FEDERAL COURT OF AUSTRALIA

SZVRA v Minister for Immigration and Border Protection [2017] FCA 121

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2 and 3 of the Federal Circuit Court of Australia made on 12 May 2016 be set aside and in lieu thereof:

(a)    a writ in the nature of certiorari issue directed to the second respondent quashing its decision made on 20 October 2014 to affirm a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant;

(b)    a writ of mandamus issue directed to the second respondent requiring the second respondent to determine the appellant’s application according to law; and

(c)    the first respondent pay the costs of the appellant in the Federal Circuit Court of Australia as agreed or taxed.

3.    The first respondent pay the appellant’s costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

background

1    The appellant, a citizen of Pakistan, arrived in Australia as an Unlawful Maritime Arrival on 23 June 2012. On 18 October 2012 the first respondent (Minister), pursuant to s 46A(2) of the Migration Act 1958 (Cth) (Act), permitted the appellant to apply for a Protection (Class XA) visa (Visa). The appellant did so on 23 November 2012. On 5 August 2013 a delegate of the Minister refused to grant the Visa.

2    The appellant applied to the second respondent (Tribunal) for review of the delegate’s decision. On 20 October 2014 the Tribunal affirmed the delegate’s decision. On 17 November 2014 the appellant commenced a proceeding pursuant to s 476 of the Act for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia (Federal Circuit Court). On 12 May 2016 the Federal Circuit Court made orders dismissing the appellant’s application: SZVRA v Minister for Immigration & Anor [2016] FCCA 783 (SZVRA). It is from those orders that the appellant now appeals.

3    For the reasons that follow the appeal should be allowed.

the appellant’s claims

4    The appellant’s claims are set out in his statutory declaration declared on 8 November 2012 and in a submission dated 2 May 2013 provided on his behalf by the Refugee and Advice Casework Service (RACS) to the Minister’s department (RACS Submission). Those claims are summarised below.

5    First, in relation to whether the appellant had a well founded fear of harm if he returned to Pakistan, he claimed that:

(1)    he would be seriously harmed if he returned to Pakistan because he was a Shia Muslim of the Bangash tribe from Parachinar;

(2)    life in Pakistan and in particular Parachinar was dangerous for Shia Muslims because the Taliban and associated groups considered it their duty to kill them;

(3)    there was an outbreak of fighting in 2007 between locals and the Taliban in which the appellant and two of his friends were caught. His friends were shot and killed but he escaped;

(4)    following the fighting, the Taliban closed off the roads going out of Parachinar to Peshawar, which prevented the appellant from travelling there to obtain basic supplies, advanced medical treatment and supplies for his business; and

(5)    the situation had become more dangerous in Parachinar since the fighting started.

6    Secondly, in relation to relocation, the appellant:

(1)    claimed that nowhere was safe for him in Pakistan. Shias were targeted everywhere and he had no family or links to other parts of Pakistan; and

(2)    in the RACS Submission:

(a)    contended that the question of relocation required consideration of what is “reasonable, in the sense of ‘practicable’”, and depended on the appellant’s particular circumstances. He claimed that relevant considerations included his:

(i)    general safety;

(ii)    family, religious and tribal connection;

(iii)    ability to practice religion without fear of harm; and

(iv)    ability to work;

(b)    submitted that country information demonstrated that sectarian attacks on Shias were country wide and had increased in recent years;

(c)    referred to a decision of the Tribunal which identified that the object of attacks on Shia Muslims was not only to “sow” fear and anxiety but also to injure and kill; and

(d)    submitted that:

… it is not reasonable to expect [the appellant] to relocate to another part of Pakistan due to the persecution of Shia Muslims throughout the country. Apart from the evident dangers that exist for Shia Muslims throughout Pakistan we note that [the appellant] is only 22 years old and has no family or any other ties or links in any other part of Pakistan. It cannot be said, in our submission, that it is reasonable to expect [the appellant] to relocate to another part of the (sic) Pakistan where the environment is fraught with danger; where he cannot safely and openly practice (sic) his faith and where he has no family and no tribal ties.

the Tribunal decision

7    The Tribunal had some concerns with the appellant’s credibility. But despite those concerns it accepted many of the appellant’s claims and found that the appellant faced a real chance of persecution for reason of his religion and ethnicity if he returned to his home in Parachinar in the Upper Kurram Agency, now or in the reasonably foreseeable future.

