SZTFA v Minister for Immigration

[2015] FCCA 2350

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTFA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2350

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – whether the Tribunal erred in its consideration of the reasonableness of relocation.

Legislation:

Migration Act 1958 (Cth), s.414

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Januzi v Secretary of State for the Home Department [2006] 2 AC 426; [2006] UKHL 5
Minister for Immigration and Border Protection v MZYTS and Another (2013) 136 ALD 547; [2013] FCAFC 114
Minister for Immigration and Border Protection v SZSCA (2014) 89 ALJR 47; [2014] HCA 45
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22

MZYXP v Minister for Immigration and Border Protection and Another (2013) 137 ALD 348; [2013] FCA 1352

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37

Perampalam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274; [1999] FCA 165

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 1253

SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18; [2007] HCA 40
SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46

SZOVB and Others v Minister for Immigration and Citizenship and Another (2011) 125 ALD 38; [2011] FCA 1462

SZSSC v Minister for Immigration and Border Protection and Another (2014) 317 ALR 365; [2014] FCA 863

Applicant: SZTFA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1985 of 2013

Judgment of: Judge Barnes

Hearing date: 8 December 2014

Delivered at: Sydney

Delivered on: 31 August 2015

REPRESENTATION

Counsel for the Applicant: Mr L. Karp

Solicitors for the Applicant: Nadeem Solicitors

Counsel for the Respondents: Mr T. Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The Application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1985 of 2013

SZTFA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal), dated 23 July 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of Pakistan, arrived in Australia in August 2012.  He applied for a protection visa in November 2012.  He attended a Departmental interview.  The application was refused and the Applicant sought review by the Tribunal.  He attended a Tribunal hearing.

3. The Applicant claimed to be a Shia Muslim of Pashtun ethnicity.  He claimed to fear persecution in Pakistan for reasons of his race and religion.  In particular, he claimed to fear harm from the Taliban and from Shia militants in his home district of Orakzai Agency.  His evidence was that prior to coming to Australia he had lived and worked in Dubai since 1998, returning to Pakistan (where his wife and children lived) for annual visits.  However the Applicant claimed he did not wish to return to Pakistan because Shia militants, who had been fighting the Taliban in his area since 2007, were forcing villagers to fight with them and because his village was surrounded by the Taliban who, when they found a Shia person, would murder them.  The Applicant claimed that on a visit to Pakistan in 2010 his car had been fired on at a Taliban roadblock.

4. In a statutory declaration accompanying his protection visa application, the Applicant claimed he could not live anywhere else in Pakistan because he was a Pashtun and that because he would be recognised as a Shia by the way he prayed and practised his religion he would not be able to practise his religion safely.  He claimed that Sunnis had declared Jihad against Shias all over Pakistan, especially those from the Orakzai area. 

5. The delegate accepted that as a Pashtun Shia the Applicant faced a real chance of Convention-based harm at the hands of the Taliban and other Sunni insurgents should he return to the Orakzai area.  In the absence of any evidence of enforced conscription it did not accept that he would be forced to fight with, or faced a risk of harm from, other Pashtun Shias and/or militants.  The delegate found, however, that relocation was a safe, reasonable and practicable option for the Applicant. 

6. The Applicant sought review by application lodged with the Tribunal on 19 March 2013.  On 21 June 2013 the Applicant’s migration agent provided the Tribunal with a 43-page submission.  In that submission the adviser took issue with the delegate’s conclusion that relocation was a safe, reasonable and practicable option, submitting that it was neither feasible nor reasonable for the Applicant and providing further country information.  The submission summarised detailed country information about the situation in various parts of Pakistan and about incidents involving Pashtuns and Shia Muslims in various places, including Karachi.

The Tribunal Decision

1. In an attachment to its reasons for decision the Tribunal set out the Applicant’s claims and evidence and discussed country information.  It set out in full (without comment) the adviser’s 43-page submission.  It also summarised the Applicant’s evidence and the adviser’s submissions at the hearing.

2. Under the heading “Consideration of Claims and Evidence”, the Tribunal recorded that the Applicant had claimed that he was a Shia Pashtun from Orakzai and that he could not return to Orakzai or relocate anywhere else in Pakistan because he would be killed as a Shia Muslim. 

3. The Tribunal accepted that the Applicant was from Orakzai, that there had been attacks against Shias in Orakzai Agency and that DFAT had stated that as a result there had been an increase in the migration of Shias from that area to Peshawar and Karachi. 

4. The Tribunal continued:

   The Tribunal finds that even if it accepts that it is not safe for the applicant to return to his home in Orakzai for the reasons that he fears that both the Shia militants and the Taliban in that area, immediately before he came to Australia the applicant had been living in Dubai since 1998 where he was working.  The applicant has completed 12 years schooling and is relatively well-educated by Pakistani standards and can speak English, Urdu and Pashto.  He has also been working in Australia. 

