FEDERAL COURT OF AUSTRALIA

MZZAD v Minister for Immigration and Citizenship [2013] FCA 879

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

2.    Leave to raise grounds 1 and 2 of the notice of appeal is refused.

3.    Leave to raise the new grounds of appeal stated in oral submissions is refused.

4.    The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

introduction

1    By notice of appeal dated 6 June 2013 the appellant appeals from the decision of a Federal Circuit Court Judge, given on 16 May 2013. The Federal Circuit Court Judge dismissed the appellant’s application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (“the Tribunal”), given on 24 July 2012, which affirmed the first respondent’s decision to refuse the grant of a Protection (Class XA) visa to the appellant.

2    The appellant was not legally represented at the hearing of the appeal before the Federal Court of Australia, but appeared with the assistance of an interpreter and made oral submissions.

3    The appellant relied on written contentions of fact and law dated 5 August 2013. The respondent relied on written submissions dated 5 August 2013.

4    The appellant is a citizen of Pakistan who arrived in Australia on a student visa on 12 July 2008 and was later granted a Bridging Visa A. Broadly, the appellant claims that he will be killed if he returns to Pakistan because his father, a village elder and former army officer, has been actively involved in supporting the Pakistani army and government against the Taliban.

5    The appellant outlined his claims to protection in a statutory declaration dated 25 July 2011, attached to his protection visa application. In his statutory declaration, the appellant declared that:

(a)    He was born in Rawalpindi, Pakistan. His ethnicity is Pashtun and he is Muslim.

(b)    His father is a former army officer, who spent 18 years in the Pakistani Army.

(c)    In 2008 his father retired to his village, Khadi, in Pakistan, with his mother and siblings. Some time later, his father was made a Malik (elder) in the village.

(d)    As a Malik, his father encouraged the villagers actively to support the army and the government against the Taliban.

(e)    In about March 2011, his father received a letter from the Taliban in North Waziristan threatening him and his sons (the appellant and his two brothers) and instructing him to stop spreading messages of support for the army. His father, although concerned, continued to encourage the villagers to support the army and government.

(f)    In May 2011, the appellant’s father and eldest brother were fired upon by the Taliban when leaving a tribal council. The meeting had been called to discuss the assassination of a Malik and security issues in the village.

(g)    Subsequently, his father was very careful of his security and tried to avoid the Taliban by staying in his tribal area and limiting his attendance at tribal councils. When questioned by the Tribunal, the appellant stated that his father and brothers are still alive because they are “in hiding all the time”, do not leave the house and have support from militia.

(h)    In about June 2011, his father told him that he should not return to Pakistan as he would be in danger if he did so.

(i)    While he has not been threatened directly, his father and his family, including the appellant, have been threatened. He fears he may be killed by the Taliban if he returns to Pakistan.

(j)    The authorities in Pakistan are not powerful enough to protect him and have been targeted by the Taliban themselves.

6    On 28 July 2011, the appellant, with the assistance of a legal adviser, applied to the Department of Immigration and Citizenship for a protection visa. The appellant attended an interview with the Department of Immigration and Citizenship on 8 December 2011.

7    At his interview with the Department of Immigration and Citizenship on 8 December 2011, the appellant provided a tribal domicile certificate, a “warning notice” from “Taliban Mujahedin, Hafiz Gul Bahadur Group, Northern Waristan” addressed to his father with an English translation and a letter in English from the “Political Agent, North Waziristan, Miuranshah” which referred to an attack on his father and others carried out by “a Taliban group” on 6 May 2011.

8    On 3 January 2012, a delegate of the first respondent refused the appellant’s application for a Protection (Class XA) visa. The delegate accepted that the applicant had a well-founded fear of persecution if he returned the areas of Kurram Agency, North Waziristan or anywhere in “FATA” (Federally Administered Tribal Areas) or the “NWFP” (North-West Frontier Province). The delegate did not, however, accept that if the appellant were relocated in Pakistan he would be persecuted and, accordingly, found that it was reasonable for the appellant to be relocated in Pakistan.

