FEDERAL COURT OF AUSTRALIA

MZZZA v Minister for Immigration and Border Protection [2015] FCA 594

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

introduction and Summary

1    The appellant is a young man of Pashtun ethnicity and a national of Pakistan. He first entered Australia on 22 May 2012 on a student visa. On 19 October 2012 he applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth), which was refused by a delegate of the Minister.

2    In a decision dated 18 December 2013, the Refugee Review Tribunal was satisfied the appellant faced a real chance of persecution on the basis of imputed political opinion in his home area of the Swat Valley in Pakistan. The Tribunal did not accept the appellant had a well-founded fear of persecution in other parts of Pakistan, notably in Islamabad or Rawalpindi, and found it was reasonable to expect the appellant to relocate to such places. On that basis, the Tribunal affirmed the delegate’s decision to refuse to grant the appellant a protection visa.

3    On 26 February 2015, the Federal Circuit Court dismissed the appellant’s application for judicial review of the Tribunal’s decision. The appellant appeals from those orders.

4    The parties are agreed that the critical issue on this appeal concerns whether the Federal Circuit Court was correct to decide that the Tribunal dealt lawfully with the question whether the appellant could relocate from his home area, the Swat Valley in northwest Pakistan, to other cities in Pakistan, and therefore was not in need of the surrogate protection provided by the 1951 Refugees Convention, as reflected in the Migration Act.

5    For the reasons set out below, the appeal must be dismissed.

6    The issues in the appeal having been clearly identified by the parties, it is as well to turn directly to the Tribunal’s decision.

THE Tribunal decision

7    As set out in the appellant’s outline of submissions, his claim for a protection visa was based on the following Convention grounds:

(1)    his actual and imputed political opinion as a person opposed to the Taliban;

(2)    his Pashtun ethnicity;

(3)    his liberal Muslim religious beliefs; and

(4)    his membership of a particular social group, namely “people who are wealthy and are able to afford a bribe and/or ransom”, “a person considered a spy for the West and/or a traitor against the country and/or religion” and as a “failed asylum seeker”.

8    The key factual elements of the appellant’s claims are summarised in the appellant’s submissions, which I accept as accurate:

The critical aspect of the claim was that he was from a wealthy family living near the north-west frontier, close to the border with Afghanistan. He was from the town of [redacted], which is in the Swat Valley. The Pakistani Taliban was active in this area. The appellant’s father owned a brick making factory. In May 2009 the appellant said that he and other friends (who also applied for protection in Australia) were kidnapped by the Taliban, mistreated, and held for ransom. They were released when the Pakistani army raided the compound where they were being held. At one stage in 2009 the family was forced to leave the area while the Pakistan government carried out a military campaign to crush the Taliban (this was largely unsuccessful).

On return to their home the family continued to receive adverse attention from the Taliban. The appellant’s father was a member of a local Peace Committee, set up to report Taliban activity to the authorities. In this role he received a number of threats from the Taliban. The appellant was also involved with the Peace Committee, and other anti-Taliban activities. It was a combination of these factors which prompted the appellant [to] leave the country.

9    The Tribunal did not accept all of the appellant’s evidence about what had happened to him before he left Pakistan. In particular, it did not accept that he had been kidnapped as he claimed, nor that he was actively involved, as he had claimed, with the “Peace Committee” in his home village. It found:

23.     The Tribunal’s concerns about the genuineness of the newspaper article submitted by the applicant together with the country information indicating that the Taliban in Swat were under a fierce and sustained attack by the Army at the time of the claimed abduction causes the Tribunal not to accept that the abduction took place as claimed. In making this assessment the Tribunal has considered independent sources provided by the applicant concerning Taliban abductions in Swat published in early 2009, however the Tribunal notes that the incidents referred to in those articles occurred before the Army Offensive of April 2009. The Tribunal has also considered an article published in the Daily Times dated 11 October 2010 provided by the applicant, indicating that kidnapping for ransom is the main source of income from the Taliban. However nothing in that article suggests that such abductions were taking place during the period of the Army Offensive in Swat that commenced in April 2009, rather that article states the kidnapping spree began on 6 November 2009. Another article provided by the applicant refers to an abduction in August 2011. Similarly a further article relating to the kidnapping of Pakistani students in June 2009 relates to an incident in North Waziristan rather than Swat and refers the Army Offensive taking place in Swat at the same time, describing it as a massive campaign to retake the Swat Valley and reporting that the army had killed about 1200 militants in recent days. Further, the Tribunal considers it implausible that the applicant would return to his school in Swat towards the end of 2009 and complete his schooling in the area during 2010 and 2011 if he believed himself personally to be the target of the Taliban as he claims.

…

28.     The applicant claims that he attended Peace Committee meetings with his father and then became a member of that committee in his own right, conducting night patrol and identifying houses occupied by Taliban to the army. The Tribunal accepts that the applicant had some exposure to the activities of the peace committee through his father as claimed and may have been present when members of that committee identified Taliban locations to the Army, but does not accept the applicant’s evidence as to his own membership of the peace committee, nor that his activities with that committee occurred other than as a result of his relationship with his father.

