SZVRA v Minister for Immigration
[2016] FCCA 783
•12 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVRA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 783 |
| Catchwords: MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of a protection visa – applicant claiming religious persecution in Pakistan – applicant’s claims accepted in part but Tribunal finding he could relocate within Pakistan – whether the Tribunal failed to ask itself the right question in considering relocation considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 91R |
| Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 Plaintiff M13/2011 v Minister for Immigration (2011) 277 ALR 667 Randhawa v Minister for Indigenous, Local ,Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZVRA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3188 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 12 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
The application filed on 17 November 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3188 of 2014
| SZVRA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 20 October 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the applicant’s submissions filed on 29 March 2016.
On 23 July 2012, an initial entry interview was carried out with the applicant[1], a citizen from Pakistan. The claims made by the applicant are recorded at CB11-12.
[1] Court Book (CB1-20)
On 18 October 2012, the Minister exercised power under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to allow the applicant to lodge a protection visa application[2].
[2] CB20
On 23 November 2012, the applicant lodged an application for a protection (Class XA) visa (application)[3]. A statutory declaration setting out his claims appears at CB69-72.
[3] CB23-92
On 2 May 2013, the applicant’s representatives sent the Minister’s Delegate written submissions[4].
[4] CB93-103
On 5 June 2013, the Delegate sent to the applicant a notification of refusal of the application[5].
[5] CB107-129
On 14 August 2013, the applicant applied to the Tribunal for review of the Delegate’s decision[6].
[6] CB130-139
On 16 September 2013, the Tribunal invited the applicant to a hearing before it[7]. The invitation was accepted and he subsequently appeared at the hearing.
[7] CB140-144
The applicant’s representatives provided various newspaper reports and articles to the Tribunal[8].
[8] CB152-166
On 21 October 2014, the Tribunal sent a letter to the applicant enclosing its decision to affirm the decision of the Delegate[9].
[9] CB168-184
Claims
The CB references in respect of the applicant’s claims are as follows:
Date
Description
CB Reference
23/07/12
Claims made in the initial Entry Interview (Initial Claims).
11-12
23/11/12
Statutory Declaration accompanying protection visa application (Statutory Declaration).
69-72
2/05/13
Written submissions to Delegate (Submissions).
93-103
N/A
Various newspaper reports and articles provided to Tribunal.
152-166
Briefly, the applicant's claims can be summarised as follows:
a)he feared that he would be seriously harmed if he returned to Pakistan because he was a Shia from Parachinar[10];
b)he was from the Khuram Agency, a Pashtoon from the Bangash Tribe, a practicing Parachinar Shia Muslim, and grew up in Parachinar[11];
c)life in Pakistan (particularly Parachinar) was dangerous for Shia Muslims because the Taliban and associated groups considered it a duty to kill them. The situation became particularly dangerous following an outbreak in fighting in 2007 between locals and the Taliban (following on from a refusal by tribal leaders to permit the Taliban to pass through their land to travel to Afghanistan)[12];
d)in 2007, the applicant and two friends were caught up in the fighting – he escaped, but his friends were shot and killed. He also escaped bombs that exploded near his shop on two occasions[13];
e)following the fighting, the Taliban closed off the roads going out of Parachinar to Peshawar, which prevented the applicant from travelling to Peshawar to obtain basic needs, advanced medical treatment, and supplies for his business[14];
f)the situation was becoming increasingly dangerous[15].
[10] Statutory Declaration, [1]
[11] Statutory Declaration, [2]-[4]
[12] Statutory Declaration, [8]-[9]; see also CB11
[13] Statutory Declaration, [10]; see also CB11
[14] Statutory Declaration, [11]; see also CB11
[15] Statutory Declaration, [12]-[13]
In relation to the question of relocation, the applicant:
a)claimed nowhere was safe for him in Pakistan. Shias are targeted everywhere and he had no family or links to other parts of Pakistan[16];
b)claimed that considerations that were relevant to whether relocation was reasonable in the sense of practicable included: general safety; family, religious and tribal connection; his ability to practice his religion without fear of harm; his ability to work[17];
c)claimed that country information demonstrated that sectarian attacks on Shias were country wide and had increased in recent years[18]; and
d)referred to a Tribunal decision which identified fear and anxiety within the targeted group as an object of the attacks (as well as injury and death) and amounting to serious harm under the Convention[19].
