FEDERAL COURT OF AUSTRALIA

CYF16 v Minister for Immigration and Border Protection [2018] FCA 2034

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to file and rely on the further amended notice of appeal dated 31 May 2018.

2.    The appeal be allowed.

3.    Order 1 of the Federal Circuit Court of Australia made in SYG2749/2016 on 14 November 2017 be set aside and in lieu thereof it be ordered that:

(a)    order absolute in the first instance for a writ of certiorari to remove into the court, for the purpose of it being quashed, the decision of the second respondent dated 1 September 2016 to affirm a decision of a delegate of the first respondent to refuse to grant a protection visa to the applicant; and

(b)    order absolute in the first instance for a writ of mandamus directing the second respondent to review, according to law, the decision of a delegate of the first respondent to refuse to grant a protection visa to the applicant.

4.    The first respondent pay the appellant’s costs of the appeal.

5.    If he wishes to do so, the appellant file and serve any submissions, not exceeding two pages in length, in relation to Order 2 of the Federal Circuit Court of Australia made in SYG2749/2016 on 14 November 2017 (Order 2) by 16 January 2019.

6.    If the appellant files and serves submissions in accordance with Order 5, the first respondent is to file and serve any submissions in reply, not exceeding two pages in length, by 25 January 2019.

7.    If submissions are filed by the parties in accordance with Orders 5 and 6, the issue of whether Order 2 should be set aside and a different order made will be determined on the papers.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The appellant appeals from a decision of the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Tribunal): CYF16 v Minister for Immigration [2017] FCCA 3108 (CYF16). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a Protection (Class XA) visa (Visa).

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

Background

3    The appellant is a citizen of Pakistan born in Sarobi Garhi, Orakzai Agency. He applied for the Visa on 20 November 2012. That application was refused by a delegate of the Minister on 6 March 2013.

4    On 23 July 2013 the delegate’s decision was affirmed by the predecessor to the Tribunal, the Refugee Review Tribunal (RRT). The RRT’s decision was ultimately set aside by this Court in 2016 and the matter was remitted to the Tribunal to reconsider.

5    On 1 September 2016 the Tribunal affirmed the delegate’s decision to refuse the Visa.

The APPELLANT’S claims

6    The appellant claimed to fear harm as a Shia Muslim of Pashtun ethnicity that was identifiable by his name, appearance and accent, among other things. Relevantly, the appellant claimed that:

(1)    following his birth, he lived in Sarobi Garhi with his family. From 1984 to 1994 he resided in the nearby town of Kurez;

(2)    in 1995 he relocated to Kohat, which was about an hour by car from his family home in Kurez, to undertake studies. The appellant found it “difficult to assimilate” to life in Kohat as tribal practices differed and he was clearly identified as not being a local;

(3)    in 1996 the appellant married in Kurez in Orakzai Agency and from 1996 to 1998, the appellant lived at various locations in Orakzai Agency;

(4)    in 1998 the appellant relocated to Dubai. While there, he made several trips back to visit family and holiday in Pakistan in 2002, 2004, 2005, 2008 and 2010 for two to three months at a time;

(5)    by 2007 the appellant observed escalating violence between Shia Muslims and the Taliban as well as the forceful recruitment of Shias to fight against the Taliban. The appellant claimed that two of his cousins had been recruited by the Shia militia and that they had attempted to recruit him too. He also claimed that five or six members of his extended family had been killed in bombings and suicide killings and another relative had been kidnapped by the Taliban; and

(6)    in or around 2010, during a car ride from a Pakistani airport to his family home, the vehicle he was in was fired at by the Taliban when it approached a roadblock in a Taliban controlled area. The appellant was not injured in the incident but several other passengers were hurt.

7    After living in Dubai for 12 years the appellant claimed that “his mind set had become relatively liberal” and, as a result, “he felt ostracised by the community and his family” in Pakistan who scolded him for being a “bad Muslim” because in Dubai he had “friendships/romantic relationships with women and enjoyed Indian music and movies”.

8    While before the RRT the appellant claimed to fear harm because he was a Shia Muslim of Pashtun ethnicity, before the Tribunal, the appellant claimed that he is now agnostic and has not practised his Shia Muslim faith in Australia. He said that, notwithstanding his new religious status, if he returned to Pakistan he would still be identified as a Shia Muslim and would be compelled to practice that faith due to pressure from his family and the community. The appellant also said he was concerned that he would have an imputed political opinion of being opposed to militant views because he had spent time in a Western country.

9    The appellant also claimed that he would be unable to relocate within Pakistan for a number of reasons, including that:

(1)    he would be recognised as a Shia Muslim of Pashtun ethnicity. The majority of Pashtuns are Sunni Muslims not Shia Muslims and the appellant, as a minority within his own ethnic group, may face a greater degree of harm at the hands of other Pashtuns who may see him as a traitor and an infidel;

(2)    he does not have any support networks outside of the Orakzai Agency as he has never resided outside this area, except for a brief period in Kohat as outlined at [6] above. Pakistani culture is such that family support is essential for one to subsist. He cannot relocate to Peshawar because there are too many Taliban there and he cannot live in the Punjab because Punjabis do not like Pashtuns;

(3)    if he relocated he would face employment and living issues. He claimed that accommodation was expensive and that he would only be able to work as a driver which would mean that he would have limited earnings and not be able to support his family. He also said that driving in Pakistan is dangerous and would expose him to persecution as he would be required to deal with checkpoints;

(4)    the security situation in Pakistan is volatile;

