FEDERAL COURT OF AUSTRALIA

CID15 v Minister for Immigration and Border Protection [2017] FCA 780

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court of Australia on 30 November 2016 be set aside and, in lieu thereof, the Court orders that:

(a)    There be an order in the nature of certiorari to quash the decision of the Administrative Appeals Tribunal dated 23 October 2015.

(b)    There be an order in the nature of mandamus requiring the Administrative Appeals Tribunal to review according to law the decision of the delegate of the first respondent to refuse the protection visa sought by the appellant.

(c)    The first respondent pay the costs of the appellant before the Federal Circuit Court, to be taxed if not agreed.

3.    The first respondent pay the appellant’s costs of the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant is a Pakistani national. He is of Pashtun ethnicity, a member of the Bangash tribe, and of Shia faith. His home area is Parachinar in Kurram Agency, Pakistan.

2    The appellant applied on 18 December 2012 for a Protection (Class XA) visa (a protection visa). He claimed to face a real chance of serious or significant harm in Pakistan at the hands of the Taliban or other militant groups on the basis of his ethnicity, his religion and his actual or imputed (anti-Taliban) political opinion.

3    On 9 April 2014, a delegate of the first respondent (the Minister) refused the appellant’s application for a protection visa.

4    The appellant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision. A hearing before the Tribunal took place on 11 August 2015. On 23 October 2015, the Tribunal decided to affirm the decision of the delegate not to grant the appellant a protection visa.

5    In the course of its reasons, the Tribunal found that the risk of the appellant being seriously harmed by the Taliban or other groups on return to Kurram Agency, on account of his Shia religion and/or his imputed (anti-Taliban) political opinion, was more than remote. Accordingly, the Tribunal found that the appellant faced a real chance of serious harm if returned to Kurram Agency in the reasonably foreseeable future.

6    The Tribunal went on to assess whether it would be reasonable in all the circumstances for the appellant to relocate to some other part of Pakistan where there was no appreciable risk of the occurrence of the feared persecution. In considering this issue, the Tribunal referred to a Department of Foreign Affairs and Trade (DFAT) assessment that the security situation in Islamabad (and Lahore) was “relatively free” from violence, and stated that, in many cases, there were options available for members of most ethnic and religious minorities, including Shias, to relocate to areas of “relative safety” elsewhere in Pakistan. The Tribunal concluded on this issue that the appellant could relocate to an urban centre, such as Islamabad or Rawalpindi, where he would not face a real chance of serious harm because of his ethnicity, Shia religious identity or imputed political opinion.

7    The appellant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. In his amended application, the appellant’s sole ground of review was that the Tribunal constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, by misapplying the ‘real chance’ test in assessing whether the appellant could safely relocate to Islamabad or Rawalpindi. In his particulars under this ground, the appellant contended, in summary, that the Tribunal had misapplied the ‘real chance’ test by adopting a relative, rather than an objective, approach to its assessment of safety.

8    On 30 November 2016, the primary judge decided to dismiss the appellant’s application. In essence, the primary judge considered that, when the Tribunal’s decision was read fairly and as a whole, the Tribunal was not comparing the safety of urban areas with Kurram Agency or other areas, but rather was expressing a view that the urban areas were relatively safe as opposed to being absolutely safe.

9    The appellant appeals to this Court from the judgment of the Federal Circuit Court. The appellant’s sole ground of appeal is that the primary judge erred in reaching the abovementioned conclusion (ie, by concluding that, when the Tribunal made findings using phrasing including “relatively”, the Tribunal was not comparing the safety of urban areas with Kurram Agency and other areas) and in determining the application for judicial review on this basis.

10    For the reasons that follow, in my respectful opinion, the primary judge erred in her construction of the Tribunal’s reasons. In my view, on the true construction of the reasons, the Tribunal was comparing the safety of different areas within Pakistan. Putting the matter simply, the Tribunal’s finding was to the effect that certain urban areas were safer than Kurram Agency, rather than that they were safe. Considering the Tribunal’s reasons as a whole, the Tribunal adopted a relative rather than an objective approach in applying the ‘real chance’ test in the context of the relocation issue. This amounted to a jurisdictional error.

11    Accordingly, the appeal is to be allowed. The orders of the Federal Circuit Court are to be set aside and, in lieu thereof, there will be an order in the nature of certiorari to quash the decision of the Tribunal and an order in the nature of mandamus requiring the Tribunal to review according to law the decision of the delegate.