5. The Tribunal addressed obstacles to relocation raised by or for the Applicant.  It referred to the adviser’s submission that there were movement restrictions in Pakistan, that the Applicant did not have support networks outside his home region, that the Applicant’s wife and four children remained in their home area and that it was unreasonable for the Applicant to relocate within Pakistan in the absence of family support, especially in an environment fraught with danger.  The Tribunal also recorded the adviser’s submission that Shias were the target of violent attacks by Sunni fundamentalist groups throughout the country and that terrorist attacks heightened at the time of important religious events.  In addition, the Tribunal recorded that the Applicant had stated that he was unable to relocate to Peshawar or Karachi because the Taliban knew about his family in his area and that the adviser had suggested that Pashtuns may be hurt in religious, political or ethnic violence in Karachi. 

6. The Tribunal accepted that wherever the Applicant went in Pakistan he would be identifiable as a Shia Muslim on the basis of his name, his appearance and the fact that he attended Shia mosques and participated in Shia religious observances and that he would also be identifiable as a Pashtun.  It found:

   When specifically asked about relocating to Peshawar and Karachi which have been identified as areas where other Shias from Orakzai agency have relocated, the adviser stated the applicant will not be safe in either and in relation to Karachi, provided information that states there were mass attacks on Shiities (sic) that included a 2009 roadside bomb attack on an Ashura procession and the targeting of professionals.

7. The Tribunal continued (at [14] – [17]):

   The Tribunal accepts that sectarian violence is a problem in Pakistan but Shia Muslims constitute around 20% of the population of Pakistan which means there are over 30 million Shia Muslims in Pakistan (US State Department, International Religious Freedom Report for 2009 in relation to Pakistan).  The Tribunal does not accept on the evidence before it there is a real chance that if the applicant, who is not a professional, returns to Karachi now or in the reasonably foreseeable future, he will be singled out to be killed or otherwise persecuted because he is a Shia Muslim.  In addition, given the number of Shia injured or killed in attacks is low given their population size, the Tribunal does not accept that there is a real chance that the applicant will be killed or otherwise persecuted because he is a Shia Muslim in the context of the sectarian violence.

   Whilst the applicant has stated that he is unable to relocate in Peshawar or Karachi because the Taliban know about his family in his area, the Tribunal does not accept that it follows that the Taliban in Pakistan are specifically targeting Shia Muslims from Orakzai wherever they go in Pakistan or that they will target the applicant wherever he goes in Pakistan.  The Tribunal likewise does not accept on the evidence before it that there is a real chance that the applicant will be killed or otherwise persecuted for reasons of his religion as a Shia Muslim in the context of sectarian violence if he returns to Karachi or Pakistan now or in the reasonably foreseeable future.  Whilst the Tribunal accepts that the applicant will be able to be distinguished as a Shia Muslim and as a Pashtun, and also accepts there is sectarian violence and that some Shia religious places of worship are targeted, Shia Muslims constitute around 30% of the Karachi population and over 20% of the population of Pakistan (or around 40 million people in total).  Given these statistics, the Tribunal does not accept that it is reasonably foreseeable that there is a real chance that the applicant will be killed or otherwise persecuted because he is Shia Muslim in the context of the sectarian violence in Karachi or indeed Pakistan.  Neither does the Tribunal accept, given the number of Shia injured or killed in attacks is low given their population size, that it is reasonably foreseeable there is a real chance the applicant will be killed or otherwise persecuted because he is Pashtun Shia or because he is a minority within the Pashtun ethnic group.

   The Tribunal also considers it would be reasonable in the sense of practicable in all the circumstances for the applicant to relocate to Karachi in Pakistan.  The applicant is educated, young, speaks Urdu and English, and has shown much resourcefulness in working in Dubai for many years and then coming to and working in Australia.  Whilst the adviser has stated family support is essential throughout Pakistan, she has not provided any evidence in support of this statement and given DFAT’s advice that other Shia from Orakzai have been relocating to Karachi, the Tribunal does not accept that the applicant will be without other Shia from Orakzai or that he necessarily needs their support.  As the Tribunal put to the applicant, there are no barriers to internal movement within Pakistan and DFAT has advised in May 2013 that as a result of the increase in the Taliban insurgency there are increased migrations of Shias from Orakzai agency (sic) to Peshawar and Karachi.  Whilst the Tribunal accepts that there are safety issues in Orakzai and DFAT has noted that Shias leaving Orakzai have experienced difficulties travelling across Sunni-dominated areas, the applicant has repeatedly returned to Orakzai and it is difficult to accept there is a real chance that the applicant’s family, who will only have to make one trip, will not be able to join him in Karachi.