[16] Statutory Declaration, [19]; see also CB11
[17] Submissions, CB100.3; 102.5
[18] Submissions, CB100.5 to CB101.9
[19] Submissions, CB102.1-5
Delegate’s decision
The principal reason for the Delegate’s rejection of the application was that, although it accepted that there were attacks on Shias in Parachinar, the applicant and his family had not personally suffered any serious physical harm. Further, the attacks were sporadic rather than amounting to a real chance of serious harm, and the applicant was not personally or specifically targeted[20].
[20] CB124.7
Tribunal decision
The Tribunal had some concern as to the applicant’s overall credibility and it did not accept that the applicant had been specifically targeted (although it did accept that Shias in Parachinar and on the Parachinar-Thall road had been targeted more generally)[21].
[21] CB174-5, [20]-[21]
However[22]:
a)the Tribunal accepted that the applicant was from Parachinar, he did not have family outside Parachinar within Pakistan, and that he was from the Bangash tribe;
b)the applicant’s friends were shot in 2007 when violence erupted in April 2007 between Turi Shias and members of the local Sunni Bangash tribe, and that there were other significant instances of violence following this in Parachinar and on the Parachinar-Thall road;
c)the applicant would return to Parachinar and this would necessitate him travelling along the Parachinar-Thall road, which was a journey that remained extremely dangerous for the Shia community in Parachinar;
d)the applicant faced a real chance of persecution for reasons of his religion and ethnicity if he returned to his home in Parachinar now or in the reasonably foreseeable future. The protection offered by the authorities was inadequate and not of a standard that its citizens were entitled to expect. Also, the significant and essential reason for harm was because he was a Shia and from the Bangash tribe.
[22] CB175-8, [22]-[27]
The Tribunal then dealt with the issue of relocation at [28]-[33][23]. In summary:
a)in relation to the applicant’s claim that he would be targeted anywhere in Pakistan because he was a Shia, the Tribunal concluded that (although there continued to be specific attacks against Shia religious sites, that Shias had been targeted throughout Pakistan, and that there remained some risk of harm throughout Pakistan for Shias including in cities such as Islamabad and Rawalpindi) the evidence did not establish that all Shias faced a real chance of serious harm in all parts of Pakistan[24];
b)the Tribunal accepted that the applicant might be identifiable as a Bangash Shia from Parachinar (including in Islamabad or Rawalpindi), but it did not accept that the applicant would be specifically targeted should he relocate outside of Parachinar (particularly Islamabad or Rawalpindi)[25];
c)having regard to the size of the population and the limited number of reports of attacks in Rawalpindi or Islamabad, the Tribunal was not satisfied that there was a real chance that the applicant would be the victim of isolated attacks on Shias or that the isolated incidents made it unreasonable or impracticable for the applicant to relocate from Parachinar to Islambad or Rawalpindi. The chance of the applicant being harmed in an act of sectarian or generalised violence was remote. The Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm for reasons of his Shia religion or Bangash ethnicity in Islamabad or Rawalpindi and, therefore, there was not a real chance that the applicant would be persecuted for a Convention reason[26];
d)although the applicant has said that he did not know anyone, there was a significant Shia population outside Parachinar including in Islamabad or Rawalpindi, his uncle had previously given him financial assistance, and the applicant had the resilience and wherewithal to travel to Australia where he did not know anyone. He would be able to reside safely in Islamabad or Rawalpindi with the support of his family members and would not be denied the capacity to subsist. Accordingly, the applicant did not have a well-founded fear of persecution if he returned to Pakistan now or in the reasonably foreseeable future[27].
[23] CB178-181
[24] [29]-[30]
[25] [31]
[26] [32]
[27] [33]
The Tribunal also rejected the complementary protection related claims at [34]-[35][28].
[28] CB181-2
The present proceedings
These proceedings began with a judicial review application filed on 17 November 2014. The applicant continues to rely upon that application. There are two particularised grounds:
1. The Tribunal erred in it application of the internal relocation principle under the Refugees Convention and failed to ask itself the right question.