The Tribunal decision

12    It is necessary to examine the Tribunal’s decision in some detail given the issue raised by the appeal.

13    At [6] of the Tribunal’s reasons, the Tribunal identified the issues in the review as being: whether the appellant had a well-founded fear of being persecuted for one or more of the five reasons set out in the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967 (together, the Refugees Convention or the Convention); and, if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to his receiving country of Pakistan, there was a real risk that he would suffer significant harm. A summary of the relevant law was attached to the Tribunal’s reasons. No issue is taken regarding that summary.

14    The Tribunal was satisfied that the appellant is a national of Pakistan (at [8]). The Tribunal accepted that the appellant’s ethnicity is Pashtun, he is a member of the Bangash tribe, and he follows the Shia religion (at [9]). The Tribunal stated that the appellant’s identity documents indicate that he originates from Parachinar, Kurram Agency (at [9]). It noted that independent sources indicated that Kurram Agency is one of seven Federally Administered Tribal Areas (FATA) in the north-west of Pakistan, bordered on the north and west by Afghanistan (at [9]). The Tribunal accepted the appellant’s evidence about his family composition, employment and education history (at [11]).

15    The next section of the Tribunal’s reasons is headed “Refugee assessment” and contains the Tribunal’s consideration of the criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act). This section is structured under the following sub-headings:

(a)    Claims in relation to Kurram Agency;

(b)    Real chance of persecution on return to Kurram Agency;

(c)    Availability of state protection in Kurram Agency; and

(d)    Relocation within Pakistan.

16    In the part headed “Claims in relation to Kurram Agency”, the Tribunal noted that it had been submitted on behalf of the appellant that he feared harm on return to Pakistan from the Taliban and other militant groups for reasons of his ethnicity (Pashtun of the Bangash tribe), his religion (Shia Muslim) and his associated (anti-Taliban) political opinion (at [12]). Having referred to the appellant’s oral evidence at the Tribunal hearing, the Tribunal stated that it accepted that the appellant had “experienced problems” in the past while living in Parachinar and when working transporting goods from Parachinar to Peshawar (and vice versa), but it did not accept that he was specifically targeted by the Taliban as a Shia or for any other reason (at [21]). Although the Tribunal accepted the appellant’s evidence regarding certain past incidents, it found remote the chance that he would be targeted by the Taliban on return to the Parachinar area in relation to those incidents (at [21]).

17    The next part of the reasons is headed “Real chance of persecution on return to Kurram Agency”. I note the following in relation to this part:

(a)    The Tribunal stated that, given its earlier finding, it had gone on to consider if the appellant faced a real chance of persecution on return to Kurram Agency in the foreseeable future on account of his Shia religion and imputed (anti-Taliban) political opinion, having regard to “country information” (at [22]).

(b)    The Tribunal noted that: the threat which the Taliban and others pose to Shia Muslims in Kurram Agency was well-documented; and country information showed that “Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni groups including the Taliban” (at [23]).

(c)    The Tribunal then observed that the most recent DFAT advice in relation to Shias in Pakistan appeared to indicate that the security situation in Kurram Agency had improved (at [24]–[25]).

(d)    After referring to the appellant’s evidence at the hearing, the submissions made on his behalf and DFAT’s assessment, the Tribunal found that “the risk of the [appellant] being seriously harmed by the Taliban or other groups on return to Kurram Agency on account of his Shia religion and/or imputed (anti-Taliban) political opinion” was “more than remote” (at [30]).

(e)    Accordingly, the Tribunal found that the appellant faced “a real chance of serious harm at the hands of the Taliban and/or Sunni extremists as a result of his Shia religious identity and/or imputed political opinion” if he returned to Kurram Agency in the reasonably foreseeable future (at [31]).

18    The Tribunal then considered the availability of state protection in Kurram Agency (at [32]–[37]). The Tribunal stated that it was not satisfied that, at this juncture, the state of Pakistan could meet the level of protection that its citizens were entitled to expect. Accordingly, the Tribunal found that the appellant faced a real chance of persecution for reasons of his Shia religion and his imputed political opinion if he returned to his home in Parachinar or elsewhere in Kurram Agency in the reasonably foreseeable future (at [36]).

19    The Tribunal noted, at [37], that the appellant’s representative had submitted that the appellant feared persecution not only for reasons of his Shia religion and associated political opinion but also for reasons of his ethnicity, described as “Pashtun of the Bangash tribe”. The Tribunal stated that there was no information before the Tribunal to support that specific contention. After referring to the appellant’s evidence at the hearing, the Tribunal found that the appellant did not face a real chance of persecution on the basis of being a Pashtun of the Bangash tribe if he returned to Pakistan in the reasonably foreseeable future.

