SZTJO v Minister for Immigration

[2015] FCCA 1921

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTJO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1921

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – whether the Tribunal fell into error in assessing the reasonableness of relocation.

Legislation:
Migration Act 1958 (Cth), ss.36, 36(2)(a), 36(2B)(a)

Januzi v Secretary of State for the Home Department [2006] All ER (D) 183 (Feb); [2006] 2 AC 426
Minister for Immigration and Border Protection v SZSCA & Anor (2014) 314 ALR 514; [2014] HCA 45
MZYXP v Minister for Border Protection & Anor (2013) 137 ALD 348; [2013] FCA 1352
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 1253
SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 448; [2006] FCA 3
SZATV v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 18; [2007] HCA 40
SZCLY v Minister for Immigration and Citizenship & Anor (2009) 109 ALD 585; [2009] FMCA 569

Applicant: SZTJO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW TRIBUNAL)

File Number: SYG 2466 of 2013

Judgment of: Judge Barnes

Hearing date: 21 October 2014

Date of last submission: 1 December 2014

Delivered at: Sydney

Delivered on: 20 July 2015

REPRESENTATION

Solicitor for the Applicant: Mr M. Jones of
Parish Patience Immigration Lawyers

Solicitor for the First Respondent: Mr A. Markus of
Australian Government Solicitor

ORDERS

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

2. A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision made on 11 September 2013.

3. A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 28 November 2012.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2466 of 2013

SZTJO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW 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) (the “Tribunal”) dated 11 September 2013 affirming 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 June 2012.  He applied for protection in August 2012.  He claimed to fear that he would be killed by the Taliban on return to Pakistan having regard, in particular, to his involvement in the local village defence committee and his membership of the Awami National Party (the “ANP”). 

3. The delegate accepted that there was a real chance the Applicant could face serious harm on account of his actual or imputed political opinion if he were to return to his home area in the Swat District of Pakistan or anywhere in the Khyber Pukhton (“KP Province”) in the reasonably foreseeable future, but that it would be reasonable and practicable for the Applicant to return to Pakistan and relocate outside KP Province, for example to Punjab Province.  Based on the relocation finding the delegate was not satisfied that Australia had protection obligations to the Applicant either under the Refugees Convention criterion or the complementary protection criterion.

4. The Applicant sought review by the Tribunal by application filed on 10 December 2012.  He attended a Tribunal hearing on 1 August 2013.  The Applicant’s adviser lodged written submissions dated 30 August 2013.  The Applicant attended a resumed hearing on 2 September 2013. 

5. Before the second hearing, the Tribunal was provided with what it described as a “psychological report dated 15 August 2013” consisting of a letter from a medical practitioner with the Griffith Aboriginal Medical Service dated 15 August 2013 addressed “To Whom it may concern” stating the following in relation to the Applicant:

   This is to inform [the Applicant] is recently came to Australia from Parkistan (sic) and is suffering from Depression and Post traumatic stress disorder and he is under my care for his mental illness and he has been on antidepressant treatment and counselling sessions with counsellor.

The Tribunal Decision

1. In its reasons for decision the Tribunal summarised the Applicant’s claims made in writing and at the two Tribunal hearings.  It referred to the medical report and to a discussion of the impact of the Applicant’s medical condition at the second hearing.  The Tribunal recorded that the Applicant said he had visited a counsellor three or four times in the last two months and that, when asked if he found the medication he was taking had any negative effects, he said he could not sleep at night but that this was not due to the medication.  In relation to his memory, he referred to an occasion “the other day” on which he had prayed twice without eating because he was not sure of events and whether or not they had happened.

2. Relevantly, the Tribunal also recorded that at the resumed hearing the Applicant’s adviser had claimed that the Applicant had a mental illness that had the effect of limiting his ability to fully explain his claims, possibly as an effect of his post-traumatic stress disorder (“PTSD”) and in addition (as the Tribunal recorded) “that the Applicant’s mental state would be the same wherever he went in Pakistan and therefore would have an effect on his ability to relocate”.