   For the reasons given above, the Tribunal does not accept there is a real chance that the applicant will be persecuted as a Shia Muslim or Pashtun Shia, or as a Shia Muslim from Orakzai, if he returns to Pakistan now or in the reasonably foreseeable future.  Whilst the adviser has claimed that the authorities are reportedly unable or unwilling to protect Shia, this does not alter the Tribunal’s finding that it does not accept there is a real chance that the applicant will be persecuted as a Shia Muslim or Pashtun Shia, or as a Shia Muslim from Orakzai, if he returns to Pakistan now or in the reasonably foreseeable future.  Whilst the adviser has also stated the applicant will be targeted by fundamentalist organisations as he is a returnee from the West, she has relied on generalised comments to support this and has also linked it to reports about the Sunni/Shia divide, quoting that Sunni Islamist groups in Pakistan ‘have varying agendas and carry out terrorist attacks against foreign, Shiite, and Christian targets, killing hundreds of civilians each year’.  As stated, given that the number of reported attacks is low when the size of the Shia population is considered, the Tribunal does not accept that it is reasonably foreseeable that there is a real chance the applicant will be killed or otherwise persecuted because he is a returnee from the West, Pashtun Shia or because he is a minority within the Pashtun ethnic group or a combination of any of the above.

8. The Tribunal concluded that for the reasons given it was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention.

9. The Tribunal then turned to the complementary protection criterion, in relation to which it stated that:

   Taking into account the above findings, the Tribunal is not persuaded that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that he will be arbitrarily deprived of his life, the death penalty will be carried out or he will be subjected to torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.

10. The Tribunal was not satisfied that the Applicant met the complementary protection criterion.  It affirmed the decision not to grant him a protection visa.

These Proceedings

1. The Applicant sought review by application filed in this Court on 23 August 2013.  He now relies on an amended application filed on 24 November 2014.  There are two grounds in the amended application.

Whether the Tribunal applied the correct test

1. The first ground is that the Tribunal “erred in applying the test of a well founded fear of persecution for a Convention reason”.  The particulars to this ground are as follows:

   (a) The Tribunal, despite purporting to do so, failed to consider whether relocation within Pakistan was reasonable in all the circumstances, which included the fact that Shia Muslims throughout Pakistan were being consistently targeted for attacks by Sunni militants, and the fact that Karachi in particular had experienced a consistent level of sectarian violence. 

   That was a consideration separate and distinct from whether the applicant faced a well founded fear of persecution in a place of intended relocation.

2. It was submitted that the Tribunal had erred in failing to address the reasonableness of relocation in the context of the presence of sectarian violence in Karachi and elsewhere in Pakistan and attacks on the Shi’ite community.  It was submitted that such sectarian violence and attacks not only went to whether the Applicant had a well-founded fear of persecution, but also to the reasonableness of relocation as far as this particular applicant was concerned.  It was contended that if in the area of proposed relocation there was sectarian violence and there were anti-Shia organisations which had, as an object, the destruction of Shia people, religious and cultural institutions and buildings, there was a real question as to whether it was reasonable for the visa applicant to relocate there.  These issues were said to have clearly arisen on the evidence and materials before the Tribunal, in particular the Applicant’s adviser’s submission. 

3. Counsel for the Applicant submitted that the Tribunal had erred in that it had approached the question of whether the Applicant faced a well-founded fear of persecution in Karachi (or elsewhere in Pakistan) by reference to whether there was a “real chance” that he (as one of 30 or 40 million Shia Muslims) would be killed or injured in religion-motivated violence and had then addressed the reasonableness of relocation to Karachi (and also Peshawar) having regard only to the presence of a Shia community in those places and the Applicant’s age, education and resourcefulness.  The Tribunal was said to have isolated consideration of the circumstances of sectarian violence and attacks on the Shia community in Karachi from the reasonableness of relocation and thus to have failed to address the reasonableness of relocation having regard to the presence of such sectarian violence and attacks and hence to have erred in applying the test of a well-founded fear of persecution for a Convention reason. 

4. The Applicant relied on the principles considered by the High Court in SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18; [2007] HCA 40. It was submitted that while Gummow, Hayne and Crennan JJ had indicated at [23] that relocation to another area of an applicant’s home country had to be “reasonable, in the sense of practicable”, their Honours had qualified this (at [24]) in stating that:

   … [T]hat does not mean that, without more, the formulation by the Minister is sufficient and satisfactory.   What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

5. It was submitted that it was clear from SZATV that it was necessary for the decision-maker to take into account “the particular circumstances” of the Applicant.  The Applicant submitted that the reference in SZATV at [21] – [22] and [25] to English authorities such as Januzi v Secretary of State for the Home Department [2006] 2 AC 426; [2006] UKHL 5 also illustrated that what was in issue was the impact or the circumstances which affected the individual. It was also pointed out that in Minister for Immigration and Border Protection v SZSCA (2014) 89 ALJR 47; [2014] HCA 45 the High Court had referred to the fact that SZATV had considered what may reasonably be expected of the visa applicant (at [25] and see [29]).