20    The Tribunal then turned to the issue of relocation within Pakistan, this part comprising [38]–[62] of the reasons. The following aspects of this part are noted:

(a)    The Tribunal stated that, given that it had found that the appellant had a well-founded fear of being persecuted in his home area, it had considered if it was reasonable in all his circumstances to relocate to some other part of Pakistan where there was no appreciable risk of the occurrence of the feared persecution (at [38]).

(b)    The Tribunal considered the decision of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (SZATV) and the submissions of the appellant’s representative (at [39]–[40]).

(c)    The Tribunal referred to its earlier finding to the effect that it did not accept that the appellant had been specifically targeted by the Taliban as a Shia or for any other reason. It stated that it was not satisfied that the appellant’s profile was such that he would already be known by the Taliban or other extremist groups in other parts of Pakistan or targeted in other parts of Pakistan (at [41]).

(d)    The Tribunal then set out some matters it had raised with the appellant at the hearing (at [42]):

    At hearing the Tribunal discussed with the applicant the possibility that he could relocate to a city such as Islamabad or Rawalpindi in Punjab, which reportedly experience lower levels of violence relative to other parts of Pakistan. Specifically the Tribunal explained to the applicant that information from DFAT indicated that:

•    Pakistan is a diverse country and the security situation varies greatly from place to place and there are a number of areas within the country which remain free from the threat of militant, sectarian or politically motivated violence, particularly outside of FATA, Khyber Pakhtunkhwa and Balochistan.

•    In most cases there are options available for members of most ethnic and religious minorities, including Shias, to be able to relocate to areas of relative safety elsewhere in Pakistan.

•    In particular, many urban centres such as Islamabad are home to mixed ethnic and religious communities and offer great opportunities for employment, access to service and a greater degree of state protection.

(Footnote omitted.)

A footnote to the first sentence of the above quotation referred to the following publications: DFAT, DFAT Thematic Report: Shias in Pakistan, 14 April 2015; DFAT, DFAT Country Information Report Pakistan, 14 April 2015; and Department of Immigration and Citizenship, Background Paper: Shia Muslims, 29 July 2013.

(e)    At [43]–[47], the Tribunal referred to evidence given by the appellant and submissions made by his representative about sectarian violence and attacks against Shias elsewhere in Pakistan (ie, outside Kurram Agency).

(f)    The Tribunal then provided its reasoning and conclusion on the relocation issue at [48]–[51] as follows:

48.    The Tribunal acknowledges that Islamabad and Rawalpindi – for example – are not entirely immune from security incidents, including sectarian violence. Nonetheless, the Tribunal notes that DFAT’s assessment [is] that the security situation in Islamabad (and Lahore) is relatively free from politically-motivated, terrorist and sectarian violence.

49.    As discussed, DFAT reports that Pakistan has struggled with security threats from terrorist, militant and sectarian groups but it is a diverse country and the security situation varies greatly over time and from place to place, with urban centres tending to be more secure than rural areas. It assesses that in many cases there are options available for members of most ethnic and religious minorities, including Shias, to be able to relocate to areas of relative safety elsewhere in Pakistan. It has said that large urban centres such as Islamabad are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a higher level of state protection.

50.    In summary, the Tribunal has considered carefully the question of whether the applicant’s fear of Convention related harm is well founded in respect of the entire territory of Pakistan, taking into account the applicant’s oral and written evidence and the representative submissions in this respect. In light of the country information and in particular DFAT’s advice, the Tribunal does not accept the contention that all Shia are at risk of serious harm from the Taliban or other Sunni militant groups throughout the entire territory of Pakistan for that reason alone. The Tribunal accepts DFAT’s advice, as discussed with the applicant at the hearing, that the internal relocation of Shia to avoid sectarian violence occurs with relative frequency, the security situation varies greatly from region to region, and relocation to a large urban centre that is home to mixed sectarian communities may offer a safe [haven] within the territory of Pakistan to a person who would have a well-founded fear of being persecuted for a Convention reason in their home area.

51.    Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any of the reasons advanced by the applicant (or his representative) within the entirety of Pakistan now or in the reasonably foreseeable future. The Tribunal finds that the applicant is in a position to relocate to an urban centre such as Islamabad or Rawalpindi, a location where he would not face a real chance of serious harm because of his Shia, Bangash, Pashtun and Parachinar background, or his imputed political opinion.