8    The Tribunal then considered whether there was a real chance that the appellant would suffer serious harm if he relocated to another part of Pakistan, such as Islamabad or Rawalpindi. The Tribunal:

(1)    noted that the range of factors which are relevant in each particular case to determine whether relocation is reasonably available will be determined by the case sought to be made out by an applicant; that a person would be excluded from refugee status if it was reasonable, in the sense that it was practicable, to expect him or her to relocate to another part of his or her country; and that what is “reasonable” depends on the particular circumstances of an applicant and the impact of relocation on that person: at [28];

(2)    identified that the appellant’s objection to relocation was primarily focused on his claims that he would be targeted anywhere in Pakistan because he is Shia: at [29];

(3)    noted that the independent evidence indicated that the security situation varied greatly within different parts of Pakistan and that there were a number of areas in Pakistan that remained relatively free from the threat of militant, sectarian and politically motivated violence: at [30];

(4)    accepted that there continued to be attacks against Shia mosques, shrines and gatherings of Shias in Islamabad and Rawalpindi; that there remains some risk of harm throughout Pakistan, including in cities such as Islamabad and Rawalpindi; and that there had been recent sectarian violence in Rawalpindi: at [30];

(5)    had regard to a Department of Foreign Affairs and Trade country report which described Punjab (the province in which Islamabad and Rawalpindi are located) as having lower levels of generalised and sectarian violence compared to the rest of Pakistan. The Tribunal accepted that Shias had been targeted throughout Pakistan but was not satisfied that the appellant’s evidence or the independent evidence established that all Shias face a real chance of serious harm in all parts of Pakistan: at [30];

(6)    accepted that the appellant had a Shia name and may be known as a Bangash Shia from Parachinar in other parts of Pakistan. However, the Tribunal did not accept that the appellant would be specifically targeted by the Taliban and other extremist Sunni groups or individuals should he relocate in Pakistan, outside of his home region. It was not satisfied that “any Sunni groups or individuals or groups would seek to specifically target or (sic) the [appellant] in either Islamabad or Rawalpindi”: at [31];

(7)    was not satisfied that there was a real chance that the appellant would be the victim of isolated attacks on Shias or that isolated incidents made it unreasonable or impracticable for him to relocate from Parachinar to Islamabad or Rawalpindi. Given the low levels of sectarian violence in those cities, combined with the large Shia Muslim population in Pakistan, the Tribunal found that the chance of the appellant being harmed in an act of sectarian or generalised violence was remote: at [32];

(8)    found at [32] of its decision record that:

…there is not a real chance that the [appellant] will be persecuted for reasons of his religion, ethnicity, membership of the Bangash tribe, or imputed political opinion or for any other Convention reason, either individually or cumulatively, now or in the reasonably foreseeable future, in another part of Pakistan such as Islamabad or Rawalpindi.

(9)    referred to the appellant’s claim that he did not know anyone outside of his home region. The Tribunal noted that there was a significant Shia population elsewhere in Pakistan, including in Islamabad and Rawalpindi; that his uncle who resided in Dubai had previously provided him with financial assistance; and that the appellant had the resilience and wherewithal to travel to and settle in Australia, where he did not know anyone. It was satisfied that he would be able to reside safely in Islamabad or Rawalpindi with the support of his family and would not be denied the capacity to subsist: at [33]; and

(10)    thus found that the appellant did not have a well founded fear of persecution if he returned to Pakistan now or in the reasonably foreseeable future.

9    The Tribunal also concluded that the appellant did not meet the complementary protection criteria because it would be reasonable for him to relocate to another part of Pakistan where there was not a real risk that he would suffer significant harm.

the Federal Circuit Court proceeding

10    The appellant raised two grounds in the Federal Circuit Court, both of which concerned the Tribunal’s relocation finding. In summary, the appellant contended that the Tribunal, in considering the reasonableness of relocation in relation to each of a fear of persecution under the Convention and complementary protection, focused solely on whether the appellant would face serious or significant harm in the proposed area of relocation and did not consider whether it would be reasonable for the appellant to relocate to that area. The primary judge rejected both grounds.