6. Counsel for the Applicant submitted that in considering the Applicant’s particular circumstances in addressing relocation, it was not sufficient for the Tribunal to consider only whether he had a well-founded fear of persecution in the proposed place of relocation.  It was contended that the Tribunal should also have considered whether relocation was reasonable in circumstances which were said to include the “facts” that Shia Muslims throughout Pakistan were being “consistently targeted for attacks by Sunni militants” and that Karachi had experienced “a consistent level of sectarian violence”.  

1. It was pointed out that in Perampalam  v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274; [1999] FCA 165 Burchett and Lee JJ had considered that dangers other than those giving rise to a well-founded fear of persecution for a Convention reason were relevant to whether relocation was unreasonable. Their Honours had acknowledged (at 284) that if a visa applicant had a well-founded fear of persecution for a Convention reason, the question was whether it was “not reasonable in the circumstances to expect [him or her] to relocate to another part of the country of nationality” as indicated by Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 449, 451-453; [1994] FCA 1253. Their Honours found in Perampalam (at 284) that:

   It cannot be reasonable to expect a refugee to avoid persecution by moving into an area of grave danger, whether that danger arises from a natural disaster (for example, a volcanic eruption), a civil war or some other cause. A well founded fear of persecution for a Convention reason having been shown, a refugee does not also have to show a Convention reason behind every difficulty or danger which makes some suggestion of relocation unreasonable.

2. On this basis it was said (at 284) to be:

   … [P]lainly incumbent on the Tribunal in the present case to ask itself seriously whether the circumstances could really sustain the proposition that a genuine internal refuge could be found by the appellant by moving … or going to stay with a son in a distant part of the country. It could not avoid that question by ignoring all difficulties and dangers that did not in themselves constitute persecution within the Convention.

3. While Perampalam concerned the need to have regard to dangers other than those relied on in support of the claimed well-founded fear of persecution for a Convention reason in considering the reasonableness of relocation, the Applicant relied on Perampalam in support of the proposition that the reasonableness of relocation was not necessarily defined or answered by the fact that an applicant did not have a “well-founded fear” of persecution in the proposed place of relocation.  It was submitted that as the reasonableness of relocation was a question of all the circumstances, it would encompass (Convention-related) dangers and circumstances which were not such as to render the Applicant’s fears of persecution “well-founded”.  In other words, it appeared to be suggested that having rejected the claim that the Applicant had a well-founded fear of persecution as a result of sectarian violence and mass attacks, the Tribunal then had to consider the evidence about sectarian violence and attacks in Karachi as relevant to the reasonableness of relocation. 

4. The First Respondent submitted that it was not open to the Applicant to plead as a “fact” that Shia Muslims throughout Pakistan were being consistently targeted for attacks by Sunni militants.  

5. It was acknowledged that the Tribunal had to take into account all the circumstances pertaining to the place of relocation and that the factors that could make relocation not practicable were not limited to those with a Convention nexus (see Perampalam), contended that insofar as the Applicant’s submission was to the effect that sectarian violence had to be considered at two stages in addressing relocation (first as to whether it gave rise to a real chance of persecution and secondly as to whether any lesser level of danger from such violence rendered relocation unreasonable) such an approach was not supported by the authorities. 

6. The First Respondent submitted that in this case the only violence claimed to be feared by this Applicant upon relocation was Convention-related violence.  It was contended that as the Tribunal had found that there was not a well-founded fear of such violence, it followed ipso facto from the relocation principle that Karachi was a place to which relocation was possible, subject to the reasonableness of doing so. 

7. The First Respondent contended that it was apparent that the Tribunal had analysed the risk of violence to this Applicant when considering relocation and had found that while there was a risk, it did not rise to the level of a well-founded fear of harm.  It was submitted that in reasoning in this way the Tribunal had sufficiently addressed the relevance of sectarian violence in relation to the reasonableness of relocation. 

8. It was submitted that the Tribunal had had regard to the adviser’s submissions (which it had quoted) and also to other cited relevant country information.  It had accepted that there was sectarian violence against Shias in Pakistan, and in Karachi in particular, but not that this gave rise to a real chance that the Applicant would be harmed.  This was said to amount to a consideration and rejection of the Applicant’s objection to relocation on this basis. 

9. In any event, the First Respondent contended that a fair reading of the Tribunal’s decision (in particular reading paragraphs [15] to [17] together) would not lead the Court to conclude that the Tribunal had failed to have regard to the situation in Karachi for the Applicant, including the situation in relation to sectarian violence in considering the reasonableness of relocation to Karachi.  It was submitted that the Tribunal had correctly considered whether relocation to Karachi was reasonable, in the sense of practicable, in the Applicant’s particular circumstances, in accordance with SZATV and that in that context it had, correctly, considered the Applicant’s stated objections to relocation, being essentially that he would not be safe as a Shia anywhere in Pakistan and that his family remained in Orakzai.  Such an approach was also said to be in accordance with SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46 at [124].

10. Insofar as this ground sought to cavil with the Tribunal’s conclusion about the reasonableness of relocation, the First Respondent submitted that this was a matter of fact for the Tribunal and did not establish jurisdictional error (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]).

