SZSUY v Minister for Immigration & Anor
[2014] FCCA 1
•31 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSUY v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious and political persecution in Iraq – applicant found to be a refugee in southern Iraq but Tribunal finding he could relocate to a majority Sunni Muslim area in central Iraq – ethnic cleansing – whether the harm of ethnic cleansing can be avoided through relocation considered. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 Januzi v Secretary of State for Home Department [2006] 2 AC 426 SZSSM v Minister for Immigration & Anor [2013] FCCA 1489 |
| Applicant: | SZSUY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 961 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 November 2013 |
| Date of Last Submission: | 17 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Bud Cham & Associates, Lawyers |
| Counsel for the Respondents: | Mr G Kennett, SC |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 5 December 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 961 of 2013
| SZSUY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 13 March 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Iraq and had made claims of persecution based upon his Sunni Muslim religion and by reason of imputed political opinion. The following statement of background facts is derived from the submissions of the parties.
On 12 April 2012, the applicant arrived in Australia[1].
[1] Court Book (CB) 47, question 28
On 13 April and on 22 and 24 April 2012, the applicant was interviewed by the Minister’s Department[2].
[2] first interview: CB 1-12; second interview: CB 13-18; third interview: CB 19-33
On 22 July 2012, the Minister decided to permit the applicant to lodge a protection visa application (application). That day, the applicant then applied for a protection (Class XA) visa[3].Relevantly, his claims were contained in a signed statement at CB 110-112.
[3] CB 34-113
On 17 August 2012 a registered migration agent, on behalf of the applicant, sent the Minister’s Department written submissions[4].
[4] CB 116-121
On 20 November 2012, a delegate of the Minister (Delegate) decided to refuse the application[5].
[5] CB 123-149
On 22 November 2012, the applicant (through his agent) applied to the Tribunal for review of the Delegate’s decision[6].
[6] CB 150-156
On 11 December 2013, the Tribunal wrote to the applicant’s agent, inviting the applicant to a hearing before it on 14 February 2013[7], which the applicant attended and at which he gave evidence.
[7] CB 175-178
On 12 February 2013, two days prior to the hearing, the applicant’s agent sent a submission to the Tribunal[8].
[8] CB 183-190
On 6 March 2013, the applicant’s agent sent a further submission to the Tribunal[9].
[9] CB 196-208
On 13 March 2013, the Tribunal made its decision to affirm the decision of the Delegate[10].
[10] CB 211-225
Applicant’s claims
The applicant made the following claims in his statutory declaration[11]:
a)he was a citizen of Iraq, was an Arab and a Sunni Muslim;
b)he feared returning to Iraq because Sunnis were targeted by certain Shiite elements (who were powerful, had political contacts and influenced the police force);
c)his father, who was a religious person who used to go to a mosque regularly, received a written threat demanding that he cease going to the mosque. He ignored the letter and, in November 2011, a group of Shiite militia subsequently shot dead his father and kicked his wife and mother. His wife was pregnant at the time and suffered a miscarriage as a result of the incident;
d)he received a letter stating that he would meet the same fate as his father. As a result of this letter, he fled.
[11] CB 110-112
In the written submission to the Minister’s Department, his agent elaborated on the claims. In particular, he:
a)stated that the applicant suffered from medical conditions in relation to his kidneys[12];
b)stated that he was vulnerable as a consequence of escalating sectarian violence between Shiites and Sunnis in Iraq[13];
c)adduced evidence as to the deterioration of the situation in Iraq following the US withdrawal[14];
d)adduced country advice produced by the Tribunal to the effect that internal flight or relocation was largely unavailable[15];
e)advanced a complementary protection claim[16].
[12] CB 116.7
[13] CB 116.9; 118.8+
[14] CB 117
[15] CB 118.4
[16] CB 120.5-121
In the written submission sent to the Tribunal shortly prior to the hearing, the applicant’s agent elaborated further on the claims.
Finally, the submission sent after the hearing[17] made several additional points and attached country information.
[17] CB 196-208
The Tribunal’s decision
The Tribunal found the applicant to be credible in respect of his accounts of incidents that he had directly experienced, although it had difficulty with what it described as “sweeping assertions”[18].
The Tribunal accepted that the applicant had a well-founded fear of persecution
[18] CB 221, [73]
The Tribunal accepted the applicant’s account concerning his father’s murder and the threats against the applicant himself. The account was credible and consistent with country information[19]. It accepted that there were now very few Sunnis living in his home area and that the neighbourhood was overwhelmingly Shia[20], and that his father’s mosque attendances led to him being killed for being Sunni and for incorrectly being imputed with a pro-Saddam Hussein regime political opinion[21].
[19] CB 221, [78]
[20] CB 221, [79]
[21] CB 222, [80]-[82]
It therefore accepted that the applicant faced a real chance of serious harm amounting to persecution for a Convention reason should he return to his home in the reasonably foreseeable future[22].
Internal relocation
[22] CB 222, [82], first sentence
The Tribunal, however, did not accept that those targeting the applicant’s family in his home area would seek to identify and target him elsewhere in Iraq[23] and it then considered the question of internal relocation.
[23] CB 222, [82]
In this regard, the Tribunal stated that there were other areas of Iraq which were Sunni dominated, where he would not attract the particular attention that he had attracted in the past[24]. It concluded:
The Tribunal is satisfied that if the applicant, a Sunni, were to relocate to a majority Sunni area in a Sunni province (such as Salah al-Din), any risk of being targeted by Shias as a Sunni would not rise to the level of a real chance.