11    In relation to the relocation finding in the Convention context, the primary judge set out at [39] the ways in which the appellant contended that the Tribunal had engaged in jurisdictional error:

The applicant contends that it can be seen that the Tribunal has engaged in jurisdictional error in three respects:

a)    first, despite having accurately identified the law, the Tribunal is said to have misapplied it by limiting its consideration of relocation to the question of whether the applicant faced persecution in the form of actual physical harm and deprivation of a means to subsist in the proposed areas of relocation. Non­persecutory harm, together with the fear of it, was relevant to the reasonableness of the proposed relocation, as was the lack of a familial connection to the proposed areas of relocation. The Tribunal did not deal with this and appeared to limit its consideration to the question of the existence of persecution only;

b)    secondly, the Tribunal is said to have failed to deal with the practical realities of the situation facing the applicant in the proposed area of relocation, especially:

i)    the impact of harm per se, as distinct from persecution, in the proposed area of relocation; and

ii)    the lack of familial, religious and tribal connection to the proposed area (the Tribunal only dealt with the lack of familial connection and only in the context of persecution); and

c)    thirdly, the Tribunal in respect of both limbs [of the relocation test] is said to have failed to deal with:

i)    fear of harm as a consequence of the ongoing threat of harm (as distinct from the actual infliction of harm), and

ii)    the claim that the sectarian attacks were increasing in Pakistan.

Both matters were relevant to both limbs and raised by the applicant, yet these matters were not dealt with at all.

12    The primary judge found that the Tribunal considered the issue of relocation at length and correctly set out the relocation test. His Honour rejected the appellant’s submissions that the Tribunal engaged in jurisdictional error in the three ways asserted: SZVRA at [42]-[43]. In particular the primary judge said that:

(1)    in relation to the claim that the Tribunal limited its consideration of the reasonableness of relocation to the existence of persecution only, that claim was not based on a fair reading of the Tribunal’s reasons, contrary to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Liang). A fair reading of the relevant passages led to the conclusion that the Tribunal had considered the reasonableness of relocation in the context of the appellant’s objection to relocation because of his “general safety”. It had not limited itself to the question of whether the appellant has a well founded fear of persecution in Rawalpindi or Islamabad : SZVRA at [44];

(2)    in relation to the claim that the Tribunal failed to address “the impact of harm per se as opposed to persecution” and the lack of “familial, religious and tribal connection”, the Tribunal did not need to deal further with the issue of possible harm to the appellant as it had already addressed it at [32] of its decision record. The Tribunal found the possibility of harm to be “remote” and that isolated incidents did not make it unreasonable or impracticable for the appellant to relocate. At the hearing before the Tribunal the appellant claimed that relocation would be difficult because he did not know anyone, but did not appear to have put any specific argument to the Tribunal about lack of religious or tribal connection. His Honour held that there was “no ‘substantial, clearly articulated argument relying on established facts’ that relocation was unreasonable because of a lack of ‘religious and tribal connection’” but that, in any event, on a fair reading of the Tribunal’s reasons it did address the appellant’s stated objections to relocation: SZVRA at [45]; and

(3)    in relation to the claim that the Tribunal failed to deal with the appellant’s fear of harm and claims that sectarian attacks were increasing, the Tribunal found at [32] of its decision record that the chance of the appellant being harmed by sectarian violence in Islamabad or Rawalpindi was remote. This finding adequately addressed the appellant’s claims that relocation was not reasonable because of “general safety”, including his claim that attacks against Shias were increasing: SZVRA at [46].

13    In relation to the relocation finding in the complementary protection context, the primary judge observed that the Tribunal found that it would be reasonable for the appellant to relocate for the reasons it had given. His Honour held that those reasons considered the reasonableness of relocation, including the appellant’s personal circumstances and objections to relocation: SZVRA at [53].

the appeal

14    The appellant only pressed two of the three grounds of appeal in his notice of appeal, being that:

1.     The court below erred in failing to find that the second respondent (Tribunal) had engaged in jurisdictional error by failing to apply the correct law concerning internal relocation.

2.     The court below erred in:

a.     finding that the appellant had not put any specific argument about the lack of religious or tribal connection in the proposed areas of relocation to the Tribunal and that there was no argument (or claim or component integer) before the Tribunal in this regard that was sufficient to engage the Tribunal’s obligation to consider it; and

b.     accordingly, failing to find that the Tribunal had engaged in jurisdictional error by failing to deal with the same.

consideration

15    The grounds of appeal raised by the appellant concern the Tribunal’s consideration of the issue of relocation. The legal principles relating to relocation were not in dispute.