…

30.     Further the Tribunal considers that the applicant’s claimed membership of and involvement in the peace committee is inconsistent with his young age (fifteen) at the time he claims to have become involved in 2008 and his evidence as to his family’s movements in 2009. While the Tribunal accepts that the applicant may have accompanied his father to peace committee meetings or activities before his family left their village in mid-2009, the Tribunal does not accept that he undertook any activities of his own. In particular the Tribunal notes that the applicant [and] his family relocated from [redacted] to [redacted] in the middle of 2009. The applicant’s evidence is that the family returned to Swat in October or November 2009 but never returned to live in their home in [redacted] in 2009, instead relocating to nearby towns in Swat including [redacted], [redacted] and [redacted]. The Tribunal considers it implausible that the applicant would have undertaken activities as described for the [redacted] peace committee when he no longer [lived] in [redacted]. On the evidence before it the Tribunal does not accept that the applicant himself was ever a member of the [redacted] peace committee, nor of the larger [redacted] peace committee.

10    The Tribunal did accept the appellant’s claims based on a political opinion to be imputed to him because of his father’s activities:

33.    Despite its concerns about the applicant’s credibility, the Tribunal is prepared to accept that his father received threats from the Taliban in 2010 and 2011 as claimed as a result of his continuing involvement with the peace committee. Independent sources indicate that although military authorities now control the Swat Valley, terrorist attacks against Pakistani military operations continue to occur in the area and that there was a deterioration in the security situation in Swat during 2012. Despite military claims to have cleared the Taliban from Swat after the 2009 offensive, there are many indications that militants are still active in the area. There have been complaints by residents that, although arrests have been made, no further action has been taken against militants.

…

36.     … Having accepted that the applicant’s father was a member of the peace committee who received threats from the Taliban in 2010 and 2011, the Tribunal accepts there to be a real chance that the applicant will be imputed by the Taliban and other extremists in Swat Valley with support for the Pakistani Army and consequently an anti-Taliban political opinion. The Tribunal accepts that there is a real chance that the applicant will be known to the Taliban and other militant extremists in his village and in the Swat region more broadly and that he will be perceived as being opposed to the Taliban as a result of his father’s membership of the Peace Committee. It follows that the Tribunal accepts that the applicant faces a real chance of persecution in the reasonably foreseeable future in his home village of [redacted] and the Swat region more generally for reason of his anti-Taliban political opinion.

11    The Tribunal also accepted that, in the Swat region, authorities in Pakistan could not provide the level of protection which citizens are entitled to expect, referring to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18:

40.     In any case, given the long-standing nature and the seriousness of the violence in Swat Valley together with the weight of the country information indicating that the authorities in Pakistan are struggling to contain that violence, the Tribunal accepts that the state of Pakistan cannot meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. It follows that the Tribunal finds that the applicant faces a real chance of persecution for reasons of his political opinion if he returns to his home in [redacted] or elsewhere in the Swat region, now or in the reasonably foreseeable future.

12    The Tribunal then turned to the question of relocation. This matter occupied a substantial part of its reasons. The Tribunal referred to the High Court’s decision in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40, and the approach required by that case to the determination of the question of relocation. The parties accepted the Tribunal had correctly identified the legal test as set out in SZATV: where they differed was whether the Tribunal had applied the test correctly to the facts as found by it.

13    The Tribunal then put the matters it needed to decide in the following way (at [42] of its reasons):

Having accepted that the applicant has a well-founded fear of persecution in [redacted] village and the Swat region, the Tribunal must consider whether the well-founded fear of persecution extends to the country as whole, and if not, whether it would be reasonable for the applicant to relocate to a part of Pakistan where he does not have a well-founded fear of persecution. It has been submitted on the applicant’s behalf that relocation would not be effective to avoid the serious and significant harm feared by the applicant, nor would it be reasonable for him to relocate in his particular circumstances.

14    Between [46] and [53] of its reasons, the Tribunal made findings about relocation based on various aspects of the appellant’s claims – his Pashtun ethnicity, the situation in Islamabad and Rawalpindi, his claimed membership of the social group he had identified, and so forth. In each of these paragraphs, the Tribunal examined whether the appellant had a well-founded fear of persecution in those areas on the bases identified, and also whether it would be reasonable for the appellant to relocate to those places given his claimed fears.

15    Then, at [54] the Tribunal summarises its findings on what might be called the first stage of examination of the prospect of relocation:

On the evidence before it, the Tribunal does not accept that the applicant faces a real chance of serious harm in Islamabad or Rawalpindi either on the basis of his actual or imputed political opinion opposing the Taliban, his past involvement with the peace committee, his relationship to his father and/or his father’s membership of the Peace Committee, his moderate Sunni Muslim beliefs, his Pashtun ethnicity, his status as a member of his father’s family, a person from a wealthy family who is able to pay a bribe and/or ransom or a failed asylum seeker, a person considered a spy from the west and/or a traitor against their country and/or religion. On the evidence before it, the Tribunal does not accept there to be a real chance that the applicant would face serious harm if he relocates to Islamabad or Rawalpindi for any of the reasons claimed. Having made this finding, it is necessary to consider whether it would be reasonable for the applicant to relocate to Islamabad or Rawalpindi in the particular circumstances of the applicant.

16    It is this paragraph of the Tribunal’s reasons which is at the centre of some of the appellant’s criticism of the Tribunal’s reasoning.

