FEDERAL COURT OF AUSTRALIA

AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

3.    If the parties agree on a lump sum figure in relation to the first respondent’s costs, they are to file a joint minute of proposed orders on or before 4.00 pm on 13 July 2018.

4.    In the absence of any joint proposed order, pursuant to paragraph 3 of these orders:

(a)    on or before 4.00 pm on 20 July 2018, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

(b)    on or before 4.00 pm on 27 July 2018, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

5.    In the absence of any agreement having been reached on or before 3 August 2018, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The questions in this appeal centre on what is sometimes called the principle of “internal relocation” or “internal flight”, in circumstances where it has been found that a person has a well-founded fear of persecution in a particular part of her or his country of nationality and the question is whether it is both safe, and reasonable and practicable, for her or him to return to a different part of her or his country of nationality. The appeal is concerned with the criteria for the grant of protection visas as they stood prior to the amendments to the Migration Act 1958 (Cth) introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). Those amendments, amongst other matters, introduced statutory meanings to terms or concepts in or arising from Art 1A of the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967).

2    The “internal flight” or “internal relocation” concept, as it is understood in the context of Art 1A of the Refugees Convention, has been the subject of several decisions of the High Court and this Court, notably in SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18; Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535; 52 FCR 437; SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415; MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; 289 ALR 541 and CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14. Mortimer J has also considered the matter in two decisions: MZZZA v Minister for Immigration and Border Protection [2015] FCA 594 and MZANX v Minister for Immigration and Border Protection [2017] FCA 307 to which both parties referred in the present appeal. There are many other decisions of single judges of this Court, which have considered various aspects of these principles. Where necessary we refer to these principles, and other authorities, later in our reasons.

3    The assessment of whether a person can return to one or more parts of her or his country of nationality is undertaken in relation to the causal aspect of the definition of refugee in Art 1A of the Refugees Convention: namely, whether a person is outside her or his country of nationality owing to (in the sense of because of) a well-founded fear of persecution for a Convention reason: see generally SZATV at 25-26 [19], referring to the reasoning of Lord Bingham in Januzi v Secretary of State for Home Department [2006] UKHL 5; 2 AC 426. As the extract from Januzi at [19] of SZATV, and the other authorities to which we refer establish, there are two components to this assessment. The first concerns an assessment of the risk of harm, and the level of harm, which a person might face in those parts of her or his country to which she or he might be expected to return; and the second concerns whether it is reasonable, in the sense of practicable, to expect a person to return to a particular place if it has been assessed as one where she or he does not have a well-founded fear of persecution.

4    In the present case, the grounds of appeal are concerned principally with the second component of this assessment.

5    For the reasons set out below, we consider the appeal should be dismissed.

background

6    The appellant was accepted by the second respondent (the Tribunal) to be a citizen of Pakistan, of Pashtun ethnicity, and a Sunni Muslim, who came from the Swat Valley in the north west of Pakistan, which is where the Tribunal accepted he had been born and brought up and where his family resided, including his wife and five children.

7    For the purposes of the appeal it is sufficient to note that the Tribunal found the appellant had a well-founded fear of persecution if he were to return to the Swat Valley by reason of his own and his family’s involvement in the Pakistan People’s Party and in local “peace committees”. This finding meant the Tribunal was required to conduct an assessment about whether it was both safe and reasonable for the appellant to return to any other part of Pakistan. In doing so, having excluded other areas of Pakistan (such as Karachi) on the basis that those areas would not be safe for a Pashtun person such as the appellant, the Tribunal focused its assessment on the city of Lahore. The Tribunal concluded that the appellant had no well-founded fear of persecution in Lahore, nor that he would face any real chance of serious harm or real risk of significant harm in that city. It also concluded that it would be reasonable to expect the appellant, if returned to Lahore, to live there, even if the appellant could not immediately bring his wife and children from Swat to join him until he was more established.

8    Thus, it was the Tribunal’s findings about the appellant’s relocation to Lahore which formed the basis for its decision to affirm the refusal by the Minister’s delegate to grant the appellant a protection visa in relation to either the Refugees Convention criterion, or the criterion of complementary protection, and which formed the basis for the appellant’s judicial review application to the Federal Circuit Court.

