FEDERAL COURT OF AUSTRALIA

AZABQ v Minister for Immigration and Citizenship [2012] FCA 446

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay to the first respondent costs of the appeal

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of a Federal Magistrate given on 22 August 2011: AZABQ v Minister for Immigration & Anor [2011] FMCA 826. The Federal Magistrate decided that there had been no jurisdictional error on the part of the Refugee Review Tribunal in refusing to grant the appellant a protection visa under the Migration Act 1958 (Cth) (the Act).

2    The appellant is a citizen of Pakistan who arrived in Australia on 17 April 2007 as the holder of a Subclass 572 Student visa permitting him to remain in Australia until 6 May 2009. He was subsequently granted a further Student visa in May 2010 but was reported by his education provider in August 2010 for not meeting course requirements and failing to pay tuition costs.

3    The appellant applied for a Protection (Class XA) visa on 21 June 2010.

4    The appellant’s initial claims are set out in an (undated) statutory declaration.

5    The appellant is from Haripur in the north-west of Pakistan. He was born there and lived there until he came to Australia. He claimed he was a Sunni Muslim who feared harm from the Tehrik-e-Taliban Pakistan (TTP) for breaking Islamic law by “learning and living in a Western Culture”. He claimed that since September or November 2009 his father and brother in Pakistan had received letters and anonymous phone calls threatening the appellant’s life because the appellant had been living and studying in Australia in violation of Islamic law.

6    In a decision dated 8 December 2010, a Delegate of the First Respondent refused to grant the appellant a protection visa. The Delegate found that inconsistencies and anomalies in the appellant’s claims caused him to doubt that the appellant was being wholly truthful about his claims to fear harm in Pakistan. The Delegate placed emphasis on the appellant’s visa status at the time, noting he had failed to meet his course requirements and to pay his course fees in connection with his student visa and that it was more plausible that this explained his motivation for applying for a protection visa rather than his claimed fear of returning to Pakistan.

7    The Delegate also made further findings that:

(1)    Even if he accepted that the TTP was aware of the appellant’s study in Australia and wanted to harm him, the TTP did not have an established network in which to pursue the applicant outside Haripur.

(2)    There was no evidence to suggest that the appellant possessed a profile that was of any interest to extremist groups outside Haripur.

(3)    The appellant could relocate to Karachi, considering the reasonableness of relocation for the appellant and there was no evidence to suggest that he would encounter difficulties relocating. He noted that the appellant was unmarried, had familial support outside Haripur, and was a “resourceful, intelligent and independent man with extensive work experience in IT related vocations” who would be able to find employment elsewhere in Pakistan; and

(4)    The appellant’s claimed fear of persecution was therefore not well-founded.

The Tribunal’s decision

8    On 20 December 2010, the appellant lodged an application with the RRT to review the Delegate’s decision.

9    The appellant provided further documents to the Tribunal in support of his claims and attended a hearing before the Tribunal on 4 March 2011. At the hearing, he claimed that when he returned to Pakistan in 2009 he sensed that someone was following him but he was never approached or threatened. He claimed further that he feared harm because of his race, as his parents were from India, their language was different and people in Haripur called them “Indians”. He also claimed feared persecution because his state changed its name from the “North West Frontier Province” to “Pakhtunkhwa”. He claimed people wanted a new Hazara state and that if he went to Peshawar he could not understand their language and they would say he was Punjabi and target him for being different.

10    As noted above, on 31 March 2011, the Tribunal affirmed the decision to refuse the appellant’s application for a protection visa.

11    However, the Tribunal was prepared to accept a number of the appellant’s claims which the Delegate had rejected. It accepted that:

(1)    the appellant’s family had received threats that the appellant might be seriously harmed if he returned to Haripur (despite expressing some doubts about the seriousness of those threats);

(2)    the appellant genuinely feared harm from the TTP should he return to Haripur; and

(3)    the appellant’s fear was for a Convention reason, namely his religion (Sunni Muslim) or an imputed political opinion (that the applicant/appellant was westernised or “anti-Muslim”).

12    The Tribunal did not accept that the Appellant feared harm because his family had Indian heritage, or because he could not speak Peshawar. It found that he could speak the two main languages of Pakistan (Urdu and English), had not been discriminated in the past for his Indian heritage and, as a Sunni Muslim, he was part of the majority in Pakistan.

13    The appellant failed before the Tribunal because of the RRT’s/Tribunal’s relocation finding.

14    It found he was not owed protection obligations because he could relocate within Pakistan to avoid any persecution he might otherwise face from members of the TTP. The Tribunal accepted that the appellant could be harmed in a generalised act of violence in a city such as Karachi, but was not satisfied that he would be targeted for such violence (either for a Convention, or any other reason). The Tribunal correctly noted that the Convention does not encompass those fleeing generalised violence or internal turmoil. Consequently, the Tribunal was not satisfied that the Appellant was owed protection obligations, and affirmed the Delegate’s decision.

The Federal Magistrate’s decision

15    Two grounds of review were advanced by the appellant (it is however only “ground 1” – the relocation ground, which is now pressed upon this appeal). It is not necessary to refer to the other ground. Ground 1 concerned the question of relocation. The relevant paragraphs of the Federal Magistrate’s reasons are at [19]-[32], concluding at [31] as follows:

The crux of the assessment of the reasonableness of the relocation of this case was movement to another area of Pakistan. The Tribunal did not seek to describe how the appellant should conduct himself whether following a relocation or otherwise. It posited the possibility of him relocating to another area of Pakistan given the specific circumstances and it determined that it was reasonable that he do so and I do not think in doing so the Tribunal fell into jurisdictional error.