[24] CB 222, [85]
The Tribunal did not accept submissions made by the applicant to the effect that he required the consent of authorities to leave his home area, which would lead to him being killed[25]. In this regard, it concluded that[26]:
The Tribunal is not satisfied that the applicant would be unable to fulfil any formal requirements including registration for relocation and does not accept that should he seek to address these formalities he would for that reason be further targeted and killed by local authorities and/or militias.
[25] CB 223, [89]
[26] CB 223, [90]
The Tribunal also rejected the applicant’s claims pertaining to community ties[27] and concluded that it was satisfied that the applicant[28]:
can relocate elsewhere in Iraq thereby avoiding a real chance of persecution for a Convention reason or reasons in the reasonably foreseeable future.
[27] CB 223, [91]
[28] CB 223, [92]
Complementary protection
The Tribunal acknowledged that there was “an unacceptable level of general violence in Iraq, as well as a degree of economic hardship”, but it rejected the claim on the basis that it was satisfied that “the real risk is one faced by the population of the country generally and therefore caught by [section 36(2B)]”.
The judicial review application
These proceedings began with a show cause application filed on 6 May 2013. The applicant at the trial relied upon an amended application filed on 3 July 2013.
During the trial of this matter on 18 November 2013 it became apparent that further amendment of the application might be required in order to properly raise an additional issue which was raised by me during argument. That issue is whether the Tribunal erred in failing to consider whether the act of relocation was a modification to the behaviour of the applicant that he should not be required to make, because it was the objective of his persecutors. I gave leave for the applicant to file and serve a further amended application dealing with that issue and submissions in support of it. These were filed on 5 December 2013. The further amended application raises the following grounds:
1. The decision of the Second Respondent (Tribunal) is vitiated by jurisdictional error in that the Tribunal failed to ask itself the correct question or apply the right test.
Particulars
(a) In considering the issue of relocation, the Tribunal was obliged to consider whether it was reasonable, in the sense of practicable, for the Applicant to relocate to a region where, objectively, there was no appreciable risk of the occurrence of the feared persecution;
(b) In considering the question referred to in (a), the Tribunal was obliged to consider:
(i) the particular circumstances of the Applicant and the impact upon him of relocation of his place of residence within his country of nationality;
(ii) how, in a practical sense, the Applicant could be expected to relocate within his country of nationality having regard to the practical realities facing the individual Applicant (including psychological aspects facing the Applicant);
(c) The Tribunal, however, did not identify the correct law or ask itself the correct questions as set out in (a) and (b) above, but asked itself different questions (namely whether the Applicant could avoid the feared persecution by relocating and whether, were he to relocate to a majority Sunni area in a Sunni province, such as Salah al-Din, his risk rose to the level of a real chance).
(d) Further and in the alternative, in considering the reasonableness of relocation, the Tribunal was obliged to consider, but failed to consider, the particular circumstances of the Applicant. These circumstances included the Applicant’s claimed medical conditions in relating to his kidneys (See CB116.7) and whether, in the area in which the Tribunal was proposing the Applicant could relocate, the Applicant could obtain treatment for his medical condition;
(e) Further and in the alternative, in considering the reasonableness of relocation, the Tribunal was obliged to consider, but failed to consider, the matters identified in UNHCR information supplied by the Applicant to the Tribunal going to internal relocation (CB118.5), including:
(i) The highly unstable and secure nature of many areas of Iraq;
(ii) That travel within Iraq was fraught with risks;
(iii) That there were difficulties in accessing basic services and in ensuring basic economic survival in a situation of displacement;
(iv) That in the opinion of the UNHCR, internal flight or relocation would largely be unavailable;
(f) Further and in the alternative, the Tribunal failed to consider the risk of generalised violence and/or the risk of being targeted by Shias as a Sunni in the context of assessing the reasonableness of relocation (instead, not considering the risk of generalised violence at all and erroneously assuming that the risk of being targeted by Shias as a Sunni needed to amount to the level of a real chance to be relevant to relocation, thereby conflating the real chance test with the relocation test).
2. The decision of the Tribunal is vitiated by jurisdictional error in that, in considering the Applicant’s claims pursuant to section 36(2)(aa) (Complementary Protection Provision) of the Migration Act 1958 (Cth) (Act), it misconstrued or failed to deal with the Applicant’s claims in that regard and, in so doing, it asked itself the wrong question and misapplied section 36(2B)(c) of the Act.
Particulars
(a) In relation to the Complementary Protection Provision, the Applicant claimed (or the material before the Tribunal or its own findings otherwise squarely raised the claim), inter alia, that the Minister has substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Iraq, there was a real risk that the Applicant would suffer significant harm at the hands of Shiite militia or extreme Shia elements (Claim);
(a1) To deal with the Claim, section 36(2)(aa) of the Act required the Tribunal to ask itself whether it had substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Iraq, there was a real risk that the Applicant would suffer significant harm at the hands of the Shiite militia or extreme Shia elements. The Tribunal appeared to accept that this requirement was met (CB223 at [93]) and, further, that the Claim satisfied this test;
(a2) In the premises, the Tribunal was obliged to find that the Applicant met the relevant criterion under posed section 36(2)(aa) unless it was satisfied that one of the circumstances in, relevantly, section 36(2B) applied;
(b) The Tribunal did not ask itself whether the requirements of section 36(2B)(a) or (b) of the Act were met. Further, in respect of section 36(2B)(c) of the Act, it restricted its consideration to whether the risk of ‘general violence in Iraq’ and the ‘degree of economic hardship’ engaged section 36(2B)(c) of the Act, without considering and making findings as to whether the risk of significant harm comprising the Claim met the requirements of section 36(2B)(c). Accordingly, it misconstrued, or otherwise failed to deal with, the Claim;
(c) Further and in the alternative, the Tribunal misapplied section 36(2B)(c) of the Act. The Claim was that Sunnis in majority Shiite areas were at risk at the hands of Shiite militia or extreme Shia elements. It would follow that such a risk was not a risk that was capable of being faced by the population of the country generally and, further and in the alternative, such a finding reveals a misconstruction of the Claim.