9    On 24 January 2012, the appellant applied to the Tribunal for review of the delegate’s decision.

10    The appellant appeared before the Tribunal on 11 May 2012 and on 20 July 2012 and was represented by a registered migration agent. After the first hearing the Tribunal sent the appellant a copy of its draft summary of the appellant’s evidence. The appellant’s representative responded on 12 June 2012 providing further evidence on the appellant’s behalf. The appellant’s representative provided further written submissions to the Tribunal on 22 June 2012.

11    The appellant informed the Tribunal that he arrived in Australia on a student visa and commenced a Diploma of Business. He was married in Australia on 22 August 2009 and stopped attending his course. He and his wife then separated on 19 June 2011.

12    Before the Tribunal the appellant stated that he had not read his application for the protection visa, which had been completed by his migration agent, but that the statement accompanying his visa application contained his own words and was true.

13    Before the Tribunal, the appellant largely reiterated the claims made in his statutory declaration. At the first Tribunal hearing, the appellant produced his Pakistan national identity card which, as translated, stated, inter alia, that the appellant was born in 1983 and gave his permanent address as Khadi, North Waziristan Agency. The appellant informed the Tribunal that his family, including his parents, had resided in Khadi from after 2008.

14    The appellant, when questioned by the Tribunal, stated that prior to arriving in Australia he had lived first in Rawalpindi (from birth until 1992), then in Peshawar from 1992 until 1997/1998, in Saudi Arabia from 1997/1998 until 2002, in Khadi (North Waziristan Agency) from 2002 until 2004 and in Peshawar from 2004 until 2008.

15    The Tribunal discussed with the appellant the documents that he had provided at his interview with the Department on 8 December 2011.

16    The appellant informed the Tribunal that he might be harmed in Pakistan because he has lived in a western country for “a long time” and that he would be accused of spying.

17    The appellant stated that it would be difficult for him to live anywhere in Pakistan because his Pakistani identification card identifies him as being from North Waziristan Agency. The Tribunal also discussed some country information with the appellant and the appellant submitted a number of articles to the Tribunal.

18    On 20 July 2012, at the second Tribunal hearing attended by the appellant, his representative and an interpreter, the Tribunal informed the appellant that it was considering whether he could live safely in Lahore and stated the basis for that consideration.

19    In response, the appellant claimed:

(a)    Although many Pashtuns live in Lahore, there is “a big difference” between Pashtuns and tribal Pashtuns.

(b)    The police and the army in Lahore are from the Punjab area and they “hate the tribal Pashtun people”. In Punjabi areas, people from North Wairistan are put in prison and tortured. When questioned, the appellant stated that he had no material to support those assertions.

(c)    He would not be able to get a job in the Punjabi areas.

(d)    The Tailban have a “big network” and they have members living in Punjabi areas and, if they found Tribal people from North Waziristan, could watch and question them. When questioned, the appellant stated that he had no material in support of that assertion.

(e)    He could not live in Lahore as it “would be like him living in prison”. He is a “tribal person and has live[d] all his life in the tribal area”. The Tribunal raised with the appellant that he had only spent two years in North Waziristan, to which the appellant stated that he meant that he had “spent his life with his family”. The Tribunal questioned the appellant about how he supported himself in Australia. The appellant described obtaining work in various industries including security and sales.

20    The Tribunal informed the appellant that it understood that the major cities in Pakistan have population pressures and that there have been instances of violence towards persons newly settled in such cities in the past.

21    After the second Tribunal hearing, the appellant’s representative forwarded to the Tribunal material including a report that gunmen in Lahore shot dead eight Pakistan police and wounded nine others and a report that the Taliban claimed responsibility for killing the police.

22    The Tribunal asked the appellant if he wanted the facts he had already raised to be considered in relation to complementary protection as well as protection as a refugee. The appellant confirmed that he wished to rely on the same facts. The Tribunal explained that there was a similar relocation test in relation to complementary protection.

the tribunal’s decision

23    On 24 July 2012, the Tribunal affirmed the decision of the first respondent, by his delegate, not to grant the appellant a protection visa.

