FEDERAL COURT OF AUSTRALIA

MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    The time in which the applicant has to appeal from the decision of the Federal Circuit Court dated 4 February 2014 be extended to 19 August 2014.

2.    The appeal be allowed.

3.    The orders of the Federal Circuit Court made on 4 February 2014 be set aside.

4.    The proceeding be remitted to the Refugee Review Tribunal for determination in accordance with the law.

5.    The first respondent pay the applicant’s costs of the application for an extension of time appeal and the proceeding below.

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

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Introduction

1    The applicant has applied for an extension of time in which to file a notice of appeal against a decision of the Federal Circuit Court (“FCC”) dismissing the applicant’s application for judicial review of a decision of the second respondent (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the applicant a protection visa. For the reasons that follow, I consider that the extension of time should be granted and the appeal allowed.

REASON FOR THE DELAY

2    The proposed notice of appeal was filed approximately five months and three weeks outside of the 21 day time period prescribed by r 36.03(a) of the Federal Court Rules 2011 (Cth) (“the Rules”). The chronology of events is as follows. The FCC decision was handed down on 4 February 2014. On or about 7 February 2014, the applicant was told by the solicitor from Victoria Legal Aid who had been assisting him in relation to his application for judicial review that the FCC had handed down its decision and that his application had not been successful. In late March 2014, Victorian Legal Aid wrote to the Minister requesting that he intervene in the applicant’s case pursuant to s 48B of the Migration Act 1958 (Cth) (“the Act”). That request was rejected in late July 2014. Victorian Legal Aid made a further request on behalf of the applicant to the Minister for intervention in mid-August 2014 and also made application to this Court for an extension of time in which to appeal from the decision of the FCC. The second request was rejected in late September 2014.

3    The applicant swore an affidavit in support of his application for an extension of time in which he deposed that he speaks English quite well, although he did not fully understand why the FCC did not make a finding in his favour. He deposed that one of the reasons he may have had a lower level of understanding was that during this period he was very unwell, was extremely anxious and distracted and found it difficult to grapple with day to day issues, let alone the complex reasoning of a Court. He annexed to his affidavit a psychological assessment report prepared by the Asylum Seeker Resource Centre dated 21 April 2014. The applicant further deposed that had he been better able to cope with the complexity of the information surrounding his choices, he strongly believed that he would have pursued his review right. He stated that he believed that he did not comprehend the consequences of making a submission to the Minister for his intervention and what it meant to let go of a chance to seek a further review of the FCC decision.

4    The Minister has opposed the extension of time, contending that the applicant’s explanation for the delay in commencing the appeal was not compelling. The Minister pointed to the fact that the applicant in his affidavit acknowledged that he understands English quite well, that he was represented at first instance, that he spoke with his solicitor soon after the FCC delivered its reasons for judgment and there was no indication that at that time he was not advised of his appeal rights and the time within which he should exercise them. The Minister also argued that the making of the ministerial intervention request did not of itself provide a proper explanation for the delay, citing in support M211 of 2003 v Refugee Review Tribunal (2004) 82 ALD 24; [2004] FCAFC 293 at [24]. It was submitted that: first, the requests were made well after the time of commencing an appeal had passed; secondly, that the applicant’s solicitor at first instance had made those requests on his behalf; thirdly, that the making of the ministerial intervention request was indicative of a decision made by the applicant, with the assistance of a solicitor, to abandon any course that would seek to impugn the lawfulness of the Tribunal’s decision; and fourthly, that there was nothing to prevent the applicant from pursuing an appeal while, at the same time, seeking ministerial intervention. Additionally, it was submitted that the applicant’s mental health problems did not adequately explain the full extent of the delay. Again, reference was made to the fact that the applicant was apparently assisted by his solicitor at all relevant times, that the psychological assessment report exhibited to his affidavit was dated 21 April 2014 and that there was little, if any, evidence before the Court about the applicant’s condition after that date. Further, that although in that report the psychologist stated that on each of the occasions he had seen the applicant between September 2013 and March 2014, the applicant had presented in varying degrees of severe mental and physical deterioration with a high risk for suicide being assessed at each of those presentations, the psychologist had also stated that the applicant’s condition as at April 2014 had “become relatively more stabilised over recent weeks”. It was put that it was unclear therefore how these problems prevented him from commencing an appeal before 19 August 2014.