Particulars
a. The Tribunal failed to apply the approach taken by the High Court in SZSCA v Minister for Immigration and Border Protection [2014] HCA 45.
b. The Tribunal wrongly asked itself (at [32]-[33]) whether the applicant “would be able to reside safely” in, or “can safely relocate to”, Islamabad or Rawalpindi, and failed to ask itself whether it would be “reasonable” for the applicant to relocate to Islamabad or Rawalpindi.
c. The Tribunal did not consider whether the applicant might face harm in Islamabad or Rawalpindi (other than serious harm for a Convention reason), whether such harm might affect whether it would be “reasonable” for the applicant to relocate to Islamabad or Rawalpindi.
d. The Tribunal did not engage in “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” (SZSCA at [30]).
e. The Tribunal did not consider “[the applicant’s] needs and those of his family” (SZSCA at [31]), or the impact on the applicant and his family of being separated from one another, even though it found that his family live in Parachinar and “may have restricted their movements in terms of their travel outside of the region”: [24].
f. The Tribunal did not address “what was necessary to an enquiry whether it was reasonable to expect” the applicant to remain in Islamabad or Rawalpindi and never return to Parachinar (SZSCA at [32]).
g. The Tribunal failed to apply the approach taken by Jagot J in SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144 at [26]-[29], insofar as the Tribunal failed to consider the “practical realities of life” in Islamabad or Rawalpindi for the applicant, noting that:
i. the applicant is identifiable as a Bangash Shia from Parachinar: [31];
ii. there continue to be specific attacks against Shia mosques, shrines and gatherings of Shias in Islamabad and Rawalpindi: [30];
iii. there have been other incidents of specific targeting of Shias in terms of their attendance and involvement in religious events: [30]; and
iv. country information indicated that authorities were unable or unwilling to stop these attacks.
h. The Tribunal committed the error described by Mansfield J in DZADQ v Minister for Immigration and Border Protection [2014] FCA 54 at [65], insofar as the Tribunal considered (at [30]-[32]) the possibility of serious harm for a Convention reason in Islamabad or Rawalpindi “by the numerical analysis” and without considering the applicant’s particular circumstances.
2. The Tribunal erred in its application of the relocation test under s 36(2B)(a) and failed to ask itself the right question.
Particulars
a. The Tribunal wrongly asked itself (at [35]) whether the applicant “will be able to reside safely in”, or “will be able to relocate to”, Islamabad or Rawalpindi, and failed to ask itself whether it would be “reasonable” for the applicant to relocate to Islamabad or Rawalpindi.
b. The Tribunal did not consider whether the applicant might face harm in Islamabad or Rawalpindi (other than serious harm for a Convention reason), or whether such harm might affect whether it would be “reasonable” for the applicant to relocate to Islamabad or Rawalpindi.
c. The Tribunal committed the error described by Judge Driver in SZSSM v Minister for Immigration and Border Protection [2013] FCCA 1489 at [103].
I have before me as evidence the book of relevant documents filed on 18 December 2014.
Both the applicant and the Minister made oral and written submissions.
Consideration
Ground 1 – did the Tribunal err in its application of the internal relocation principle?
Given that the Tribunal accepted that the applicant faced a well-founded fear of persecution for a Convention reason in his home area of Parachinar, the central focus of this application is the relocation finding at [28]-[33]. This is the subject of Ground 1. Counsel for the applicant has helpfully summarised the relevant authorities in his submissions.
Principles
It is well established that the question of relocation involves consideration as to (a) whether there is an appreciable risk of persecution in the proposed area of relocation, together with (b) whether relocation would be reasonable, in the sense of practicable, having regard to the applicant’s individual circumstances. There are numerous cases in which a failure to properly consider either step in this analysis has led to jurisdictional error.
In Randhawa v Minister for Indigenous, Local ,Government and Ethnic Affairs[29], Black CJ stated that “the practical realities facing a person who claims to be a refugee must be carefully considered” and that:
[T]he 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...
[29] (1994) 52 FCR 437 at 442E-F
In NAIZ v Minister for Immigration[30], the majority found that the Tribunal engaged in jurisdictional error by failing to give consideration to the practical realities facing the applicant (namely that she had no one to look after her). Although the Tribunal had appreciated that it needed to consider whether relocation was reasonable, it misconceived the content of the requirement.