9    Before the Federal Circuit Court, the appellant raised two grounds of review directed at the Tribunal’s assessment of why it was both safe and reasonable for him to relocate to Lahore. Both were expressed in terms of an allegation that the Tribunal “failed to deal with an objection which the applicant made to relocation”. One “objection” centred on the appellant’s mental health conditions, and the other “objection” centred on the appellant’s concerns about generalised violence in Lahore, and how that generalised violence would affect him personally, particularly given his mental health conditions.

10    The Federal Circuit Court rejected both grounds of judicial review: see AHK16 v Minister for Immigration and Border Protection & Anor [2018] FCCA 75. Having set out the background to the judicial review application, the Federal Circuit Court set out at some length the evidence about the appellant’s mental health conditions which was before the Tribunal, together with the submissions made on the appellant’s behalf by his migration agents, both before and after the review hearing, concerning how his mental health conditions would affect his ability to relocate to another part of Pakistan. Having done so, the Federal Circuit Court made findings that included (at [24]):

Thus, the Applicant’s medical experts and his migration agent sought to make a link between the claim that the Applicant’s health would deteriorate and his claim that the situation in Pakistan was violent and insecure. The Tribunal, however, rejected that premise and the Court is satisfied it was open, on the evidence before it, for the Tribunal to do so.

11    The Federal Circuit Court then set out in some detail the evidence and submissions before the Tribunal concerning the question of the level of generalised violence in Lahore and the Tribunal’s conclusions on that question. The Federal Circuit Court then turned to set out the evidence, the parties’ submissions and the Tribunal’s conclusions about the reasonableness of the appellant moving to and living in Lahore given his mental health conditions.

12    From [43] of its reasons onwards, the Federal Circuit Court then considered the appellant’s two grounds of judicial review. Having set out the appellant’s submissions in general terms the Federal Circuit Court found that the Tribunal had dealt adequately and properly with “each and every of the Applicant’s various objections to relocation”. It found (at [45]):

… They were identified by the Tribunal and rejected by the Tribunal on evidence which supported the Tribunal’s factual findings. The Tribunal did consider the impact on the Applicant personally of relocation and in particular with regard to his mental health needs and found the Applicant could live reasonably in Lahore with his medical needs adequately addressed by the various hospitals and universities available to him.

13    The Federal Circuit Court found further that the Tribunal had “clearly rejected” the appellant’s specific claim that he would suffer any stigma which he claimed was attached to mental health conditions in Pakistan, finding (at [46]):

The Tribunal specifically noted at paragraph 118 of the Decision Record that claim was undermined by the prevalence of mental health issues and the ready availability of services in urban areas such as Lahore.

14    On the appellant’s second ground of judicial review, again having set out the appellant’s submission in general terms, the Federal Circuit Court found (at [48]-[50]):

48.    The difficulty with the Applicant’s argument is that the Tribunal did not accept, as a factual matter that the Applicant faced a real chance of suffering violence in Lahore. It found the prospect of the Applicant facing violence in Lahore was remote. This was relevant to the Tribunal’s satisfaction about the reasonableness of the Applicant’s relocation. Further, the Tribunal expressly referred to the Applicant’s claim of exacerbation of his mental health condition upon relocation and dealt directly with his claim that his mental health condition would deteriorate. In doing so, the Tribunal found that various services, as identified by the Tribunal, were available to the Applicant and concluded as a matter of fact that the Applicant would be able to manage both his mental health issues and employment by virtue of that fact. The Tribunal was itself particular, about addressing the particular needs of the individual Applicant.

49.    The Tribunal did grapple with the claim that the Applicant’s mental health conditions meant it was unreasonable for him to relocate to Lahore, and determined it was not unreasonable and did so on the basis of the evidence before it.

50.    The Tribunal found that the prospect of the Applicant facing violence in Lahore was remote. It said that expressly in paragraph 123 of the Decision Record. It was open to the Tribunal, to expressly so find.