5    Whether there is an acceptable explanation for the delay in filing the appeal is a factor for the Court to take into consideration in exercise of its discretion to grant an extension of time: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348; [1984] FCA 176 at [17] per Wilcox J. Contrary to the Minister’s submissions, I am satisfied that an acceptable explanation for the delay has been given. I accept the applicant’s evidence, which was not challenged, that his state of mental health may well have impacted on his ability to comprehend his options in respect of appeal. The applicant’s belief that his health issues impacted on his ability to comprehend his options is supported by the medical evidence before the Court. The psychologist reported that in the period covering February to April 2014, the applicant was in the care of a psychologist, consulting with a psychiatrist, placed on psychotropic medication, presenting with various degrees of severe mental and physical deterioration, and assessed as being at a high risk of suicide. The applicant’s reported symptoms included severe deficits in his memory, perceptual disturbances involving episodes of disassociation, as well as an inability to think clearly or concentrate, complicated by short periods of detachment from his stream of consciousness. The applicant was consistently presenting as malnourished and under “a considerable degree of hardship”. Although the psychologist reported that there has been a relative degree of stabilisation of the applicant’s condition, the psychologist nonetheless continued to hold serious concerns for the applicant’s wellbeing, and stated that his improvement was “a fragile and precarious state supported by multiple healthcare and social outreach modalities which continue to invest heavily in the maintenance of his wellbeing”. Whilst, ordinarily, the decision to pursue ministerial intervention and not appeal rights would not be accepted by the Court as providing an acceptable explanation for the delay (Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 at 202; [2004] FCA 21 at [14] and the authorities cited), in this case, the issue is whether the applicant was able fully to comprehend what his options were. Having regard to the medical evidence, I am satisfied that there is a substantiated foundation for the applicant’s belief as he has asserted in his affidavit. Moreover, although the applicant did not explain in his affidavit when he actually appreciated that he had appeal rights, I do not consider that this militates against granting an extension of time. It is open on the material to infer that it was after he became aware that his first request for ministerial invention had been rejected, when reasonably prompt steps were taken on his behalf by Victoria Legal Aid to make the further request for Ministerial intervention but also to apply for an extension of time in which to appeal, which was filed shortly thereafter on 19 August 2014.

6    Furthermore, the Minister accepted that the overall delay has not caused prejudice to him, though he points to the public interest requiring that there be an end to litigation. That public policy is, of course, reflected in the time limits placed on the right to appeal. The extent and effect of delay is an important consideration but, for the reasons given, not a compelling reason in this case to refuse the extension of time sought.

MERITS OF THE APPEAL

7    The proposed ground of appeal is that the FCC erred in failing to apply MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191; [2012] FCA 1032 (“MZYQU”) to the facts and thereby find that the Tribunal had erred in considering whether the applicant could relocate within Pakistan to avoid persecution. In order to understand the ground of appeal it is necessary to give some background.

8    The applicant is Shi-a Pashtun from the Turi Tribe in the Parachinar region in Pakistan. He arrived in Australia by boat in 2012 and applied for a Protection (Class XA) Visa. A delegate of the Minister accepted that the applicant does have a well-founded fear of harm within the local area as a person from Parachinar because of his imputed political opinion as someone who is obstructing and opposing the Taliban. However, the delegate was satisfied that it would be reasonable and practicable for the applicant to relocate within Pakistan and was therefore not satisfied that the applicant has a real chance of being persecuted for a Convention reason, nor satisfied that the applicant was a person to whom Australia has protection obligations under the complimentary protection provisions in the Act.

9    The Tribunal also accepted that there is a real chance that the applicant would suffer serious harm “for the essential and significant reason of his religion and adverse opinions imputed to him by Suni’s who would wish to harm him if he was to return to Parachinar and, more broadly, the “Curram Agency””. The Tribunal then considered whether or not it was reasonable for the applicant to relocate to a region in Pakistan where, objectively, there is no appreciable risk of the occurrence of the feared persecution. At paragraphs 79-85, the Tribunal said:

The Tribunal finds that there is no appreciable risk of the occurrence of the persecution the applicant fears in Karachi. The Tribunal has set out the above its reasons why the risk of the applicant suffering harm on the basis of his religion and his tribal ethnicity is remote. The Tribunal does not have reports of Pashtun Turi Shi'as from Parachinar being attacked in Karachi and considers that, in view of the size of the Shia population in Karachi, considered against available country information about attacks on Shi'as in that city, the risk of the applicant suffering harm on that basis is remote.