24    On 23 August 2012, the appellant applied to the Federal Magistrates Court of Australia, now Federal Circuit Court of Australia, (referred to throughout these reasons as the Federal Circuit Court) for judicial review of the Tribunal’s decision. On 10 September 2012, the first respondent filed a response and on 1 October 2012 the applicant filed an affidavit. The appellant appeared before the Federal Circuit Court on 20 March 2013 and was not legally represented. On 16 May 2013, Judge Burchardt dismissed the application.

25    In its reasons for decision, the Tribunal discussed the relevant legislative framework of the appellant’s claim to a protection visa, including the criteria for protection as a refugee as defined in Article 1A(2) of the Refugees Convention (the 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) and the complementary protection criterion.

26    The Tribunal found that the appellant was a citizen of Pakistan and that his place of domicile to which he would return if required to do so would be Khadi, North Wairistan Agency.

27    The Tribunal noted that the appellant’s Domicile Certificate showed his place of residence was Khadi.

28    The Tribunal stated:

119.    The Tribunal gives no weight to the Domicile Certificate, as documents such as this are readily available fraudulently in Pakistan (see the country information recited by the delegate IRB Response to Information Request 18 June 2004).

120.    In relation to the Pakistan National Identity Card, this does support the claim that the applicant’s permanent address is in [North Wairistan Agency], although it is curious to note that it was issued in August 2002, at a time when the applicant claims that he was living in Khadi, and notes his ‘present address’ as Peshawar.

121.    On balance, the Tribunal accepts the applicant’s claim that his place of domicile and return, if required to do so, would be Khadi, [North Wairistan Agency].

29    The Tribunal accepted that:

(a)    The appellant’s father is a former Pakistani army officer and Malik who supports the government of Pakistan and that, accordingly, the appellant may be perceived as being opposed to extremist groups in North Wairistan Agency.

(b)    The appellant “genuinely” fears being killed if he were to return to Pakistan which is a form of “serious harm”.

(c)    Tribal elders, such as Maliks and their family members, and tribal militia, who oppose extremists groups, may be targeted and killed.

(d)    Pakistani authorities are unable to control that threat and appear “selectively” to condone such targeting.

30    Accordingly, the Tribunal concluded that:

… the [appellant] faces a real chance of serious harm in [North Wairistan Agency], his place of domicile and return, at the hands of extremists militant groups because of his relationship to his father, and, therefore, finds that his fear of serious harm is well-founded, and constitutes a well-founded fear of persecution because the state of Pakistan will fail to protect him from it.

31    The Tribunal then considered whether it would be reasonable for the appellant to relocate to another part of Pakistan. The Tribunal referred to country information, in particular information concerning Lahore, noting that in 2011 the number of attacks and deaths there had declined dramatically. The Tribunal noted that Lahore had grown to a “megacity”.

32    The Tribunal expressly considered but rejected the appellant’s submissions that he could not relocate to Lahore because (at [143]):

a.    [the appellant] would be unable to find accommodation or employment in Lahore;

b.    [the appellant] would face discrimination, including at the hands of state agencies, and may be locked up or face extortion; and

c.    … it would be an unreasonable adjustment to expect him not to participate in his family and/or tribal life.

33    The Tribunal rejected the appellant’s claims that the Taliban or other extremist groups would have a network that would enable them to target him in Lahore. The Tribunal was not satisfied that the appellant would face a real chance of persecution in Lahore.

34    The Tribunal stated (at [141]):

Based upon the information before it, the Tribunal rejects the applicant’s claims that the Taliban or other militant groups that may target him in [North Wairistan Agency] have a network such that he will be tracked down by them in Lahore. … [R]ecent reports on the situation in Lahore do not disclose targeted killings of Pashtuns from trial areas at all. Whilst the applicant has produced evidence of a Taliban attack in Lahore recently, this was a targeted attack on police and the Tribunal is not of the view that this suggest any increased risk of harm to the applicant. On the basis of the country information, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Lahore, either due to him being the son of pro-government Malik from a village in North Waziristan, or on any other basis put, such as being perceived to be a spy, either because of his father’s political views or because he has lived in the West or conversely any other type of persecutory harm, either from private or state actors due to him being perceived to be a terrorist or Taliban, because he is a Pashtun from NWA.