17    The Tribunal then proceeded to deal with the appellant’s claim about the effects of his mental health on his capacity to relocate, or alternatively, the detriment to his mental health he was likely to experience if he was forced to relocate within Pakistan. The Tribunal concluded:

58.     … The Tribunal accepts that the applicant has access to public health care in Australia that would not be available to him in Pakistan but does not accept that he will be unable to access appropriate medications and finds that his family’s financial position will enable him to obtain appropriate treatment for his mental health conditions in a city such as Islamabad or Rawalpindi.

59.     The Tribunal finds that the applicant is a twenty year old man who has completed his schooling and is a speaker of Urdu, English and Pashto. The Tribunal has accepted his evidence that he comes from a wealthy family and Dr Scott’s report indicates that he is currently working as a process baker in Australia. In all of the circumstances, the Tribunal does not accept that the applicant would be unable to obtain support, earn a living or access accommodation in Islamabad or Rawalpindi.

Proceedings before the federal circuit court

18    Before the Federal Circuit Court, the appellant contended that the Tribunal had committed two jurisdictional errors in connection with its application of the internal relocation principle.

19    Those errors were described as follows at [3] of the Federal Circuit Court’s decision:

a)    ground 1: the Tribunal asked itself the wrong question by asking whether the Applicant would face “serious harm” in Islamabad or Rawalpindi, by assessing the question of relocation “from the perspective of a fear of harm”, and by applying “concepts in refugee law, such as remoteness of harm or targeting” when assessing the reasonableness of relocation. The Tribunal failed to consider whether “something less than serious harm or harm could be sufficient to make it unreasonable for the applicant to relocate”; and

b)    ground 2: the Tribunal failed to deal with an integer of the Applicant’s claim with respect to relocation within Pakistan, being the Applicant’s mental health.

20    The Federal Circuit Court found neither contention to be made out. It concluded:

12.    On a fair reading of the Decision Record it is clear the Tribunal considered those matters required to be considered by it including as set out in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, and in correct order. The Tribunal considered whether the Applicant had a well-founded fear of persecution in a place outside of the Swat Valley (such as Islamabad or Rawalpindi). It determined he did not. Having made that finding, the Tribunal then approached the next task required of it, and as stated by it, namely it then became “necessary to consider whether it would be reasonable for the applicant to relocate to Islamabad or Rawalpindi in the particular circumstances of the applicant”. This included a consideration by the Tribunal of the impact upon the Applicant of any proposed relocation. In determining whether it was reasonable for the Applicant to relocate within the country, the Tribunal was aware that it’s task depended on the “the framework set by the particular objections raised to relocation”. As Kenny J explained in MZYXP v Minister for Immigration and Border Protection, it is “not correct to say ... that the Tribunal’s inquiry [is] as to the “objective impact of the possible relocation … [r]ather, the inquiry, though objective, [is] circumscribed by the case made by the appellant with respect to the relocation issue”.

13.    The Applicant argued that the Tribunal fell into error by applying the same test in the relocation section of its Decision Record as it did in its substantive assessment for the Swat Valley. In particular, the Tribunal asked itself whether the Applicant would face “serious harm” in Islamabad or Rawalpindi, by assessing the question of relocation “from the perspective of a fear of harm” and by applying “concepts in refugee law, such as remoteness of harm or targeting”. The Tribunal did consider whether the Applicant would have a well-founded fear of persecution on a Convention ground in Islamabad or Rawalpindi, and applied “concepts in refugee law” in doing so. The Tribunal was however required to consider that issue. It was the first of two issues that the Tribunal was required to consider in the relocation context. Having done so, the Tribunal was then required to consider the second issue: was it “reasonable” (in the sense of practicable) for the Applicant to relocate to Islamabad or Rawalpindi. However, as noted above, the Tribunal was only required to consider that question by reference to the particular objections made by the Applicant to relocation. As submitted by Counsel for the First Respondent, I find the Tribunal did not commit the error made in MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 of improperly confining its attention to the risk of the Applicant suffering “serious harm” for a Convention reason.

…

18.    … In my view, the Tribunal did consider the Applicant’s objection to relocation based on the Applicant’s mental health and its suggested deterioration, and the impact of such upon him. As noted in the preceding paragraph, the Tribunal found that, as a matter of fact, the Applicant would be able to find “appropriate treatment” for his mental health conditions in Islamabad or Rawalpindi.

The appeal to this court

21    In his notice of appeal filed on 19 March 2015, the appellant relies on the following single ground of appeal:

The Federal Circuit Court erred in failing to conclude that the Second Respondent was in error by misapplying or misunderstanding the test as to relocation and/or by failing to take into account each of the Appellant’s objections to relocation to Islamabad-Rawalpindi.

22    In his outline of submissions, the appellant submitted this one ground raises two discrete questions (said to have been argued before the Federal Circuit Court as separate grounds):

(1)    “whether the Tribunal, having considered the test for refugee status in relation to the appellant’s home area, and in then for areas of putative relocation, it erred in not considering whether harm less than serious harm would suffice to make relocation unreasonable”; and

(2)    “whether the Tribunal dealt appropriately with each of the objections the appellant put forward to counter the reasonableness of his relocation”.