[30] [2005] FCAFC 37 at [22]
In SZAIX v Minister for Immigration[31] the Federal Court found jurisdictional error where the Tribunal had found that relocation was reasonable on the basis that the applicant was enterprising and employable, but failed to consider material it accepted that “anti-Chinese sentiment runs deep in Indonesia and the vulnerability of women to rape appears, from the Tribunal’s findings, to be high” and the psychological difficulty that the applicant might face relocating to an area with no family support.
[31] (2006) 150 FCR 448, Madgwick J at [56]-[62]
In SZATV v Minister for Immigration[32], the High Court at [23] accepted the Minister’s submission that the test 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.” However, it went on to state, at [24]:
However, that 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.
[32] (2007) 233 CLR 18
In Plaintiff M13/2011 v Minister for Immigration[33], Hayne J, after referring to SZATV at [24] above, concluded that the Tribunal engaged in jurisdictional error because[34]:
When the delegate’s reasons are read as a whole, it is evident that the particular circumstances of the plaintiff were not considered by the delegate in forming the opinion that she could relocate to avoid the risk of persecution.
[33] (2011) 277 ALR 667
[34] at [22]
In MZYQU v Minister for Immigration[35], after a comprehensive review of the authorities, Dodds-Streeton J identified two jurisdictional errors in the relocation finding:
a)the decision maker treated persecution as the only level or kind of harm relevant to the reasonableness of relocation[36];
b)the decision maker failed to accurately identify and consider the appellant’s objection to relocation in Kabul based on his mental illness and, accordingly, did not refer to or consider practical realities raised by the material[37].
[35] (2012) 206 FCR 191 at [67]-[80]
[36] at [61]-[62]
[37] at [83]
In SZSSM v Minister for Immigration[38], I found jurisdictional error, stating in particular [88] that “a decision maker cannot ignore or discount a claimed risk of harm in considering the practicability of relocation, by the simple expedient of finding that the risk is not “serious harm” as defined in s.91R of the Migration Act”.
[38] [2013] FCCA 1489
In MZZJY v Minister for Immigration[39], Davies J followed MZYQU and SZSSM and similarly found that the Tribunal had engaged in jurisdictional error, stating at [21][40]:
In the present case, the Tribunal dealt with the position of Shias generally in Karachi but did not consider the practical realities facing the applicant, as a person at risk of attack in Karachi because of his religion. In so doing, the Tribunal wrongly elided the question posed by the “reasonableness“ criterion with the inquiry, is there a lack of “appreciable risk“ of harm? The conclusion that the chance of harm is not more than remote dealt only with the consideration as to whether objectively there is an appreciable risk of persecution for a Convention reason in Karachi, but did not deal with the question as to whether it is reasonable, in the sense of practical, to expect the applicant to live there faced with a risk of violence and where he would lack protection from the authorities, as the Tribunal accepted. The same considerations do not necessarily apply to both limbs. The fact that the risk of harm may be remote does not necessarily answer the question whether it is reasonable, having regard to the personal circumstances of the applicant, to expect the applicant to face that risk. The Tribunal was obliged to consider the practical realities for the applicant in determining whether it is reasonable to expect him to relocate. It did not do so, and in failing to do so fell into jurisdictional error.
[39] [2014] FCA 1394
[40] See also SZSRQ v Minister for Immigration & Anor [2014] FCCA 2205 at [27]-[55] per Judge Manousaridis and SZSTE v Minister for Immigration & Anor [2015] FCCA 178 at [32]-[38] per Judge Manousaridis where his Honour found errors of a similar nature
In SZSSY v Minister for Immigration[41], Jagot J also held that the Tribunal had erred by failing to consider its own findings as to the situation in Karachi upon the reasonableness of the proposed relocation (as distinct from whether there was persecutory harm in Karachi), stating:
[26] The problem is this. It must be inferred from its reasons that the Tribunal confined its consideration of those matters to the question whether the appellant was at risk of harm in Karachi. The Tribunal must be inferred not to have considered those matters as relevant to the practical realities with which the appellant would be confronted in Karachi. The practical realities of life in Karachi for the appellant were not confined to the suffering of harm (by which, it is apparent from the Tribunal’s reasons, meant physical harm). Given the Karachi findings (as explained above), the potential impacts upon the appellant by relocating to Karachi extended beyond the suffering of physical harm. Yet none of the other potential impacts, relating to the day-to-day life of the appellant in Karachi, were considered.