35    The Tribunal noted that there is widespread unemployment and large numbers of displaced persons in Pakistan. However, it concluded that the appellant “is a young fit man [who] has demonstrated resilience in his capacity to find work whilst living in Australia” and who speaks and understands English, Pashto and Urdu. In all the circumstances, the Tribunal did not accept that the appellant would be unable to earn a living or access accommodation in Lahore or would face discrimination or would be targeted by the police, army, ISI, CIA or any other agency in Punjabi areas.

36    The Tribunal rejected the appellant’s claim that his relocation to Lahore would amount to a surrender of a fundamental right protected by the Refugees Convention. The Tribunal noted that the appellant had only lived in his village for two years of his life, had spent the rest of his life travelling both within and outside Pakistan with his family and had been a resident in Australia since 2008. Accordingly, the Tribunal did not accept that the appellant had such an inherent connection to his tribe or tribal village that to expect him not to live there would amount to an unreasonable adjustment.

37    The Tribunal concluded that the appellant “is able, as a matter of law and practice in Pakistan, to relocate within Pakistan away from conflict areas, including his home area of [North Wairistan Agency].”

38    Finally, based on the above reasoning the Tribunal concluded that the appellant was not entitled to protection under the complementary protection regime because it would be reasonable for him to relocate to Lahore.

THE FEDERAL CIRCUIT COURT’s decision

39    By an application for judicial review of the Tribunal’s decision filed 23 August 2013, the appellant relied upon the following grounds of review:

(1) Relocation

(2) Separated from family

(3) Not lived as a Pashtun

40    Judge Burchardt observed that the affidavit filed in support did not add any further information. The first respondent filed a response dated 10 September 2012. On 1 October 2012, the appellant filed an affidavit setting out a one-page “Ground of Application”, which made a number of assertions in relation to the Tribunal’s finding that it was reasonable for him to relocate to Lahore.

41    The appellant, who represented himself at the hearing before the Federal Circuit Court, made oral submissions. The respondent relied upon filed written submissions.

42    Judge Burchardt held that the Tribunal correctly considered whether it was reasonable, in the sense of practical in the circumstances, for the appellant to relocate to Lahore. His Honour found that it was also open to the Tribunal to find that the appellant did not face a real chance of Refugees Convention-related persecution in the reasonably foreseeable future should he relocate to Lahore.

43    Judge Burchardt observed that the Tribunal considered the appellant’s personal circumstances and his objections to relocation to Lahore. His Honour noted that the Tribunal was conscious that unemployment was higher in Pakistan than in Australia.

44    Judge Burchardt considered that the Tribunal’s finding that the appellant “presented as a resilient young man was one well and truly open in the light of the material before it”.

45    Judge Burchardt found that the appellant’s claims essentially sought an impermissible merits review. His Honour dismissed the application.

the appeal

46    The appellant’s notice of appeal dated 6 June 2013 states the following grounds of appeal:

(1)    The decision of the Tribunal was made in breach of essential pre condition to the exercise of the power conferred by sections 414 & 415 of the Migration Act, because the tribunal failed to determine whether the applicant had a well founded fear of persecution as required by s36(2) & 91R(1) of the Act and sub clause 866.211 of part 866 of Schedule 2 to the Migration Regulations 1994

PARTICULARS

(a)    The tribunal imposed an impermissible burden of proof on the Applicant by misunderstanding the procedure in how id cards are obtained and by discounting the documents provided, especially given the tribunal has a protocol in assessing whether documents are genuine or fraudulent and by not addressing the issue of tribal Pashtuns and the risks they face.

(2)    The decision of the Tribunal was made in breach of essential pre condition to the exercise of the power conferred by sections 414 &415 of the Migration Act, because the tribunal failed to determine whether there was a real risk that the applicant would suffer significant harm as required by s36(2A) and 2B of the Act.

