 2009;[91] the Taliban and extremist groups have a presence in Karachi and are said to operate there with impunity;[92] there was a newspaper article dated March 2012 that Shi’a neighbourhoods in Karachi were visibly barricaded and fortified;[93] the Taliban would perceive a member of the Turi tribe or a Pashtun Shi’a from Parachinar as being opposed to that group;[94] probably most Pashtuns in Karachi are Sunni and may well sympathise with the Taliban and disapprove of the attitude the applicant’s tribe took towards the Taliban;[95] the Pakistan government has been unable to prevent attacks on Shi’as that have taken place in Karachi to date;[96] certain sectors of the non-Shi’a population in Pakistan may prefer not to employ Shi’as;[97] the applicant does not have family support in Karachi, and does not belong to any social network as such;[98] and the applicant might be apprehensive about taking up residence in Karachi;[99]
is it reasonable to expect the applicant to relocate to Karachi?
[87] CB299, [79]
[88] CB304, [116]
[89] CB299, [82]
[90] CB300, [82]
[91] CB297, [66]
[92] CB301, [94]
[93] CB297, [65]
[94] CB301, [93]
[95] CB302, [104]
[96] CB303, [108]
[97] CB303, [114]
[98] CB304, [116]
[99] CB304, [119]
Does the Tribunal’s approach simply reflect, as the Minister appears to submit it reflects, “the framework set by the particular objections raised to relocation”[100] by the applicant and, for that reason, does not manifest an incorrect application of the relocation principle? In my opinion, that question must be answered in the negative. First, the Tribunal set out its reasoning for concluding it is reasonable for the applicant to relocate to Karachi before it addressed the particular submissions the applicant made.[101] That reasoning consists of two premises – the risk of harm to the applicant if he were to relocate to Karachi is remote, and the applicant should be able to find employment in Karachi[102] – and the conclusion – the applicant can reasonably be expected to relocate to Karachi.[103] That the Tribunal set out these matters before it considered the applicant’s submissions by itself indicates that the Tribunal, not the applicant, is the author of the framework by reference to which the Tribunal considered the question of the reasonableness of the applicant’s relocating to Karachi.
[100] SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at 438-439 [124] (Tracey and Foster JJ)
[101] CB299-300, [81]-[85]
[102] CB299, [82]; CB300, [84]
[103] CB300, [85]
Secondly, as I said in SZSRQ,[104] one item of information may be relevant to both limbs of the relocation principle; but because there are two distinct questions when applying that principle, such information might be relevant in different ways.[105] Most of the information the Tribunal considered in concluding it was reasonable for the applicant to relocate to Karachi, it considered only for the purpose of determining whether there was a risk of harm to the applicant if he relocated to Karachi and whether he would be able to find employment. The relevance of that information, however, was not limited to answering those questions; the information, together with other information, was relevant to answering whether it was reasonable, in the sense of practicable, for the applicant to relocate to Karachi. There is nothing in the submissions the applicant made to the Tribunal that suggests the applicant relied on the information it provided to the Tribunal only for the purpose of persuading the Tribunal that the applicant would face a serious risk of harm in Pakistan.
[104] [2014] FCCA 2205 at [46]
[105] As I said in SZSRQ (at [46]): “The relevance or potential relevance of information that is considered by a decision maker in connection with the first issue is whether the information supports or does not support the proposition that the claimant will face persecution in another region . . . of the claimant’s country of nationality. The relevance or potential relevance of the information in relation to the second issue would be whether the information supports or does not support the proposition that it would be reasonable for the claimant to relocate in that other region.”
In my opinion, therefore, the applicant succeeds on grounds 1 and 1A.
Before I leave this part of my reasons, there is one passage of the Tribunal’s reasons that I feel I should address. And that is the manner in which the Tribunal dealt with the applicant’s submission that the presence of anti-Shi’a propaganda on the internet made him feel nervous and mentally tortured.[106] The Tribunal said that, although it could acknowledge the applicant might be apprehensive about taking up residence in Karachi, the Tribunal was “not satisfied that this would make it not reasonable to expect him to live there”.[107]
[106] CB304, [118]
[107] CB304, [119]
This passage appears to assume that the relocation principle applies unless the Tribunal is satisfied that it is “not reasonable” for a visa applicant to relocate to a particular area of the visa applicant’s country. Such assumption, if made and acted upon by the Tribunal, would be questionable. The relocation principle comes into play when a decision-maker is satisfied that a visa applicant has a well-founded fear of persecution for a Convention reason in the visa applicant’s country of nationality. When it achieves that state of satisfaction, the decision-maker is bound to conclude that the visa applicant is a refugee within the meaning of the Convention unless the decision-maker is positively satisfied that there is another part of the country in which the visa applicant will not have a well-founded fear of persecution, and it is reasonable for the visa applicant to relocate to that part of the country. Had I not concluded that grounds 1 and 1A have been made out, I would have invited submissions from the parties on whether this aspect of the Tribunal’s reasons manifested any jurisdictional error.