3. The decision of the Tribunal is vitiated by jurisdictional error in that:
(a) The Tribunal failed to consider a claim or component integer thereof that the Applicant had a continuing well founded fear of persecution for a Convention reason by virtue of having been forced to vacate his family home;
(b) Further and in the alternative, the Tribunal misconstrued or failed to apply the law in relation to the meaning of ‘persecution’ by limiting its consideration of persecution to threatened physical harm or in failing to consider whether the Applicant would suffer from continuing persecution by virtue of having been forced to vacate his family home;
(c) Further and in the alternative, the Tribunal misconstrued or failed to apply to law by assuming that the Applicant could or should be expected to accept the permanent deprivation of the use, enjoyment or quiet possession of his family home and live his life differently elsewhere.
I also gave the parties the opportunity to make post hearing submissions on the existing grounds of review.
I have before me as evidence the book of relevant documents filed on 4 June 2013.
Consideration
The applicant’s claim to protection, which the Tribunal broadly accepted, was that he was a Sunni Muslim whose home was in Basra, where the majority of the population is Shiite, and that he faced a real chance of serious harm at the hands of Shiite militias by reason of his religion and imputed political opinion, if he were to return to Basra. The Tribunal found, while accepting that claim, that the prospect of such harm would not reach the level of a “real chance” if the applicant were to relocate to a predominantly Sunni area of Iraq. That raised the question of whether the applicant was prevented from meeting the definition of a refugee under the Refugees Convention, by reason of the internal relocation principle.
The Tribunal responded to three points raised by the applicant as to why such relocation was not practicable. The Tribunal rejected each of these points, finding that they were not made out on the facts:
a)an argument that permission to relocate would be denied by the authorities in Basra, and that the authorities would pass the information to militias who would kill him[29];
b)a suggestion that clearance would be needed from the authorities in any place to which the applicant sought to relocate[30]; and
c)the applicant’s “community ties” in Basra (which was given little weight because of his evidence that hardly any Sunnis remained there)[31].
[29] CB 222-223 [86]-[88]
[30] CB 223 [89]-[90]
[31] CB 223 [91]
The Tribunal’s conclusion, having examined these arguments, was[32]:
Having regard both to the chance of further targeted persecution for the reasons advanced in Sunni areas of Iraq, and to the practical issues raised in relation to relocation, the Tribunal is satisfied that the applicant can relocate elsewhere in Iraq thereby avoiding a real chance of persecution for a Convention reason or reasons in the reasonably foreseeable future.
[32] CB 223 [92]
The Tribunal next considered whether the material before it might provide substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Iraq, the applicant would suffer significant harm[33]. This was clearly a reference to the complementary protection visa criterion in s.36(2)(aa) of the Migration Act.
[33] CB 223-224 [93]
As to that issue the Tribunal said[34]:
The Tribunal acknowledges that there is an unacceptable level of general violence in Iraq, as well as a degree of economic hardship. However, the Tribunal is satisfied that the real risk is one faced by the population of the country generally and therefore caught by the exception set out in paragraph 18 above.
[34] CB 224 [94]
The exception referred to was that provided by s.36(2B)(c), which applies where the risk of harm is one faced by the population of the country as a whole and not by the applicant personally.
I dealt with somewhat similar issues recently in SZSSM v Minister for Immigration & Anor[35] where I considered that the Tribunal had failed to deal properly with the practical issues of relocation, having regard to its findings on the risk of generalised violence. Each case must, of course, depend upon its own facts and in this case, the reasons of the Tribunal provide a basis for distinguishing this case from SZSSM.
[35] [2013] FCCA 1489
The applicant advances four arguments as to why it should be held that the Tribunal failed to apply the correct test in relation to internal relocation. It is convenient to deal with those arguments in the order in which they are put.
First, it was plainly appropriate for the Tribunal to consider whether the risk faced by the applicant in Sunni areas of Iraq would constitute a “real chance” of persecution for the purpose of making a finding as to whether there were areas in the country where the applicant would not face a chance of persecution of that kind. The issue is as to whether the Tribunal erred by excluding a risk of violence, faced in other parts of Iraq, in considering the subsequent issue of whether relocation was “reasonable in the sense of practicable”[36].