Particulars

The Tribunal erroneously assumed that such a risk did not exist if it found that Australia did not have protection obligations towards the applicant and subsequently failed to properly exercise its own jurisdiction.

(3)    The Tribunal failed to determine whether it was reasonably practicable for the applicant to avoid serious or significant harm by relocation elsewhere in Pakistan.

Particulars

The tribunal failed to take into account the intelligence and capability of the Taliban to track down persons it perceives as its enemies.

The tribunal has incorrectly made a finding that the Pashtuns from Khyber Pukhtoonkhwa are the same as the tribunal Pashtuns.

The tribunal has failed to take into account that Lahore which is in the Punjab province is filled with sectarian violence and is home to militant terrorist groups such as Sipha Sahabah, laskar e Taiba and others which are all branches of the Taliban.

The tribunal has not properly applied the principles as stated in the case of Randhawa.

the parties’ submissions

The appellant’s submissions

47    The appellant submitted that the Tribunal failed adequately to consider his personal circumstances in concluding that it was reasonable for him to relocate to Lahore. In addition, the Tribunal and the Federal Circuit Court failed to consider the objective impact of the relocation on the appellant and did not take into account his family, language, culture, ancestral links, cuisine, tradition, friends, employment and other links peculiar to the North Waziristan Agency.

48    The appellant referred, in that context, to Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”) and a number of other authorities.

49    The appellant submitted that his relocating to Lahore would not be reasonable because:

(a)    He came from a specific tribal area in Pakistan with his “own identity”, had close ties to the community in that area and always returned there when the opportunity arose.

(b)    There is “no security” in Lahore. Country information indicates that the Taliban has a strong network and intelligence system and could track people down throughout Pakistan, including in Lahore.

(c)    The appellant is recognisable as a Pashtun from his facial features, his Urdu accent and his ID card, which contains his name, the name of his village and his father’s name. An ID card is “very important” and the police and Taliban continually stop people to check their ID cards.

(d)    The appellant has no employment history in Lahore and will not be able to obtain employment there because he is a Pashtun.

(e)    The Tribunal wrongly assumed that adequate accommodation is readily available in Lahore.

(f)    The appellant has no family, social network or community support in Lahore.

50    In oral submissions, the appellant also raised new complaints which as he is self represented, I shall treat as an application to raise new grounds of appeal.

51    The appellant alleged that the Tribunal erred in concluding that nine Pashtun policeman were killed because they were police. The appellant asserted that they were killed because they were Pashtuns, thus demonstrating the strength of the Taliban’s network. The appellant stated that he would be recognisable as a Pashtun from his ID and facial features. Further, the appellant complained that the Tribunal assumed that he could live in slums in Lahore.

52    The appellant also stated that he had not informed the Tribunal of the various occasions on which he had returned to his village for two or three months at a time. He stated that he would need to visit his family but would not be safe in his village.

53    The appellant stated that Lahore’s approximately 300 kilometres distance from his tribal area was not significant given the Taliban’s network. The appellant stated that in Lahore he would “always [be] looking over [his] shoulder” and would be afraid of the Taliban.

The first respondent’s submissions

54    The first respondent submitted that leave to raise grounds 1 and 2 of the notice of appeal (which were not raised before the Federal Circuit Court) should be refused as they had no reasonable prospect of success and it was not expedient in the interests of justice to do so.

55    The first respondent submitted that the Tribunal considered the appellants’ objections to relocation, but simply made findings adverse to his claims.

56    The first respondent submitted that (having found that the appellant had a well-founded fear of persecution if he returned to his village in the reasonably foreseeable future) the Tribunal determined whether the appellant could be relocated to another area in Pakistan where he would not face Convention-related persecution. Having identified Lahore as such a place, the Tribunal considered whether it would be reasonable for the appellant to relocate there. It found that it was reasonable, in the sense of practicable.