23    As developed in oral submissions, the arguments proceeded on these two bases.

24    Both parties made comprehensive and helpful written and oral submissions, which I have carefully considered and refer to below where appropriate.

Relevant LEGAL PRINCIPLES

25    The question of how to approach Art 1A of the 1951 Refugees Convention in circumstances where a person’s fear of persecution for a Convention reason has been accepted as well-founded on the basis of claims relating to what is likely to occur if a person returns to a particular part of her or his country of nationality is not a matter which the Convention addresses explicitly. Domestic and international refugee law has developed an approach to this question which is framed around the causal connection in Art 1A between a person being outside her or his country of nationality, and that person’s well-founded fear of persecution, and is often described as the “internal relocation principle”.

26    The unavailability of internal relocation has been incorporated into the preconditions to eligibility for complementary protection under s 36(2)(aa) of the Migration Act through the statutory meaning given to the concept of “significant harm”: see in particular s 36(2B)(a). However there has been no similar statutory reference to the concept for the purposes of s 36(2)(a).

27    In SZATV (2007) 233 CLR 18; [2007] HCA 40, the High Court held (at [15]-[22]):

[I]n Australia any “principle” respecting “internal relocation” must be distilled from the text of the Convention definition, which is applied by s 36(2) of the Act as a criterion for the grant of a protection visa. The critical portion in Art 1A(2) of the Convention definition of “refugee” states that the term shall apply to any person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it.”

…

With these propositions in mind, it will be seen that the matter of “relocation” finds its place in the Convention definition by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for Home Department. His Lordship said:

“The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.”

The reference in the passage to the unavailability of the protection of the country of nationality of the refugee is best understood as referring not to the phrase “the protection of that country” in the second limb of the definition, but to the broader sense of the term identified in Respondents S152/2003. This was the international responsibility of the country of nationality to safeguard the fundamental rights and freedom of its nationals.

Lord Bingham went on in Januzi to refer to the statement in the UNHCR Handbook (at [91]):

“The fear of being persecuted need not always extend to the whole territory of the refugee’s country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.”

His Lordship, significantly both for Januzi and the present appeal to this Court, added:

“The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.”

(Citations omitted.)

28    The Court further held, at [23]-[26]:

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.

It is true that the Convention is concerned with persecution in the defined sense, not with living conditions in a broader sense. The distinction was emphasised by Lord Bingham in Januzi as follows:

“[T]he thrust of the Convention is to ensure the fair and equal treatment of refugees in countries of asylum, so as to provide effective protection against persecution for Convention reasons. It was not directed (persecution apart) to the level of rights prevailing in the country of nationality.”

The reasoning in the last sentence might be applied to such matters as differential living standards in various areas of the country of nationality, whether attributable to climatic, economic or political conditions. In Januzi Lord Hope of Craighead added:

“I too would hold that the question whether it would be unduly harsh for a claimant to be expected to live in a place of relocation within the country of his nationality 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.”

Nevertheless, in particular cases territorial distinctions may have an apparent connection with the particular reason for the asserted well-founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for a well-founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography.

(Citations omitted.)

DISPOSITION

29    There was no disagreement between the parties that the approach set out in SZATV was the one the Tribunal was required to adopt, and it was common ground that was the approach the Tribunal set out in its reasons. It was also common ground that the approach in SZATV required the decision-maker to form a positive state of satisfaction that it was reasonable for a person to relocate to another part of her or his country of nationality.

30    As the extracted passages from SZATV reveal, given the nature of Convention protection, the circumstances in which it is reasonable to expect a person to relocate internally may nevertheless involve some hardship to a person, some diminution in living conditions and exposure to less than desirable observance of the basic norms of civil, political and socio-economic human rights. There will be points at which hardship, poor living conditions and non-observance of the basic norms of civil, political and socio-economic human rights tip the scales so as to make relocation not reasonable, but the point at which that occurs for a particular applicant will be very much fact-dependent. In Minister for Immigration and Border Protection v SZSCA (2014) 314 ALR 514; [2014] HCA 45 at [44], albeit in a different context, Gageler J (in dissent as to the outcome) expanded on this aspect of the internal relocation principle:

Nor is the test of reasonableness concerned with assessing the quality of life which the person concerned might be expected to have within the safe region of the country of nationality against the quality of life which the person could expect to have if the person were able to move freely about the country of nationality without fear of persecution. The content of the standard of reasonableness, as applied to a consideration of a person’s economic circumstances within the safe region of the country of nationality, is, rather, that encapsulated in the passages from the UNHCR Guidelines on International Protection quoted with approval in Januzi. The most pertinent of those passages for present purposes is the following:

It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of living standards or worsening of economic status may not be sufficient to reject a proposed area as unreasonable. Conditions in the area must be such that a relatively normal life can be led in the context of the country concerned.

31    SZSCA was not strictly a case of internal relocation, as the applicant in that case had already lived in Kabul, being the area to which the Tribunal decided it was safe for him to return. He was, however, driving trucks for a living outside Kabul itself. The plurality noted (at [29]) that the

expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable.