The Tribunal acknowledges that the applicant (and his family) received threats from the Taliban when he lived in Parachinar and they fired on the petrol station business which he was operating. However, the Tribunal does not accept that the applicant will be pursued by the Taliban or of interest to them in Karachi.

As stated above, country information indicates that the people the Taliban will pursue from one part of Pakistan to another are police officers or more senior figures in the political sphere. The fact the applicant received threats and the petrol station was fired on does not (as he sought to claim) elevate him to someone with that profile.

The applicant and his family have never engaged in political activities of any significance. The applicant attended some rallies of a Shi’a student group in Parachinar but the Tribunal does not accept that doing so along with his work in the petrol station gives the applicant a profile of such significance that the Taliban will pursue him in Karachi or that he would be of interest to them there.

The Tribunal acknowledges that the applicant lived for one month in Islamabad and left that city because he did not think it was safe (the representative submitting this was the reason the applicant could not relocate in Karachi). However, this does not demonstrate that the risk of him suffering harm in Karachi is anything more than remote. While he said that Karachi was dangerous, and that if it was safe he would not have come to Australia, the Tribunal has considered available country information about people of his religion and his tribunal ethnicity in that city. For the reasons given above the Tribunal finds that the risk of the applicant suffering harm in Karachi is remote.

In addition, the applicant speaks both Pashtun and Urdu. He is relatively well educated having completed high school and also a university degree. He operated a petrol station business and has also done voluntary work as a teacher. The Tribunal considers that in the light of those matters he should be well placed to be able to settle in Karachi and find employment there.

For all of these reasons, the Tribunal finds that the applicant can reasonably be expected to relocate to Karachi where there is not an appreciable risk of the occurrence of the feared persecution. His fear of persecution in Pakistan is not well founded.

10    The Tribunal’s reasons then consider the submissions made by the representative at the hearing and in writing. It is a fair reading of the Tribunal’s decision as a whole that the subsequent paragraphs were in elaboration of the Tribunal’s findings at paragraphs 79 to 85.

11    The applicant sought judicial review of the Tribunal’s decision in the FCC. Ground 4, relevantly, was that:

The [Tribunal] erred in considering whether the applicant could relocate within Pakistan to avoid:

(a)    persecution for a Convention reason (s 36(2)(a)); and/or

(b)    a real risk of significant harm (s 36(2)(aa)).

12    Following the hearing, the applicant made supplementary submissions in writing on the relevance of SZSSM v Minister for Immigration & Anor [2013] FCCA 1489 (“SZSSM”). In short, it was submitted that facts of that case were “strikingly similar” with the applicant’s facts and that the reasoning in SZSSM was “directly and immediately applicable to Ground 4” of the judicial review application. It was submitted that the applicants in this case and SZSSM share the following features and claims:

(a)    They are both citizens of Pakistan;

(b)    They are both Shi’a Muslims;

(c)    They are both ethnic Pashtuns from minority Pashtun Shi’a tribes;

(d)    They are both from Parachinar;

(e)    In both cases the Tribunal found that the applicants were credible witnesses; and

(f)    In both cases the Tribunal found that the applicants could reasonably be expected to relocate to Karachi.

13    In SZSSM, the FCC held that the Tribunal fell into a similar error as that identified in MZYQU (2012) 206 FCR 191. In MZYQU, Dodds-Streeton J held that an independent merits reviewer (“IMR”) had failed to address the correct question in assessing whether it was reasonable for the appellant to relocate to Kabul in that the IMR had treated any harm which was not “serious harm” within the meaning of s 91R(1)(b) of the Act as irrelevant to the issue of relocation. Her Honour found that the IMR fell into legal error by limiting consideration of the risk of violence to the applicant to whether the applicant was at risk of serious harm as required by s 91R(1)(b). The Court reasoned at [56]-[62]:

The first respondent submitted that the IMR did not adopt an erroneous approach, but rather applied “the correct test, being whether, in all the circumstances, it was reasonable to expect the appellant to relocate to Kabul. To suggest that the Reviewer considered the question of whether the appellant would suffer “serious harm” as the applicable test for relocation is not a fair reading of the Reviewer’s reasons in their entirety: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259”.