Consideration

New matters raised by the appellant in oral submissions

57    In my opinion, to the extent to which the appellant raised complaints which were not included in the notice of appeal, they were unfounded. As the first respondent submitted, there was no basis for the assertion that the Tribunal erred in concluding that victims of a recent attack in Lahore were targeted because they were police. The Tribunal clearly distinguished between the characteristics of victims of attack mentioned in country information and the particular profile of the appellant.

58    Further, the Tribunal considered, although it rejected, the appellant’s claim that his tribal characteristics (his facial features and identity) would lead to various agencies tracking him in Lahore. The Tribunal also considered the appellant’s ID card in relation to his claimed fear of harm at the hands of the police and made findings which were open on the evidence before it.

Ground 1

The decision of the Tribunal was made in breach of essential pre condition to the exercise of the power conferred by sections 414 & 415 of the Migration Act, because the tribunal failed to determine whether the applicant had a well founded fear of persecution as required by s36(2) & 91R(1) of the Act and sub clause 866.211 of part 866 of Schedule 2 to the Migration Regulations 1994.

PARTICULARS

a.    The tribunal imposed an impermissible burden of proof on the Applicant by misunderstanding the procedure in how id cards are obtained and by discounting the documents provided, especially given the tribunal has a protocol in assessing whether documents are genuine or fraudulent and by not addressing the issue of tribal Pashtuns and the risk they face.

59    By ground 1, the appellant alleges that the Tribunal erred by failing to determine whether he had a well-founded fear of persecution and in particular, under ground 1(a), that the Tribunal imposed “an impermissible burden of proof” by “misunderstanding the procedure in how ID cards are obtained and by discounting the documents provided” and “by not addressing the issue of tribal Pashtuns and the risks they face”.

60    Ground 1 was not directly raised below, although it was to some extent obliquely adumbrated in the appellant’s submissions that the Tribunal should have examined his documents more closely if it doubted his veracity. In my opinion, to the extent that leave is now required, it is not expedient in the interests of justice to grant it. Not only did the appellant fail adequately to explain why the relevant ground was not raised below, but more importantly, it has no reasonable prospects of success.

61    While the Tribunal accorded no weight to appellant’s Domicile Certificate that was a question of fact and the issue was not relevantly adverse to the appellant in any event, as the Tribunal accepted that his place of domicile was Khadi on the basis of his national identity card. The Tribunal did not consider that the matters disclosed on the identity card (or his other characteristics) would cause the appellant to be tracked down and harmed by the Taliban.

62    The Tribunal accepted that the appellant had a well-founded fear of persecution for Convention-related reasons if he were to return to his home town in Pakistan. In so far as the complaint in ground 1(a) relates to the Tribunal’s finding that the appellant did not have a well founded fear of persecution in relation to Pakistan as a whole, as the Federal Circuit Judge correctly held, the Tribunal did not err in finding that the appellant could reasonably relocate to Lahore, in which context, contrary to the appellant’s submissions, it expressly considered in detail the appellant’s objections, including the claimed particular risks incurred as a tribal Pashtun.

63    In my opinion, to the extent that leave to raise ground 1(a) is required, it should be refused. Ground 1 of the appeal is not established.

Ground 2

The decision of the Tribunal was made in breach of essential pre condition to the exercise of the power conferred by sections 414 & 415 of the Migration Act, because the tribunal failed to determine whether there was a real risk that the applicant would suffer significant harm as required by s 36(2A) & 2B of the Act.

PARTICULARS

The tribunal erroneously assumed that such a risk did not exist if it found that Australia did not have protection obligations towards the applicant and subsequently failed to properly exercise its own jurisdiction.