[36] To use the language of SZATVv Minister for Immigration (2007) 233 CLR 18, 26-27 [23]-[24]
The applicant’s statement that he “would not be safe anywhere in Iraq”[37], read in context, was an assertion that relocation would not make him safe from the form of persecution that he feared rather than an assertion that some other risk of harm awaited him in any place of internal refuge. The Tribunal rejected that claim when it made its finding that the risk of the applicant being targeted by Shias in other parts of Iraq would not constitute a “real chance”[38]. The applicant relies upon MZYQU v Minister for Immigration[39] but that case does not stand for the proposition that, having made a finding of that kind, the Tribunal must nevertheless weigh any residual risk of such harm (less than a “real chance”) in the balance in considering whether relocation is “reasonable”. Such an expectation would be incongruous. MZYQU differed from the present case in that the reviewer expressly adverted to distinct problems likely to be faced by the applicant in Kabul (a level of “discrimination and suspicion”)[40] before discounting those matters on the basis that they were not “serious harm” in the statutory sense. The Reviewer’s error lay not in putting aside a minimal risk of persecutory harm following the applicant to the place of relocation (as the present Tribunal is said to have done) but in discounting likely harm on the ground that it was not “serious”.
[37] CB 12
[38] CB 222 [85]
[39] (2012) 206 FCR 191
[40] 206 FCR 191 at [32]
It may be noted that, in another part of its reasoning dealing with complementary protection, the Tribunal acknowledged the existence of “an unacceptable level of general violence in Iraq” but concluded that that risk of violence was faced by the population of the country generally[41]. A risk of that kind, prevalent throughout the country, has been held not to bear on the reasonableness of relocating from one part of a country to another[42]. In my view, whether the Tribunal erred by not addressing that factor in its analysis of relocation is likely to depend upon the circumstances. In the present case, the risk of violence, while generalized, was directed against minority groups, with Sunnis being the target in some areas and Shiites in other areas. At [85] of its reasons the Tribunal said[43]:
Basrah province is of course a particularly significant Shia-majority province, and the Tribunal has accepted that the applicant’s home was in a Shia neighbourhood with a small and dwindling Sunni community. There are however (as put to the applicant at hearing) large areas of Iraq including big cities which are Sunni-dominated and where the applicant would not be a Sunni in a Shia-majority area and therefore attracting the particular attention he has experienced in the past. The Tribunal is satisfied that if the applicant, a Sunni, were to relocate to a majority Sunni area in a Sunni province (such as Salah al-Din), any risk of being targeted by Shias as a Sunni would not rise to the level of a real chance.
[41] CB 224 [94]
[42] See Januzi v Secretary of State for Home Department [2006] 2 AC 426, 445-448 [13]-[20] per Lord Bingham of Cornhill (Lord Nicholls of Birkenhead agreeing), 457-458 [45]-[49] per Lord Hope of Craighead (Lord Carswell and Mance each agreed with both Lord Bingham and Lord Hope). The approach of their Lordships was endorsed in SZATV at 25-26 [19], 27 [25]
[43] CB 222
It was, in my view, implicit in the Tribunal’s reasoning that the generalised violence was the composite of the targeted violence against religious minorities in different parts of the country and that the applicant could therefore find safety in a Sunni dominated area.
Secondly, the personal circumstances of an applicant are relevant to the “reasonableness” of relocation only to the extent that they affect its “practicability”; and that concept is focussed upon the availability of internal relocation as a means of escaping “persecution in the defined sense”, rather than upon “living conditions in a broader sense”[44]. Consideration of reasonableness therefore does not necessarily require the Tribunal to work through a list of the applicant’s personal characteristics and family situation in every case. In any event, the failure to mention such matters in the statement of reasons does not establish that they were not considered; merely that they were not regarded as having any weight.
[44] SZATV, 27 [25]
Thirdly, there is no onus on the Tribunal to identify a place within the review applicant’s home country and establish that relocation to that place would be practicable. Rather, it is the task of the applicant to satisfy the decision-maker that he or she meets all aspects of the definition of a refugee; and one such aspect is the futility or unreasonableness (ie impracticability) of internal relocation. Hence, the Full Federal Court held in SZMCD v Minister for Immigration[45] that the answer to the question whether relocation is practicable “depends upon the framework set by the particular objections raised to relocation”.
[45] (2009) 174 FCR 415, 439 [124] per Tracey and Foster JJ (Moore J agreeing at 417 [1])
Accordingly, having raised the issue of relocation squarely with the applicant[46], and provided an opportunity for further submissions[47], it was open to the Tribunal to limit its consideration of reasonableness to the objections that were raised by the applicant. The adviser’s post-hearing submission[48] did not add to the issues raised by the applicant himself during the hearing, and the Tribunal dealt with those issues in its reasons.
[46] See CB 219 [59]
[47] CB 219 [60], [62]
[48] CB 196
Further, the Tribunal’s reasons demonstrate an understanding that the issue of relocation did not end with the finding that areas existed in Iraq in which the applicant would not face a real chance of persecution. It addressed the arguments advanced as to why relocation to such an area would not be reasonable, in the sense of practicable. The finding at [92][49], which the applicant criticises, was expressed in terms which included the issue of practicability and which acknowledged the relevance of two distinct questions (“the applicant can relocate … thereby avoiding a real chance of persecution”). That finding was also expressed to have been made having regard to, among other things, “the practical issues raised in relation to relocation”.
[49] CB 223
The Tribunal was not under any obligation to include in its reasons a discussion of the applicable law on relocation. It performed its statutory duty by making a decision which accorded with that body of law.
Finally, the applicant refers to two pieces of country information which it is said the Tribunal did not consider, and accuses the Tribunal of a lack of consciousness or consideration of the submissions and evidence before it.
The first of those pieces of information was a view expressed by the UNHCR that relocation was not generally “available” because of instability and insecurity[50]. This was quoted in the course of a general submission in support of the applicant’s claims rather than as part of any specific discussion of relocation: the applicant’s claim, at that stage, addressed relocation by asserting “I cannot relocate to other areas of Iraq because of my community ties in that area and I would not be safe anywhere in Iraq”[51]. The Tribunal dealt with that claim, and the UNHCR view to the extent that it was relevant to it, in the findings that it made.