16    It is well established that the requirement that an applicant’s fear be well founded incorporates a consideration of whether the applicant for refugee status can reasonably be expected to relocate within his or her country of nationality so as to avoid persecution: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (SZATV). In SZATV at [19]-[22] the plurality (Gummow, Hayne and Crennan JJ) said:

19.    [I]t 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.

20.    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.

21.    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.

22.    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.

(footnotes omitted)

17    Their Honours then considered the submissions put by the parties concerning the issue of reasonableness of relocation at [23]-[24] as follows:

23.    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.

24.    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.

In SZATV Kirby J, in a separate judgment, addressed the issue of reasonableness of relocation at [80]-[81] as follows:

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

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

(footnotes omitted)

18    Whether a claimant can reasonably be expected to relocate depends upon the framework set by an applicant’s particular objection to relocation. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (Randhawa) Black CJ rejected a submission by the appellant that the internal relocation principle had no place in refugee law. His Honour held that the focus of the Convention definition is upon a general notion of protection by a country of nationality and not on the protection that country might give in a particular region. His Honour observed at 442 that:

[T]he range of the realities that may need to be considered on the issue of reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality …

At 443 Black CJ noted that the extent of a decision maker’s task would be largely determined by the case an applicant sought to make out. In other words, the task is not at large.

19    In MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541; [2012] FCAFC 99, after referring to SZATV, Flick and Jagot JJ, with whom Yates J substantially agreed, observed at [9] that:

No issue was taken with the proposition that an assessment of reasonableness was dependent upon “the particular circumstances of the applicant for refugee status”. Nor did senior counsel for the respondent minister put in issue the potential relevance of those factors identified by Kirby J. Relevant to the present proceeding is the respondent minister’s acknowledgment that when assessing whether relocation is reasonable one may consider factors such as:

•    “other and different risks in the propounded place of internal relocation”, including risk of violence for non-Convention reasons; and

•    “the absence of family networks”.

What was put in issue, and what must be accepted, was that the factors identified by Kirby J were not to be construed as a statutory list of considerations which must necessarily be taken into account in every case.

Ground 1

20    By his first ground, the appellant contended that the primary judge erred by failing to find that the Tribunal made a jurisdictional error by failing to apply the correct law concerning internal relocation. That is, the appellant contended that the primary judge failed to find that the Tribunal did not consider the reasonableness of relocation but focused solely on whether the appellant would face serious harm or significant harm in Islamabad or Rawalpindi. He submitted that the Tribunal failed to consider the second limb of the relocation principle, namely whether relocation was reasonable having regard to the appellant’s circumstances.

21    The Tribunal considered the issue of relocation at [28]-[33] of its decision record. As the learned primary judge identified, the Tribunal correctly set out the test to be applied in determining whether there was a real chance that the appellant would face serious harm if he relocated to another part of Pakistan and the factors to consider in determining whether relocation was reasonably available.

22    As was affirmed by the High Court in Liang, a decision-maker’s reasons should not be over scrutinized, nor construed minutely or with an eye attuned to error. I respectfully agree with the primary judge that, on a fair reading of the Tribunal’s reasons, it is apparent that the Tribunal did address whether it was reasonable, in the sense that it was practicable, for the appellant to relocate. Its reasons were not solely focused on the issue of whether there was a risk of persecution of the appellant in the proposed area of relocation. That is evident from the structure of the Tribunal’s decision record and its reasons when read as a whole:

(1)    at [29], the Tribunal identified the appellant’s claim that he would be targeted anywhere in Pakistan because he is Shia, upon which the Tribunal said the appellant “primarily” focused;

(2)    at [30], the Tribunal referred to the independent evidence that the security situation varied greatly in different parts of Pakistan, with a number of areas being relatively free of sectarian and politically motivated violence; had regard to the appellant’s claim that the number of attacks against Shias is underreported, but noted it was satisfied that there was widespread monitoring of the security situation for minority groups, including Shias; noted that “urban centres are home to mixed ethnic and religious communities and they offer greater opportunities for employment, access to services and a greater degree of state protection than other areas”; and, after referring to the independent evidence, accepted that Shias had been targeted throughout Pakistan but was not satisfied that either the appellant’s evidence or the independent evidence established that all Shias face a real chance of serious harm in all parts of Pakistan;