The IMR’s reference to s 91R(1) in the context of his consideration of whether it would be reasonable for the appellant to relocate to Kabul, was apparently responsive to the appellant’s objections that, if relocated, he would lack protection and would face violence.

The IMR did not, in my view, treat the question whether the appellant was at risk of serious harm as the sole determinant or test of the reasonableness of his relocation. Nevertheless, in my opinion, the IMR erred in that he treated any harm which was not “serious harm as required by s 91R(1)(b)” as incapable of relevance to the reasonableness of relocation.

Thus, at [84], the IMR apparently dismissed the appellant’s objections to relocation based on lack of protection and violence on the basis that harm which was not “serious harm as required by s 91R(1)(b)” could not constitute a valid objection in that context.

The IMR’s observations at [84] fortify the impression that he considered that the risk of levels or kinds of harm other than “serious harm as required by s 91R(1)(b)” could not affect the question of the reasonableness of relocation. The IMR at [84] acknowledged that returnees could suffer “generalised violence” or could be harmed due to “personal circumstances that set them apart”, but stated that there was no evidence that someone of the appellant’s profile would be subjected to serious harm (emphasis added) as a returnee. The IMR did not consider the impact of the risk of harm in the form of generalised violence or harm (of an unspecified nature or level) due to personal circumstances on the reasonableness of the appellant’s relocation. By inference, the IMR proceeded on the basis that unless the harm were serious harm within the meaning of s 91R(1)(b), it was unnecessary to do so.

In my opinion, therefore, the IMR’s error lay not in considering that a risk of “serious harm as required by s 91R(1)(b)” was relevant to relocation, but in implicitly treating such harm as the only level or kind of harm which could affect the reasonableness of relocation.

While the IMR’s reasons should not be read with over-zealous scrutiny, the failure to include the risk of generalised violence or harm due to personal circumstances in the list of relevant factors weighing against the reasonableness of relocation in [88] indicates that any harm that was not “serious harm as required by s 91R(1)(b)” was excluded from consideration in that context.

14    In SZSSM at [90], the FCC relied on MZYQU to reason that the Tribunal fell into error in applying the relocation test by discounting the risk of generalised violence in Karachi as being “ethnic” and “politically linked”. The FCC held that the Tribunal needed to take into account the risk of generalised violence facing the applicant in Karachi in considering the practicability of him relocating there.

15    In the proceeding below, the FCC noted that SZSSM “had a number of striking factual similarities” with the applicant’s case and stated that it “would apply [SZSSM] if it were directly applicable here”. However the FCC went on to reason that each case must be considered according to its own particular facts and circumstances and stated that whilst there were clearly striking similarities between SZSSM and the applicant’s case “in the ultimate”, the FCC should determine the matter on its own facts and had done so.

16    The applicant’s primary contention in support of the proposed ground of appeal is that the FCC erred in not finding that the Tribunal, in assessing the reasonableness of the applicant relocating to Karachi, was obliged, but failed, to consider the risk of the applicant suffering harm having regard to the particular circumstances of the applicant. It was argued that the Tribunal wrongly conflated the two limbs of the relocation test, namely “appreciable risk” and “reasonableness”, by failing to address the personal circumstances of the applicant in addressing the question whether it was reasonable, in the sense of practicable, for the applicant to relocate to Karachi in the face of a risk of the applicant suffering sectarian and generalised violence, however remote. The applicant also argued that the FCC fell into error by failing to deal with MZYQU, on which the applicant had expressly relied. It was submitted that the FCC’s reasons were “inadequate to explain the basis upon which the Court proceeded and the reasons why the application was dismissed”: SZKLO v Minister for Immigration and Citizenship (2008) 247 ALR 582; [2008] FCCA 735; at [24]-[26] per Flick J.

17    In dealing with the relocation issue, the Tribunal made the finding that there was not an appreciable risk of the applicant suffering harm in Karachi because of his religion and tribal ethnicity. In so finding, the Tribunal, amongst other things, referred to country information about incidents that had occurred which “are typical of the pattern of attacks on Shi’as that appear to occur in Karachi, namely attacks where it is likely large numbers of them will gather which could be a religious procession or in a market place”. The Tribunal reasoned that the risk of the applicant suffering harm on the basis of his religion and tribal ethnicity was remote in view of the size of the Shi’a population in Karachi “considered against country information about attacks on Shi’as in that city”.