The appeal to this court

15    By notice of appeal filed on 7 February 2018, the appellant appeals from the orders of the Federal Circuit Court dismissing his application for judicial review. When the appellant filed his submissions on the appeal, he attached to those submissions a proposed draft amended notice of appeal. As the appellant submitted, the grounds of appeal (of which there are two) remain the same as the original notice of appeal, but what are described as “particulars” are given for each of the grounds, which develop the way in which the appellant puts each of the grounds of appeal in considerably more detail.

16    The Minister did not object to the appellant’s reliance on the amended notice of appeal, and had addressed the substance of that notice, and the substance of the appellant’s submissions, in his written submissions.

17    Accordingly at the hearing of the appeal, the Court granted leave to the appellant to rely on his amended notice of appeal, and the appeal proceeded on that basis.

18    The two grounds of appeal as amended, omitting the particulars, are as follows:

1.    The Federal Circuit Court erred by failing to conclude the decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to give proper consideration to whether it was reasonable in the circumstances for the appellant to relocate to another part of Pakistan, inter alia by failing to deal with an objection which the applicant made to relocation.

2.    The Federal Circuit Court erred by failing to find that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to give proper consideration to whether it was reasonable in the circumstances for the appellant to relocate to another part of Pakistan, inter alia by failing to deal with an objection which the applicant made to relocation.

19    The appellant’s submissions can be summarised in the following way. He contended, and the Minister did not dispute, that he has been diagnosed with a major depressive disorder, anxiety and post-traumatic stress disorder, for which he has received ongoing treatment from a psychiatrist and a clinical psychologist, and for which he has been prescribed medication. The Tribunal accepted this was the case, although not uncritically. For example, at [39] the Tribunal did not accept that the appellant’s mental health conditions were a reason why he did not lodge a protection visa in other locations when he had the opportunity.

20    Another way in which the Tribunal appeared not to have accepted all of what was said on behalf of the appellant about the level of debilitation caused to him by his mental health conditions is evident in the Tribunal’s reasoning about the appellant’s past employment experience. As the Tribunal set out in its reasons, the appellant spent a considerable part of his adult life employed as a seaman, in common (the Tribunal found at [51]) with many Pashtun from the Swat Valley. In his work as a seaman the Tribunal found he had travelled to many parts of the world repeatedly, and had in between times returned home to the Swat Valley in Pakistan. The Tribunal found:

The failure to lodge protection visa applications in European locations at certain times causes the Tribunal to question the subjective fear that the applicant had in his circumstances in Pakistan.

21    At [106], having described the appellant as having provided “a convoluted set of circumstances” as to why he could not relocate, the Tribunal noted the appellant’s mental health concerns as one of many bases he sought to use to contend that relocation was not reasonable:

The Tribunal notes that the arguments seek to argue many things, that he would not get employment because of being unskilled in a high unemployment area, no family or friends to support him, and being of Pashtun ethnicity. The submission then states that even in the event of gaining employment he would still be discriminated against as a Pashtun. Urban centres were expensive. The applicant has claimed language difficulties in Lahore as he has limited Punjab. The applicant has also raised mental health concerns with relocating in Pakistan.

22    At [107]-[114], the Tribunal went through in detail its findings of fact as to why it rejected each of these arguments before turning to its findings about the appellant’s claims concerning his mental health from [115] onwards. From that point through to [118] the Tribunal set out the country information on which it relied in relation to the availability and accessibility of mental health services in Pakistan. At [119] to [120] the Tribunal then made the following findings:

119.    The Tribunal accepts that the applicant has been diagnosed with anxiety, depression, and symptoms of PTSD. The applicant gave evidence that he is taking medication for sleeplessness and depression, and that he is very anxious about returning to Pakistan. However, for the reasons provided above I do not accept that the applicant would be harmed were he to relocate to Lahore, or another urban area outside KPK and the FATA. The Tribunal accepts that mental health is a considerable problem in Pakistan, and that experts consider there should be more services available. However, as noted above, there are a number of mental health treatment services available in Lahore, including the Punjab Institute of Mental Health, considered a leader in treatment in Pakistan, which has an outpatient department which provides free consultation, drugs and psychotherapeutic interventions and deal with anxiety and mood disorders amongst other illnesses. Fountain House in Lahore also treats patients with mental health issues. The Tribunal accepts that mental health is a difficult issue in Pakistan, but there are services available. The Tribunal accepts that there should be more resources devoted to mental health in Pakistan by state and federal governments, but I note that this is an issue in all countries: including Australia, and cuts across the developed and developing world. Having considered the evidence of the applicant, the reports provided by the representative and the information set out above, the Tribunal considers that there is a reasonable level of mental health services available to the applicant if he were to relocate to Lahore or another urban area, where services in general are more readily available. The Tribunal does not accept that the applicant will be denied the opportunity to avail himself of such treatments, or that he would be denied such treatments in any discriminatory manner, given the availability of the services.

120.    The Tribunal considers that the availability of health services in urban locations as discussed above … would mean that the applicant would be provided such supports when establishing himself in a new location. Further, the availability of these services would mean that the applicant would be able to receive the treatment he needs while establishing himself in accommodation and employment in this location. The availability of treatment means that the applicant will be able to manage his mental health issues while undertaking employment. The Tribunal does not accept that the applicant’s mental health concerns mean that it would be unreasonable for him to relocate in Pakistan.

(footnotes omitted)

23    The substance of the appellant’s challenge to the Tribunal’s approach is that he contends the Tribunal focused only, or almost exclusively, on the availability of mental health services in Pakistan and did not appreciate or consider the import of the psychological evidence before the Tribunal that the appellant’s mental health conditions would be exacerbated if he returned to Pakistan.

24    In that sense, the appellant contends the Tribunal “failed to grapple with the objection actually made”. He contends the Federal Circuit Court made the same error, in that consideration of the availability of mental health services in Pakistan was not capable of dealing with the objection to relocation that the appellant had actually made.

25    The appellant made a similar argument in relation to his second ground of appeal. He contended that although the Tribunal had considered the question of generalised violence in the context of relocation in its reasons (at [88]-[92]) it had done so by reference to the risks faced by the general population in Lahore of generalised violence, thus considering the appellant as no more than a member of that general population. In contrast, the appellant submits, the way he put his claim before the Tribunal was that he, as an individual, would suffer differentially and disproportionately because of the generalised violence, due to the effect that witnessing such violence, or being in places where there were risks of generalised violence, would have on his mental health. In other words, the appellant contended that the Tribunal had not dealt with the reasonableness of compelling the appellant, with his particular mental health conditions, to face such a risk of generalised violence, relying on the decision of Kenny J in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 at [47]-[49].

resolution of the appeal

26    We do not consider either of the grounds of appeal raise any question of principle. Rather, the question is whether the Tribunal, and then the Federal Circuit Court on judicial review, correctly applied established principles.

27    It is well accepted that how an administrative decision-maker (including the Tribunal) approaches the question of whether it is reasonable to expect a protection visa applicant to return to a particular part of her or his country of nationality will depend to some extent on the framework set by the claims made by the visa applicant about why it is not safe, and/or not reasonable for her or him to return to a particular location or locations: see SZMCD at 438 [123]; Randhawa at 443 (Black CJ); SZATV at [24] (Gummow, Hayne, Crennan JJ), at [81] (Kirby J); SZSCA at [27], [31]-[33] (French CJ, Hayne, Kiefel, Keane JJ); CSO15 at [26]-[27], [47]-[48] and MZYPW at [9] (Flick and Jagot JJ). However as Mortimer J noted in MZANX at [58]:

There is no doubt that the “framework” set by an applicant may be an important factor. Indeed, the appellant submits the reviewer did not pay sufficient attention to the framework set by his adviser’s submissions on the two questions of “insecurity, political instability and social problems” and “unemployment such as to impact his ability to meet his basic needs”. However, it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.