(Footnote omitted.)

A footnote at the end of [48] referred to the following publication: DFAT, Country Information Report: Pakistan, 14 April 2015.

(g)    At [52], the Tribunal addressed the appellant’s submission that relocation to another area may not be “legally accessible” to the appellant because of restrictions on freedom of movement, mainly as a consequence of violence by non-state actors and the Pakistani government’s failure to protect its people. In this context, the Tribunal again referred to DFAT’s advice, in its most recent country report on Pakistan, that in many cases there were options for members of most ethnic and religious minorities to relocate to “areas of relative safety elsewhere in Pakistan” and that larger urban centres such as Lahore and Islamabad offered “greater opportunities for employment, access to services and a higher level of state protection”.

(h)    The Tribunal referred, at [53], to another submission by the appellant’s representative that it would be unreasonable and impractical for the appellant to relocate. The matters raised on behalf of the appellant were considered at [54]–[60]. The Tribunal concluded, at [61], that the appellant’s internal relocation within Pakistan would be reasonable in the circumstances.

(i)    Accordingly, the Tribunal concluded, at [62], that the appellant did not have a well-founded fear of persecution if he returned to Pakistan in the foreseeable future.

21    Following this analysis, the Tribunal next considered whether the appellant met the ‘complementary protection’ criteria under s 36(2)(aa) of the Act at [63]–[70] of its reasons. At [66], the Tribunal accepted there to be a real risk that the appellant would suffer significant harm from militants as a necessary and foreseeable consequence of the appellant being removed from Australia to Kurram Agency. The Tribunal noted that, under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant would suffer significant harm. The Tribunal, at [68], adopted its earlier reasons regarding relocation: “In this case, for the reasons set out above, the Tribunal has found that it would be reasonable for the applicant to relocate to an area of Pakistan such as Islamabad or Rawalpindi where there would not be a real risk that the applicant will suffer significant harm from the Taliban or Sunni militant groups on the basis of his religious or imputed political views.” Thus, the Tribunal concluded that it did not accept that there was a real risk that the appellant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan (at [68]).

22    The Tribunal therefore affirmed the decision of the delegate not to grant the appellant a protection visa.

The Federal Circuit Court decision

23    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. In his amended application, he relied on the following ground:

1.    The Tribunal constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, by misapplying the “real chance” test in assessing whether the applicant could safely relocate to Islamabad or Rawalpindi.

Particulars

a.    The applicant made various claims to face a real chance of serious or significant harm in Pakistan at the hand of the Taliban or other militant Sunni groups on the basis of his ethnicity (Pashtun), religion (Shia) or actual or imputed (anti-Taliban) political opinion.

b.    The Tribunal accepted that the applicant, his family, friends, acquaintances and other Shias had suffered various incidents of violence at the hands of Sunni militants. Furthermore, the Tribunal found that “[c]ountry information shows that Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni groups including the Taliban”. And the Tribunal was not satisfied that “at this juncture, the state of Pakistan can meet the level of protection which citizens are entitled to expect”.

c.    However, the Tribunal found that Shias are “relatively” safe in cities such as Islamabad or Rawalpindi, compared to the applicant’s home area of the Kurram Agency. On the basis of this finding, the Tribunal concluded that the applicant would not face a “real chance” of harm in cities such as Islamabad or Rawalpindi.

d.    That involved a misapplication of the “real chance” test. The “real chance” test is objective, not relative.

24    The following aspects of the reasons of the primary judge are noted:

(a)    The primary judge referred, at [7], to the judgment of the High Court in SZATV.

(b)    The primary judge noted, at [9], that the dispute between the parties focused on the proper construction of the Tribunal’s reasons and whether or not the Tribunal correctly applied the ‘real chance’ test.

(c)    The appellant’s contention, as summarised at [11] of the primary judge’s reasons, was that the Tribunal erred by impermissibly comparing different parts of Pakistan in determining whether or not it was reasonable for the appellant to relocate to a different area of Pakistan.

(d)    The Minister’s contention, as summarised at [19] of the primary judge’s reasons, was that the Tribunal, in using terms such as “relative safety elsewhere” and “greater degree of state protection”, was not comparing risks between areas but describing the risk as not being absolute.

(e)    As noted by the primary judge at [22], the Minister agreed with the appellant that if the Tribunal was found to have compared areas of Pakistan when applying the ‘real chance’ test, this would be an error.