Consideration

1. In considering this ground it is necessary to bear in mind that, as Black CJ pointed out in Randhawa (at 442), the Tribunal must ask whether an applicant’s fear is well founded in relation to his or her country of nationality, not simply the region in which the applicant lived and that “Given the humanitarian aims of the Convention this question [is] not to be approached in a narrow way”. 

2. As His Honour stated, the Tribunal must consider not merely whether the Applicant could relocate to another area of his or her own home country, but also whether he or she could reasonably be expected to do so.  Black CJ went on to point out in Randhawa at 442 that:

   This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.

   Moreover, the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality…

3. Relevantly, his Honour expressed agreement (at 443) with the proposition that:

   …it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker’s task will be largely determined by the case sought to be made out by an applicant.  (Emphasis added)

4. However, Black CJ (with whom Whitlam J agreed) suggested at 443 that if the applicant “had raised other impediments to relocation the decision-maker would have needed to consider these...”.

5. In NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 the Full Court of the Federal Court considered the extent to which the Tribunal had to take into account concerns expressed by an applicant in considering the “practical realities” referred to in Randhawa. Branson J (with whom North J agreed) concluded at [22] that:

   … the summary way in which the Tribunal dealt with the issue of relocation, including its failure to explore the significance of the appellant’s references to having no-one in Fiji ‘to look after her’, causes me to conclude that the Tribunal did not apply the right test when it concluded that it was satisfied that, with the assistance of her daughter, the appellant would be able to relocate within Fiji. The Tribunal did not, as… Randhawa… requires, give consideration to the practical realities facing the appellant with respect to accommodation and care should she seek to relocate within Fiji.

6. In addressing such practical realities the Tribunal must consider impediments to relocation raised by the Applicant or any “objection… that in reality relocation would be practically unreasonable” (see MZYXP v Minister for Immigration and Border Protection and Another (2013) 137 ALD 348; [2013] FCA 1352 at [64] per Kenny J and NAIZ).

7. In the Tribunal decision considered in SZATV the appellant was expected to move elsewhere within his country of nationality and to live “discreetly” so as not to attract the adverse attention of the authorities in the new location, lest he be further persecuted by reason of the political opinions on which he based his claim to refugee status.  As Gummow, Hayne and Crennan JJ pointed out at [32], by reasoning in this way the Tribunal had “sidestepped consideration of what might reasonably be expected of the appellant with respect to his “relocation”” within his home country.  In that context, their Honours addressed (at [23]) the Minister’s submission that the issue was whether “it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”.  Relevantly, their Honours observed at [24] that:

   What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.  (Emphasis added).

8. The High Court in SZSCA was not dealing with an internal relocation issue, but rather with a Tribunal decision which had considered whether an Afghani truck driver who had lived in Kabul (but drove to other places in Afghanistan) faced a real chance of persecution if he remained in Kabul.  The majority held that the Tribunal had erred by not considering the question of whether the visa applicant could reasonably be expected to remain in Kabul and not drive trucks on the roads outside Kabul.

9. Relevantly, the majority in SZSCA held that “the same considerations as are relevant to relocation apply when the Tribunal identifies an area where the visa applicant may be safe, so long as he or she remains there” (at [20]).  In particular, the “reasonableness” test was said to be applicable in such circumstances, in that it was a “question of what may reasonably be expected of” a visa applicant (at [25]).  In that context, the majority in SZSCA confirmed the reasoning of the plurality in SZATV, in particular the remarks of Gummow, Hayne and Crennan JJ at [23]-[24] referred to at [40] above.

10. As in SZATV, the majority in SZSCA referred with approval to the consideration by the House of Lords in Januzi (at [15] and [20]) of the nature of the test to be applied to determine whether an asylum seeker could reasonably be expected to relocate internally, including the fact that the nature of the test involved “a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker” (emphasis added) (SZSCA at [30]).

11. In this case the existence of sectarian violence and targeting of Shias (including in Karachi) was a basis for the Applicant’s claimed fear of persecution for a Convention reason (as well as his claimed fear of significant harm).  This is not a case in which the Applicant asserted that there were other, non-Convention-related, dangers in Karachi (cf. Perampalan).  Nor did the adviser’s written submissions raise as an obstacle to relocation a claim that a lower level of sectarian violence or targeting than would satisfy the Convention test would make relocation unreasonable in all the circumstances. 