28    In this appeal, counsel for the appellant submitted that the failure to consider each objection put by a visa applicant would be a jurisdictional error. That submission relied on, by analogy, authorities about the failure of a decision-maker to undertake the statutory task if the decision-maker fails to consider an integer of a claim to fear persecution, fails to consider a claim to fear persecution, or fails to consider a critical fact in a claim to fear persecution: see for example Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 194 ALR 244 at 259 [42] (Allsop J, Spender J agreeing); Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24]-[25] (Gummow and Callinan JJ) (Hayne J agreeing at [95]); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58]-[61], [63] (Black CJ, French and Selway JJ); Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [51]-[52].

29    Reliance on an “objection” as a basis for a contention of jurisdictional error may be problematic, although at a colloquial level the use of the term is understandable. An “objection” made by a visa applicant to relocation has no conceptual or statutory status in the task of determining whether the causal element of Art 1A of the Refugees Convention is satisfied. As Mortimer J noted in MZANX, matters raised by a visa applicant (whether by way of “objection” or otherwise) are likely to form part of the framework in which a decision-maker will need to assess the safety and reasonableness/practicability of a person returning to a particular part or parts of her or his country of nationality. However, as her Honour also noted in MZANX, the decision-maker’s task is not completed by ticking off a checklist of matters raised by a visa applicant. Too much focus on “objections” tends to encourage this kind of “checklist” approach, which detracts from an appreciation of the overall task of the decision-maker, and from the Court’s task on judicial review to determine whether the state of satisfaction was lawfully formed: see MZYTS at [46].

Ground 1: the exacerbation contention

30    In the present appeal, as his claims were framed to the Tribunal, and as they were developed in submissions on his behalf before the Tribunal, the appellant made it clear that the lack of security in Pakistan and the risk that he would be exposed to generalised violence in Pakistan would have a debilitating and negative effect on his state of mental health. Indeed, these contentions were made at a general level as a reason why it was not reasonable or practicable that he be returned to any part of Pakistan, not only Lahore. The Minister did not contend otherwise. The Tribunal noted this matter as one of his claims at [104] of its reasons, and again at [115]. Those parts of the Tribunal’s reasons refer expressly to the prospect that the appellant’s mental health conditions will be exacerbated on return to Pakistan.

31    Something should be said here about the structure of the Tribunal’s reasons. As a first point, it should be noted the Tribunal’s reasons are well-organised, detailed, and reflect a close consideration of the matters raised on the review. To make that observation is not to suggest the reasons are insulated from any successful judicial review, but it does mean that as an overall impression the Court approaches the grounds of appeal in the context of a careful and thorough set of reasons given for the outcome of the review.

32    The Tribunal’s findings begin at [32] of its reasons. There is a comprehensive section on credibility, passages of which are extracted above. This was not a review where the Tribunal accepts entirely all of what the appellant said, although it did accept a considerable amount. From [45] onwards, the Tribunal sets out its findings and reasons for its findings, on the appellant’s claims. This section concludes at [67], with the Tribunal’s finding that:

…there is a real chance of the applicant being harmed for reasons of his political opinion of opposing the Taliban, through his and his family’s involvement in the PPP and Peace Committees, if he returns to Swat, now or in the reasonably foreseeable future.

33    There then appears a heading “Relocation”. From [68]-[127] the Tribunal deals with this subject. It does so in its consideration of the Refugees Convention criterion in s 36(2)(a) of the Migration Act. From [128]-[133] the Tribunal considers expressly the complementary protection criterion in s 36(2)(aa), relying essentially on its reasoning on the s 36(2)(a) criterion. We note that in [68]-[100], as explained below, the Tribunal expressly considers both the “real chance of serious harm” approach for the purposes of Art 1A and the “real risk of significant harm” approach for complementary protection. The Tribunal’s approaches in these respects, and its adoption of its earlier reasoning for the purposes of complementary protection, have not been impugned on appeal. At [134] the Tribunal expresses its conclusion on the review.

34    Specifically, the “Relocation” section follows the following course. From [68] through to [100], the Tribunal explains why it concludes (at [100]) that the appellant would not face a real chance of serious harm or a real risk of significant harm if he were to be returned to Lahore. There are parts of these passages ([88]-[92]) that are particularly relevant for ground 2 of the appeal and we return to them below.