3. Under the heading “The applicant’s mental state”, the Tribunal referred to the “brief medical report” which advised that the Applicant was suffering from depression and PTSD.  While the Tribunal accepted this diagnosis, as it was made by a “professional person”, it found that the diagnosis of itself did not lead to a conclusion that the situation in the Applicant’s home area had created this mental state.  It observed that causes of depression and PTSD were wide and diverse and stated that it made no finding as to the “cause” of the Applicant’s depression and PTSD, but was aware that it “[could] be the consequence of a number of situations.”   

4. The Tribunal addressed the adviser’s submission that the Applicant’s mental state “could account for his failure to provide fuller details in his responses”.  It stated:

   146.  The Tribunal has taken into account this situation.  Throughout the hearing the applicant was assured that he could take breaks if he chose to.  The applicant responded with consistent details in regard to the sequence and periods of events throughout the hearing.  He also argued with adverse information that was put to him. 

   147.  In the resumed hearing the applicant and the adviser were offered the opportunity to have an adjournment to discuss matters and issues but the adviser declined the offer.  This indicates to me that she was satisfied that the applicant had had the opportunity to put his claims and that he had put them to a level she was satisfied of although I accept that she felt he could have provided more details.

   148.  I note that there are no inconsistencies in the applicant’s claims from the time he first made claims to the department and to the Tribunal.

   149.  Throughout the hearing the applicant remained calm but responsive.

   150.  I have formed the view that the applicant has put his case and that he was in a mental state to provide evidence and to respond to adverse material put to him.  He has also had the services of a professional representative who had prepared and provided comprehensive submissions and has had the benefit of providing evidence over a considerable period of time. 

   151.  To ensure the applicant had not been handicapped I have taken careful account of all of the evidence he has provided through the period of his application for a protection visa.

5. The Tribunal summarised the Applicant’s claims about past encounters with the Taliban in the Swat Valley in Pakistan, including his claim that in June 2007 he was warned (in a note slipped under his shop door) to close his shop, which sold CDs and videos, and that a few days later he was attacked and beaten by Taliban members who ransacked the shop and burned his stock.  He claimed he relocated to Karachi for five weeks and then found work on a ship from August 2007 to August 2008, thereafter returning to his home village.

6. The Tribunal also recorded the Applicant’s claim that in October 2008 the Taliban was “stationed” behind his house and that he was beaten when he and three other men asked them to move on after the army had broadcast that they would attack that position.  He claimed that the Taliban killed one of the men who had been with him and that in November 2008 he received a threatening letter from the Taliban accusing him of working for the army.  He again went to Karachi and joined another ship (in February 2009).  He returned to Pakistan and to the Swat Valley in December 2009.  He claimed that early in 2010 he opened a tailoring business and that he became a member of the village defence committee in March 2010.  He claimed that approximately four months after opening his shop (which made clothes for both men and women) he received another threatening letter from the Taliban telling him not to make women’s clothing and accusing him of entertaining army personnel.  He claimed he was subsequently taken captive by the Taliban, bound and beaten, but that he escaped when the army fired on the Taliban.  He claimed he again went Karachi, where he remained until 1 October 2011.  He left Pakistan to join a ship and arrived in Australia in June 2012.  His family remained in Karachi.

7. The Tribunal accepted that the Applicant was a Sunni Muslim from the Swat Valley.  While it had some doubts and did not believe aspects of his claims about past events, it accepted that it could not rule out as remote the prospect that the Applicant may face a real chance of serious harm from the Taliban for reason of his imputed political opinion.  It found, however, that the risk of such harm was localised to his home area of the Swat Valley and that the Applicant could avoid persecution and/or significant harm from the Taliban by relocating to Karachi. 

8. In the course of making such findings the Tribunal had regard to independent country information to the effect that the Taliban had generally been removed from the Swat Valley area before the Applicant’s return to Pakistan in December 2009.  It observed that he subsequently spent a few months away from his home area, staying with his wife’s family, before returning to his home area.  The Tribunal rejected the Applicant’s claims that he confronted the Taliban in 2008, that he was threatened by them in 2008 and that he was threatened and kidnapped in 2010.  The Tribunal did not accept that his membership of a village defence committee in 2010 gave him a profile of any concern to the Taliban.  It accepted that in mid to late 2010 the Applicant moved to Karachi, where he remained until October 2011. 