(3)    at [31], the Tribunal accepted that the appellant had a Shia name and that it may be known in other parts of Pakistan that he is a Bangash Shia from Parachinar, including in Islamabad or Rawalpindi. It then considered whether the appellant would be specifically targeted and concluded that he would not be if he relocated to another part of Pakistan. This was clearly a finding which concerned whether there was a risk of persecution in the proposed area of relocation;

(4)    at [32], the Tribunal, after taking into consideration the size of the population and the limited number of reports dating back several years of attacks in Rawalpindi or Islamabad, found that it was “not satisfied that there is a real chance that the [appellant] would be the victim of isolated attacks on Shias or that the isolated incidents make it unreasonable or impracticable for the [appellant] to relocate from Parachinar to Islamabad or Rawalpindi” (emphasis added). It concluded that there was not a real chance that the appellant would be persecuted because of his religion, ethnicity, membership of the Bangash tribe, imputed political opinion or for any other Convention reason, now or in the reasonably foreseeable future, in another part of Pakistan such as Islamabad or Rawalpindi. While this is a finding going to whether there was a risk of persecution in the proposed area of relocation, the Tribunal also considered whether isolated attacks on Shias would make it unreasonable or impracticable for the appellant to relocate. I accept the appellant’s submission that the Tribunal does not in this part of its decision record find or conclude that it would 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” having regard to all of the appellant’s particular circumstances. Indeed, as submitted by the Minister, if the Tribunal had concluded its consideration at this point then this ground of the appellant’s notice of appeal may well have been made out. But the Tribunal continued to consider the appellant’s position;

(5)    at [33], the Tribunal referred to the appellant’s claims made at the hearing that he would find it difficult to live anywhere else in Pakistan because he did not know anyone. The Tribunal was satisfied that the appellant would be able to reside safely in Islamabad or Rawalpindi with the support of his family members, in particular his uncle who resided in Dubai, and that there was no evidence that the appellant would be denied the capacity to subsist in either of those places. The Tribunal then concluded that the appellant did not have a well founded fear of persecution if he were to return to Pakistan. Here, the Tribunal does not use the language of the test set out in SZATV nor include in its findings a statement to the effect that “it would be reasonable in the sense of practicable” for the appellant to relocate having regard to the appellant’s particular circumstances. However, it was clearly considering matters that went beyond the initial question of whether there was a risk that the appellant would suffer persecution in the proposed area of relocation and that concerned the reasonableness of the appellant relocating. It considered the appellant’s claim that he does not know anyone else in Pakistan, the issue of financial support and whether the appellant would be able to subsist in the proposed area of relocation.

23    I do not accept the appellant’s submission that, given that safety and a capacity to subsist are both concepts relevant to the meaning of “serious harm”, which at the time of the Tribunal’s decision was defined by s 91R(2) of the Act, the Tribunal was only considering the risk of serious harm at [33] and not whether it was reasonable for the appellant to relocate given the appellant’s particular circumstances. The Tribunal considered at least some of the objections raised by the appellant as to why relocation was not reasonable. A fair reading of the Tribunal’s reasons leads to the conclusion that it did so in the context of the second limb of the relocation test.

24    The appellant referred the Court to a number of judgments in which this Court has held that there had been a failure by the relevant tribunal to properly apply the relocation test. In MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 Dodds-Streeton J held that:

(1)    the decision maker in that case, an independent merits reviewer, had erred “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”: at [61]; and

(2)    the decision maker had failed to identify and consider the appellant’s objection to relocation based on his mental illness. Despite the claim being before him and supported by evidence, and despite the decision maker expressly recognising that the appellant’s mental health attacks were likely to continue if he returned to Afghanistan and were relevant to relocation, he did not refer to or consider the practical realities of the lack or inadequacy of health services in the proposed area of relocation raised by the appellant’s material: at [83].

25    In MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 Davies J considered whether the primary judge 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. Her Honour found that the Tribunal had conflated the two limbs of the relocation test, namely “appreciable risk” and “reasonableness”. Her Honour said at [21]:

… 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.