35    From [101]-[127] the Tribunal considers, as it states at [101], the reasonableness, in the sense of practicability, of relocation to Lahore, looking at the particular circumstances of the appellant and the impact upon him of such a relocation within his country. Again, Lahore was the focus of the Tribunal’s reasoning, and the fact of that focus was not impugned by the appellant. As we have noted, at [104] the Tribunal set out a list of the matters the appellant had identified as matters which would mean it was not reasonable, and not practicable for him to relocate to Lahore. The first, and the last, in the list of six matters were:

His mental ill health related to his past experience of persecution and trauma in Pakistan. Forced return to the source of his fear and trauma in Pakistan to an area where he has no family support will exacerbate his mental health problems.

…

All Pakistan cities are currently extremely insecure. Not only does this place [the applicant] at risk of harm, it will also result in further psychological trauma to him.

36    At [106], the Tribunal described the appellant’s contentions in the following way:

The Tribunal notes that the arguments seek to argue many things, that he would not get employment because of being unskilled in a high unemployment area, no family or friends to support him, and being of Pashtun ethnicity. The submission then states that even in the event of gaining employment he would still be discriminated against as a Pashtun. Urban centres were expensive. The applicant has claimed language difficulties in Lahore as he has limited Punjab. The applicant has also raised mental health concerns with relocating in Pakistan.

37    We set this passage out because it is important not to lose sight of the fact that the appellant did raise a considerable number of specific reasons why relocation would not be reasonable, in the sense of practicable, for him. The Tribunal was considering his contentions about his mental health in the context of a number of other matters raised – not in isolation. However, it is also correct that his mental health conditions, and what they would mean for him on return to Pakistan, were matters which were the subject of specific medical evidence.

38    From [107], the Tribunal commences its consideration of the matters raised, and its general consideration of reasonableness, in the sense of practicability, of relocation to Lahore for the appellant.

39    The Tribunal’s reasoning on the effect of the appellant’s mental health conditions commences at [115], with the following:

The Tribunal has considered the claims claim regarding the applicant’s mental health, including that his mental health condition will be exacerbated on return to Pakistan, and that it will cause him to have difficulty in establishing himself in a new location. The Tribunal notes the psychological report of Dr [redacted] and Dr [redacted] as provided to the Tribunal, and the submissions arising from these reports. The Tribunal discussed mental health services available in Pakistan at the hearing.

40    It is true that the focus of the Tribunal’s reasoning after this paragraph is on the availability, accessibility and quality of mental health services in Lahore, including what treatment would be available to the appellant. However, these passages need to be read fairly in the context of the other findings the Tribunal had already made.

41    We consider it is implicit, if not express, in the Tribunal’s focus on these matters that it accepted, at least for the purposes of its consideration, that the appellant might have a greater need of mental health services if he returned to Lahore, because his conditions might be exacerbated. However, as noted earlier, we consider the Tribunal did not accept what had been put to it by the appellant, and on his behalf, uncritically. In general, we consider it saw the appellant as more resourceful, and more resilient, than some of the evidence and material might have suggested. For example, in a passage we have extracted at greater length already, the Tribunal stated at [120]:

The Tribunal considers that the availability of health services in urban locations as discussed above means that the applicant … would be provided such supports when establishing himself in a new location. Further, the availability of these services would mean that the applicant would be able to receive the treatment he needs while establishing himself in accommodation and employment in this location. The availability of treatment means that the applicant will be able to manage his mental health issues while undertaking employment. The Tribunal does not accept that the applicant’s mental health concerns mean that it would be unreasonable for him to relocate in Pakistan.

42    This passage reveals a number of matters about the Tribunal’s conclusions. First, it saw a broad equivalence between what it considered to be the appellant’s mental health needs, and the services he could access. It did so expressly, and correctly, by not expecting what was available in Pakistan to be equivalent to what was available in a western country (see [118] of its reasons). Second, at least implicitly, it found the appellant would be able to establish himself in Lahore and find employment. It was not approaching the appellant’s circumstances on the basis he would be unable to do such things because of his mental health conditions.