[50] CB 118
[51] CB 112
The second piece of information was a passage from the Tribunal’s own decision in another case, including a conclusion that “relocation is not generally an option”[52]. The reasons for that view were not elaborated in the passage quoted, and, while elaboration might have been useful, no jurisdictional error lay in declining to give it weight or address it specifically. The passage was quoted in the context of a submission on relocation, to the effect that many areas of Iraq were unsafe. To the extent that it was being submitted that relocation would be ineffective in avoiding persecution, the Tribunal rejected that view and no complaint is made about that finding. To the extent that it was being submitted that Iraq was generally an unsafe place, it was open to the Tribunal to form a different view having regard to the circumstances of the applicant.
[52] CB 188.8
At most, the Tribunal can be said not to have grappled overtly with certain items of evidence presented to it. That is a long way from the failure to address the central issue presented by its statutory task, which was identified as having occurred in Minister for Immigration v MZYTS[53]. To fail to refer to, or even to overlook, evidence is not in itself jurisdictional error[54].
[53] [2013] FCAFC 114 at [38], [50]
[54] Eg Minister for Immigration v SZNPG (2010) 115 ALD 303 at [28] per North and Lander JJ;
On a fair reading of its reasons, the Tribunal did not fail to address the question whether relocation within Iraq was reasonable, in the relevant sense, for the applicant.
The second ground of review
The second ground takes issue with the Tribunal’s finding on “complementary protection”. The applicant contends that, in dealing with this aspect of the case, the Tribunal lost sight of the fact that his claimed ‘fear’ was a fear of being subjected to violence at the hands of Shiite militias and Shia-dominated security forces.
The short answer to this argument is that, while the Tribunal accepted that the applicant had such a fear and that it was well-founded, the Tribunal had also found that he did not face a real chance of suffering that sectarian violence in Sunni dominated parts of Iraq and that it was practicable for him to relocate. The Tribunal’s satisfaction in that regard made it inevitable that the prospect of sectarian violence, emphasised in the applicant’s claims, would not give rise to a “real risk” of “significant harm” in the relevant sense because of s.36(2B)(a) of the Migration Act. There is no error in failing expressly to cite that provision. It is plain that the Tribunal had the state of satisfaction referred to in the provision[55], and was thus precluded from holding that there was a real risk of significant harm arising from the feared sectarian violence.
[55] This is so at least if, as the Full Court held in SZQRB v Minister for Immigration and Citizenship (2013) 210 FCR 505 at [246], the concepts of “real chance” and “real risk” are in substance the same
It therefore remained necessary for the Tribunal to consider only such other potential risks of harm as appeared to arise from the material before it. That is what it did at [94][56]:
The Tribunal acknowledges that there is an unacceptable level of general violence in Iraq, as well as a degree of economic hardship. However, the Tribunal is satisfied that the real risk is one faced by the population of the country generally and therefore caught by the exception set out in paragraph 18 above.
[56] CB 224
It is apparent that the Tribunal placed weight on s.36(2B)(c) rather than on s.36(2B)(a). Counsel for the applicant contended at the trial of this matter that it would be an error to attribute to the Tribunal a finding in relation to s.36(2B)(a) that it did not express. However, I accept the submissions put by counsel for the Minister that the Tribunal’s reasoning that the risk of harm at the hands of Shiites faced by the applicant could be reduced to something less than a real chance by relocation made express reference to s.36(2B)(a) unnecessary (while it would have been desirable). I accept from the Tribunal’s reference to s.36(2B)(a) earlier in its reasons[57] that the Tribunal understood the task that it had to perform. Its reasoning in relation to the relocation issue in respect of complementary protection was brief but I am not willing to draw an inference that, having addressed properly the fear of harm faced by the applicant at the hands of Shiites in relation to the applicant’s Refugees Convention claims, the Tribunal left that fear of harm out of consideration in dealing with complementary protection.
[57] CB 215 at [18]
The additional ground
In SZALM v Minister for Immigration & Anor[58], the applicant claimed that he faced persecution in Zimbabwe because “war veterans” forced his family to leave their farm (as they were “non-African landowners”). The Tribunal held that the applicant would not be of interest to his persecutors if they were to return to Zimbabwe and live in Harare. I held that the Tribunal fell into jurisdictional error because it was an element or integer of the claim that they had suffered harm through the dispossession of their family farm, whereas the finding on relocation only went to the claim of physical harm. As I stated at [8]:
…the RRT fell into error in this case in failing to consider whether the applicants had been and would continue to be persecuted by the loss of their farm.
[58] [2004] FMCA 262
Further, at [18]-[19], I stated:
In that regard, the applicants were at no greater risk of harm as dispossessed farm owners than they were as MDC supporters. Indeed, the act of dispossession probably effectively removed the risk of physical harm by reason of membership of the particular social group of non African farm owners, and if there was any residual risk it was effectively dealt with by the presiding member by reference to the applicants’ relocation. However, there was no consideration by the presiding member of whether the applicants had been persecuted by being forced off their family farm and whether that persecution by dispossession was continuing. This was, in my view, a failure to take into account a relevant consideration, because it was an element or integer of the applicants’ claims. To that extent, I reject Mr Lloyd’s submission that the RRT dealt adequately with the applicants’ claims insofar as they were based upon their membership of the particular social group of non-African land owners. The presiding member dealt only with the risk of physical harm, not the issue of dispossession. (emphasis added)
I also reject Mr Lloyd’s oral submission that the applicants, by relocating to Harare, had given up their membership of the particular social group of non-indigenous land owners. In the first place, based on the applicants’ account, their move was not voluntarily. They were driven off their farm by “war veterans” under threat of death or physical injury. Secondly, where a claim of persecution is based upon asserted dispossession of land, it is erroneous to treat the applicants as having withdrawn from the particular social group upon that dispossession. That approach is erroneous as it assumes that it is reasonable to expect the applicants to accept their dispossession and live their lives differently: S 395/2002 v Minister for Immigration [2003] HCA 71.