64    Ground 2 of the appeal was, similarly, not raised below. In my opinion, leave to rely on it before this Court should be refused as it has no reasonable prospects of success. Section 36 of the Migration Act 1958 (Cth) (“the Act”) relevantly provides:

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

…

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

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

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

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

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

    …

65    In MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 (“MZYXS”) Marshall J reasoned that the reasonableness of relocation arising in the refugee and complementary protection regimes are the same. His Honour stated:

[33]    In essence, this ground alleges that the judge below failed to observe that the Tribunal had not distinguished between the statutory test in s 36(2B)(a) and the case law concerning relocation in the refugee context. This ground of appeal deals with the proper application of s 36(2B)(a) of the Act concerning internal relocation of a person who would otherwise be at real risk of significant harm if returned to his or her country of origin. The appellant contends that s 36(2B)(a) requires a finding that relocation must be such as to reduce the risk of significant harm to something less than a real one and that the Tribunal failed to make such a finding. …

[37]    For the reasons which follow, the substantive ground of appeal is also unpersuasive. The issues which arise when considering the reasonableness of relocation in the refugee context are the same which arise in the complementary protection context. Read fairly, the reasons of the Tribunal show that it understood this. The Tribunal did not fail to apply the correct test in considering s 36B(2B)(a). It was required to consider whether the appellant would suffer significant harm or not, in an area to which he could be relocated. In so doing, the Tribunal considered whether there was a real risk of such harm being suffered in the area of relocation. …

66    In this case, the appellant’s claims for complementary protection and for protection under the Refugees Convention were based on the same assertions. The appellant informed the Tribunal that he relied on the same objections to relocation in Lahore under the complementary protection criterion as in the context of his refugee claim. Having found that the appellant would face significant harm if he returned to the region of North Waziristan Agency where his hometown of Khadi is located, the Tribunal addressed the objections and the reasonableness of the appellant’s relocation to Lahore in both contexts. It found that the appellant could reasonably to relocate to Lahore.

Ground 3

The tribunal failed to determine whether it was reasonably practicable for the applicant to avoid serious or significant harm by relocation elsewhere in Pakistan.

PARTICULARS

The Tribunal failed to take into account the intelligence and capability of the Taliban to track down persons it perceives as its enemies. The tribunal has incorrectly made a finding that the Pashtuns from Khyber Pukhtoonkhwa are the same as the tribunal Pashtuns.

The Tribunal has failed to take into account that Lahore which is in the Punjab province is filled with sectarian violence and is home to militant terrorist groups such as Sipha Sahabah, laskar e Taiba and others which are all branches of the Taliban.

The Tribunal has not properly applied the principles as stated in the case of Randhawa.

67    Ground 3 is not established. The principles relevant to the reasonableness of relocation are well established. A person will not have a well-founded fear of persecution in his or her country of nationality if the source of the fear of persecution can be avoided by a relocation within that country which is reasonable in the circumstances.

68    In Randhawa, Black CJ stated (at 440-442):

Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. 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. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.

…

This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.

Moreover, the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality and easily extends to circumstances such as those present in R v Immigration Appeal Tribunal; Ex parte Jonah [1985] Imm AR 7.

69    In SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634; [2007] HCA 40 (“SZATV”), the plurality (Gummow, Hayne and Crennan JJ) considered the test for relocation. Their Honours pointed out that there is no reference to relocation or its reasonableness in text of the Refugees Convention and that any such notions were to be “distilled from the text of the Convention definition [of “refugee” in Art 1A(2)], which is applied by s 36(2) of the Act as a criterion for the grant of a protection visa” (at [15]).

70    Their Honours adopted the reasoning of Lord Bingham in Januzi v Secretary of State for the Home Department [2006] 2 AC 426; [2006] 3 All ER 305. They discussed the formulation of the test for relocation as follows (at [23]-[24]):

The minister framed the issue, for a situation such as that presented by this appeal, as being 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. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a “hypothetical assumption”, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a “safe area” within the country of nationality as determinative of the existence of a well-founded fear of persecution.

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.

71    The plurality held that the Tribunal’s decision effectively required a journalist (who had suffered persecution due to his political opinion in a localised region in the Ukraine) to relocate elsewhere in the Ukraine and live discreetly, working outside his usual profession of journalism in order to avoid attracting adverse interest from the authorities in his new location. The plurality observed that the Tribunal, in reaching its finding, had “sidestepped consideration of what might reasonably be expected of the appellant with respect to his ‘relocation’…” (at [32]).