43    It is also important to note that the Tribunal concludes (at [123]), having looked at the appellant’s circumstances, that:

…the applicant will face challenges on return, but [the Tribunal] considers that the applicant is capable, taking into account all his circumstances as detailed above, of meeting those challenges in Pakistan.

44    The reference to “as detailed above” is a reference to significant parts of the Tribunal’s earlier reasoning where, based on the evidence it had before it concerning the appellant’s travel and employment as a seaman over many years, it clearly considered the appellant had a level of adaptability and life experience which would assist him in adapting to life in Lahore, even given his mental health conditions. In our opinion it is clear, reading the Tribunal’s reasons fairly and in context, that it did not accept that the appellant was as disabled as the submissions and evidence adduced on his behalf – taken in isolation as they were on the appeal – might have suggested. That was an approach which was open to the Tribunal to take.

45    The medical evidence before the Tribunal was to the effect that the appellant’s mental health symptoms would be exacerbated and that this could possibly increase the risk posed by the appellant’s mental health condition. That being the evidence, it again justifies and explains the Tribunal’s focus on mental health services. In short, in submissions and in evidence, the central claim made by the appellant was that his mental health conditions would be exacerbated, and this claim was made at a general level.

46    In our opinion it is both explicit and implicit in the Tribunal’s reasoning that it understood the appellant’s mental health conditions, in terms of his symptoms, were at risk of worsening if he were returned to Pakistan, including if he were to relocate to Lahore. For the reasons set out above, we do not consider the Tribunal wholly embraced the level of disability the appellant suggested would affect him in such circumstances. In our opinion the Tribunal considered the appellant to be more resourceful and adaptable than his present approach on appeal seeks to suggest. Those were assessments for the Tribunal to make, and not for this Court.

Ground 2

47    As the Minister’s submissions suggest, it is somewhat difficult to discern a real distinction between the first and second grounds of appeal. Both focus on the asserted failure of the Tribunal to examine with the requisite level of detail the effects the appellant’s state of health would have on his ability to relocate to Lahore. Even if one attempts to separate the arguments on each ground, in our opinion there is no basis to impugn the Tribunal’s approach to its consideration of the effect of the appellant’s recognised mental health conditions on his ability to relocate to Lahore.

48    The point made by the appellant might be best explained, as the appellant’s counsel submitted at the hearing, by reference to the post-hearing submissions filed on his behalf with the Tribunal. In those submissions, the following contention was advanced:

In our submission, the widespread insecurity and violence in Pakistan must be considered when assessing the relevance and reasonableness of Mr [redacted] relocating within Pakistan, particularly when considering his fragile mental health and his understandable concern that his mental health will significantly deteriorate even further if he was forced to try and relocate. We note the great deal of country information provided particularly with respect to the cities of Rawalpindi or Islamabad, where the Tribunal had stated the applicant could access health care.

(Original emphasis.)

49    The appellant contends the medical evidence revealed a “specific” impact on him – that is, not one which would be common with the Pashtun population in Lahore generally. Relying on MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 at [21], he contended the question here for the Tribunal was whether the risk of exposure to generalised violence was a reasonable risk to expect the appellant to undertake, given his mental health conditions.

50    The Tribunal’s finding at [89]-[92] of its reasons was of particular relevance to this ground. There, the Tribunal stated:

89.    Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. Again, the Tribunal notes an article listing 30 major terror attacks in Lahore since 2004. Further acts of violence against police in February 2015, in response to the hanging of convicted terrorists, and church bombings in March 2015. It was submitted that the applicant could be harmed in this violence. However reviewing this information would demonstrate that both attacks referenced in 2015 in the specifically targeted particular groups in Lahore, [sic] and are not indiscriminate or generalised violence in nature. The Tribunal notes that The Pak Institute for Peace Studies recorded only one incident of sectarian violence in Lahore in 2014.

90.    The Tribunal has considered the generalised violence in Lahore. The Tribunal accepts that there is a level of generalised violence, though it is sporadic and not common. The article considered detailing the 30 major events in 11 years describes bomb attacks that have occurred. The list details that most attacks targeted police, anti-terrorist and army facilities or personnel. The Tribunal does note two reports of bombs in market places.