12. Contrary to the particulars to this ground, the Tribunal did not accept as a “fact” that Shia Muslims throughout Pakistan were being “consistently targeted” for attacks by Sunni militants or that Karachi in particular had experienced a “consistent level” of sectarian violence.  However the Tribunal did refer to country information about an increase in Sunni/Shia sectarian violence in Karachi most notably from 2009 on (but also to information that typically such violence had occurred between extremist Sunni and Shia militant groups or involved targeted killings of Shia religious leaders, political activists and professionals).  A number of high profile bombings were noted.  The Tribunal did accept that sectarian violence was “a problem” in Pakistan and that there was sectarian violence in Karachi.  It also accepted that some Shia religious places of worship were targeted.  The Tribunal considered the adviser’s submissions about the level of violence and the targeting of Shias.  It also considered, but did not accept, the claim that having regard to his profile the Applicant would be “singled out” or targeted to be killed or otherwise persecuted in Karachi as a Shia Muslim or for the other claimed reasons.  Such findings addressed the question of the safety of the suggested place of relocation, both in terms of the Refugees Convention and as an aspect of the reasonableness of relocation.  This was reinforced by the Tribunal’s reiteration (in considering the Applicant’s claims that he was unable to relocate to Karachi because the Taliban knew about his family and that he would be targeted) of its consideration of the risks to the Applicant in Karachi. 

13. In its reasons for decision the Tribunal proceeded on the basis that it was not safe for the Applicant to return to his home area of Orakzai Agency.  However it was satisfied that it would be reasonable “in the sense of practicable in all the circumstances” for him to relocate to Karachi.  Hence it found that his fear of persecution for a Convention reason was not well-founded.

14. In reaching that conclusion the Tribunal considered whether the Applicant might, elsewhere in his country of nationality, be exposed to the claimed risks of the type that gave rise to a well-founded fear of persecution (or to a real risk of significant harm).  As set out above, in considering relocation it addressed both the impact of sectarian violence and the claims that on relocation the Applicant would be targeted or harmed because of his ethnicity and/or religion and/or area of origin and/or as a returnee from the West.  In so doing it addressed the claimed fears of harm in Karachi arising from sectarian violence and targeting Shias.  In the context of considering relocation it accepted that there was sectarian violence against Shias in Karachi, but not that this gave rise to a real chance that the Applicant would be killed or otherwise persecuted in Karachi.  Thus the Tribunal considered but rejected the Applicant’s objection to relocation on this basis.  It also considered the practical difficulties the Applicant may face in relocating having regard to his particular circumstances (see Perampalam at 290 per Moore J and SZATV at [24]).

15. It is not in dispute that, as Burchett and Lee JJ held in Perampalam, in considering the difficulties or dangers an applicant may face in a suggested place of relocation, the applicant does not have to show a Convention reason behind every difficulty or danger that makes some suggestion of relocation unreasonable and that the Tribunal must consider difficulties and dangers raised by or for an applicant as impediments to relocation.  However in this case the issues raised about sectarian violence and claimed targeting of Shias throughout Pakistan (including in Karachi) were those relied on by the Applicant in support of his claim to fear persecution for a Convention reason.  No authority was cited in support of the proposition that the Tribunal must expressly consider the chance of harm that it had found did not give rise to a well-founded fear of harm at two stages in considering relocation. 

16. In any event, reading the Tribunal decision fairly and as a whole, the Tribunal did not fail to consider those claimed dangers or difficulties in considering the reasonableness of relocation in the context of the presence of sectarian violence. 

17. The Tribunal, correctly, addressed the Applicant’s stated objections to relocation (and those raised by his adviser) including the reasonableness of relocation in the context of the presence of sectarian violence and attacks on the Shia community in Karachi.  This ground is not made out.

Whether there was a failure to consider a claim or submissions

1. The other ground in the Amended Application is that the Tribunal “failed to complete the exercise of its jurisdiction”.  The particulars to this ground are as follows:

   (a)  Failure to consider and address a claim that arose clearly on the materials before the Tribunal, that being whether it was reasonable for the applicant to relocate within Pakistan in circumstances where Shia Moslems in Pakistan were being consistently targeted for attacks by Sunni militants.

   (b) Failure to consider and address clearly articulated submissions to the effect that due to the risk of harm in proposed places of relocation it was unreasonable for the applicant to avail himself of an internal flight alternative.

2. In oral submissions it was clarified that the particulars to this ground overlapped as a matter of fact, but were pleaded as alternatives.  It was submitted, in essence, that the Tribunal had failed to consider claimed obstacles to relocation raised by the Applicant’s submissions and also what was said to be the clearly articulated submission to the effect that due to the risk of harm in the proposed place of relocation it was unreasonable for the Applicant to relocate. 

3. The Applicant submitted that the question of the reasonableness of relocation in circumstances of continuing ethnic violence and disruption in Karachi arose clearly on the material before the Tribunal, in particular given the content of the adviser’s written submissions as well as the country information to which the Tribunal referred to in its reasons for decision.  This information was said to be such that a claim clearly arose as to whether it was reasonable for the Applicant to relocate within Pakistan in circumstances where Shia Muslims in Pakistan were being consistently targeted for attacks by Sunni militants. 