72    Kirby J, in a separate judgment in SZATV stated (at [80] and [81]):

A review of the literature suggests that this conclusion will not invariably follow, either as a matter of fact or law. Thus, internal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven. Nor if the evidence indicates that there are other and different risks in the propounded place of internal relocation; or where safety could only be procured by going underground or into hiding; or where the place would not be accessible on the basis of the applicant’s travel documents or the requirements imposed for internal relocation.

An inability or unwillingness on the part of the national authorities to provide protection in one part of the country may make it difficult to demonstrate durable safety in another part of that country. In some circumstances, having regard to the age of the applicant and the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable. In each case, the personal circumstances of the applicant, the viability of the propounded place of internal relocation and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution will need to be weighed in judging the realism of the hypothesis of internal relocation.

(footnotes omitted)

73    In Franco-Buitrago v Minister for Immigration and Multicultural Affairs [2000] FCA 1525, Tamberlin J stated at [17]:

The question of whether safe internal relocation is reasonably available is, of course, one of fact for determination by the [Tribunal]. However, in reaching a conclusion on this question the [Tribunal] must not fall into an error of law by excluding from consideration matters which are central to a determination of that issue. The reasoning in Randhawa makes it clear that the circumstances to be taken into account are wide ranging, with strong emphasis on the practical realities of an applicant’s position such that the cultural problems of relocation can be taken into account.

74    As the first respondent submitted:

1    The Convention “is concerned with persecution in the defined sense, not with living conditions in a broader sense.” 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 human rights”.

2    In addressing relocation, an administrative decision-maker is “not required ... to elaborate on every aspect of its practical application”.

3    Whether relocation is reasonable in the circumstances is a question of fact for the administrative decision-maker and not the Court.

75    Contrary to the appellant’s contention, in the present case, there is nothing to suggest that the Tribunal misunderstood or misapplied the relocation test in the context of his claim to protection under the Refugees Convention and the complementary protection regime. The Tribunal noted and discussed SZATV and other relevant authorities.

76    The Tribunal determined that it was reasonably practicable for the appellant to relocate within Pakistan. The Tribunal considered the appellant’s objections to relocating to Lahore, including his claimed inability to secure a job or accommodation; his identity card which identified him as coming from North Waziristan; his membership of a tribe and inability to live apart from his family; and potential harm by the police or other organisations which would recognise him as coming from a different part of Pakistan by his features, accent and identity card. The Tribunal summarised those assertions and made findings in relation to each of them.

77    In particular, the Tribunal rejected, as it was entitled to do, the appellant’s claim that, in the light of his identity, including his tribal features, he would be tracked down in other areas of Pakistan by the police and groups such as the Taliban. As Judge Burchardt concluded, the Tribunal properly considered the appellant’s objections to relocation, but rejected them.

78    Further, and contrary to the appellant’s contention, the Tribunal did not state or find that “Pashtuns from Khyber Pukhtoonkhwa are the same as the tribal Pashtuns”. Moreover, such an error, if established, does not appear relevant to the Tribunal’s rejection of the appellant’s objection to relocation because he was a tribal person with a close relationship with his family. Nor did the Tribunal find that the appellant would live in a slum in Lahore.

79    The Tribunal was also alive to the possibility that relocation to Lahore could be contrary to a claimant’s human rights if, for example, he or she had always lived as a tribal Pashtun. It found, however, that in the present case, relocation would not involve a breach of human rights as the appellant had lived in his village for only two years of his life, had lived in numerous other places and had resided in Australia without his family for some years.

80    The Tribunal acknowledged, in that context, various potential adverse aspects of life in Pakistan and Lahore. It nevertheless concluded that given the appellant’s history, qualities and skills, his relocation to Lahore was reasonable. The Tribunal was entitled to reach that view on the evidence before it.

81    In my opinion, no appellable error in the decisions of the Tribunal or the Federal Circuit Judge is established.

Conclusion

82    Leave to raise grounds 1 and 2 is refused and ground 3 of the appeal is not established. The appeal should be dismissed with costs.

Associate:

Dated:    30 August 2013