[27] This is apparent from the Tribunal’s repeated references to the relevant matters only in the context of the appellant suffering harm and the corresponding lack of any references to the relevant matters in the context of the “practical realities” or potential impacts on the appellant of relocation. Accordingly, at [82], the relevance of attacks on Shia Muslims involved in religious processions is confined in the Tribunal’s consideration to the risk of the appellant suffering harm. The same limitation is apparent in [84] (although the reference is the feared persecution, or serious harm), as well as in [87] (in the context of the appellant being identifiable as a Shia from the Turi tribe), [88] (in the context of the appellant wishing to practise his religion), [97] and [98] (in the context of the authorities not having been able to prevent attacks on Shia Muslims) and [104] (which repeats the conclusion at [84] and extends the conclusion to harm).
[28] On each occasion the Tribunal is focused either on persecution which requires a risk of serious harm (at [84] and [104]) or harm (at [82], [87], [88] and [98]).
[29] For these reasons, I do not accept the Minister’s submission that the Tribunal considered the Karachi findings as required. The Tribunal considered those findings limited to the question whether the appellant would suffer harm if he relocated to Karachi. However, the question which the Tribunal was required to answer was not so confined. The Tribunal’s consideration thus miscarried.
[41] [2014] FCA 1144
Finally, in Minister for Immigration v SZSCA[42], French CJ, Hayne, Kiefel and Keane JJ held that the Tribunal engaged in jurisdictional error by failing to consider the reasonableness of an expectation that the applicant cease driving trucks and confine himself to Kabul, stating that the Tribunal[43]:
[D]id not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach. Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it. An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned — specifically, whether such an expectation is reasonable.
[42] (2014) 254 CLR 317
[43] at [29]
Application
In the present case, it is accepted by the applicant that the question as framed by the Tribunal at [28]-[29] comprises an accurate summary of the two limbs comprising the relocation test.
However, the applicant contends that the striking feature of what follows at [29]-[33] where the law is purportedly applied is the focus of the Tribunal on the first limb only (i.e. the question of whether the applicant would be the subject of persecutory harm in the proposed areas of relocation):
a)it commences at [29] by considering the applicant’s claim that he would be targeted anywhere in Pakistan and builds to a conclusion at [30] that, whilst there continue to be specific attacks against Shia religious sites and gatherings and that Shias have been targeted through Pakistan, it is “not satisfied that... all Shias face a real chance of serious harm in all parts of Pakistan”. Clearly this is directed to the first limb of the relocation test and focuses on the concept of actual physical harm being inflicted on Shias;
b)then at [31] it turns to the question of whether the applicant would be specifically targeted and concludes that the applicant would not be specifically targeted. On the face of it, this deals with whether the applicant would be singled out for actual physical harm and is connected with the first limb of the relocation test;
c)then at [32], it examines the question of attacks on Shias in Rawalpindi or Islamabad, and ultimately concludes that it “is not satisfied that there is a real chance that the applicant would suffer serious harm” for a Convention reason and that “there is not a real chance that the applicant will be persecution for” a Convention reason. There is reference in the paragraph to “reasonableness”, however, it is clear that the Tribunal is engaged in determining whether there is a real risk of actual physical harm in the persecutory sense being inflicted on the applicant;
d)then at [33], although it considers the lack of family in the areas of proposed relocation, it deals with this by asking itself whether the applicant “would be able to reside safely” in the proposed areas and whether the applicant would be “denied the capacity to subsist” in the proposed areas (which are indicative of it considering these issues through the definition of serious harm in s.91R(2)).
