FEDERAL COURT OF AUSTRALIA

ATK15 v Minister for Immigration and Border Protection [2016] FCA 349

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Subject to either party applying for an alternative order within 14 days, the appellant pay the first respondent costs in the sum of $2,000.

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

REASONS FOR JUDGMENT

KERR J:

1    This is an appeal against a decision of the Federal Circuit Court of Australia (“FCCA”) delivered on 10 November 2015 (ATK15 v Minister for Immigration & Anor [2015] FCCA 2841) (“the FCCA judgment”) dismissing the appellant’s application for review of a decision made by the second respondent, the Administrative Appeals Tribunal (“Tribunal”). The Tribunal, by its written statement of decision and reasons dated 8 April 2015 (“the Tribunal’s reasons”), affirmed the decision by a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (“Migration Act”), as it was satisfied the appellant did not meet the refugee criterion in ss 36(2)(a) or 36(2)(aa) of the Migration Act.

Background

2    The primary facts of the case are not in dispute. They are set out in the Tribunal’s decision in [2] and [19] and summarised briefly below.

(1)    The appellant is a 28-year-old Pakistani national, from Parachinar, Kurram Agency. He is a single man of the Shi’a faith and a member of the Turi Tribe.

(2)    The appellant started working as a truck driver from 2008. On one occasion in 2008, the Applicant’s truck was attacked by Taliban fighters while driving on the highway under control of the Taliban. While he was not harmed by this attack, the appellant feared he would be killed as a Turi and as someone of the Shi’a faith.

(3)    He first arrived in Australia by boat on 26 June 2012. He applied for a Protection visa under s 65 of the Migration Act. A delegate of the first respondent refused the application on 31 December 2013.

3    For reasons that are not relevant to this appeal the Tribunal accepted, as the delegate of the second respondent did, that the appellant faces a real chance of serious harm by the Taliban and Sunni extremists due to his religion, tribal membership and imputed political opinion if he were to return to reside in Parachinar (at [30] of the Tribunal’s reasons).

4    However, the Tribunal determined that the appellant’s fear of persecution if returned to Pakistan was not well-founded under the meaning of s 36(2)(a), as he fell within the exception of the ‘relocation principle’. It found while the appellant had a real chance of serious harm in his home region, he could still avail himself of the protection of his country of nationality if he were to relocate to other parts of the country such as Islamabad or Rawalpindi, and it would be reasonable for him to do so (at [60] of the Tribunal’s reasons).

5    The Tribunal therefore affirmed the decision by the delegate of the first respondent not to grant the applicant a Protection visa. The appellant sought judicial review of the Tribunal’s decision before the FCCA. Judge Buchardt, as the primary judge, dismissed the application on 10 November 2015. Now the appellant appeals the decision of the FCCA to the Federal Court of Australia (“FCA”) on one ground of appeal.

6    The task of the FCCA was to determine whether the decision of the Tribunal had been affected by jurisdictional error (see s 474 of the Migration Act and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). The task of this Court on appeal is to determine whether the decision by the FCCA to dismiss the appellant’s grounds and affirm the Tribunal’s decision is affected by appellable error; SLMB v Minister for Immigration Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

7    It is not the task of this Court on appeal to review the original decision afresh or to substitute its view of the preferable decision on the facts. It is the role of the FCA to correct legal errors and not to reconsider the case more generally; MZZPK v Minister for Immigration and Border Protection [2015] FCA 470.

Ground of appeal

8    The appellant raised two grounds before the FCCA. First, the appellant argued the Tribunal misconstrued or misapplied the relocation principle by incorrectly importing the criteria of ‘serious harm’ under s 91R of the Migration Act, against the High Court’s formulation in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (at [15]-[24] of the FCCA judgment). Second, the appellant alleged the Tribunal engaged in jurisdictional error by failing to take account the particular circumstances of the appellant in determining the reasonableness of the relocation (at [25]-[31] of the FCCA judgment).