91.    The Tribunal has considered the applicant’s risk of harm in this generalised violence. While the acts of violence are of concern, they are not common. DFAT in a 2015 assessment stated about the Punjab generally that:

4.22 Overall, levels of generalised and sectarian violence are lower in Punjab relative to the rest of Pakistan. DFAT was told by a credible Lahore-based think-tank that the rate of homicide in the Punjab is slightly lower than the national average (seven per 100,000 people). According to a credible statistical review, sectarian violence has declined in Punjab since the 1990s.

92.    The Tribunal acknowledges that there is sporadic generalised violence in Lahore. However the Tribunal does not accept that the risk of the applicant being harmed in this violence is one faced by the population generally, and not faced by the applicant personally. The Tribunal does not accept on the evidence before it that the level of generalised violence in Lahore makes it unreasonable for the applicant to relocate to that city.

(footnotes omitted) (emphasis added)

51    There was some debate at the hearing of the appeal about the meaning of the part in bold. It appears to be a reference to the criterion in s 36(2B)(c) of the Act, which provides that a person will not be at risk of “significant harm” for the purposes of complementary protection where:

…the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

52    The Tribunal’s use of a double negative is what makes the passage a little hard to comprehend, especially when read with the sentence that follows it. Whether or not the Tribunal intended to find the appellant was exposed differentially to a risk of generalised violence in Lahore, its principal conclusion remained that the level of risk he faced did not affect its conclusion that it was reasonable to expect him to relocate to Lahore.

53    Thus, in relation to the complementary protection criterion, the Tribunal’s conclusions, adverse to the appellant, rested on s 36(2B)(a) – the reasonableness of relocation. It approached this in the same way it did for the Art 1A relocation assessment, and the fact it did so was, correctly, not impugned by the appellant.

54    There was an absence of any detail in the submissions or evidence before the Tribunal about how the appellant’s mental health conditions would result in differential effects on him from any exposure to widespread insecurity and violence in Lahore. It is difficult to see how the Tribunal could have engaged more specifically about this than it did. It was conscious of the risks of harm to the appellant, but did not accept “the appellant would be harmed while establishing himself” in Lahore: see [122]-[123] of its reasons. It then found (at [123]):

Having considered the violence that exists, the Tribunal consider the prospect remote that he will be harmed in such violence. The Tribunal considers that it is reasonable, in the sense of practical, for the applicant to relocate in Pakistan taking into account the violence that exits [sic].

55    These findings are in the reasonableness section of its reasons. We are satisfied the Tribunal did turn its mind to whether the security situation in Lahore, and the levels of violence it found existed, made it reasonable, in the sense of practicable, for the appellant to return there, including taking into account his mental health conditions.

56    If by this ground the appellant is suggesting that he expressly raised a contention that if he were to be a witness or a bystander to generalised violence, then he would suffer some kind of additional post-traumatic stress disorder or some kind of additional exacerbation of his mental health conditions, then we do not accept that any such specific claim was made before the Tribunal. It is certainly correct that his medical evidence, his own evidence and his submissions all suggested that his post-traumatic stress disorder symptoms, his anxiety and his general mental health would deteriorate if he were forced to return to Pakistan. At that general level, those submissions were made and that evidence was given repeatedly. The Tribunal dealt with them at the level of generality at which they were made. However, we do not consider it needed to descend to a level of further particularity in its findings than it did, given the way the material and submissions were put.

Conclusion

57    In our opinion, the appeal should be dismissed.

58    We see no basis for anything other than the usual order as to costs. The Court’s practice now is to award costs by way of a lump sum wherever that is appropriate: see [3.5] and [4.1] of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016. We consider it is appropriate for a lump sum costs order to be made in this case and we propose to give the parties an opportunity to agree on an appropriate lump sum for the Minister’s costs. In the absence of agreement, there will be a direction to the Minister to prepare a Costs Summary in accordance with [4.10] to [4.12] of the Costs Practice Note, and (if necessary) for the appellants to prepare a Costs Response.

Associate:

Dated:    6 July 2018