9. The Tribunal found:

   205.  While the applicant has a low profile in the Swat I do accept that he has come to Taliban’s attention in 2007 to a limited degree and that he was a member of a village committee in 2010 for a few months and while, in all probability he would not be a target, I cannot dismiss as remote and insubstantial any chance that he could face serious harm at the hands of Taliban for reasons of his perceived political opinion or his perceived religious opposition to them in his home village.

10. In considering relocation, the Tribunal found that the Applicant had “ably demonstrated” that he could and did relocate to Karachi, where he had been able to reside for periods of time from 1998 without experiencing any risk or chance of serious harm of any nature.  The Tribunal accepted that the Applicant first visited Karachi in 1998; that he moved there in mid-2007 (in the Taliban era) for five weeks before finding work on a ship until August 2008; that he again went to Karachi in November 2008 when he remained until February 2009 where he again found work on a ship until returning to Pakistan in December 2009; and that he again moved to Karachi “late in 2010 and remained until 1 October 2011 without incident”. 

11. The Tribunal also had regard to the Applicant’s evidence that his brother-in-law, who was of the same ethnic group, religion and from the same area, had been able to reside in Karachi and establish a successful jewellery business. It observed that when this was put to the Applicant he claimed that his brother-in-law had been robbed and attacked in Karachi.  The Tribunal was of the view that this claim was a late fabrication made in a “desperate attempt” to show that Karachi was not a reasonable place to relocate.  It was of the view that the Applicant (who had a professional migration agent) would have been made aware that relocation was the basis for the delegate’s decision.  It noted that when the Applicant was first asked about his brother-in-law and his residence and business in Karachi, he had made no mention of any problems or difficulties in Karachi.  The Tribunal found that the Applicant’s brother-in-law had chosen to live in Karachi and that it had proved to be a place where he had been able to live in the same degree of security as other residents of Karachi, and to raise his family and establish a business.

12. The Tribunal considered the Applicant’s adviser’s submissions that the Applicant would not be able to express his political opinion and religious/political views without being at risk of persecution throughout Pakistan, that he would be at risk of persecution wherever he relocated as the agents of persecution were present/active throughout Pakistan; that relocation would expose him to new risks of serious harm to his life and liberty, and that the authorities, and the Applicant’s family (who had relocated to Karachi) could not protect the Applicant from the risk of Convention related persecution/attacks and general violence in Karachi. 

13. However the Tribunal stated that at no time had the Applicant claimed or demonstrated that he had expressed his political opinion and his religious/political views (apart from not adhering to the Taliban’s demands).  It found that he would not do so to any greater degree in the reasonably foreseeable future.  It had regard to his low profile in his home village and his minimal role in the village defence committee including the absence of confrontation with or action against the Taliban beyond general security monitoring. 

14. The Tribunal considered the Applicant’s claim that people from his village defence committee had been killed, but found that it was unable to consider their killings as the Applicant had been unclear on when they were killed.  In any event, the Tribunal found that this was in the local village and that there was no evidence that any member of the local village committee had been traced to or faced serious harm in Karachi.

15. As the Tribunal had found that the Applicant was not of concern to the Taliban after 2007 in his home area, it was not satisfied that he was of any concern to them in Pakistan as a whole.  It found that his evidence of his “considerable time” in Karachi without any adverse consequences supported that finding.  Accordingly, it found that the Applicant did not face a real chance of serious harm at the hands of the Taliban or Sunni fundamentalists in Karachi.

16. Nor was the Tribunal satisfied that the Applicant faced any prospective harm as a member of a particular social group of “Sunni Muslims in the Swat Valley opposed to the Taliban” having regard to his low profile, and the substantial change in the Swat Valley from August 2009 on.  In these circumstances the evidence led the Tribunal to find that the Applicant did not face any prospective harm for that reason in Karachi. 

