SZUJV v Minister for Immigration
[2019] FCCA 26
•10 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUJV v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 26 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision was affected by jurisdictional error by reason that it had applied an incorrect test of the practicability of relocation and had failed to consider material information. |
| Legislation: Migration Act 1958, ss.36, 91R, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 MZYQU v Minister for Immigration & Citizenship (2012) 206 FCR 191 SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | SZUJV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1430 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 8 September 2016 |
| Date of Last Submission: | 8 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 10 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Afshar |
| Solicitors for the Applicant: | King & Wood Mallesons |
| Counsel for the First Respondent: | Mr D. Hughes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1430 of 2014
| SZUJV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Pakistan who arrived in Australia on 24 May 2012. On 9 August 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs, alleging that he feared persecution in Pakistan because of his ethnicity and religion. On 8 March 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
References in these reasons to provisions of the Act are to their form and terms at the time of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
BACKGROUND
Claims
The applicant claimed that he was a Shi’a Muslim and a member of the Bangash tribe originating from Parachinar in Pakistan’s Kurram Agency. He claimed that he feared persecution in Pakistan because of his religion, his Bangash ethnicity, his real and imputed anti-insurgent political opinion due to his identity as Shi’a and Bangash, and his membership of the particular social groups “Shiites of Bangash tribe from Parachinar” and “members of the Bangash tribe from Kurram Agency”. The applicant claimed that he was at risk of serious harm throughout Pakistan and that internal relocation was not an option for him.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that there was a real chance that the applicant would suffer serious harm in Parachinar and, more broadly, the Kurram Agency because of his religion and because of adverse opinions imputed to him by Sunnis. However, the Tribunal found that it would be reasonable for the applicant to relocate to Karachi where he would not face a real risk of significant harm;
b)having regard to country information to which it had referred earlier in its decision, the Tribunal found that the applicant would be able to relocate to Karachi because:
i)sectarian violence in Karachi occurred predominately between extremist groups. The applicant was not a member of such a group;
ii)while there were reported cases of individual Shi’as being killed, such cases tended to involve Shi’a professionals such as doctors. The Tribunal did not consider the applicant to be such a professional and the fact that he had been university educated did not, in the Tribunal’s opinion, elevate him into this level of society;
iii)while there had also been attacks on religious processions and places where large numbers of Shi’as were likely to gather, the number of such attacks and resulting casualties when considered against the actual Shi’a population in Karachi appeared to indicate that the risk of serious harm to the applicant was remote;
iv)the vast majority of the victims and perpetrators of the generalised violence in Karachi were political parties and criminal organisations linked to them. The applicant did not belong to any such criminal or political group;
v)for those reasons, the Tribunal did not accept that to avoid harm in Karachi the applicant would have to modify his practice of his religion. In making this assessment the Tribunal acknowledged the failure of Pakistani authorities to prevent attacks on Shi’as or to prevent extremist groups from operating but this did not alter its view as to the risk that the applicant would suffer serious harm in Karachi on the grounds of his religion;
vi)while the Tribunal accepted that Pashtun Shi’as (Turi or Bangash) from Parachinar constituted a particular social group, it was not in possession of country information which indicated that they were being harmed in Karachi;
vii)Karachi was the largest city in Pakistan and the commercial centre of the country. In the Tribunal’s view, the prevalence of violence in Karachi – which in any event occurred between political and criminal groups of which the applicant was not a member – did not make it impracticable for the applicant to live there;
viii)the likelihood of the applicant being targeted because he had returned from Australia was remote because he was not a wealthy businessman, such people being the usual targets of criminal organisations;
ix)the applicant had a cousin in Karachi and so some family network there; and
x)the Tribunal did not accept that the applicant’s mental state would prevent him from finding work and integrating into society in Karachi, given that, despite his anxiety, he had been able to undertake and complete studies in Pakistan and had been able to secure and maintain employment in Australia. The Tribunal also noted in this regard that the applicant spoke Urdu, was university educated and had a cousin in Karachi to assist him.
PROCEEDINGS IN THS COURT
In his application the applicant alleged:
1.The Tribunal fell into jurisdictional error by misdirecting itself or asking the wrong question when it made the finding that it would be reasonable for the applicant to relocate to Karachi.