CONSIDERATION

16    The appellant asserts that the learned Federal Magistrate erred in failing to find that the Tribunal failed to constructively exercise its jurisdiction by incorrectly applying the “relocation test” as stated in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24] per Gummow, Hayne and Crennan JJ. The appellant asserts the Tribunal erred in its application of the relocation test by failing to consider the appellant’s particular circumstances in sufficient detail and instead applied a general or hypothetical assessment. The First Respondent submits there was no such failure by the RRT.

17     The Tribunal’s “Findings and Reasons” are broken into two sections by the subheading “Relocation”. Above that subheading is its reasons and conclusion that the appellant faces a real chance of serious harm for a Convention reason should he return to Haripur in the foreseeable future. Under the subheading, it has addressed two issues. One is as to whether he could safely relocate elsewhere in Pakistan without a real chance of persecution for a Convention reason. The other is whether, if he could safely relocate, in his particular circumstances it is reasonable for him to do so.

18    The two questions are expressed at [75] of its reasons:

The relevant question for the Tribunal is whether there is a real chance the applicant would face persecution for a Convention reason if he moved to another area of Pakistan, and whether in his particular circumstances it is reasonable for him to do so.

It is no doubt a minor drafting error that that passage refers only to the “relevant question”. It clearly posits two questions.

19    The Tribunal preceded that paragraph by stating at [73] of its reasons what it understood to be the general law to be applied in cases where relocation is an issue. It said:

The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstance it would be reasonable, in the sense of “practicable”, to expect him or her to seek refuge in another part of the same country. What is “reasonable” in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC [2007] HCA 40 and SZFDV v MIAC [2007] HCA 41, per Gummow, Hayne and Crennan JJ, Callinan J agreeing.

I shall comment further upon that formulation below.

20    The Federal Magistrate at [22] correctly understood that the first question related to whether, beyond the region of Haripur, the appellant had a well-founded fear of persecution from the TTP. That arose, because when the Tribunal in its hearing raised with the appellant the prospects of relocating, one of his responses was that he could not safely relocate as violence was evident in Pakistan and the TTP could locate him everywhere. There are two ideas embedded in that proposition: one that he faced the risk of serious harm from the TTP wherever he was in Pakistan; and the other that he could not reasonably relocate within Pakistan (although the TTP would not threaten him) because it was pervasively dangerous due to general unlawfulness.

21    It was necessary for the Tribunal to address the first of those two ideas, because that was part of the appellant’s response. It did so. It rejected that assertion, and adhered to the view it had previously reached that the risk of persecution for a Convention reason was confined to the Haripur region.

22    There is now no appeal on that aspect.

23    Then, at [78]-[79] of its reasons the Tribunal explained why it considered that relocation was reasonable for the appellant in all the circumstances.

24    Contrary to the submissions of the appellant, I have concluded that the Tribunal did not apply the incorrect legal test, prescribed in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440-441, and explained in SZATV (supra) in the reasons of the plurality, especially at [24].

25    In my view, the Tribunal was mindful that what is reasonable in the sense of “practicable” must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. The Tribunal had regard specifically to the appellant’s education; religion; his ability to speak the two main languages of Pakistan; and his demonstrated ability to survive in an alien environment by living in Australia for nearly four years. It addressed his ability to obtain work and accommodation elsewhere in Pakistan. It noted elsewhere in its reasons that many Pakistani students reside and study overseas and are able to return to Pakistan, and it noted that the appellant is a Sunni Muslim, the majority group in Pakistan.

26    The other concern specifically raised by the appellant during his interview before the Tribunal, when relocation was discussed, was the generally unsafe situation which he said obtained throughout Pakistan. The Tribunal specifically addressed that concern at [79] of its reasons. It did not accept that state of affairs existed, having regard to the Country Information available to it. It found that the appellant could be harmed in an act of random generalised violence in a city such as Karachi (as is the case in many large cities). But it said the appellant was no more at risk than other residents of such a city, and that the risk was remote. It therefore took into account the extent to which it accepted that there was a degree of unlawful violence in Pakistan generally in deciding that in the case of the appellant it was reasonable for him to relocate to a part of Pakistan away from the Haripur region.

27    In my view, the Federal Magistrate did not err in reaching the conclusion that the Tribunal’s approach to the question of relocation was orthodox and in accordance with the applicable legal principles.

28    There are two further comments to make.

29    First, this was not a case such as that which was addressed in SZATV (supra) and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 where the challenged finding of the Tribunal anticipated that the visa applicant “sidestepped consideration of what might reasonably be expected” of the visa applicant in relocating, by imposing an unnatural standard of behaviour on the visa applicant (such as discreet behaviour): see eg SZATV at [32].

30    Secondly, I comment upon the concluding two sentences of the reasons of the Tribunal at [73] quoted above. Those sentences appear to be derived, at least in part, from the speech of Lord Hope of Craighead in Januzi v Secretary of State for Home Department [2006] 2 AC 426 at 457, and quoted in the plurality decision in SZATV at [25]. As the subsequent observations of Gummow, Hayne and Crennan JJ at [26]-[27] indicate, their Honour’s reference to that passage was in a specific context. It should not be taken as correct that relocation within a country is reasonable if that relocation routinely exposes the person concerned to a significant risk of serious harm. I do not think the Tribunal meant that. In this matter, counsel for the appellant placed no particular emphasis on that passage.

31    The appeal should be dismissed with costs.

Associate:

Dated:    4 May 2012