4. It was pointed out that it was well accepted that the Tribunal must, as an incident of its duty pursuant to s.414 of the Migration Act 1958 (Cth) (the “Migration Act”) consider and address issues which arose on the evidence and information before it (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [63] and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [7] per Merkel J). Whether the Tribunal did lawfully address the case that arose on the evidence and information was said to be a matter of substance and not form (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 595; [1997] HCA 22 per Kirby J; SZOVB and Others v Minister for Immigration and Citizenship and Another (2011) 125 ALD 38 at 51; [2011] FCA 1462 per Katzmann J).

1. The Applicant submitted that the Tribunal’s approach (which was said to treat the question of sectarian violence as a separate issue going only to a well-founded fear of persecution, and relocation as involving the Applicant’s personal attributes and the availability of community support) meant that it had failed to consider whether it was reasonable for the Applicant to relocate to an area where there were constant and ongoing attacks against his community and co-religionists.  This was said to be a question separate from that of whether he had a well-founded fear of persecution in the proposed areas of relocation. 

2. In addition, the Applicant contended that the Tribunal was under an obligation to consider and address clearly articulated “submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground” (see Minister for Immigration and Border Protection v MZYTS andAnother (2013) 136 ALD 547; [2013] FCAFC 114 at [38]).

3. It was pointed out that in SZSSC v Minister for Immigration and Border Protection and Another (2014) 317 ALR 365; [2014] FCA 863 (at [75] – [81] and [87]), Griffiths J had held that, as an incident of its duty to review, the Tribunal was required to deal with clearly articulated submissions of substance. The Applicant submitted that this required the Tribunal to evaluate such submissions and to determine whether or not they should be accepted or rejected. It was acknowledged that whether or not submissions were evaluated was a question of fact in the particular case. The Applicant contended that in this case the adviser had addressed the issue of examples of violence against people of the Applicant’s ethnicity and religion in many parts of Pakistan and the sources of that violence and religious and sectarian violence. In addition, the adviser had claimed (in the context of addressing complementary protection) that:

   The ongoing attacks against the Shia have led them to feeling a degree of humiliation and degradation at the hands of the wider Sunni community.  They are unable to lead a normal life and cannot practice their religion as freely as they desire.  We submit that due to his religion, the Applicant would experience degrading treatment at the hands of the Taliban and other anti-Shia elements within Pakistan. 

4. It was submitted that the Tribunal had failed to consider the adviser’s submission (reproduced in its reasons) about the situation in Karachi to the effect that relocation to Karachi would not provide the Applicant with freedom from harm and the submission that in view of the ongoing attacks on religious institutions Shia’s could not lead a normal life and practise their religion as freely as they desired. 

5. In support of the first of these particulars reference was made to the part of the adviser’s written submission that quoted a report by the Tribunal about relocation of Shiite Pashtuns in cities in Pakistan (including Karachi).  This was said to support the proposition that the Applicant would face particular difficulty finding security within Pakistan and that internal relocation would not provide him with freedom from harm.

6. In support of the second particular reference was made to the part of the written submissions which addressed whether significant harm arose from degrading treatment or punishment.

7. The First Respondent submitted generally that the Tribunal had quoted the entirety of the Applicant’s submissions and addressed the Applicant’s stated objections to relocation in finding that it was reasonable for the Applicant to relocate to Karachi.  It was contended that in concluding that there was not a real chance of the Applicant being harmed by sectarian violence in Karachi, the Tribunal had addressed the Applicant’s claims and submissions. 

8. It was pointed out that in its reasons for decision the Tribunal had accepted for the purposes of the decision that that Applicant had a fear of harm in Orakzai, but had found that it was reasonable for him to relocate within Pakistan.  The First Respondent submitted that the Tribunal had addressed the issue in the first particular to this ground in that it explicitly considered the risk of harm from sectarian violence, albeit it essentially reasoned that while there was sectarian violence in Pakistan and Karachi, the “casualty rate” was so low (when one had regard to the population figures for Shias) that the Tribunal was not satisfied that the fear of harm rose to the level of a well-founded fear.  This was said to be a matter of merit and an assessment for the Tribunal that did not give rise to any jurisdictional error.

9. As to the second particular, the First Respondent acknowledged that the adviser’s submission in relation to complementary protection had suggested that due to the Applicant’s religion he would experience degrading treatment at the hands of the Taliban and other anti-Shia elements within Pakistan.  It was also acknowledged that this part of the submission referred to the Applicant, as a Shia, not being able to practise his religion as freely as desired, but submitted that that overwhelming basis of the adviser’s submission in dealing with relocation was that the Applicant would be unsafe if he relocated because of a fear of harm from attacks, including attacks on mosques.  