32    Having taken that view, the plurality in SZSCA at [30]-[31] dealt with what is involved in an assessment of the reasonableness of a proposed relocation:

In Januzi, the House of Lords approved the approach of the Court of Appeal in E v Secretary of State for the Home Department as to the nature of the test to be applied to determine whether an asylum seeker could reasonably be expected to move to a safe haven within his or her country of nationality – that is, to internally relocate. In the respects relevant to this matter, the Court of Appeal said (at [23]):

[23] Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there … Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is “outside the country of his nationality by reason of a well-founded fear of persecution”.

The nature of the test was said to involve “a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker”.

In the present case it is not just the living conditions for the respondent in Kabul – and whether he would face a real chance of persecution if he stayed there – which should have been considered by the tribunal. Rather, it was necessary for the tribunal to consider the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business. Addressing this question properly may have raised various issues for the tribunal’s consideration. At the least, the question clearly directs attention to the respondent’s ability to earn an income from other sources and to his needs and those of his family.

(Citations omitted.)

33    I note also what Gageler J said in SZSCA at [39], referring to SZATV and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51; [2007] HCA 41. This passage is relevant to the analysis of the Tribunal’s reasons involved in the appellant’s first argument:

The principle for which those cases stand is that the fourth element [that the person must be outside the country of his or her nationality “owing to” a well-founded fear of persecution] will be absent, even though the other three elements are present, if it would be reasonable for the person concerned to return to a region within the country of nationality where, objectively, there is no appreciable risk of the persecution of which the person has the fear that is well-founded.

34    The appellant relied on a number of authorities of single justices of this Court which emphasise that in considering whether relocation is reasonable, a decision-maker should be conscious that a risk of harm which is less than a real chance of a risk of serious harm might nevertheless make relocation not reasonable: see MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191; [2012] FCA 1032 at [58]-[61] per Dodds-Streeton J; SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133 at [74] per Kenny J; MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 at [21] per Davies J.

First argument

35    The appellant’s argument depended on the structure of the Tribunal’s reasons, as well as their content. It was common ground the Tribunal had set out the question it needed to decide in accurate terms at [42] where it stated:

Having accepted that the applicant has a well-founded fear of persecution in [redacted] village and the Swat region, the Tribunal must consider whether the well-founded fear of persecution extends to the country as whole, and if not, whether it would be reasonable for the applicant to relocate to a part of Pakistan where he does not have a well-founded fear of persecution. It has been submitted on the applicant’s behalf that relocation would not be effective to avoid the serious and significant harm feared by the applicant, nor would it be reasonable for him to relocate in his particular circumstances.

36    It was also common ground that the suggestions of relocation to Islamabad and Rawalpindi came from the Tribunal’s nominations of these places in Pakistan at the hearing it conducted with the appellant. From other parts of the Tribunal’s reasons, it appears the Tribunal considered on the basis of country information that these areas may be suitable because there was less sectarian violence, and there were significant Pashtun communities in those places.

37    The appellant submitted that the Tribunal’s conclusions at [54] (extracted at [15] above), in relation to the claims it had recounted at [46]-[53] concentrated only on the risk of serious harm, and did not identify the correct question. The appellant submitted:

The Tribunal’s concentration on serious harm or, on occasions, harm, meant that it did not identify the correct question. The question of reasonableness of relocation could not be resolved by simply applying these limited concepts, or notions of remoteness, or whether the appellant would be targeted. The issue was different again to that of significant harm, for the purposes of the complementary protection assessment.

A finding that it was unreasonable for the Appellant to relocate was open, for example, even if the chance of him being personally targeted was remote, or that he might not personally face serious harm.

38    I do not accept the appellant’s submissions that the Tribunal’s reasons examine risk of harm to the appellant only through the prism of what would satisfy the threshold of a well-founded fear of persecution. In paragraphs [46]-[53], the Tribunal certainly examines, as it was required to do, whether it was satisfied the appellant had a well-founded fear of persecution for a Convention reason in Islamabad or Rawalpindi if he relocated there. That it did so is apparent from the language it used – for example, in [49] where it states:

While the Tribunal has accepted that the applicant may be imputed with an anti-Taliban political opinion, it does not accept that such an opinion would put him at a real chance of serious harm in an urban metropolis such as Islamabad or Rawalpindi, rather it considers the chance of serious harm to the applicant on that basis to be remote and therefore not real.

39    However, the fact it found the risk of harm to be remote is also relevant to the Tribunal’s satisfaction about the reasonableness of relocation for the appellant. There is nothing impermissible about the Tribunal using a factual finding about the remoteness of harm, as it did in each paragraph, as the basis to form an opinion about the reasonableness of relocation given the particular risk the appellant had claimed he feared. It is correct, as the appellant pointed out in his submissions, that in a structural sense the finding about reasonableness, in each of the paragraphs [47]-[52], comes at the end of the finding about well-founded fear of persecution. I do not consider it is accurate to describe these findings as “tacked on”, as the appellant submitted. In some of these paragraphs, the Tribunal gives further explanation. For example, in [48] dealing with the appellant’s claim to fear harm because of his Pashtun ethnicity, after making its finding on whether that ethnicity gives rise to a well-founded fear of persecution in Islamabad or Rawalpindi, the Tribunal then states:

Nor does the Tribunal consider that such actions, even if they are still occurring, make the applicant’s relocation within Pakistan unreasonable. At hearing the Tribunal noted that independent sources indicated that Islamabad and Rawalpindi had significant Pashtun populations. The Tribunal has had regard to sources indicating that some Pashtuns have been targeted in Karachi, however there is no material before the Tribunal that would suggest that Pashtuns are similarly targeted in Islamabad or Rawalpindi.