17. The Tribunal also considered the claim that the Applicant faced a real chance of persecution as a member “of a particular social group of members of peace committees in the Swat Valley”.  The Tribunal did not accept that the Applicant’s minimal role for a minimal period in which he did not encounter any Taliban would create a profile whereby the Taliban would seek to find him throughout Pakistan.  Accordingly, the Tribunal found that the Applicant did not face a real chance of persecution in Karachi for reasons of his membership of a defence committee in his village, either now or in the reasonably foreseeable future.

18. The Tribunal then concluded:

    237.  Having taken into account the applicant’s evidence of his period of time in Karachi, his brother in law’s lengthy period of residency there and his ability to find work as a merchant seaman using Karachi as a base I find that it is both reasonable and practicable for him to relocate to Karachi and avail himself of the protection that is available to him there.

19. On this basis the Tribunal found that the Applicant did not have a well‑founded fear of serious harm in Karachi and, thus, that he was not a refugee.

20. Under the heading “Complementary Protection”, the Tribunal reiterated that it had found that any harm facing the Applicant in the Swat Valley did not exist in Karachi. It referred to the limitation on complementary protection in s.36(2B)(a) of the Migration Act 1958 (Cth) (the “Migration Act”) which provides that there is taken not to be a real risk that a non-citizen will suffer significant harm if the Minister is satisfied that it would be reasonable for the non‑citizen to relocate to an area of his home country where there would not be a real risk that the person would suffer significant harm. In that context, the Tribunal stated:

    245. The applicant has provided evidence of the ability to relocate, to find accommodation, education and means to earn a living in Karachi.  I further find it is reasonable for him to seek protection from any risk of harm in his home area of Swat Valley by relocating to Karachi to be with his wife and family who have already relocated there.

21. It also had regard to the absence of evidence of any real risk of significant harm for any reason in Karachi.  The Tribunal found that the evidence led to a finding that the Applicant did not face a real risk of significant harm in Karachi now or in the reasonably foreseeable future and that he did not meet the complementary protection criterion.  The Tribunal affirmed the delegate’s decision.

The Current Proceedings

1. The Applicant sought review by application filed in this Court on 11 October 2013.  There is one ground in the application.  It is as follows:

   The Tribunal fell into jurisdictional error in its consideration of whether it was reasonable for the Applicant to relocate to another part of the country.

   Particulars

   The Tribunal accepted that the Applicant was suffering from post‑traumatic stress syndrome (sic).  This condition should have been considered by the Tribunal in assessing whether relocation within the country was reasonable in his circumstances.  The Tribunal failed to do so.

2. The solicitor for the Applicant referred to the remarks of Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442; [1994] FCA 1253 in relation to the issue of whether “as a practical matter” the part of the country in which protection is available to an Applicant is “not reasonably accessible to that person”.  His Honour stated that “the practical realities facing a person who claims to be a refugee must be carefully considered” and that the range of realities 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 and easily extends to circumstances such as those present R v Immigration Appeal Tribunal Ex parte Jonah (1985) Imm. AR 7”.

1. The Applicant also pointed out that in SZATV v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 18; [2007] HCA 40, Gummow, Hayne and Crennan JJ 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.

2. It was noted that the Tribunal considered that it was both reasonable and practicable for the Applicant to relocate to Karachi and that he did not have a well‑founded fear of serious harm or significant harm in Karachi.  However the Tribunal had before it evidence that the Applicant was suffering from depression and post‑traumatic stress disorder and it had accepted these diagnoses.  Moreover as the Tribunal recorded, at the second hearing the Applicant’s adviser had expressly claimed that the Applicant’s mental state would be the same wherever he went in Pakistan and, therefore, that it would have an effect on his ability to relocate. 

3. It was submitted that the Tribunal had erred in failing to take into account the Applicant’s mental state in relation to the issue of whether it was reasonable, in the sense of practicable, for him to relocate to Karachi. 

4. The Applicant contended that the Applicant’s mental state had been raised on the material before the Tribunal as a possible obstacle to relocation, that the nature of the issue raised was such that it could be seen as of potential relevance to the reasonableness and practicability of relocation, and hence that the Tribunal had to consider this issue.  It was submitted that in the circumstances the Tribunal had failed to give proper consideration to the practical realities facing the Applicant in considering relocation in relation to both the Refugees Convention criterion and the complementary protection criterion (see SZCLY v Minister for Immigration and Citizenship & Anor (2009) 109 ALD 585; [2009] FMCA 569 at [113]-[128] and cases cited therein).