Similarly, in S2012 of 2003 v Minister for Immigration [2008] FMCA 954, the applicant, an Indian Fijian, claimed that he had been a victim of a series of crimes perpetrated by indigenous Fijians. He also feared that the lease on his property would not be renewed. The Tribunal accepted that the indigenous Fijians wanted to take over the applicant’s land before the expiry of his lease and, because his family lived in a rural area, they were vulnerable and easy victims. The Tribunal further held that the indigenous Fijians had achieved their aim and the Tribunal was not satisfied that those persons would have any continuing interest in the applicant. I held that there was jurisdictional error, amongst other reasons, because there was a failure to consider whether the applicant had been and would be continued to be persecuted by virtue of their dispossession. In particular, the I stated[59]:
In the present case, the Tribunal accepted that the applicants had been driven from their leased land by indigenous Fijians because of their race. The Tribunal did not dispute material before the first Tribunal that Fiji’s land holding laws were biased against Indian Fijians and that there was no fundamental right to own property. The Tribunal suggested, and the applicants accepted, that their alleged persecutors had achieved their objective by driving them from their land. The applicants had been able to relocate elsewhere in Fiji and to obtain other employment over a reasonably short period before leaving Fiji. However, the applicants disputed that they would be able to obtain employment should they return to Fiji now. The applicants asserted, and the Tribunal accepted, that they could not and would not return to Tavua because there was nothing there for them. Their land had been lost and they could not get it back. In my view, the Tribunal fell into error by proceeding on the assumption that the applicants must accept the victory of their persecutors and live their lives differently elsewhere in Fiji. The fact that the applicants were resigned to this course, and had indeed relocated and changed employment, did not mean that the permanent deprivation of land as a means of earning a livelihood was not a continuing act of persecution which the applicants could be expected to accept. As I said in SZALM at [19] it is erroneous to assume that it is reasonable to expect applicants to accept their dispossession and live their lives differently: S395/2002 v Minister for Immigration [2003] HCA 71. The applicant had not made a positive choice not to return to Tavua. That choice had been made for them by indigenous Fijians who drove them from their farm there, which provided both a home and a livelihood. (emphasis added)
[59] at [23]
In the present case, the applicant asserted that he had clearly articulated a claim that he (and his family) were forced to vacate the family home (or that there was otherwise an issue squarely raised on the material before the Tribunal). There are references to threats being received at the family home and the applicant leaving his home as a resulted of the threats in his accounts[60]. However, it is clearest in his agent’s submission[61], who devotes half a page to making this submission with reference to UNHCR evidence. At the top of CB 185, after referring to country information, he submits that:
[60] CB 28.3, CB 111[14]-[18]; CB 116.8
[61] at CB 185
... [T]he Sunnis in Al Zubair are being forced out by the Shia majority.
He then cites an UNHCR reports that states, inter alia, that Sunnis in Shiite dominated areas were:
subjected to threatening letters demanding that they vacated their homes. In cases where individuals do not comply there are reports of violence or harassment, including killings.
He then submits that:
[The applicant] says many Sunnis have been driven from the area where he lived.
He then discusses the lack of state protection and submits that the government favours the Shia majority and says:
[The applicant] says his wife and children are now living with his wife’s family still in Al Zubair but at a location about 35 minutes away from his family home. They still live in fear and humiliation at the treatment they suffer at the hands of the Shia groups.
The Tribunal accepted that the applicant’s family was targeted by Shiites “to drive them out of the Shia neighbourhood”[62]: However the Tribunal concluded[63]:
... the Tribunal is not satisfied that it follows that those targeting the applicant’s family to force them out of Al Zubair would (having succeeded in doing so) seek to identify and target them elsewhere in Iraq.
[62] see CB 222, [80]-[81])
[63] at [82]
The applicant contends that the error in this reasoning is twofold (having regard to SZALM and S2012):
a)First, despite it being a central component or integer of the applicant’s claim that the Shiites in Al Zubair forced the applicant and his family from their family home, the Tribunal only addressed the claims made by the applicant concerning the fear of physical harm to the applicant – the nub of its reasoning was that he would not be physically hurt if he lived elsewhere. It did not consider whether the applicant had been persecuted by being forced to vacate his family home and whether that form of persecution was continuing. The Tribunal thus engaged in the same manner of error as that identified in [8] and [18] in SZALM. The error could alternatively be characterised as a failure to correctly construe “persecution” by limiting consideration in that regard to feared physical harm only;
b)Secondly, the Tribunal expressly proceeded on the assumption that the applicant must accept the victory of his persecutors by simply accepting the permanently deprivation of the use, enjoyment or quiet possession of his family home, and live his life differently elsewhere. As per SZALM at [19] and S2012 at [23], citing S395, this is said to be erroneous reasoning.