Particulars
i.The Tribunal incorrectly imported the criteria of “serious harm” under s.91R of the Migration Act 1958 into the relocation principle.
2.The Tribunal fell into jurisdictional error by failing to take into account a relevant consideration when it made the finding that it would be reasonable for the applicant to relocate to Karachi.
Particulars
i.There was country information before the Tribunal that there had been a number of serious attacks on neighbourhoods in Karachi, where Shias lived.
ii.The Tribunal did not take this country information into account in finding that there had been attacks in Karachi “on religious processions and places where large members of Shias are likely to gather”, rather than on locations where Shias lived.
Ground 1
The applicant submitted that the Tribunal erred by applying the test of “serious harm” when determining whether it would be reasonable for him to relocate to Karachi and, in effect, considered that any harm less than “serious harm” did not affect the question of the reasonableness of relocation.
Section 91R of the Act relevantly provided:
91R Persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
…
The applicant focused his argument on s.91R(1)(b). He referred to MZYQU v Minister for Immigration & Citizenship (2012) 206 FCR 191, where it was held that the reviewing decision-maker, an independent merits reviewer (“IMR”), had erred by treating serious harm as the only level or kind of harm which could affect the reasonableness of relocation. In that case Dodds-Streeton J said:
… The IMR did not consider the impact of the risk of harm in the form of generalised violence or harm (of an unspecified nature or level) due to personal circumstances on the reasonableness of the appellant’s relocation. By inference, the IMR proceeded on the basis that unless the harm were serious harm within the meaning of s 91R(1)(b), it was unnecessary to do so.
In my opinion, therefore, the IMR’s error lay not in considering that a risk of “serious harm as required by s.91R(1)(b)” was relevant to relocation, but in implicitly treating such harm as the only level or kind of harm which could affect the reasonableness of relocation.
While the IMR’s reasons should not be read with over-zealous scrutiny, the failure to include the risk of generalised violence or harm due to personal circumstances in the list of relevant factors weighing against the reasonableness of relocation … indicates that any harm that was not “serious harm as required by s.91R(1)(b)” was excluded from consideration in that context. (at 201 [60]-[62])
The burden of the applicant’s argument was that the Tribunal had made an error similar to the one made by the IMR in MZYQU. He argued in that regard that taking account of the issue of “serious harm” led the Tribunal to not have regard to other matters which he had raised in support of his contention that relocation to Karachi would be unreasonable. The applicant’s written submissions put it this way:
… by applying the “serious harm” criteria, the Tribunal erred by dismissing, implicitly, the relevance to the question of the reasonableness of relocation those factors identified by the Applicant which in the Tribunal’s view would not cause the Applicant “serious harm”.
The applicant identified those “factors” to have been:
a)the sectarian violence perpetrated against Shi’a professionals;
b)the risk of harm arising out of the attacks made on Shi’a religious processions and gathering places;
c)the risk of harm said to arise out of his religion; and
d)his claim that Shi’as could suffer “generalised violence”.
In his address to the Court the applicant submitted by reference to those matters that, properly considered, even if those matters would not pose a risk of him suffering “serious harm”, they were nevertheless matters which had to be taken into account when determining the reasonableness of relocation to Karachi and a failure to consider them in that context amounted to error.
Contrary to the applicant’s submissions, however, the Tribunal did not misunderstand its task or elevate the claimed risk of serious harm to a singular and decisive consideration. It understood that it had to determine whether there was a place in Pakistan to which the applicant could relocate without facing a risk of serious harm and, if there was, whether such a move was sufficiently practicable from the applicant’s perspective that it was reasonable to expect him to make it. It said as much in para.50 of its reasons.
Having in substance concluded in paras.51-64 of its reasons that the applicant would not face a risk of serious harm in Karachi, the Tribunal went on in para.66 to note his objections to relocating to Karachi, as it was obliged to do: SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at 438-439 [124]. In paras.68 and 69 of its decision record it addressed those objections but was unpersuaded that it would not be practicable for the applicant to relocate to Karachi for the reasons he propounded and concluded that it was reasonable to expect him to make that move. As the Minister submitted:
If the applicant’s submissions in this Court are correct, the Tribunal would not have been troubled by these considerations. Its consideration of these issues shows that it applied the correct test and considered the reasonableness of relocation.