5. The First Respondent conceded that the Tribunal accepted that the Applicant was suffering from depression and PTSD, but did not make an express finding that, notwithstanding this mental condition, it would be reasonable for him to relocate to Karachi. 

6. However, it was submitted that it should not be inferred that this factor (the Applicant’s condition) was overlooked by the Tribunal in reaching its conclusion that relocation to Karachi was reasonable for the Applicant in view of his circumstances. 

7. In support of this proposition reference was made to the Tribunal’s findings that the Applicant’s family lived in Karachi and had done so for some years and, that on various occasions, the Applicant had lived in Karachi and found work there (including, most recently, from late 2010 until October 2011 after the last claimed events in the Swat Valley). 

8. The First Respondent submitted that, without more, the submission to the Tribunal by the Applicant’s adviser was “meaningless”, as the mere fact that a person had a mental illness did not lead to a conclusion that he or she could not live in a particular part of the country.

9. It was submitted that in the absence of any suggestion that there was a particular practical impediment arising out of the diagnosis and where there had been no finding as to the cause of the Applicant’s mental state, the Tribunal had focused on whether, as a practical matter, it was reasonable to expect the Applicant to relocate to Karachi and had made factual findings in that respect.  There was said to be no basis on which it could have made findings about the practical consequences of the diagnoses of PTSD and depression in the absence of further evidence or submissions from the Applicant.

10. In other words, it was submitted that what was required of the Tribunal was a consideration of “practical impediments” and that in this case nothing had been put to the Tribunal in relation to any practical impediment created by the Applicant’s mental state. 

11. In oral submissions it was pointed out that the medical evidence consisted of a brief diagnosis, with no discussion of symptomatology, prognosis or aetiology and that there had been no submissions as to exactly how, in a practical sense, the Applicant’s mental condition would be an obstacle to relocation.  It was also said to be relevant that the Tribunal had focused on the reality that the Applicant and his family had relocated to Karachi previously, as well as the time he had spent there, his brother-in-law’s lengthy residence there and the Applicant’s ability to find work as a merchant seaman using Karachi as a base.  There had been no suggestion that the Applicant could not work.

12. It was also pointed out that the Applicant would have been aware that the delegate’s decision was based on a relocation finding, but suggested that it was notable that the adviser’s written submission of 30 August 2013 had not put any significance on a claimed impediment to relocation arising out of the Applicant’s mental state and that when addressing relocation the submission had referred only to country information that extremist/fundamentalist groups were active throughout the whole of Pakistan.

13. The First Respondent submitted that in these circumstances, given that the Tribunal referred to the adviser’s oral submission that the Applicant’s mental state would have an effect on his ability to relocate and in the absence of any specific evidence that the Applicant’s mental state would interfere with or be an obstacle to relocation, the Court should infer that the Tribunal did not overlook the Applicant’s mental state in considering the reasonableness of relocation and that its finding as to the reasonableness of relocation encompassed an implicit rejection of the claim that the Applicant’s condition made relocation to Karachi unreasonable for him.

Consideration

1. The requirement in s.36(2)(a) of the Migration Act that the Minister be satisfied that Australia has protection obligations to the Applicant under the Refugees Convention (as amended by the Refugees Protocol) incorporates the requirement in Article 1A(2) of the Convention that the Applicant’s fear be “well-founded”.  This involves consideration of whether an applicant for refugee status can relocate within his or her country of nationality so as to avoid persecution (see SZATV at [15] – [22] per Gummow, Hayne and Crennan JJ). In addition, as the Tribunal recognised, s.36(2B)(a) states in relation to the complementary protection criterion:

   (2B)  However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)  it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

   No issue was taken with the Tribunal’s view that the test in this regard “broadly” reflects that applicable to the Refugees Convention criterion and that the issues that arise in relation to the “reasonableness” of relocation are the same in the context of both criteria (see MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [37]).