26    In SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144 Jagot J considered whether the tribunal was bound but failed to consider particular findings (referred to as the Karachi findings) when assessing reasonableness of relocation. Her Honour said at [24]-[26]:

24    I accept the appellant’s submission that the Tribunal was bound to consider these matters in answering the question whether the appellant could reasonably relocate to Karachi. The matters were put by the appellant and emerge from the Tribunal’s findings or conclusions as relevant to the question of relocation. Consistent with the reasoning in MZWDG at [39], the Tribunal was thus bound to consider these matters but, for the reasons given below, its purported consideration miscarried.

25    In its findings and reasons, the Tribunal accepted that the appellant was identifiable as a Shia, would be perceived as an opponent of the Taliban, and may well wish to engage in the practices of his religion in Karachi, and that Shia Muslims engaged in the practice of their religion and otherwise had been the subject of attacks in Karachi which the relevant authorities had not been able to prevent (at [81] – [104]). The Tribunal thus undoubtedly referred to the matters in paragraphs (a) to (d) of the Karachi findings (as I have said they should be understood) in the context of its consideration of the question whether it was reasonable for the applicant to relocate to Karachi.

26    The problem is this. It must be inferred from its reasons that the Tribunal confined its consideration of those matters to the question whether the appellant was at risk of harm in Karachi. The Tribunal must be inferred not to have considered those matters as relevant to the practical realities with which the appellant would be confronted in Karachi. The practical realities of life in Karachi for the appellant were not confined to the suffering of harm (by which, it is apparent from the Tribunal’s reasons, meant physical harm). Given the Karachi findings (as explained above), the potential impacts upon the appellant by relocating to Karachi extended beyond the suffering of physical harm. Yet none of the other potential impacts, relating to the day-to-day life of the appellant in Karachi, were considered.

27    But this case is different. The Tribunal did not limit its consideration of the claims made by the appellant as to why it would not be reasonable for him to relocate to Islamabad or Rawalpindi to whether there was a risk of persecution in those areas. The Tribunal’s consideration of those objections goes beyond that issue. It engaged in a consideration of whether it would be reasonable, in the sense of it being practicable, for the appellant to relocate by reference to at least some of the grounds of objection raised by the appellant. An issue arises as to whether the Tribunal considered all of the claims made by the appellant (ground 2 of the appeal) but, insofar as ground 1 alleges that the Tribunal failed to properly apply the correct law concerning internal relocation and that the primary judge erred in finding that it did so apply the law, the ground must fail.

Ground 2

28    By his second ground of appeal, the appellant contended that the primary judge erred in finding that the Tribunal did not fail to address an objection to relocation based on his lack of religious or tribal connections in the proposed area of relocation.

29    The Minister submitted that there was no evidence that the appellant raised an objection based on the absence of religious or tribal connections before the Tribunal; that the point was averted to only in a very summary way in a submission provided by the appellant’s representative to the delegate in which it was said without more that they were “relevant considerations”; and that the only other mention of “tribal connections” was later in the written submission as set out at [6] above. The Minister further submitted that the only concerns raised by the appellant at the Tribunal hearing in relation to relocation concerned his safety as a Shia Muslim and the fact that he did not know anyone in Pakistan outside his home region.

30    The Minister contended that the primary judge correctly recorded that there was no evidence that the appellant put any argument about the absence of tribal ties in Rawalpindi or Islamabad and that, in those circumstances, his Honour correctly concluded that no “substantial, clearly articulated argument” relying on established facts was made in relation to the issue of tribal ties, relying on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (Dranichnikov) at [24]. The Minister also contended that, given the absence of any reference to the specific issue at the Tribunal hearing, it was fair for the Tribunal to form the view that, even if it did previously, the issue of family ties no longer formed part of, or at least did not assume any prominence in, the objection framework set by the appellant. In making that submission the Minister relied on the judgment of Bennett J in SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798 (SZEIV) at [34] where her Honour said:

The Tribunal is conducting a review of the Delegate’s decision but on the basis of the claims advanced and materials before the Tribunal. If a claim does not so arise and is abandoned, especially where the applicants are legally represented, the Tribunal is entitled to take the view that the applicants do not make that claim or a case based on that claim.

31    In oral submissions the appellant also contended that the Tribunal had failed to address his claim included in his statutory declaration that he could not travel because of barriers placed around Parachinar by the Taliban, which impacted on his ability to operate his business and to subsist. In relation to that claim the Minister submitted that it was raised in the appellant’s statutory declaration and that when read in context it was clear that the claim did not go to relocation but to the appellant’s primary fears. The Minister submitted that the Tribunal was not under an obligation to have regard to that claim in considering whether it was reasonable for the appellant to relocate.