40    In [51], dealing with the appellant’s claim to fear harm on the basis of his moderate Sunni beliefs, the Tribunal states:

The applicant also claims to fear harm throughout Pakistan on the basis of his moderate Sunni beliefs and his appearance, telling the Tribunal that his face and clothes identify him as someone who is against the Taliban who would not leave someone with the applicant’s appearance alone. He stated that he hadn’t followed his religion properly, that his religion did not allow him to commit suicide as required by the Taliban and that his moderate or liberal Muslim views would cause the Taliban to believe he was against them. While the Tribunal accepts that the applicant may be imputed with an anti-Taliban political opinion as a result of his moderate Sunni Muslim views, his appearance, his education in Pakistan and time in Australia, the Tribunal does not accept on the information before it that such views, actual or imputed, create a real chance that he will be targeted for serious harm in Islamabad or Rawalpindi, now or in the reasonably foreseeable future. Nor does the Tribunal accept the applicant’s assertions that he will be considered a spy for the west or a traitor to his religion on the basis of his travel to or study in Australia, noting that independent sources do not indicate that to be the case. As put to the applicant at hearing, many Pakistani nationals come to Australia for study or other purposes and return home and independent sources do not suggest they are targeted for serious harm on that basis. On the evidence before it, the Tribunal does not accept that the applicant’s profile as a person who has travelled to and lived and studied in Australia make his relocation to Islamabad or Rawalpindi unsafe or unreasonable.

41    In my opinion, these two paragraphs, like the others, disclose that the Tribunal has used its findings on the first stage as part of its consideration about the reasonableness of relocation, but there is nothing impermissible about this. I do not consider the Tribunal approached its task on the basis that if it determined the appellant did not have a well-founded fear of persecution in Islamabad (for example) that would inevitably make his relocation reasonable. This is what the appellant’s submissions amounted to. In my opinion the Tribunal’s reasons disclose it appreciated the matters it needed to consider were distinct, both qualitatively and substantively. In each of these paragraphs it addressed the subject matter of the appellant’s objections to relocation based on his fears of harm, and it did so both through the prism of well-founded fear of persecution, and then by asking whether, if there was a risk of harm less than serious harm, and less than a real chance of such harm occurring, it was nevertheless reasonable to expect him to relocate. There is nothing legally impermissible in this approach.

42    The Tribunal was not precluded from using its finding that there was a remote prospect of the appellant suffering harm for the claimed reasons as part of its grounds for deciding relocation was reasonable. I do not see the reasoning of Davies J in MZZJY [2014] FCA 1394 at [21] as inconsistent with the approach I have taken: rather, her Honour’s decision reflects an assessment of the particular reasoning in the case before her.

43    The appellant’s submissions seemed to suggest the Tribunal was bound to find that a risk of harm which was remote should be sufficient to make relocation not reasonable.

44    I accept that paragraph [54] of the Tribunal’s reasons, expressed as a conclusion, deals with whether the appellant had a well-founded fear of persecution in Islamabad or Rawalpindi. However I consider that paragraph must be read fairly and in context, which means reading it with the paragraphs which have gone before it. Further, the last sentence of [54] makes it tolerably clear the Tribunal then turns its attention to the appellant’s “particular circumstances”, meaning the reasonableness of relocation based not so much on circumstances existing in Islamabad and Rawalpindi as on matters personal to the appellant relocating to those places. Again, while the Tribunal’s language is not as clear as it could be, in my opinion it is tolerably clear that is what it then proceeded to consider.

45    The appellant’s attack on [60] and [61] is not sustainable. These paragraphs are referring back to the Tribunal’s conclusions at [46]-[54] and are a further summary. There is nothing legally erroneous about the contents of [60]-[61], even if their placement is confusing, coming after the Tribunal’s substantive conclusion on reasonableness of relocation in relation to matters personal to the appellant.

46    The conclusion of the Federal Circuit Court at [13] is somewhat rolled up, but in light of the views I have formed, in my opinion it is the correct conclusion about the Tribunal’s reasoning and should not be disturbed.

Second argument

47    In terms of how the Tribunal was required to consider whether it was reasonable to expect the appellant to relocate to another part of Pakistan, the Minister relied on the approach set out by Kenny J in AZAEH v Minister for Immigration and Border Protection [2015] FCA 414 at [21]:

In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (Randhawa) at 443, Black CJ observed that “it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere, without giving the issue more specific attention, but the extent of the decision-maker’s task will largely be determined by the case sought to be made out by the applicant”. The Tribunal’s task was to assess the reasonableness of the appellant relocating to another part of his native country by reference to the issues raised by him and on the other material before the Tribunal. The Tribunal’s inquisitorial role does not extend to making an applicant’s case for him: MZYXP v Minister for Immigration and Border Protection (2013) 137 ALD 348 at 364 [73], citing Randhawa and Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187]. In this case as in Randhawa, the appellant raised a number of objections to relocation to Kabul, all of which were considered and addressed by the Tribunal. Having regard to the issues raised by the appellant and the other material before the Tribunal concerning relocation, the internal relocation ground does not disclose jurisdictional error on the Tribunal’s part: cf: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at 18-19 [58], 19-20 [60]-[61], 22 [68]. The Tribunal’s findings were responsive to the claims actually made by the appellant concerning his family and the issues raised on the materials. Neither the appellant’s claims nor the other material before the Tribunal required it to consider issues relating to the appellant’s dependent children such as schooling, or their familial and traditional ties. In these circumstances, the way the Tribunal considered the issue of relocation did not disclose an erroneous formulation and application of the internal relocation test.