(f)    The primary judge’s key reasoning was as follows (at [28]):

    I have carefully considered the arguments put forth by both counsel and the wording of the Tribunal’s decision. When the decision is read fairly as a whole rather than focusing attention on the paragraphs counsel have highlighted, a fair reading of the text supports the Minister’s contention that the use of phrasing including “relatively” is not comparing the safety of urban centres as compared to the [Kurram Agency] or other areas but rather is expressing a view about the urban area being relatively safe as opposed to being absolutely safe. In hindsight it would have been better if the Tribunal had avoided using that language.

25    The primary judge concluded that the appellant had not established his ground for review, and dismissed the application.

The appeal to this Court

26    The appellant’s notice of appeal contains the following ground:

1.    The primary judge erred by concluding that, when the second respondent (Tribunal) made findings using “phrasing including ‘relatively’”, the Tribunal was “not comparing the safety of urban centres as compared to the [Kurram Agency] or other areas”, and determining the application for judicial review of the Tribunal’s decision on this basis.

Particulars

a.    The appellant made various claims to face a real chance of serious or significant harm in Pakistan at the hands of the Taliban or other militant Sunni groups on the basis of his ethnicity (Pashtun), religion (Shia) or actual or imputed political opinion (anti-Taliban).

b.    The Tribunal accepted that the appellant, his family, friends, acquaintances and other Shias had suffered violence at the hands of Sunni militants. Furthermore, the Tribunal found that “[c]ountry information shows that Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni groups including the Taliban”.

c.    However, the Tribunal found that Shias are “relatively” safe in cities such as Islamabad or Rawalpindi, compared to the appellant’s home area of the Kurram Agency. In particular (but without limitation), the Tribunal found that: (i) such cities “reportedly experience lower levels of violence relative to other parts of Pakistan”; (ii) “the security situation in Islamabad is relatively free from politically-motivated, terrorist and sectarian violence”; (iii) “urban centres tend … to be more secure than rural areas”; (iv) “there are options for members of most ethnic and religious minorities to relocate to areas of relative safety elsewhere in Pakistan”.

d.    Based on these findings (at least in part), the Tribunal concluded that the appellant did not satisfy the criteria in s 36(2) of the Migration Act 1958 (Cth) (Act). The Tribunal thereby made a jurisdictional error.

e.    As explained in cases such as SZVJE v Minister for Immigration [2016] FCCA 594, the test of whether there is a real chance that an applicant will suffer harm in a place “is not a relative one”; “[i]t is not determinative whether the risk in one place is ‘less severe’ than the risk in another place”.

f.    The Federal Circuit Court determined the application for judicial review solely on the basis that “the use of phrasing [by the Tribunal] including ‘relatively’ is not comparing the safety of urban centres as compared to the [Kurram Agency] or other areas but rather is expressing a view about the urban area being relatively safe as opposed to being absolutely safe”. That was incorrect.

Applicable principles

27    The principal authority relating to the ‘internal relocation’ principle is SZATV. In that case, Gummow, Hayne and Crennan JJ (with whom Callinan J relevantly agreed) observed (at [12]) that the Convention definition of “refugee” is drawn into Australian municipal law by s 36(2) of the Act, which supplies a criterion for the grant of a protection visa. Their Honours added (at [15]) that any principle respecting ‘internal relocation’ must be distilled from the text of the Convention. The critical portion of Art 1A(2) of the Convention definition of “refugee” states that that 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 …

28    Gummow, Hayne and Crennan JJ accepted as correct the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 as to how the internal relocation principle finds its place in the Convention definition (at [19]). His Lordship said (at 440):

The Refugee 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 would 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.

29    After setting out that passage, Gummow, Hayne and Crennan JJ provided the following additional explanation (at [20]–[22]):

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.)

30    Having noted that the Minister framed the issue as whether it would be reasonable, in the sense of practicable, for an applicant for refugee status to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, their Honours said: “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” (at [24]).

31    Consistently with the above passages from SZATV, the principles concerning internal relocation were discussed in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at [21]–[30] and [39]–[44].

32    Thus, there are two aspects to the internal relocation principle that need to be considered. The first is whether there is a place (or places) in the country of nationality where the applicant for refugee status would not have a well-founded fear of persecution on a Convention ground. The second is whether it would be reasonable in the circumstances for the person to relocate to that place (or one of those places). The issue in the present case concerns the first aspect, not the second.