32    It is convenient to first address and dispose of the appellant’s claim concerning inability to travel. I accept the Minister's submission that the claim was not made in the context of the appellant’s objection to relocation. In his statutory declaration the appellant first referred to the Taliban closing roads going out of Parachinar under the heading "Problems in Pakistan" at [11] in the following terms:

Following the fighting the Taliban closed off the roads going out of Parachinar to Peshawar. This was particularly bad for me because it meant I could not safely travel there to obtain basic needs. While there are hospitals in Parachinar, I would need to go to Peshawar for more advanced treatment and medication. I also need to travel to Peshawar to obtain supplies for the business. The Taliban prevents basic supplies from coming into Parachinar and burn trucks that attempt to travel.

Under the heading “What I fear would happen if I was forced to return to Pakistan” the appellant then says at [17]-[18] of his statutory declaration:

17.    I fear the barriers placed around Parachinar by the Taliban impact on my ability to live a life free from danger. Life for me is a constant fear.

18.    I fear the barriers of the Taliban, in preventing me from traveling, impact on my ability to operate my business and impacts on my ability to subsist.

33    In my opinion that claim can only be read as relating to, or being an aspect of, the appellant’s claim to fear harm in his home area. The circumstances here are different to those of the respondent in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317. There the respondent lived in Kabul. The Tribunal found that the risk of persecution which he faced only arose if he continued to drive a truck transporting materials to areas outside Kabul, which it was not necessary for him to do in order to earn a living. The Tribunal considered that the internal relocation principle did not apply because the respondent already lived in Kabul. It therefore did not consider whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul where he would be at risk of harm. A majority of the High Court (French CJ, Hayne, Kiefel and Keane JJ) held that this was an incorrect approach. Although the respondent had lived in Kabul for some years, he had not been confined to that area and his work had taken him outside it. An expectation that he would now remain within Kabul raised considerations analogous to those with which the internal relocation principle is concerned, in particular, whether such an expectation was unreasonable: at [29]. In the case before me the Tribunal found that there was a real chance that the appellant would face serious harm upon his return to Parachinar. The appellant’s claim about his inability to travel was focused upon movement from Parachinar to Peshawar and not on movement to or around the proposed area of relocation. That claim can only be interpreted as relating to his claimed fear of harm in his home region and not as one directed to whether it was reasonable, in the sense of practicable, for him to relocate to another area.

34    Turning then to the appellant’s claims that it is not reasonable or practicable to relocate because of his lack of religious or tribal connections and based on his ability to practice religion without fear of harm and whether they were considered by the Tribunal. First, it is necessary to consider whether those claims arose on the evidence and material before the Tribunal. If they did so arise then a failure to make a finding on them may amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE (No 2)) at [55].

35    In Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [13] Merkel J observed that “unlike in an adversarial proceeding, the Tribunal cannot limit its determination just to the case articulated by an appellant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the appellant”. In the same vein Allsop J (as his Honour then was) noted at [42] that:

The requirement to review the decision under s 414 of the Migration Act 1958 (Cth) (the Act) requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

    …

It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned.

36    In NABE (No 2) a Full Court of this Court (Black CJ, French and Selway JJ) observed that the review process is inquisitorial, that the tribunal is required to “deal with the case raised by the material or evidence before it”, that the Tribunal is not limited to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated and that a claim “not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal”: at [58]. The Full Court held that, while the Tribunal is not required to consider a case not expressly made or that does not arise from the materials before it, its obligation is not limited to procedural fairness in responding to claims that are expressly articulated but, “as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it”: at [61].

37    In my opinion the appellant’s claim that his lack of religious or tribal connection to the proposed area of relocation was relevant to the reasonableness of his relocation was before the Tribunal. It was included in the RACS Submission which the Tribunal acknowledged was before it at [12] of its decision record. At [14] of its decision record the Tribunal summarised the appellant’s claim made in the RACS Submission that it was not reasonable for him to relocate to another part of Pakistan “where he cannot freely and openly practise his faith” and where he has no tribal ties. The claim was not, as the Minister submitted, merely raised as a “relevant consideration” without saying more. That does not properly characterise the submission put by the appellant’s adviser which also included that “…[the appellant] is only 22 years old and has no family or any other ties or links in any other part of Pakistan. It cannot be said, in our submission, that it is reasonable to expect [the appellant] to relocate to another part of the (sic) Pakistan where the environment is fraught with danger; where he cannot safely and openly practice (sic) his faith and where he has no family and no tribal ties”. The claim was squarely raised on the material before the Tribunal.