48    I did not understand the appellant to submit that this approach was incorrect. That is, it was not part of the Tribunal’s task to consider all possible permutations, as a matter of its fact-finding, as to where the appellant might go and what kinds of difficulties he might encounter. Whether or not describing these as “objections” to relocation is the most appropriate description (which tends to make the process appear somewhat adversarial) is not a matter which need be explored, since both parties were content to have the issue identified in that way.

49    Therefore both parties approached the second argument raised by the appellant on the basis that the Tribunal could satisfy itself there were other places in Pakistan that appeared to be safe for the appellant, and to which it considered it was reasonable to expect him to relocate, and then deal specifically with any evidence, material or arguments put by the appellant about why those other places were not safe, or involved difficulties for him of the kind that made relocation unreasonable.

50    In oral submissions the Minister accepted, subject to the matter being approached in the way outlined at [51] below, that if an “objection” to relocation had been made by the appellant, and the Tribunal had failed to consider and deal with this specific objection, then its task would have miscarried and its decision would be affected by jurisdictional error. The Minister accepted this analysis proceeded in a similar way to the analysis undertaken where there is a contention that a decision-maker has failed to consider an “integer” of a person’s claim to fear persecution.

51    In making that submission, the Minister relied on the boundaries of the Tribunal’s task as drawn by a Full Court of this Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263. At [61], [63] and [68], the Court said:

We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.

…

It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances.

…

Although such a claim [of persecution by pro-government Tamil organisation PLOTE] might have been seen as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.

52    I accept the Minister’s submission that is the appropriate approach.

The “objections” contended not to have been dealt with

53    Although the Minister submitted there was some slippage in terms of the number of matters characterised as objections by the appellant and alleged not to have been dealt with, there was no real or formal opposition by the Minister to the appeal proceeding on the basis of the appellant’s written submissions, which set out five objections he contended the Tribunal had failed to deal with. These were identified as:

(1)    Relocation was not reasonable because of the profile of the appellant’s father;

(2)    Relocation was not reasonable because of the appellant’s mental health, and the effects on him (and his mental health) of crime and violence in the suggested areas;

(3)    Relocation was not reasonable because he would be subjected to discrimination on the basis of his Pashtun ethnicity;

(4)    Relocation was not reasonable because of his likely future involvement in political activity and the risks that posed for him; and

(5)    Relocation was not reasonable because he would be exposed to harm on the basis of his moderate Sunni beliefs and his appearance.

54    In my opinion, only the fourth of these requires distinct analysis. The appellant’s contentions about the other four “objections” should not be accepted, for the following reasons.

55    On the first objection, at [46] of its reasons the Tribunal recorded a submission that the appellant made dealing with the appellant’s profile, and that of his father, and the allegation that the Taliban could find him anywhere in Pakistan, and would pursue him outside Swat. The Tribunal’s conclusion in this paragraph about “his profile”, fairly read, incorporates the profile the appellant claimed to have because of his own activities and those of his father. Further, the Tribunal returned to its rejection of the appellant’s claim he will be harmed on the basis of his father’s activities (amongst others) at its conclusions at [60].

56    On the second objection, I accept the Minister’s submissions that it was open to the Tribunal to conclude the medical opinions relied on by the appellant and said to give independent and credible support to this objection were based on an acceptance of the appellant’s claims about what happened to him in Pakistan, in the past. Aside from the claim about his father’s political activities in the past (and what flowed from that for the appellant), the Tribunal did not accept the appellant’s account of these claims. Accordingly, it was open to the Tribunal to conclude, as it did at [57] of its reasons, that:

While the Tribunal accepts that the reports of Mr Chable and Dr Scott have been written in good faith, the Tribunal is not bound by what a medical professional concludes as being the reason for an applicant’s symptoms. In this case the Tribunal’s own concerns about the applicant’s credibility have caused the Tribunal to conclude that to the extent that those reports tend to corroborate the applicant’s account of the events underlying his refugee claims, they are to be given little weight.

57    I also accept the Minister’s submission that the Tribunal’s findings at the end of [58] and in [59] of its reasons (extracted at [17] above) are a rejection of the appellant’s contention his mental health will deteriorate on his return, including a rejection of the contentions put on behalf of the appellant by his migration agent. There was, as the Minister submitted, no clear link drawn in the submissions made on behalf of the appellant between an objection based on his mental health, and an objection that even if he were not personally affected by the crime and violence in Islamabad and Rawalpindi, his mental health would suffer through witnessing or being caught up in it. The migration agent’s submission which the appellant relied upon simply states, in one sentence:

Even if the applicant himself would not be physically injured in regular break downs in law and order common across Pakistan, these events alone would still cause significant concern and problems for him as he sought to go about his everyday life.