9    The appellant relied only upon the second ground before the FCCA in his appeal to this Court (the generalised assertion that his Honour erred in law in upholding the Reviewer’s decision was not pressed). This ground, as expressed by the appellant’s Notice of Appeal at page 2, is as follows:

His Honour erred in law in failing to find that the Tribunal engaged in jurisdictional error by misconstruing or misapplying the relevant legal test in relation to relocation.

10    This Court discussed in detail with Mr Barns, the counsel for the appellant, whether he disputed before this Court any aspect of the first ground before the FCCA, which went to the ‘harm’ aspect of the reasonableness of relocation (at [24]-[29] of pages 4-5 of the transcript of proceedings). The Court asked Mr Barns to clarify that there was no overlap regarding the ground before it and the issue of ‘harm’ that might befall the appellant were he to revive his employment as a truck driver in Pakistan. Mr Barns confirmed that that issue which had been before the FCCA had been abandoned after consideration. That concession was properly made given the findings of the Tribunal and the FCCA.

Appellant’s submissions

11    Mr Barns made the following oral submissions (extracted, at [12]-[22] of pages 3-4 of the transcript of proceedings):

…[citing MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352] the tribunal had an obligation to consider the difficulties or impediments that the applicant submitted he would have and how the applicant would deal with those practical realities and it’s submitted that it failed to do that and in fact the learned circuit court judge in that sense, by agreeing with the tribunal in its process, misconstrued the appropriate legal test in relation to reasonableness of relocation. That is that, in the circumstances where you had the tribunal accepting that the appellant was a credible witness, it accepted that he has only ever worked as a truck driver and on his return to Pakistan he would work as a truck driver.

They accepted that he’s not likely to earn a high wage driving trucks. It had before it evidence that he could not afford to relocate to Islamabad or Rawalpindi and that he would have to support his family because his elder brother was missing. There was nothing to contradict that. There’s merely an assertion really in paragraph 58-57 and 58 where the tribunal says the applicant is unmarried, does not have any children of his own. It says that it does not accept on the evidence before it the applicant will be the sole supporter of his parents and younger siblings even though that was the only evidence before it and then… it said in paragraph 58 in relation to language it accepts that his Urdu may not be fluent however his own evidence indicates his Urdu is sufficient having successfully worked as a truck driver transporting goods throughout Pakistan for two years and they say at paragraph 60:

Given the applicant’s circumstances, including his past experience of having worked as a truck driver throughout Pakistan for two years prior to coming to Australia, the tribunal finds it would be reasonable to expect the applicant to relocate to another area of Pakistan.

...[T]he issue is… there was no unpacking of those issues or there was no sense in which the tribunal looked with any scrutiny at the claim that it wasn’t viable or realistic for the applicant to move to Islamabad or Rawalpindi areas where he would be safe from harm (at [12]-[22] of pages 3-4 of the transcript of proceedings).

12    Mr Barns made specific reference to MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352 (“MZYXP”) at [64] (at [40]-[20] of pages 6-7 of the transcript of proceedings):

There’s a reference made to the decision of the – I think the Full Court of the Federal Court in NAIZ and there’s a passage from the decision of Branson J and also further in paragraph 65, a decision of – in the decision of Franco-Buitrago, a decision of Tamberlin J, but dealing with this same issue. They talk about – Branson J talks about:

…the summary way in which the tribunal dealt with the issue of relocation, including its failure to explore the significance –

in that case –

of the appellant’s reference to having no one in Fiji to look after her, causes me to conclude that the tribunal did not apply the right test when it concluded that it was satisfied that, with the assistance of her daughter, the appellant would be able to relocate within Fiji. The tribunal did not –

her Honour says –

give consideration to the practical realities facing the appellant. That is not to say that it was not open to the tribunal to conclude that the appellant could deal with those practical realities, perhaps with financial help. However, the tribunal was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within Fiji.

Now, your Honour, we would say that this case suffers from the similar defect. That is, that there has been a summary fashion in which the tribunal has dealt with the issue of relocation has meant that it hasn’t given consideration to the practical realities facing the appellant, and therefore it has failed to look, as it should do, at the question of the reasonableness of relocation by considering that practical reality.