The applicant stresses that it is important at this point to also bear in mind his claims concerning relocation. The applicant:
a)identified general safety as a matter relevant to the reasonableness of relocation (rather than persecution only);
b)raised a lack of familial, religious and tribal connection as a matter relevant to the reasonableness of relocation (rather than persecution through deprivation of a means of subsistence only);
c)raised practising religion without fear of harm as relevant to relocation (including the reasonableness of relocation), as distinct from a claim that he would in fact be harmed (ie the threat of harm, and the consequent fear and anxiety, was a relevant consideration rather than the actual occurrence of the harm); and
d)claimed that sectarian attacks were increasing.
The central question is whether the Tribunal’s analysis addresses all of these.
The applicant contends that it can be seen that the Tribunal has engaged in jurisdictional error in three respects:
a)first, despite having accurately identified the law, the Tribunal is said to have misapplied it by limiting its consideration of relocation to the question of whether the applicant faced persecution in the form of actual physical harm and deprivation of a means to subsist in the proposed areas of relocation. Non-persecutory harm, together with the fear of it, was relevant to the reasonableness of the proposed relocation, as was the lack of a familial connection to the proposed areas of relocation. The Tribunal did not deal with this and appeared to limit its consideration to the question of the existence of persecution only;
b)secondly, the Tribunal is said to have failed to deal with the practical realities of the situation facing the applicant in the proposed area of relocation, especially:
i)the impact of harm per se, as distinct from persecution, in the proposed area of relocation; and
ii)the lack of familial, religious and tribal connection to the proposed area (the Tribunal only dealt with the lack of familial connection and only in the context of persecution); and
c)thirdly, the Tribunal in respect of both limbs is said to have failed to deal with:
i)fear of harm as a consequence of the ongoing threat of harm (as distinct from the actual infliction of harm), and
ii)the claim that the sectarian attacks were increasing in Pakistan.
Both matters were relevant to both limbs and raised by the applicant, yet these matters were not dealt with at all.
In the circumstances, the Tribunal is said to have failed to correctly apply the relocation test, thereby engaging in jurisdictional error.
I prefer the Minister’s submissions on this ground.
The Tribunal considered the issue of relocation at length[44]. It correctly refers to the test from SZATV at [24] as whether relocation is reasonable, in the sense of practicable, in the particular circumstances of the applicant[45]. It found that the applicant would not have a well‑founded fear of harm if he relocated to Rawalpindi or Islamabad[46]. It also found that the applicant would be able to reside safely in either of those cities, and that there is no evidence he would be denied the capacity to subsist[47].
[44] CB178-181 [28]-[33]
[45] CB179 [28]
[46] CB179-181 [29]-[32]
[47] CB180-181 [32]-[33]
I do not accept the applicant’s submissions that the Tribunal nevertheless engaged in jurisdictional error in the three respects asserted.
First, it is claimed that the Tribunal limited its consideration of the reasonableness of relocation to the existence of persecution only. This is in my opinion not a fair reading of the Tribunal’s reasons, contrary to Minister for Immigration v Wu Shan Liang[48]. The Tribunal correctly stated that it must consider the reasonableness of relocation at [28][49] and states that it has done so at [29][50]. It found that isolated incidents against Shias in Islamabad or Rawalpindi do not make it unreasonable or impracticable for the applicant to relocate there, and that the chance of the applicant being harmed there by sectarian or generalised violence is “remote”[51]. The Tribunal had earlier noted country information that urban centres in Pakistan are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a greater degree of state protection than other areas[52]. It also considered the applicant’s personal circumstances at [33][53]. A fair reading of these passages leads me to the conclusion that the Tribunal has considered the reasonableness of relocation in the context of the applicant’s stated objection to the reasonableness of relocation because of his “general safety”[54], and not just limited itself to the question of whether the applicant has a well-founded fear of persecution in Rawalpindi or Islamabad.