18    This finding was elaborated on at [91] and [92] as follows:

The Tribunal agrees that there would always be a risk that the applicant could suffer harm if he lived in Karachi and that would be so while extremist groups continued to be active in that city and in Pakistan. The Tribunal also acknowledges the submission about these groups wanting to displace Shi’as and launching attacks in the applicant’s native area to make them afraid.

However, the Tribunal finds on the basis of available country information, notwithstanding the presence of extremist groups in Karachi and attacks on Shi’as that take place, there is not an appreciable risk of the occurrence of the persecution the applicant fears occurring in that city.

and also at [121]:

As stated earlier in this decision, the size of the Pashtun population in Karachi is substantial. Further, the applicant did not belong to any political party in Pakistan and was not politically active as such (beyond attending some events organised by a student organisation.) Accordingly, while there may be violence taking place in Karachi between political groups, ethnic communities or by criminal groups, the Tribunal considers that the risk of the applicant suffering harm in Karachi as a result of such violence is remote and it is reasonable to expect him to relocate there.

19    The Tribunal concluded at [122]:

For the reasons given above, the Tribunal finds that the applicant does not have a well founded fear of persecution for any convention reason in Pakistan. The Tribunal finds that there is not an appreciable risk of the applicant suffering persecution in Karachi and it is reasonable for him to relocate there.

20    I accept the submission for the applicant that the FCC failed to deal with the submission made to the FCC that, based on MZYQU and SZSSM, there was jurisdictional error in the Tribunal’s finding that it is reasonable to expect the applicant to relocate to Karachi. I also accept the submission for the applicant that the Tribunal did fall into legal error in its reasoning process. The applicant had submitted to the Tribunal that he could not live safely in Karachi. In considering that claim, the Tribunal only addressed the question of the risk of harm to Shias in Karachi by reference to the size of the population, in the circumstances where the Tribunal had accepted that:

(a)    the applicant had a well-founded fear of persecution in Parachinar because of his ethnicity and religion;

(b)    the applicant’s tribal ethnicity, religion and origins would be easily identified;

(c)    the applicant, as a Shia, would be at risk of harm if he lived in Karachi because country information indicated that extremist groups continued to be active in that area targeting Shias;

(d)    the attacks on Shias in Karachi occur where it is likely that large numbers of Shias will gather, which could be for a religious reason or in a market place; and

(e)    country information indicated that law enforcement authorities were unable or unwilling to protect members of the Shia community in Karachi.

21    I accept the submission for the applicant that the Tribunal conflated the two limbs of the relocation test, namely “appreciable risk” and “reasonableness”, by finding that the applicant could be reasonably expected to relocate to Karachi “where there is not an appreciable risk of the occurrence of the feared persecution”. In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 Gummow, Hayne and Crennan JJ stated that what is “reasonable” in the sense of practicable must depend upon the particular circumstances of the visa applicant and the impact upon that person of relocation of the place of residence within the country of nationality. This criterion was recently affirmed by the High Court in Minister for Immigration and Citizenship v SZSCA [2014] HCA 2014. In the present case, the Tribunal dealt with the position of Shias generally in Karachi but did not consider the practical realities facing the applicant, as a person at risk of attack in Karachi because of his religion. In so doing, the Tribunal wrongly elided the question posed by the “reasonableness” criterion with the inquiry, is there a lack of “appreciable risk” of harm? The conclusion that the chance of harm is not more than remote dealt only with the consideration as to whether objectively there is an appreciable risk of persecution for a Convention reason in Karachi, but did not deal with the question as to whether it is reasonable, in the sense of practical, to expect the applicant to live there faced with a risk of violence and where he would lack protection from the authorities, as the Tribunal accepted. The same considerations do not necessarily apply to both limbs. The fact that the risk of harm may be remote does not necessarily answer the question whether it is reasonable, having regard to the personal circumstances of the applicant, to expect the applicant to face that risk. The Tribunal was obliged to consider the practical realities for the applicant in determining whether it is reasonable to expect him to relocate. It did not do so, and in failing to do so fell into jurisdictional error.

conclusion

22    In my opinion an extension of time should be granted to the applicant in which to file his notice of appeal and the appeal should be allowed.

Associate:

Dated:    18 December 2014