2. As Black CJ pointed out in Randhawa (at p.442) it is necessary to 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, importantly:

   Given the humanitarian aims of the Convention this question [is] not to be approached in a narrow way. 

3. The Tribunal must consider not merely whether the Applicant could relocate to another area of his or her own home county, but whether he or she could reasonably be expected to do so.  As Black CJ went on to point out in Randhawa at p.442:

   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…

4. His Honour expressed agreement (at p.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.

5. While the decision-maker in Randhawa had considered the issues raised by the applicant, Black CJ (with whom Whitlam J agreed) suggested at p.443 that if the applicant “had raised other impediments to relocation the decision-maker would have needed to consider these...”.

6. In SZATV the High Court considered a situation in which the Tribunal had found that 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. 

7. As Gummow, Hayne and Crennan JJ pointed out at [32], by reasoning on this basis the Tribunal “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 submission of the Minister 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. In NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 (considered in SZCLY) the Full Court of the Federal Court considered the extent to which the Tribunal had to consider concerns expressed by an applicant in considering the “practical realities” referred to in Randhawa.  The Tribunal had referred to the appellant’s evidence that she claimed that she “could not relocate within Fiji as she would have no one to look after her”.  In summarising the evidence at the hearing, the Tribunal, in its findings, had also noted the appellant’s “difficulties”, but found that her daughter had assisted her in the past and had continued to do so in Australia.  The Tribunal was satisfied that with the assistance of her daughter the applicant would be able to relocate within Fiji.  However Branson J (with whom North J agreed) found that the appellant’s oral statements to the Tribunal were intended to convey a concern about where she would live outside her home area and how, without a friend or family member in close proximity, she could “be looked after” in the way that, as a 55-year old unemployed widow in Fiji, she needed to be looked after. 

9. The majority of the Full Court in NAIZ found that the assistance from the appellant’s daughter referred to must, given the evidence, be understood to be financial assistance and that in considering relocation the Tribunal had given no “explicit consideration” to how, even with financial assistance from her daughter, the appellant would find a new home in which to live in Fiji and access such support as she might reasonably require to live in that home.  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.

10. Relevantly, having regard to the arguments in the present case, her Honour continued at [22]:

    …This is not to say that it was not open to the Tribunal to conclude that the appellant could deal with those practical realities, perhaps with financial help from her daughter. However, the Tribunal was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within Fiji.

11. The majority in NAIZ was of the view that the Tribunal had fallen into jurisdictional error in that it had misconceived the elements of the test for determining whether the appellant was a person in respect of whom Australia owed protection obligations under the Refugees Convention within the meaning of s.36 of the Migration Act, in particular the content of the requirement that it not be unreasonable for an applicant to relocate within his or her home country. Hence, the Federal Court found that the Tribunal did not ask itself the right questions before determining that it was not satisfied that the appellant was a person in respect of whom Australia owed protection obligations under the Convention.

12. Similarly, in SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 448; [2006] FCA 3 Madgwick J found that the Tribunal had failed to ask itself “the right questions” (as Branson J put in NAIZ) in failing in its relocation findings to consider, as a matter of practical reality, the issues raised by the appellant, in particular the psychological difficulties for the appellant of continuing to live anywhere within the home country and culture in which she had experienced rape on two occasions. In circumstances where the Tribunal had not discussed this issue in its findings, Madgwick J inferred that the psychological aspects of the practical realities facing the appellant had been overlooked (at [61]-[63]) (and see SZCLY).

13. After judgment in this matter was reserved, the High Court delivered judgment in Minister for Immigration and Border Protection v SZSCA & Anor (2014) 314 ALR 514; [2014] HCA 45. The parties were given leave to make further submissions. The Applicant submitted that SZSCA supported the proposition that the Tribunal had to consider the impact on the Applicant (if he returned to Karachi) of the circumstances in which he would be placed arising from his acknowledged psychological conditions.  The First Respondent submitted that SZSCA said nothing about the Tribunal’s decision in the present case. 

14. 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 in SZSCA 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.