The Minister responds to these contentions in two ways.
As to the first argument, the Minister contends that the material before the Court does not suggest that the applicant at any stage identified being forced out of his home as a form of harm that he feared. In his visa application he said that he feared serious physical harm from Shi’ite militias, which he could not avoid by relocating[64]. His adviser referred to intimidation, property damage, threats and assassinations as events that might befall the applicant[65], and summed up his claims by saying that he was at serious risk of being arrested, detained, tortured, “risk of serious violence, physical harassment and possible death”[66]. Submissions to the Tribunal[67] expanded on the justification for that fear, ending by emphasising that the applicant’s relatives had been killed and injured and he had been “targeted and threatened”[68]. The applicant’s evidence before the Tribunal was to similar effect[69].
[64] CB 111-112 [21]-[25]
[65] CB 117
[66] CB 120
[67] CB 184-190, 196-199
[68] CB 199
[69] CB 218-219 especially at [48], [54], [56]
The Minister concedes that forcing the applicant and other Sunnis to leave the area was identified as a motivation of his persecutors[70] (a point which ultimately supported the Tribunal’s finding on relocation), but that is a very different matter from claiming to fear forced relocation per se. The closest the applicant came to articulating any such fear was in giving reasons why it was impossible or unreasonable for him to relocate within Iraq. The Tribunal rejected those reasons, and thus dealt with the claim to the extent that it was raised.
[70] Eg at CB 185
The Minister also concedes that the Tribunal’s obligations were not limited to considering claims expressly raised by the applicant. However, the Minister submits that this was not a case where a claim to have a well-founded fear of persecution arose from the material before the Tribunal with such clarity as to require its consideration[71]. The Minister further contends that:
a)being compelled to relocate within one’s home country in order to avoid some other form of harm is, of course, not inherently persecutory[72]. The existence of a body of case law in Australia and overseas dealing with internal relocation under the Refugees Convention is inconsistent with any such suggestion. Some evidence of additional detriment, such as inability to earn a living or practise one’s religion in the place of internal refuge, would be needed in order to raise a question whether relocation would involve harm amounting to persecution[73]. There was no such material before the Tribunal in the present case;
b)further, evidence of that kind, if accepted, would necessarily lead to the conclusion that relocation was not a viable means of avoiding persecution (or alternatively that relocation was not reasonable)[74]. The issue now sought to be raised is, therefore, already dealt with by the established internal relocation doctrine, which was (for reasons set out in earlier submissions) properly applied by the Tribunal in the present case;
c)it is not clear whether the applicant seeks to submit that being forced out of his family home (as distinct from being forced to move to another part of the country) was a form of persecution which the Tribunal failed to consider. Such a claim would not, in any event, engage the Convention definition of a refugee. There was no evidence as to whether the home was owned or rented by the applicant’s family, and in any event expropriation of property has never been regarded as a form of persecution[75]. Nor would being required to move to less desirable accommodation constitute a form of serious harm amounting to persecution[76]; and
d)these points are reinforced by the consideration that a grant of refugee status would not provide the applicant with any protection against the forms of harm now sought to be raised. As the holder of a protection visa in Australia he would still have been forced out of his family home and his home town. It is unlikely that the concept of “persecution” in Article 1A of the Convention was intended to encompass forms of harm for which the obligations undertaken by signatory States would provide no remedy.
[71] NABE v Minister for Immigration (No. 2) (2005) 144 FCR 1, 19-20 [60]-[61]
[72] SKFB v Minister for Immigration [2004] FCAFC 142 at [12]-[14]
[73] The reasoning of this Court in SZALM v Minister for Immigration [2004] FMCA 262 at [18], relied on by the applicant, appears to have turned on such evidence
[74] Cf SZATV v Minister for Immigration (2007) 233 CLR 18 at [28]-[32], where the Tribunal erred by regarding relocation as a reasonable option despite accepting that to do so would require the appellant to live “discreetly” and abandon his activities as a journalist
[75] See eg Hathaway, The Law of Refugee Status (1991), 119-120
[76] Ibid, 120; and see s.91R(2) of the Migration Act
For these reasons, the Minister contends that the Tribunal did not err by failing to consider whether the applicant faced persecution in the form of being forced out of his family home.
As to the second argument, the Minister submits that a conclusion that the applicant is not a person to whom Australia has protection obligations does not involve the imposition on him of any assumption or expectation. It merely reflects a conclusion that, because it is possible for him to live in his country of nationality without facing a well-founded fear of persecution, he is not outside his country (or unwilling to avail himself of its protection) because of such a fear[77].
[77] Cf eg Minister for Immigration v Khawar (2002) 210 CLR 1, 11 [23]-[24] per Gleeson CJ
That conclusion is necessarily concerned, and only concerned, with what might happen to the applicant in the reasonably foreseeable future if he were to return to his country of nationality. Events in the past are relevant only to the extent that they provide a guide to what may happen in the future.
The Minister submits that the fact that internal relocation might amount to a “victory” for the applicant’s persecutors is thus irrelevant to whether such relocation is (i) a viable means of avoiding persecution and (ii) reasonable in the sense of practicable. If anything, that fact simply tends to confirm the effectiveness of relocation as a means of avoiding further persecution (a point which the Tribunal appreciated). Questions of vindication or retribution for past injustices are matters for the authorities of the applicant’s country of nationality. The obligations of a signatory to the Refugees Convention turn only on whether the applicant would face persecution, in the relevant sense, in the future.