38    To the extent the Minister relies on SZEIV, Bennett J’s comments must be viewed in context. At the commencement of [34], leading into that part of the judgment on which the Minister relies, her Honour said:

A claim made to the Department and referred to in the Delegate’s decision would, ordinarily, be before the Tribunal. However, where a claim has been made to the Delegate and not advanced at all before the Tribunal and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made.

39    Here the appellant’s objection to relocation based on his lack of religious and tribal ties was clearly before and arose from the material before the Tribunal. Insofar as the Minister submitted that the claim no longer formed part of the objection framework set by the appellant or was abandoned before the Tribunal, there is no evidence before me that establishes or even suggests that the claim was abandoned. In the absence of evidence I would not infer that was so. Indeed, the opposite inference is open and more likely in light of the Tribunal’s statement at [29] of its decision record that the appellant “primarily focused on” his claims that he would be targeted anywhere in Pakistan and its reference to the claim at [14] of is decision record. Nor do I accept the Minister’s submission that the claim no longer assumed any prominence in the objection framework set by the appellant. In the absence of any evidence one can only speculate on what prominence the claim had but, even if it was not prominent in terms of what was discussed or put at the Tribunal hearing, it arose on the material before the Tribunal.

40    In my respectful opinion the learned primary judge erred in finding that there was no “substantial, clearly articulated argument relying on established facts” that relocation was unreasonable because of lack of religious and tribal connection. Such a claim was made.

41    The Minister submitted that if the claim was made then it was in any event, as the primary judge found, considered by the Tribunal at [33] of its decision record. The Minister relies on the judgment in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 where a Full Court of this Court (French, Sackville and Hely JJ) held that it was not necessary for a tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: at [46]. The Full Court observed at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

42    I have addressed [33] of the Tribunal’s decision record at [22] above. Despite my finding that the Tribunal was there considering whether it was reasonable for the appellant to relocate, it did not consider the appellant’s objection to relocation based on all of his particular circumstances. It did not consider whether it was reasonable for him to relocate based on his lack of religious or tribal connections. The findings at [33] are centred on the appellant’s claim that he does not know anyone elsewhere in Pakistan. The Tribunal refers to the “significant” Shia population in Islamabad and Rawalpindi, the appellant’s uncle who provided him and his family with financial support and the fact that the appellant had the wherewithal to travel to and settle in Australia where he claimed not to know anyone prior to his arrival. At [30] the Tribunal noted that “urban centres are home to mixed ethnic and religious communities and they offer greater opportunities for employment, access to services and a greater degree of state protection than other areas”. The Minister submitted that this finding, coupled with the fact that the appellant was resilient and would be assisted by his uncle, answered the appellant’s claim that he would be “isolated”. It was submitted that the Tribunal’s findings at [33] addressed his claims relating to family, religious and tribal connections as a collocation of claims relating to one common theme, namely, isolation. I do not agree. The effect of the RACS Submission is to raise, as discrete matters, each of those claims as a reason why relocation was not reasonable or practicable.

43    I accept that the findings at [33] address family and the appellant’s ability to subsist. But they do not address the appellant’s objection to relocation on the basis that he would not be able to practise his religion freely or on the basis of lack of religious or tribal connection in circumstances where the Tribunal accepted that the appellant was a member of the Bangash tribe. Findings on those claims cannot be said to be subsumed in the findings identified by the Minister. Those claims, which were raised, were not considered by the Tribunal. In failing to do so the Tribunal fell into jurisdictional error. The learned primary judge fell into error in finding that, in any event, on a fair reading of the Tribunal’s decision, the Tribunal addressed the appellant’s stated objections.

conclusion

44    It follows that the appeal should be allowed and the matter remitted to the Tribunal for determination according to law. Costs should follow the event such that the Minister should pay the appellant’s costs of the appeal and of the proceeding before the primary judge. I will make orders accordingly.

Associate:

Dated:    21 February 2017