58    There are no references to the appellant’s mental health here, nor can it be said, in accordance with the approach in NABE, that such a claim clearly arises on the material.

59    On the third objection, the Tribunal did not accept the premise involved in this contention: namely, that people of Pashtun ethnicity were targeted in Islamabad or Rawalpindi. It found as a fact that Pashtuns represented a significant portion of the population in those cities. The Tribunal dealt with this objection.

60    On the fifth objection, I accept the Minister’s submissions that the nature of the “objection” made by the appellant on this basis was that if he had to relocate he would still be at risk of serious or significant harm from the Taliban or their allies because of his moderate Sunni beliefs and his more Western appearance. The Tribunal dealt with this objection, and contrary to the appellant’s submissions did so by looking at the matter more generally than simply the risk of serious harm. In the paragraphs of its reasons dealing with this objection (at [51]), the Tribunal expressly found:

On the evidence before it, the Tribunal does not accept that the applicant’s profile as a person who has travelled to and lived and studied in Australia make his relocation to Islamabad or Rawalpindi unsafe or unreasonable.

61    It may be the case that the appellant expected to see more detailed reasoning from the Tribunal about why it rejected these objections, but that is a complaint about the level of detail in the Tribunal’s reasons which, unless it reaches a failure to comply with the obligation in s 430(1) of the Migration Act, does not affect the lawfulness of its decision: see, to similar effect, the observations of Besanko J in SZLWB v Minister for Immigration & Citizenship [2009] FCA 1067 at [38].

62    That leaves the fourth objection, concerning the appellant’s future political activities. The appellant’s submissions about this objection have more force. The appellant is correct that there are no findings made by the Tribunal about what risks the appellant might face were he to relocate to Islamabad or Rawalpindi and engage in anti-Taliban political activities.

63    The Federal Circuit Court, in [26] of its reasons for decision, held that on a fair reading the Tribunal rejected the appellant’s claim to have a well-founded fear of persecution on the basis of future political activity. The Federal Circuit Court relied upon the following statement in the Tribunal’s reasons:

On the evidence before it, the Tribunal does not accept that the applicant’s actual or imputed political views make his relocation to Islamabad or Rawalpindi unsafe or unreasonable for the applicant.

64    The Minister’s counsel properly conceded this passage of the Tribunal’s reasons could not be read as a finding by the Tribunal that there was no real chance of the appellant being harmed because of political activities he might engage in once back in Pakistan. Rather, it was a finding based on the appellant’s account of what he done in the past by way of political activities, most of which the Tribunal did not accept.

65    In my opinion, the clarity with which the Tribunal expressed its findings, in this passage and elsewhere that it did not believe the appellant had himself been politically active when he was in Pakistan (as opposed to accompanying his father to meetings, or being tarred with a particular brush because of his father’s political activities) explains why, in the absence of a clearly articulated claim about future political activities, or one which arises by clear implication on the evidence (see NABE), there is nothing more to be found in the Tribunal’s reasons about this issue in its consideration of the risks and reasonableness of relocation.

66    The appellant’s counsel conceded, properly, that he could not point to any evidence from the appellant himself to the effect that he intended to be politically active in anti-Taliban activities if he returned to Pakistan. There was nothing in the appellant’s statutory declaration about this matter, nor in his evidence to the Tribunal. Instead, counsel sought to rely on a statement by the appellant’s migration agent in a post-hearing submission made to the Tribunal after the hearing.

67    The statement by the migration agent was:

Further, given the applicant’s strong commitment to opposing the spread of the Taliban in Pakistan it is highly likely that he would either:

•    Be actively and publically involved in events and organisations, now and in the reasonably foreseeable future, that would be perceived by these extremist groups as being in opposition to them – and be at a more than remote risk of serious harm/significant harm on that basis; and/or

•    For fear of persecution from these groups he would actively modify his behaviour contrary to his personal beliefs.

68    Without a basis in the appellant’s own evidence, it is difficult to see this statement by the migration agent as little more than speculation. When coupled with the Tribunal’s very clear view that it did not believe the appellant’s account of his asserted political activities in the past (including anti-Taliban activities), it is unsurprising there is nothing more specific in the Tribunal’s reasons about the appellant’s possible future political activities. I also accept the Minister’s submissions that the premise of the migration agent’s submission was that the appellant had a “strong commitment to opposing the spread of the Taliban”, and this premise was precisely what the Tribunal rejected at [28]-[32] of its reasons. In the circumstances, I do not consider the Tribunal was obliged to address the migration agent’s submissions in some kind of specific way in its reasons. The situation may have been different if the appellant’s own evidence had clearly raised the real prospect he would engage in political activities even if he relocated to another part of Pakistan. That was not, however, the factual circumstances with which the Tribunal had to deal.

CONCLUSION

69    The Federal Circuit Court’s orders and reasons disclose no error, and the appellant’s challenge to the reasoning of the Tribunal on the issue of relocation fails. The appeal will be dismissed. There is no basis in the material for anything but the usual order as to costs.

Associate:

Dated:    16 June 2015