33    I note for completeness that the appellant submits that the Tribunal must be positively satisfied of the two matters referred to in the preceding paragraph. Although in his written submissions the Minister accepted that the Tribunal needed to be positively satisfied of these matters, during the course of the hearing the Minister amended paragraph 31 of his written submissions to the effect that the Tribunal must consider each of these matters. It is not necessary for present purposes to decide between these formulations.

34    In applying the Convention definition of “refugee”, the High Court has held that a fear of persecution will be “well-founded” if there is a ‘real chance’ that the refugee will be persecuted if returned to their country of nationality. Further, the High Court has explained that there is a ‘real chance’ of persecution if the chance of persecution occurring in the future can be described as being more than ‘remote’, or more than ‘far-fetched’, even though there may be less than a 50% chance of it occurring: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407 and 429.

35    The ‘real chance’ test is an objective one, whereby the decision-maker considers whether there is more than a remote or far-fetched chance of the applicant being harmed in a place. It is not a relative test whereby the decision-maker compares the chance of the applicant being harmed in one place relative to another place. I note that in SZVJE & Ors v Minister for Immigration & Anor [2016] FCCA 594, Judge Driver said: “The test of whether there is a real chance or a real risk of harm is not a relative one. It is not determinative whether the risk in one place is ‘less severe’ than the risk in another place. What matters is the actual level of risk in any particular place” (at [20]). I respectfully agree with this statement of principle.

36    There does not appear to be any dispute between the parties as to the principles set out in the preceding paragraph. In the Minister’s written submissions, the Minister submits that: it is true that a finding that a person faces a lower risk of harm in one place compared with another place is not the same as a finding that the person does not face a real chance of serious harm in the first-mentioned place; the risk of harm in one place may be lower than the risk in another place, and yet a person may still face a real chance of serious harm in the first-mentioned place; and a Tribunal that fails to consider whether there is, in fact, a real chance of harm will fall into jurisdictional error.

37    While the abovementioned statements of principle relate to the criteria for a protection visa on Convention grounds under s 36(2)(a) of the Act, similar principles also apply to the ‘complementary protection’ grounds in s 36(2)(aa). It has been held that the ‘real risk’ test in s 36(2)(aa) imposes the same standard as the ‘real chance’ test in s 36(2)(a): Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [246] per Gordon and Lander JJ (Besanko and Jagot JJ agreeing at [297], Flick J agreeing at [342]). In the context of ‘complementary protection’, the internal relocation principle is expressly prescribed by s 36(2B)(a) of the Act. Pursuant to that provision, an applicant is not eligible for a protection visa under s 36(2)(aa) in circumstances where “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”.

38    Finally, also relevant to the present appeal are the principles discussed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In that case, Brennan CJ, Toohey, McHugh and Gummow JJ considered the proper role of a reviewing court at 271–272. Their Honours noted that, on the face of the delegate’s assessment of the first respondent’s claims, the delegate had correctly directed herself to the test which she had to apply. After setting out a passage from the Full Court’s reasons, their Honours observed that the delegate had started and finished with the correct test, and that it was only some phraseology in between that provided the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities. Brennan CJ, Toohey, McHugh and Gummow JJ then said (at 271–272):

When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

(Footnotes omitted.)

Consideration

39    The Minister submits that the primary judge was correct to conclude that, when the Tribunal’s decision is “read fairly as a whole”, it shows that the Tribunal did consider whether the appellant would face a real chance of serious harm in urban centres such as Islamabad or Rawalpindi; and not merely whether the risk of harm in those places was lower than in other places in Pakistan. The Minister’s submissions may be summarised as follows:

(a)    The Tribunal expressed a specific conclusion about whether the appellant faced a real chance of serious harm in urban centres. At [51] of the Tribunal’s reasons, the Tribunal said that it was “not satisfied that the applicant faces a real chance of serious harm … within the entirety of Pakistan”, and specifically found that the applicant “would not face a real chance of serious harm because of his Shia, Bangash, Pashtun and Parachinar background, or his imputed political opinion” in an urban centre such as Islamabad or Rawalpindi. While the Minister accepts that the fact that the Tribunal expressed its conclusion in terms of the correct test is not determinative (see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 595), it does help to demonstrate that the Tribunal applied the correct test.

(b)    The reasons that the Tribunal gave for this finding indicate that it did not base the finding solely on evidence that the risk of harm in urban centres like Islamabad and Rawalpindi was lower than in other places. Rather, there was material before the Tribunal from which it was open for the Tribunal to conclude that the risk that the appellant would face serious harm in those areas was remote: see, in particular, [42] and [50] of the Tribunal’s reasons. Taken together, these passages clearly indicate that, in determining whether the appellant would face a real chance of serious harm in urban centres like Islamabad and Rawalpindi, the Tribunal turned its mind to the objective likelihood that the appellant would face serious harm in those places, and not just whether the risk of harm in those places was lower than in other places.