10. The First Respondent submitted that insofar as the Applicant intended to contend that the Tribunal had failed to deal with an aspect of his claims, the Tribunal’s obligation was to deal with substantial, clearly articulated claims relying on established facts (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24]). It was also submitted that without some elaboration of any claimed inability to practise religion by the Applicant, the general submission by the adviser that due to his religion the Applicant would experience degrading treatment at the hands of the Taliban and other anti-Shia elements within Pakistan did not rise to the level of a substantial, clearly articulated claim that had to be addressed by the Tribunal. It was submitted that while the Tribunal did not explicitly deal with the issue of the practice of religion, it had accepted that the Applicant was identifiable as a Shia Muslim on the basis of his name, his appearance and the fact that he attended Shia mosques and participated in Shia religious observances. It was contended that it could be inferred that the Tribunal had not accepted that the Applicant would be unable to practise his religion in a way which would cause him harm within the Refugees Convention or the complementary protection criterion.

Consideration

1. To the extent that particular (a) of this ground asserts that a claim was made by the adviser on behalf of the Applicant on the basis that Shia Muslims in Pakistan were being “consistently targeted for attacks by Sunni militants” it appears that this is a reference to an extract from an RRT Report in relation to the situation in Karachi cited in the adviser’s submission.  That Report stated:

   No reports have been located that state that Shi’ite Pashtun tribes and sub-clans such as the Turi and Bangash have been specifically targeted for harm in Karachi.  There are, however, numerous examples of both Shi’ites groups and individuals being targeted for harm for both ethnic and sectarian reasons.

2. The Report also referred to two “[r]ecent examples of mass attacks on Shi’ites” by targeting religious processions and to “targeted assassinations of Shi’ite professionals”.

3. In addition, in addressing the complementary protection criterion the adviser claimed (under the heading “Significant harm arising from arbitrary deprivation of life”) that:

   The Taliban and other Sunni fundamentalist insurgents have openly claimed responsibility for a countless number of attacks against the Shia muslims as well as those affiliated with foreigners.  We submit that there is no guarantee for the Applicant’s life and given his profile as a Pashtun Shia who has returned from a western country, he is placed in an extremely vulnerable situation, so much so that he is likely to be arbitrarily killed upon his return.

4. Whether these parts of the adviser’s submission are seen as a submission or as raising a claim, it is clear that the Tribunal was aware of and addressed the issue of whether the Applicant (as a Shia) faced targeted harm in Karachi in a violent attack by Sunni fundamentalist groups, including the suggestion that Pashtuns may be hurt in religious, political or ethnic violence in Karachi.  It considered the submission that the Applicant would not be safe in Karachi (referring to the information about mass attacks on Shiites, including in religious processions and the targeting of professionals).  The Tribunal’s findings in this respect are set out above.  It did not accept that there was a real chance the Applicant, who was not a professional, would be “singled out” to be killed or otherwise persecuted because he was a Shia Muslim or more generally that there was a real chance he would be killed or otherwise persecuted because he was a Shia Muslim “in the context of the sectarian violence” (notwithstanding that it accepted that some Shia religious places of worship were targeted and that the Applicant would be identifiable as a Shia Muslim including because he attended Shia mosques and participated in Shia religious observances such as processions).  Such findings addressed the claims made in the submissions (including in relation to arbitrary killing).  Moreover the Tribunal clearly proceeded on the basis that the Applicant would continue to engage in Shia religious practices.

5. Similarly, consistent with what was said in relation to Ground 1 and contrary to particular 2(b), on a fair reading of the decision, it is clear that the Tribunal considered the submission that due to the risk of harm in, relevantly, Karachi, it was unreasonable for the Applicant to avail himself of the internal flight alternative.

6. Moreover, it has not been established that a substantial, clearly articulated claim based on established facts arose on the material before the Tribunal to the effect that the Applicant would not be able to practise his religion (or that he would not to be able to do so freely as desired) in the sense considered in Dranichnikov at [24] and NABE (No 2) at [57]. The adviser’s submission about degrading treatment or punishment described at [57] above was not such as to squarely raise a claim that the Applicant could not practise his religion (and that this rendered it unreasonable to relocate within Pakistan). Rather the adviser claimed generally that the Applicant, as a Shia, would experience significant harm consisting of degrading treatment at the hand of the Taliban and other anti-Shia elements in Pakistan. The Tribunal considered the claims that were raised about the Applicant being identified as a Shia because of his religious practices and about the Applicant’s safety, including due to religious violence or attacks on Shiites (such as on those engaged in religious processions) in light of the contention that terrorist attacks heightened at a time of important religious events.

7. Having regard to the generality of the adviser’s submission about Shias feeling a degree of humiliation and degradation at the hands of the wider Sunni community and the absence of any reference to information in support of the suggestion that Shia were “unable to lead a normal life and cannot practise their religion as freely as they desire” this aspect of the adviser’s submission is not such as to amount to a substantial and clearly articulated submission about an inability on the part of the Applicant to practise his religion if he relocated to Karachi in the sense considered in SZSSC such that the Tribunal constructively failed to exercise its jurisdiction in failing to address this aspect of the submission expressly (see SZSSC at [81]). This ground is not made out.

8. As neither of the grounds relied on by the Applicant has been established, the Application must be dismissed. 

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date: 31 August 2015