13    Mr Barns added the appellant was not asking the Court to embark upon a fact-finding exercise, but rather putting forward “there has been nothing other than what is a fairly summary dismissal… of the evidence as to relocation, particularly a limited income, limited language issues and the requirement for him to look after members of his family” (at [36]-[43] of page 5 of the transcript of proceedings). In effect, Mr Barns submitted, there had been a misconstruction or misapplication of the relevant legal test in relation to relocation by the FCCA in upholding the Tribunal’s reasoning.

14    Counsel for the first respondent, Mr Wilson, contested those propositions with the following oral submissions (extracted, at [34]-[9] of pages 10-11 of the transcript of proceedings):

…[W]hat the tribunal did was open to it. …[F]or example, for the appellant to speculate about what his future earning capacity would be should he relocate was not evidence of what the situation will be; it’s evidence of what he anticipates or he thinks the situation will be. The tribunal had before it material which indicated to it that there were thousands of people of the appellant’s community living in both the cities it was considering were appropriate for relocation. So there were large communities there of Urdu speaking people that fell within the same group as the appellant.

There was evidence that he had worked as a truck driver. His own admission was he was likely to do that again. The tribunal was entitled to take into account that his – despite his assertions about his family, that there were currently living independently. They were living as farmers. They were earning their own – supporting themselves as farmers. Clearly they were not living with him, because he is in Australia. The tribunal was entitled to take those sort of matters into account, and it did. And therefore it did give adequate consideration to the question of reasonableness of relocation. It came to a particular conclusion about that. The Federal Circuit Court said, well, it was open to it. It didn’t make an error in doing so. We say the Federal Circuit Court didn’t make an error in either construing the meaning of the test or in considering whether or not the tribunal had properly applied the test.

15    In support of the above, Mr Wilson referred to [31], [37] and [38] of the Tribunal’s reasons and [31] of the FCCA judgment. He submitted that a decision of a tribunal is not to be scrutinised minutely with a view to look for error; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (”Wu Shan Liang”).

16    He also drew upon Minister for Immigration and Citizenship v SZNPG & Anor [2010] FCAFC 51 to submit that even if this Court were to find the Tribunal had been brief in its reasons and had failed to express its reasons for rejecting corroborative evidence with complete clarity, those findings in themselves would not indicate jurisdictional error on the part of the Tribunal or the FCCA dismissing an appeal from the Tribunal’s decision (at [18]-[14] of pages 11-12 of the transcript of proceedings).

DISCUSSION

17    In an appeal from the FCCA, the issue is not whether the FCA would come to the same conclusions with the same materials as did the Tribunal. It is whether the way in which the FCCA came to its conclusion reveals any error of law in disposing grounds of appeal before it.

MZYXP

18    The appellant’s reliance upon MZYXP is misplaced. In MZYXP, Kenny J rejected all grounds of appeal including one regarding the tribunal’s failure to give due proper consideration to the particular circumstances of the applicant and the impact it would have on him, at [57]. Justice Kenny rejected this ground on the basis that the separate and distinct issue of reasonableness did not require the tribunal to inquire as to the objective impact of the possible relocation. Rather, the tribunal’s inquiry would be “circumscribed by the case made by the appellant with respect to the relocation issue” (at [61]).

19    Justice Kenny cited and considered the extracts of NAIZ and Franco-Buitrago to which the appellant in MZYXP referred. Her Honour held at [64] that a “critical element” of the finding of tribunal’s jurisdictional error in NAIZ was that it failed to consider an objection made by the appellant that, in reality, relocation would be practically unreasonable. This was distinguished from a mere failure by the tribunal to consider the ‘practical reality’ for the appellant as an objective inquiry.