Finally, the Minister submits that the availability of internal relocation is not to be confused with cases where a decision-maker concludes that persecution could be avoided by the applicant making some change in behaviour or identity: eg the observation that the applicants in Appellant S395/2002 v Minister for Immigration[78] could avoid persecution by living “discreetly”, or the finding that the applicant in SZATV could relocate but would not be able to continue working as a journalist[79]. The fact that relocation may have been forced on the applicant (and that his former persecutors are presumably satisfied) does not mean that such relocation involves some ongoing denial of fundamental rights. The Minister submits that, to the extent that the decision in S2012 of 2003 v Minister for Immigration[80] points to a different conclusion, it is wrong and should not be followed.
[78] (2003) 216 CLR 473
[79] See also Minister for Immigration v SZSCA [2013] FCAFC 155, especially at [62]
[80] [2008] FMCA 954
SZALM and S2012/2003 were both cases concerning the deprivation of a capacity to earn a livelihood (from farming). It was not simply the fact that the applicants in those cases were deprived of property that was significant, but rather that the property provided the means for the applicants to subsist. That element is missing from this case and provides the basis for distinguishing this case from those decisions.
It is tolerably clear from the Tribunal’s reasons, specifically on the issue of relocation, that the Tribunal regarded the situation confronting the applicant in Iraq as one of ethnic cleansing. At [85]-[86][81] the Tribunal said:
Basrah province is of course a particularly significant Shia-majority province, and the Tribunal has accepted that the applicant’s home was in a Shia neighbourhood with a small and dwindling Sunni community. There are however (as put to the applicant at hearing) large areas of Iraq including big cities which are Sunni-dominated and where the applicant would not be a Sunni in a Shia-majority area and therefore attracting the particular attention he has experienced in the past. The Tribunal is satisfied that if the applicant, a Sunni, were to relocate to a majority Sunni area in a Sunni province (such as Salah al-Din), any risk of being targeted by Shias as a Sunni would not rise to the level of a real chance.
The pressure on Sunnis such as the applicant in Shia-majority areas is clearly directed at forcing them to leave and to relocate elsewhere and it is hard to conceive that obstacles would be raised to prevent the applicant from leaving.
[81] CB 222
The applicant had claimed that he would need the consent of the authorities in order to depart and that such consent would not be forthcoming. It does not appear that that issue was further explored and I have no evidence before me as to what the attitude of the Iraqi authorities might be to the apparent “balkanisation” of their country. As is noted by the Tribunal at [88] the applicant’s post hearing submissions did not address these issues at all. The Tribunal at [88][82] referred to the 2011 Basrah Governate Profile February 2010 IOM IDP and Returnee Assessment report which had been provided by the applicant and noted that that report was primarily concerned with Shias moving into Basrah, although it also referred to almost 3,000 Sunni families relocating from Basrah province to “areas in central and northern Iraq with larger Sunni communities”. The Tribunal observed that clearly it had been possible for large numbers of Sunnis to relocate from Basrah to Sunni provinces.
[82] CB 223
The practice of ethnic cleansing presents a challenge for decision makers. On the one hand, it is offensive to people living in a diverse and liberal democracy to accept a process by which communities (which may have lived together harmoniously for centuries) are torn apart by ethnic or religious conflict leading to the forced relocation of large numbers of people. On the other hand, relocation may be an effective way for the people in a country affected by ethnic cleansing to find safety. The parties to the Refugees Convention need not endorse or approve of the policies or practices which lead to the dislocation of established communities by withholding Convention protection on the basis that protection is available in a part of the affected country. It must necessarily follow, however, that the people forced to move from a diverse to a homogenous community will be required to live their lives differently. They will be required to find new homes and possibly new means of earning a livelihood. They will lose benefits of living in a diverse community.
I am not convinced that such dislocation in this case gives rise to the issue addressed by the High Court in S395, namely that it is an error for decision makers to expect an asylum seeker to avoid persecution by suppressing or denying the Convention attribute that supports their claim to protection. Here, the Convention attributes supporting the applicant’s claim to protection were his Arab race, his Sunni religion, an imputed political opinion and membership of the particular social group of “Arab Sunni Muslims residing close to Shia areas”. Relocation to a majority Sunni area would have no impact upon the applicant’s attributes of race or religion. He might lose the political opinion imputed to him by Shias but that is a negative attribute forced upon him, the shedding of which would be a benefit. Likewise, the applicant did not express any desire to maintain membership of the particular social group of “Arab Sunni Muslims residing close to Shia areas”. While relocation would cause the applicant to lose membership of that particular social group, it was not put forward by the applicant as something that was important for him to retain.
Further, as was pointed out by the Minister in his supplementary submissions, protection in Australia could not relieve the applicant of the detriment of forced relocation. Indeed, if distance is a relevant consideration, it would be a more extreme example of that forced relocation.
I do not rule out the possibility that an applicant might hypothetically be able to advance a successful claim of persecution based upon ethnic cleansing through forced relocation, for which relocation could not provide a remedy. I do not accept the proposition that because protection under the Refugees Convention would not end the harm feared, protection should be withheld. The Convention of necessity provides protection from harm in another country, rather than an end to that harm in the country of origin. I can envisage a case in which there would be no respite from the feared harm of ethnic cleansing in a country. This, however, is not that case.
Conclusion
I conclude that the applicant has failed to establish that the Tribunal fell into jurisdictional error. I will order that the application as amended be dismissed.
I will hear the parties as to costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 31 January 2014
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