(c)    The Tribunal considered the question whether the appellant would face a real chance of serious harm (or a real risk of significant harm) in a number of different contexts in its reasons, not just in relation to the question of internal relocation: see, in particular, [21], [30]–[31], [38] and [68] of the Tribunal’s reasons. The appellant does not suggest that the Tribunal erred in applying the ‘real chance’ test at either [21] or [30]–[31]. It is highly improbable that the Tribunal would adopt the correct, objective approach to determining whether the appellant faced a real chance of serious harm at these two points in its reasons, only to adopt a different and erroneous approach to applying the same legal test at a different point in its reasons. When [21] and [30]–[31] are read together with [38] and [68], it is clear that the Tribunal was aware that the ‘real chance’ test is an objective test, which required it to form a state of satisfaction about whether the chance that the appellant would face serious harm in urban centres such as Islamabad or Rawalpindi was ‘real’, in the sense that it was appreciable and not remote.

(d)    As the Tribunal plainly understood that the ‘real chance’ test (and the ‘real risk’ test) is objective, the primary judge was correct to find that a fair reading of the Tribunal’s reasons – and the preferable reading of those reasons – was that the Tribunal correctly applied that test throughout its decision, including in relation to the issue of internal relocation. For the reasons given above, that reading of the Tribunal’s reasons was open to the Federal Circuit Court, and the Federal Circuit Court was required to give the Tribunal’s reasons a beneficial construction where possible.

(e)    The primary judge’s finding concerning the Tribunal’s “use of phrasing including ‘relative’” (at [28]) is best understood as a finding that, where the Tribunal used words such as “relative” or “relatively” in connection with its application of the ‘real chance’ test (at [48]–[51]), those words can be explained on the basis that the Tribunal was recognising that urban areas in Pakistan were not absolutely safe, in the sense of being entirely free from danger. The Federal Circuit Court’s finding was not expressed as applying to every use of the word “relatively” in the Tribunal’s reasons, and should not be understood in that way.

(f)    It is open to read the word “relatively” in [48] of the Tribunal’s reasons as meaning “mostly, albeit not absolutely”, rather than as indicating that the Tribunal was comparing Islamabad to a specific other place. The Tribunal explicitly acknowledged that Islamabad and Rawalpindi were not entirely immune from security incidents. Other uses of the word “relative” following this paragraph are open to a similar interpretation.

40    As noted above, the basis upon which the primary judge concluded that the Tribunal had not made a jurisdictional error was that the Tribunal was not, when using phrasing including “relatively”, comparing the safety of urban centres with Kurram Agency or other areas, but was expressing a view about the urban areas being relatively safe as opposed to being absolutely safe. In my respectful opinion, this is not a correct construction of the Tribunal’s reasons. My reasons are as follows.

41    First, the Tribunal’s reasons at [49]–[51] need to be read in the context of what the Tribunal said at [42]. This was where the Tribunal introduced the DFAT information concerning Islamabad and Rawalpindi. It is clear that, when the Tribunal referred to “DFAT’s assessment” (in [48]) and “DFAT’s advice” (in [50]), it was referring to the DFAT information that had been introduced at [42]. The DFAT advice or information described in [42] was in relative terms. In particular:

    in the opening lines of [42], the Tribunal (relying on the DFAT advice set out in the footnote) said that Islamabad and Rawalpindi “reportedly experience lower levels of violence relative to other parts of Pakistan”;

    in the second bullet point in [42], the Tribunal (relying on information from DFAT) said that there were options available for members of most ethnic and religious minorities, including Shias, to be able to relocate to “areas of relative safety elsewhere in Pakistan”; and

    in the third bullet point in [42], the Tribunal (relying on information from DFAT) said that many urban centres such as Islamabad offer “a greater degree of state protection”.

42    While the first bullet point in [42], which states that Pakistan is a diverse country and the security situation “varies greatly from place to place”, does not necessarily indicate the adoption of a relative approach, the opening lines of [42] and the second and third bullet points in [42] are expressed in relative terms. That is, they involve a comparison between the level of violence, safety or state protection in one place and another.