20    Justice Kenny considered at [64] that in NAIZ the appellant, a 55-year-old unemployed widow, had made a particular objection that she had no one in Fiji “to look after her” and the tribunal had not given proper consideration to the practical realities facing the appellant with respect to accommodation and care should she seek to relocate within Fiji (at [22] (Branson J, with North J agreeing)). Her Honour also noted that similarly in Franco-Buitrago, the appellant had specifically raised the issue of his child’s ill health which could bear on the question of the reasonableness of relocation, as it could limit the number and type of places to relocate. Justice Kenny accordingly distinguished both cases on the basis that her Honour was satisfied the tribunal had properly taken into account the objections made by the appellant before rejecting them.

21    It does not do justice to Kenny J’s judgment to merely summarise the common defect her Honour had identified in the two cases to be “a summary fashion in which the tribunal has dealt with the issue of relocation has meant that it hasn’t given consideration to the practical realities facing the appellant”, as Mr Barns submitted (at [17]-[20] of page 7 of the transcript of proceedings). Upon proper reading of MZYXP, it is clear a tribunal’s finding of reasonableness of relocation will only be tainted by jurisdictional error if a tribunal fails to grapple specifically with an objection or objections raised by the appellant that may affect the tribunal’s assessment.

22    The question before this Court is whether the FCCA, in not identifying such error, itself fell into jurisdictional error.

Tribunal’s reasons

23    The Tribunal had considered and rejected the appellant’s objections to reasonableness of relocation, detailing them at [55] of its reasons and rejecting them in subsequent paragraphs [56] to [60].

24    As Mr Wilson noted in his submissions (at [25]-[41] of page 9 of the transcript of proceedings), the Tribunal had asked the appellant “if there were any other reasons he considered it unreasonable to expect him to relocate” (at [37] of the Tribunal’s reasons). The Tribunal then outlined the following (at [38]-[39]):

The applicant confirmed he was not single and did not have children. It put to him that he spoke Urdu and although he had a limited education, he has been able to get by and earn a living in Pakistan. The applicant stated that even then he had a fear for his life. As a truck driver, he would be going to different places. The tribunal put to him that given he did not face problems in the past while doing this, it had to consider whether he would face problems in the future given the same set of circumstances.

After a brief adjournment, the applicant’s representative submitted that while there may be less violence in other urban areas, the applicant’s socio-economic situation is an issue. He has limited Urdu-speaking work experience. As he is now the elder brother, he has obligations to support his family and they would most likely have to live with him. The applicant was asked why that was the case given that he was not living with his family here. He stated that this is a different situation, his parents also want to live with him in Pakistan.

25    As Mr Wilson correctly pointed out, the above passages show the Tribunal had allowed a brief adjournment for the appellant and his representative to confer and put forward various factors against relocation (at [31]-[41] of page 9 of the transcript of proceedings). This is indicative, albeit not conclusive, of the Tribunal properly seeking and addressing the appellant’s objections to it finding the relocation reasonable.

26    The Tribunal then discussed that issue under a separate heading, “reasonableness of relocation”. The objections at [55] that the appellant had advanced were as follows:

(1)    he would not be able to support himself enough to live in Islamabad or Rawalpindi;

(2)    he has limited Urdu-speaking work experience; and

(3)    as he does not know the whereabouts of his eldest brother, the applicant would take on the obligations of the eldest son of supporting his family who would most likely have to live with him.

27    There is no dispute regarding the sufficiency or adequacy of the manner in which the above objections were set out in the Tribunal’s reasons.

28    The Tribunal then proceeded to deal with these objections one by one. First, at [56], the Tribunal accepted that the appellant was not likely to earn a high wage driving trucks, however it noted he had been able to support himself in the past with the same employment and did not accept that the situation would be otherwise were he to relocate to Islamabad or Rawalpindi.

29    Second, at [57], the Tribunal addressed the objection of the appellant that he would need to be the sole supporter of his family upon his return, which would render the relocation not practicable. The Tribunal reasoned that the appellant was unmarried and without children of his own. It considered the appellant’s evidence that his family had a farm in Parachinar. Based on those two factors, the Tribunal did not accept that the appellant would be the sole supporter of his parents and younger siblings or that his entire family would have to live with him if he returns.