15. Relevantly, the majority held that “the same considerations as are relevant to relocation” apply when the Tribunal identifies an area in which a 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 [48] above.

16. As in SZATV, the majority in SZSCA referred with approval to the consideration by the House of Lords in Januzi v Secretary of State for the Home Department [2006] All ER (D) 183 (Feb); [2006] 2 AC 426 at 446 [15], 448 [20] of the nature of the test to be applied to determine whether an asylum seeker could reasonably be expected to internally relocate, 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]).

17. Relevantly, the majority in SZSCA stated at [31]:

    In the present case it is not just the living conditions for the respondent in Kabul — and whether he would face a real chance of persecution if he stayed there — which should have been considered by the Tribunal. Rather, it was necessary for the Tribunal to consider the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business. Addressing this question properly may have raised various issues for the Tribunal’s consideration. At the least, the question clearly directs attention to the respondent’s ability to earn an income from other sources and to his needs and those of his family.

18. Their Honours continued at [33]:

    …Without addressing the question whether it would be reasonable to expect the respondent to remain and work in Kabul, having regard to the circumstances in which that would place him, the Tribunal could not make a final determination as to whether he could be said to have a well-founded fear of persecution. Failure to address this question constituted an error of law.

19. These cases demonstrate that, in giving consideration to how in a practical sense an applicant could reasonably be expected to relocate, the Tribunal must address the particular circumstances and characteristics of the applicant in question and how he or she “could deal with those practical realities” (Branson J in NAIZ at [22] cited in SZCLY at [99]). Moreover, 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 practicably unreasonable” (see MZYXP v Minister for Border Protection & Anor (2013) 137 ALD 348; [2013] FCA 1352 at [64] per Kenny J and NAIZ).

20. It is clear on the Tribunal’s account of what occurred at the resumed hearing, that the Applicant’s adviser raised the issue of the Applicant’s mental state as relevant not only to his ability to fully explain his claims (a matter considered by the Tribunal) but also as relevant to, and as having an effect on, the Applicant’s ability to relocate.  The Tribunal recorded this submission.  It dealt in some detail with the possible impact of the Applicant’s mental stated on his evidence and ability to participate in the Tribunal hearing.  It did not expressly address the submission that the Applicant’s mental state would have an effect on his ability to relocate in its findings and reasons. 

21. Insofar as it was suggested that it was relevant that the adviser’s written submission did not refer to the evidence of the Applicant’s medical state in relation to the issue of relocation, I note that the issues addressed by the Applicant’s adviser in that submission related to whether the Applicant would be at risk of persecution anywhere in Pakistan (as distinct from the issue of whether it was practicable or reasonable for him to relocate to an area in which he would not be at risk of serious or significant harm). 

1. However in relation to relocation the submission also included an extract from the UNHCR guidelines on international protection in relation to the “Internal Flight or Relocation Alternative” in which it was suggested that:

   Psychological trauma arising out of past persecution may be relevant in determining whether it is reasonable to expect the claimant to relocate in the proposed area.  The provision of psychological assessments attesting to the likelihood of further psychological trauma upon return would militate against finding that relocation to the area is a reasonable alternative…

   In any event, as the adviser expressly raised the issue of the effect of the Applicant’s mental state on his ability to relocate at the subsequent resumed hearing, the failure to address this issue in the earlier submission is of no assistance in relation to resolution of the issue raised by this ground.

2. In this case it is not in dispute that the Tribunal accepted that the Applicant suffered from the mental states of depression and PTSD.  It is the case that the medical report  provided to the Tribunal did not elaborate on any symptoms, prognosis or any other matters in relation to these conditions, except to state that the Applicant was undergoing antidepressant treatment and counselling sessions.  It is also apparent from the Tribunal’s account of the second Tribunal hearing that the Tribunal raised with the Applicant some issues about his mental state (as summarised above). 

3. However contrary to the First Respondent’s submission, I am not satisfied that it should be inferred that the Tribunal’s finding that relocation to Karachi was reasonably practicable encompassed an implicit rejection of the claim that the Applicant’s mental condition made relocation unreasonable. 