Grounds 2 and 4 – incorrect/irrational conclusion that applicant faced only a remote risk of harm in Karachi
The second and fourth grounds of review rely on the same facts and, following the manner in which the applicant presented his case, can be considered together.
In short, the applicant submits the Tribunal’s conclusion that the applicant faced only a remote risk of harm in Karachi either was the product of an incorrect understanding of what constitutes a “well-founded fear” of persecution,[108] or irrationality. The basis of that submission is the findings the Tribunal made which I have set out in paragraph 15 of these reasons. The applicant, in effect, submits that, had the Tribunal applied the correct test of what constitutes a well-founded fear of persecution, the only conclusion a rational decision-maker could have made having regard to those findings is that the applicant did have a well-founded fear of persecution in Karachi.
[108] As established in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
In SZSDP & Ors v Minister for Immigration & Anor[109] I considered the circumstances in which irrationality may constitute jurisdictional error. I there concluded that, when considering a claim for judicial review based on irrationality, the Court should proceed as follows:[110]
The first thing is for the Court to be conscious throughout its consideration of such a claim that in all but exceptional cases rational decision making is capable of producing a range of conclusions, including conclusions which are inconsistent or even contradictory. This means that the task of the Court is to consider whether the conclusion under review falls within the range of rational conclusions given the reasoning the decision maker employed and the evidence to which the decision maker referred. A finding of irrationality should not be made unless the Court is clearly satisfied that the conclusion claimed to be irrational or illogical cannot be considered as falling within the range of reasonably possible conclusions given the reasoning the decision maker employed on the evidence that was before him or her. To repeat what Crennan and Bell JJ said in SZMDS[[111]], the Court “should be slow, although not unwilling, to interfere in an appropriate case”.
Second, when determining the range of rational conclusions that may reasonably be available on the evidence before the decision maker, the Court may need to consider the kind of reasoning the decision maker employed. If the reasoning purports to be deductive reasoning, the range of rational conclusions available on that reasoning should be relatively limited, or at least determinable under the rules of deductive logic. If, on the other hand, the conclusion is wholly or in part based on inferences from evidence, the range of potentially rational conclusions will be larger. To determine that range the Court will need to identify the evidence on which the inference is based and any express or implicit generalisations or assumptions on the basis of which the inference is drawn.
Third, it may be necessary to consider the nature of the decision which is claimed to be irrational or [illogical]. If the conclusion is, for example, a “normative fact”, that is, an assessment of some community standard, such conclusion will fall within a wider range of possibly rational decisions than if the decision was a specific fact.
[109] [2013] FCCA 1647 at [31]-[51]
[110] At [48]-[50]
[111] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
In my opinion, the Tribunal’s findings I have set out in paragraph 15 of these reasons do not compel the conclusion that the applicant had a well-founded fear of persecution in Karachi. That is so because these were not the only findings the Tribunal made that were relevant to that question. The findings and matters on which the Tribunal particularly relied is the large population of Karachi, the fact that nearly one-third of the population of Karachi is Shi’a, and the absence of country information about Pashtun Shi’as living in Karachi, in particular, the absence of country information about whether they have been victims of harm in Karachi. [112] It was rationally open to the Tribunal to conclude on the basis of these matters that, notwithstanding the findings set out in paragraph 15 of these reasons, the applicant faced no more than a remote risk of harm in Karachi and, for that reason, he did not have a well-founded fear of being persecuted in Karachi.
[112] CB299, [81] and [82]
Given there was no irrationality in the Tribunal’s concluding that the applicant faced no more than a remote risk of harm in Karachi, it must also follow that it cannot be inferred from the Tribunal’s so concluding that it misunderstood what constitutes a “well-founded fear” of persecution.
The applicant, therefore, does not succeed on grounds 2 and 4.
Ground 3 – failure to consider material
In this ground of review, the applicant submits the Tribunal failed to consider, or at least failed to indicate that it considered in the manner discussed by the Full Federal Court in Minister for Immigration and Border Protection v MZYTS,[113] a particular item of country information on which the applicant relied. The material (Material) was identified in the following passage from the submissions of the applicant’s advisers (emphasis in original):[114]
We submit there is a real risk for [the applicant] throughout Pakistan of being harmed by extremist groups. The Refugee Review Tribunal Country Advice on Pakistan has noted that “there are reports of Shi’ite Pashtuns being specifically targeted in regions where large numbers of Turi and Bangash internally displaced persons . . . have relocated.”