30    Mr Barns, in his oral submissions, characterised the above as “merely an assertion” (at [26] of page 3 of the transcript of proceedings). However the evidence as to the appellant’s marriage status, his lack of children and his family’s possession of a farm were all evidence of the appellant which had been accepted by the Tribunal. Upon evidence available to and accepted by it, it was open to the Tribunal to not accept the appellant’s claim that he would be the sole breadwinner of his family.

31    Third, at [58], the Tribunal accepted the appellant’s evidence that his Urdu ability and previous education were limited, however drew upon his previous ability to work throughout Pakistan to reject the appellant’s claim that the limitations of his Urdu ability and his previous education were such as to render his relocation to other parts of Pakistan unreasonable.

32    Mr Barns’ complaint that the Tribunal failed to properly scrutinise the appellant’s claim that it was not viable or realistic for the appellant to move to Islamabad or Rawalpindi, areas where he would be safe from harm, therefore cannot be sustained. The Tribunal had before it the Applicant’s income-earning capacity; his previous ability to support himself as a truck-driver; and his family’s ability to support themselves with their farm. Whilst brief, the Tribunal’s reasons were not so brief as to show it had misunderstood the requirement of the relocation principle to consider the reasonableness of the appellant’s relocation. To the contrary, the above analysis shows the Tribunal addressed all of the objections raised by the appellant as required by MZYXP, the very case upon which the appellant’s submissions rely.

33    A reviewing court must remind itself of the principle articulated by (then) Kirby J in Wu Shan Liang at [291], that the reviewing judge must avoid reconsidering the decision on its merits when examining the reasons of the decision-maker. The merits of the Tribunal’s decision were not for the FCCA (or this Court on appeal) to minutely scrutinise with an eye to perceive error.

The FCCA judgment

34    The primary judge considered and rejected submissions to the like effect as advanced by Mr Barns in this proceeding in dismissing the second ground of appeal before him. He was correct to do so. His Honour asked himself the correct legal question in reviewing the Tribunal’s decision: “whether the Tribunal engaged, as it was required to, with those matters that the applicant advanced as inimical to relocation” (at [30] of the FCCA judgment). His Honour set out the Tribunal’s reasons at [55]-[58] before coming to his conclusion at [31]:

Once again, when read fairly, it does not seem to me that the Tribunal failed properly to consider the claims advanced by the applicant. The Tribunal made an express finding, open on the evidence before it, that it did not accept that the applicant’s family would have to live with him and he be their sole supporter. The Tribunal also found that the applicant was a young man of resource and its finding that the applicant would be able to support himself was one that in my view was open on the materials. I accept the submission of the first respondent that it was not necessary for there to be evidence refuting the applicant’s asserted likely impecuniosity. The Tribunal’s process of reasoning was in my view open to it.

35    His Honour correctly took the position that absent jurisdictional error, such findings of fact were for the Tribunal and not for the reviewing court. In the circumstances referred to in [28] to [31] above, there was no error in his Honour’s reasoning that it was not necessary for there to be specific evidence refuting the appellant’s asserted likely impecuniosity to enable the Tribunal to come to the conclusion that it did.

36    Judge Buchardt also accepted the first respondent’s submission that the Convention was concerned with persecution in the defined sense, not with living conditions in the broader sense, as pronounced in SZATV and followed by Mortimer J in MZZZA v Minister for Immigration and Border Protection [2015] FCA 594. This conclusion was not the subject of appeal.

37    For the reasons set out above, this Court is satisfied that the primary judge’s conclusions were not affected by jurisdictional error.

Costs

38    While the Court has rejected the appellant’s appeal, the Court accepts the arguments advanced by his counsel were not implausible. The appeal was brief, well-argued and focussed. The first respondent is entitled to costs but it appears to the Court that a modest lump sum award reflecting those circumstances would be appropriate in this instance. The Court orders the appellant pay the first respondent costs in the sum of $2,000, subject to either party applying for an alternative order within 14 days.

Associate:

Dated:    12 April 2016