[48] (1996) 185 CLR 259 at 271-272
[49] CB179
[50] CB179
[51] CB180 [32]
[52] CB179 [30]
[53] CB181
[54] CB100
Secondly, it is claimed that the Tribunal failed to address “the impact of harm per se, as opposed to persecution” and the lack of “familial, religious and tribal connection”. The Tribunal did not need to again deal with the issue of possible harm to the applicant as this had already been addressed by it at [32][55] and found to be “remote”, and that isolated incidents did not “make it unreasonable or impracticable for the applicant to relocate from Parachinar to Islamabad or Rawalpindi”. And while “religious and tribal connection” is mentioned as a “relevant consideration” in the applicant’s submissions to the delegate at CB100 it is not developed beyond what is said at CB102.5 ie “he cannot safely and openly practice his faith and has no family and no tribal ties”. The Tribunal noted that at the hearing the applicant claimed relocation would be difficult because he does not know anyone[56]. He does not appear to have put any specific argument about lack of religious or tribal connection. There was, in my opinion, no “substantial, clearly articulated argument relying on established facts”[57] that relocation was unreasonable because of a lack of “religious and tribal connection”. In any case, on a fair reading the Tribunal did address the applicant’s stated objections to relocation at [33][58], having regard also to the country information it cites at [30][59] that relocation of Shias within Pakistan is possible and urban centres are home to mixed ethnic and religious communities. The Tribunal did not need to expressly mention every contention made by the applicant[60]. The Tribunal correctly considered the applicant's personal circumstances in determining whether it is reasonable for him to relocate and his stated objections to relocation, in accordance with SZMCD v Minister for Immigration[61].
[55] CB180
[56] CB181 [33]
[57] Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 at [24]
[58] CB181
[59] CB179
[60] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 (FCA/FC) at [46]
[61] (2009) 174 FCR 415 (FC) at [124]
Thirdly it is claimed that the Tribunal failed to deal with the applicant’s fear of harm and claims that sectarian attacks were increasing. As already stated, the Tribunal found at [32][62] that the chance of the applicant being harmed in Islamabad or Rawalpindi by sectarian or generalized violence was remote. That addressed the applicant’s claims at CB100-102 that relocation was not reasonable because of “general safety”, including that attacks against Shias were increasing. The Tribunal did not need to do more[63].
[62] CB180
[63] Applicant WAEE at [47]
It follows that the first ground fails.
Ground 2 – did the Tribunal err in its application of the relocation test in respect of complementary protection?
Ground 2 is similar to Ground 1 in that it contends that s.36(2B) was misapplied given that the Tribunal confined its consideration to the occurrence of significant harm and it failed to consider all of the matters relevant to the reasonableness of the proposed relocation.
The applicant contends that at [35], the Tribunal appears to equate the test in s.36(2B) simply by pointing to its conclusion in the Convention context that “the applicant will be able to reside safely in other parts of Pakistan” and it then states:
The Tribunal finds, therefore, that the applicant will be able to relocate to another part of Pakistan where there is not a real risk that he will suffer significant harm. Accordingly, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm.
The applicant maintains, however, to simply find that s.36(2B) was engaged, because the applicant will be able to reside safely in the proposed area of relocation and, therefore, that the applicant will be able to relocate to an area without the real risk, reveals error. Section 36(2B) requires the reasonableness of the proposed relocation to be considered – not merely whether the applicant will be able to relocate or relocate safely. The applicant submits that there is a significant difference between concepts of reasonableness of, and ability to, relocate. The focus of the Tribunal on the latter demonstrates error, and also fortifies the analysis in relation to Ground 1.
In this regard, the applicant notes that a similar error was found by me in SZSSM at [97]-[104] and submits that the analysis therein is applicable in the present case also.
Again, I prefer the Minister’s submissions in relation to this ground.
The second ground claims that the Tribunal erred in its application of s.36(2B)(a) of the Migration Act at [35][64]. The applicant’s submissions claim that the Tribunal there only addresses whether the applicant will be able to reside safely, and not whether relocation is “reasonable” as required. Again, this is not a fair reading of the Tribunal’s reasons. The Tribunal at [35][65] explicitly found that it would be reasonable for the applicant to relocate for the reasons discussed earlier. As already stated, those reasons did consider the reasonableness of relocation, including the applicant’s personal circumstances and stated objections to relocation. This case can be distinguished from my decision in SZSSM where an error was found in the Tribunal not considering a risk of generalised violence when considering s.36(2B)(a). In this case as already stated the Tribunal at [32][66] had found that isolated incidents against Shias in Rawalpindi or Islamabad did not render relocation unreasonable or impracticable, so the same conclusion as in SZSSM cannot follow.
[64] CB181
[65] CB181
[66] CB180
It follows that the second ground fails.
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 12 May 2016
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