[113] [2013] FCAFC 114 at [38], [39], [46], [72]
[114] CB118
I am not satisfied the Tribunal did not consider the Material, or did not consider the Material in the manner discussed in MZYTS. The Tribunal stated on a number of occasions there was no specific information about Pashtun Shi’as living in Karachi being harmed. Thus, at paragraph 81 of its reasons for decision, the Tribunal said:
As stated above the Tribunal does not have specific information about Pashtun Shi’as living in Karachi, in particular, that they have been the victims of harm and none has been provided by the applicant or the representative.
And at paragraph 94 of its reasons, the Tribunal said:
. . . while the Tribunal was presented with information about Pashtun Shi’as being attacked in Pakistan, the Tribunal has no reports of Pashtun Shi’as being harmed in Karachi.
The reference in paragraph 94 of the Tribunal’s reasons to “information about Pashtun Shi’as being attacked in Pakistan” can reasonably be read as including the Material. And the Tribunal’s statement in paragraph 81 of its reasons that no “specific information” has been provided in relation to Pashtun Shi’as living in Karachi can reasonably be read as indicting the Tribunal considered the Material and noted that it did not contain any specific information about Pashtun Shi’as living in Karachi.
I do not find that the Tribunal in fact did consider the Material. All I say is that, given what the Tribunal said in paragraphs 81 and 94 of its reasons for decision, I am not persuaded the Tribunal did not consider the Material, or did not consider the Material in the manner required by MZYTS.
The applicant, therefore, does not succeed on ground 3.
Ground 5 – misunderstanding the test for complementary protection
The applicant submits the Tribunal made a jurisdictional error because it considered the applicant’s claim under s.36(2)(aa) of the Migration Act 1958 (Cth) (Act) as involving the same test as the applicant’s claim under s.36(2)(a) of the Act. That discloses no jurisdictional error.
As submitted by the Minister, the test for assessing the reasonableness of relocation in the context of s.36(2)(aa)[115] is the same as when considering the reasonableness of relocation in the context of s.36(2)(a) of the Act.[116] It follows, however, that to the extent the Tribunal did not properly apply the relocation principle in relation to the applicant’s claim under s.36(2)(a) of the Act, it also did not properly apply s.36(2B)(a) of the Act.
[115] Under s.36(2B)(a) of the Act
[116] MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [37] and [39] (Marshall J); MSSAD v Minister for Immigration and Citizenship [2013] FCA 879 at [65] (Dodds-Streeton J)
Accordingly, ground 5 is made out, but only to the extent that I have already found that the Tribunal did not properly apply the relocation principle in relation to the applicant’s claim for protection under s.36(2)(a) of the Act.
Ground 6 – failure to consider modification of behaviour claim
The applicant submits the Tribunal failed to consider the following claim:[117]
I can not work in my profession after completing my Masters in Marketing because it is too dangerous for me to travel around Pakistan because I am a Pashtun Shia. I had many job offers but did not take these jobs because I wanted to save my life.
[117] CB32, [26]
The applicant submits that this amounted to a claim that he would modify his behaviour as a consequence of his fear of persecution or significant harm by not working in his desired profession.
The claim on which the applicant relies did not raise any claim of modification of behaviour the Tribunal was required to consider. That is so because the relocation principle, where it applies, necessarily means that the visa applicant is expected to remain in that part of his or her country in which he or she does not have a well-founded fear of persecution, and not to travel into that area of his or her country where the visa applicant has a well-founded fear of persecution. In that sense, the relocation principle, where it applies, assumes the visa applicant will modify his or her behaviour to avoid harm by remaining in the safe part of his or her country, and avoid travel to the dangerous part of the country. To characterise what is a consequence of the proper application of the relocation principle as a modification of behaviour to avoid persecution, and hence a valid claim for protection, is to entirely neutralise the operation of the relocation principle.
Having found, therefore, that the applicant did not have a well-founded fear of persecution in Karachi, and that it was reasonable to expect the applicant to relocate there, it was unnecessary for the Tribunal to consider whether the applicant would suffer persecution because he would be unable to travel outside of Karachi or in any other part of Pakistan.
That the Tribunal was not required to consider a claim of modification of behaviour, such modification consisting in the applicant’s not working throughout Pakistan because he had a well-founded fear of persecution, may be demonstrated by considering what the Tribunal would have been required to do if it were required to consider such a claim. The Tribunal would have had to revisit the very questions which it had already considered, namely whether the applicant had a well-founded fear of persecution in Pakistan and, if so, whether there was a place in Pakistan where the applicant did not have a well-founded fear of persecution and, if so, whether it was reasonable to expect the applicant to relocate to such area; and the Tribunal would have arrived at the same conclusion at which it had already arrived.
Ground 6, therefore, is not made out.
Conclusion and disposition
The Tribunal did not properly apply the relocation principle. I propose, therefore, to order that the Tribunal’s decision be quashed, and that the Tribunal hear the application for review according to law. I also propose to order that the Minister pay the applicant’s costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 30 January 2015
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