43    Secondly, the terms in which the Tribunal expressed its findings in [48] and [49] indicate that it was comparing one area with another:

    In [48], the Tribunal noted DFAT’s assessment that the security situation in Islamabad (and Lahore) was “relatively free from politically-motivated, terrorist and sectarian violence”. On its face, this finding is expressed in relative terms. This reading is confirmed when regard is had to the opening lines of [42] which state (on the basis of the same DFAT information) that Islamabad reportedly experienced “lower levels of violence relative to other parts of Pakistan”.

    In the second sentence of [49], the Tribunal (reflecting the second bullet point in [42]) stated that there were options available for members of most ethnic and religious minorities, including Shias, to be able to relocate to “areas of relative safety elsewhere in Pakistan”.

    In the last sentence of [49], the Tribunal (reflecting the third bullet point in [42]) stated that large urban centres such as Islamabad offered “a higher level of state protection”.

44    Thirdly, that the Tribunal was comparing the safety of urban centres with the safety of Kurram Agency is reinforced by the language used in [52]. In the last sentence of this paragraph, the Tribunal again noted DFAT’s advice that, “in respect of internal relocation, in many cases there are options for members of most ethnic and religious minorities to relocate to areas of relative safety elsewhere in Pakistan” and that large urban centres such as Lahore and Islamabad offered “a higher level of state protection”.

45    Fourthly, it is important to have regard to the earlier finding of the Tribunal, at [23], that “[c]ountry information shows that Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni groups including the Taliban”. This finding was made in relation to Pakistan generally, not just Kurram Agency. In light of this finding, it is improbable that the Tribunal’s findings at [48]–[49] were to the effect that the urban areas were safe; it is much more likely that the Tribunal merely found that they were safer than other areas.

46    Fifthly, to read the Tribunal’s reasons at [42], [48], [49] and [52] in this way is consistent with the principles described by the High Court in Wu Shan Liang. This is not a matter of looseness of language or unhappy phrasing. The Tribunal’s use of relative words throughout [42], [48], [49] and [52] indicates, as a matter of substance, the nature of the findings that it made.

47    Sixthly, it is not to the point that [50] of the Tribunal’s reasons is not expressed in relative terms. The conclusions in [50] depend on the findings in [48] and [49]. This is made clear by the references in [50] to DFAT’s advice, being the same advice relied upon in [48] and [49]. Thus, if the reasoning in [48] and [49] is flawed, so too are the conclusions in [50]. I note for completeness that, at the end of [50], the Tribunal stated that relocation to a large urban centre “may” offer a safe haven. The conditional way in which that conclusion was expressed is consistent with the adoption of a relative rather than an objective approach.

48    In light of the above matters, I do not accept that the Tribunal was using phrasing such as “relatively” in the sense of ‘relatively safe’ as opposed to ‘absolutely safe’ (as concluded by the primary judge) or as meaning ‘mostly, albeit not absolutely’ (as submitted by the Minister). To the contrary, the matters set out above demonstrate that the Tribunal used words such as “relatively” in [42], [48], [49] and [52] to signify a comparative assessment of the level of violence, the level of safety or the degree of state protection in one place as compared with another.

49    For these reasons, I consider that the primary judge erred in her construction of the Tribunal’s reasons.

50    I also consider, for essentially the same reasons, that the Tribunal’s approach amounted to a jurisdictional error. Considering the Tribunal’s reasons as a whole, the Tribunal adopted a relative, rather than an objective, approach in applying the ‘real chance’ test in the context of the internal relocation issue. This is demonstrated by the aspects of [42], [48], [49] and [52] of the Tribunal’s reasons discussed above. It is true that the Tribunal correctly stated the ‘real chance’ test at the beginning of its consideration of the relocation issue (at [38]) and expressed its conclusion (at [51]) in terms of the ‘real chance’ test. But this does not overcome the difficulty that its findings on the issue (at [48]–[49]) were merely relative findings rather than findings that would sustain the conclusion at [51]. As explained above, the conclusions in [50] depend on the findings in [48] and [49]. In these circumstances, and notwithstanding that the Tribunal correctly applied the ‘real chance’ test elsewhere in its reasons, I consider that it misapplied the ‘real chance’ test in the context of the relocation issue. This amounted to a jurisdictional error.

Conclusion

51    For these reasons, the appeal is to be allowed and orders made as described in [11] above. There is no apparent reason why costs should not follow the event. Accordingly, I will make orders to this effect, both in respect of the proceeding before the Federal Circuit Court and the appeal.

Associate:

Dated:    12 July 2017