The first ground of the application is therefore not made out.
Ground 2
The applicant argued in connection with the second ground of his application that the Tribunal had failed to consider country information in its possession to the effect that there had been a number of serious attacks on Shi’a neighbourhoods in Karachi. He identified the information, which was set out in the Tribunal’s decision record under the heading “Specific attacks on Shi’as in Karachi”, to be that:
a)the Dawoodi Bohra community in Karachi (a Shi’a community or neighbourhood) had been targeted in two bombings in September 2012;
b)on 3 March 2013 twin bomb blasts hit Abbas Town, a Shi’a neighbourhood of the city, which were followed the next day by gunfire; and
c)the “Shi’a enclave of Ancholi” had been targeted by twin suicide bombs in November 2013.
Other information cited in the same part of the decision record concerned attacks on religious processions, attacks on buses carrying Shi’a Muslims and an attack on the hospital to which the injured from one of the bus attacks were taken. The Tribunal recorded in subsequent paragraphs of its decision record that attacks had been made on Shi’a professionals in Karachi.
The applicant argued that it was critical for the Tribunal to consider specifically the country information concerning attacks on Shi’a neighbourhoods in Karachi, given the significance of those attacks to the question whether it would be reasonable to expect him to relocate to that city. The applicant submitted that although at one point the Tribunal cited that information, it never again referred to it and did not draw on it when determining the relocation question.
The Tribunal commits jurisdictional error if it fails to consider information which, had it been considered, might have had an effect on its decision: Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30 and 31, Mason J at 40, 44-46 and Dawson J at 71. For present purposes, it may be assumed that, because of its nature and significance, the Tribunal was obliged to consider the information concerning attacks on Shi’a Muslims in Karachi. The question therefore is whether or not it did.
The Tribunal may not have undertaken an express, detailed consideration of the matters to which the applicant referred but that does not compel a conclusion that it did not consider those matters in a manner which discharged its relevant obligation. In that regard, the Tribunal stated in its reasons:
51.There is sectarian violence in Karachi but this is predominantly between extremist groups both Sunni and Shi’a. The applicant is not a member of such a group. There are reported cases where individual Shi’as have been killed though such cases tend to involve Shi’a professionals such as doctors. While the applicant attended university in Pakistan, the Tribunal does not otherwise consider the applicant to be a Shi’a professional. There have also been attacks on religious processions and places where large numbers of Shi’as are likely to gather, but, the number of such attacks and resulting casualties, considered in the context of the size of the actual Shi’a population in Karachi, would appear to indicate that the risk of the applicant suffering serious harm on that basis and because he is a Shi’a is remote.
…
59.The Tribunal acknowledges the submissions and country information about attacks on Shi’as and notes that in the representative’s written submissions some further incidences of harm to Shi’as in Karachi were mentioned beyond those in the country information set out earlier in this decision. While the Tribunal acknowledges the continued rise in sectarian violence in Pakistan, country information set out earlier in this decision indicates that in Karachi this is primarily between extremist groups. The Tribunal does not accept the applicant belongs to a particular social group of professional educated Shi’as of financial means as the country information mentioned earlier in this decision indicates that the type of professional being targeted is someone with an occupation such as a doctor. The applicant is university educated but the Tribunal does not find that elevates him into this level of society.
60.… the Tribunal has considered where the applicant is most at risk on this ground. While the Tribunal can allow for the possibility of the applicant being attacked by someone solely because he is Shi’a, the Tribunal considers that such attacks are most likely to be on Shi’a professionals as mentioned above. The Tribunal considers that where the applicant is most likely at risk because he is a Shi’a is when he attends religious processions or is at a location where large numbers of Shi’as are going to gather. However, attacks that have taken place on those occasions are sporadic and considered in the context of the size of the Shi’a population the Tribunal still regards the risk of the applicant suffering serious harm on that ground to be remote.
I find that those reasons disclose an awareness and a consideration by the Tribunal of the country information concerning sectarian attacks on Shi’a Muslims in Karachi which it had rehearsed earlier in its decision record, including the information concerning the outrages particularised by the applicant in his submissions. I find that the Tribunal did consider the information which the applicant argues was not considered.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 10 January 2019
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