4. In the context of considering the Refugees Convention criterion the Tribunal discussed at some length the localised nature of the fear of serious harm that it accepted that the Applicant held.  It referred to his evidence that he had lived in Karachi without experiencing any risk or chance of serious harm.  It is notable however that there was no evidence as to whether the Applicant’s mental conditions were in existence at that time.  The Tribunal also had regard to the fact that the Applicant’s brother-in-law had worked and lived and worked in Karachi, raising a family and establishing a business with the same degree of security as other residents of Karachi. 

5. In relation to the reasonableness of relocation the Tribunal set out the issues that it took into account. These were the Applicant’s evidence of his period of time in Karachi, his brother-in-law’s lengthy period of residency there and his ability to find work as a merchant seaman using Karachi as a base.  These findings do not encompass a consideration of the Applicant’s mental state.  The Tribunal expressly stated that having taken into account “these matters” it found that it was both reasonable and practicable for the Applicant to relocate to Karachi and avail himself of the protection that it was available to him there.

6. Similarly, in the context of considering complementary protection, the Tribunal set out the matters to which it had regard in relation to relocation, being the Applicant’s evidence of his ability in the past to relocate and to find accommodation, education and the means to earn a living in Karachi and the absence of evidence of a real risk of significant harm for any other reason in Karachi. It was in light of these matters that the Tribunal found that it was reasonable for the Applicant to seek protection from the risk of harm in his home area by relocating to Karachi to be with his wife and family who had already relocated there. 

7. In making its findings in relation to relocation, the Tribunal did not expressly consider, and nor can it be inferred that it took into account and implicitly rejected, the Applicant’s claims about the impact of his mental state on his ability to relocate wherever he went in Pakistan.  As in NAIZ, the Tribunal dealt the reasonableness of relocation in a relatively summary way.  It did not explore in its reasons the significance of the medical certificate or the adviser’s references to the Applicant’s mental state as having an effect on his ability to relocate. The nature of the issue raised was such that it could be seen as of potential relevance to the reasonableness and practicability of relocation.  It was expressly raised as an impediment to relocation.  The Tribunal did not refer to the Applicant’s oral evidence in response to questions about his mental state in the context of considering relocation.  Its account of the Applicant’s evidence at the hearing and its findings are not such as to warrant an inference that the Tribunal took into account such evidence in considering the practicability or reasonableness of relocation.  The Tribunal did not give the necessary “careful consideration” to the practical realities and impact facing the Applicant with respect to living in Karachi given his particular circumstances as a person with depression and PTSD (cf. Randhawa and SZATV). 

8. The First Respondent contended that as there was no evidence as to the cause or impact of the Applicant’s depression and PTSD, no suggestion that this mental state interfered with the Applicant’s ability to work and no clarification of how such mental state would otherwise impact on his ability, in a practical sense, to relocate to a place he had been on a number of times, lived for relevantly significant times, where his family lived and where he had other wider social networks there was no basis on which the Tribunal could have made findings about the practical consequences of the diagnoses.  However, while it may have been open to the Tribunal to conclude that it was not satisfied on the evidence before it that the Applicant’s mental state was such as to render relocation to Karachi unreasonable or to find that that, notwithstanding his mental state, the Applicant could deal with the practical realities he would face Karachi, this possibility does not mean that the Tribunal took into account the Applicant’s mental state as an impediment to relocation.  As Branson J pointed out in NAIZ at [22] the Tribunal was required to give consideration to how, in a practical sense, this Applicant could reasonably be expected to relocate within Pakistan (in particular to Karachi). The Tribunal failed in its relocation findings to consider whether, having regard to the Applicant’s personal circumstances, including his PTSD and depression, and the circumstances he could be expected to face in Karachi as the proposed place of relocation, it would be unreasonable to expect him to relocate. Its failure to do so meant that it failed to ask the right questions. The Tribunal overlooked the psychological aspects of the practical realities facing the Applicant in having regard to his circumstances.

9. I am satisfied that the Tribunal erred in the manner contended for by the Applicant.  Accordingly the matter should be remitted to the Tribunal (which is now part of the Administrative Appeals Tribunal) for redetermination according to law.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  20 July 2015