(5)    if he was required to relocate to an area such as Hyderabad he would need to apply for a new national identity card to integrate into society and access basic services. Country information indicated that the appellant would be required to return to the federally administered tribal areas (FATA), where he alleges he will be persecuted, in order to obtain the identity card; and

(6)    his family who remain in Pakistan are suffering. He claimed that his children could not go to school because of the Taliban and that they do not have a future in Pakistan which is why he wants his family to settle in Australia with him.

the tribunal decision

10    The Tribunal was prepared to accept that there was a risk of harm to the appellant if he returned to his home area in the FATA. It was prepared to accept that the appellant would be perceived to be a Shia Muslim in his home area and accepted that the appellant would practice his religion out of fear in his home area if he were to return there. The Tribunal accepted that, in those circumstances, the appellant would be at risk of harm from the Taliban, perhaps other Sunni extremists and Shia militant groups in his home area in Pakistan.

11    The Tribunal was prepared to accept the appellant’s evidence about his claims concerning the difficulties he encountered when he returned to his home area in Pakistan since 2007 that:

(1)    in 2010 his vehicle was attacked by Taliban militants;

(2)    on two occasions since 2007 Shia militants had attempted to forcibly recruit him to fight against the Taliban; and

(3)    he was told that if he were to return to his home area he would be forcibly recruited by those militants.

12    The Tribunal accepted that the risk of harm to the appellant in his home area was due to a combination of his Shia religion and Pashtun ethnicity, that he would be identified as a Shia and that he would have an imputed political opinion that he is opposed to the Taliban and Shia militants.

13    However, the Tribunal did not accept that the appellant faced a real chance of serious harm if he returned to Pakistan and relocated to an area such as Hyderabad. The Tribunal did not accept that the appellant would face a real chance of serious harm by reason of his ethnicity, imputed political opinion or religious beliefs outside of his home area. Its overall assessment of the country information was that Shias are most at risk when participating in religious processions or other similar activities and the evidence before the Tribunal did not suggest that the appellant would engage in that type of religious activity if he relocated.

14    The Tribunal referred to the appellant’s claims that he could not relocate because of the cost of living, difficulty he would face finding employment and because he would not be able to support his family. But the Tribunal found that the appellant was not particularly close to his family and was not satisfied that his family would relocate to join him if he returned to Pakistan. The Tribunal also found, based on country information and the appellant’s past employment history, that he would be able to find employment and accommodation in an area such as Hyderabad and send money to his family in the FATA.

15    The Tribunal found that it would be reasonable in the appellant’s particular circumstances for him to relocate to another part of Pakistan where there was no appreciable risk of the occurrence of the persecution that he fears in his home area. The Tribunal noted that it had taken into account that the appellant would not be able to return to his home area where his family lived but that, given other factors it had discussed, it did not consider it would be unreasonable for the appellant to relocate in Pakistan to avoid harm.

16    In relation to the appellant’s claim that he would need to obtain a new national identity card, the Tribunal found that the appellant could apply for a replacement card online and that he did not have to visit the FATA to obtain one.

17    The Tribunal concluded that, upon considering the appellant’s claims both individually and cumulatively, the appellant did not have a well-founded fear of persecution in Pakistan nor would he face a real chance of serious harm for a Convention based reason if he was returned to Pakistan either now or in the reasonably foreseeable future and relocated to an area such as Hyderabad. The Tribunal similarly concluded that there were not substantial grounds for believing that there is a real risk that he would suffer significant harm, including in terms of generalised or random violence, if he relocated to an area such as Hyderabad, away from his home area in the FATA.

Federal Circuit Court PROCEEDING

18    Before the Federal Circuit Court, the appellant raised a single ground of review, namely that:

1.    The Tribunal erred in misconstruing or misapplying the test of whether it was reasonable for the applicant to relocate within Pakistan, or otherwise asked itself the wrong question in holding that it would be reasonable for the applicant to relocate within Pakistan.

19    There were five particulars to the ground but it is only necessary to set out particular (e) which provided:

e.    The Tribunal found that it was reasonable for the applicant to relocate to Hyderabad: [85], [88]. In doing so, the Tribunal erred in:

i.    treating serious harm on the basis of a Convention ground as the only level or kind of harm which could affect the reasonableness of relocation (see MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032 at [61]); and/or

ii.    failing to consider whether a risk of harm that was remote impacted upon whether it was reasonable to expect the applicant to relocate (see MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 at [21]).

20    The primary judge accepted that there are two stages of inquiry into whether it is possible for a visa applicant to relocate within his or her country of nationality: first, whether there is objectively, an appreciable risk of harm in a particular area or country of nationality or of residence; and secondly, whether it is reasonable, in the sense of practicable, for a putative refugee to relocate to that area: CYF16 at [7].

21    The primary judge found that the Tribunal had accepted that the appellant had a well-founded fear of persecution in his home area of the FATA before it then turned to the question of relocation: CYF16 at [9]. In doing so, the primary judge found that the Tribunal:

(1)    first:

(a)    “assessed whether or not there was an appreciable risk or, put another way, a well-founded fear of persecution in other areas of Pakistan other than the [appellant’s] home area”: CYF16 at [10];

(b)    concluded that the appellant would not face a real chance of serious harm if he were to relocate to an area such as Hyderabad in Pakistan on the basis of his religious views, his Pashtun ethnicity or a number of other reasons, including the fact he had lived in a Western country prior to his hypothetical return to Pakistan: CYF16 at [10]; and

(4)    secondly, considered the reasonableness of relocation.

22    As to the latter issue, the primary judge noted that the Tribunal considered the security situation in various areas in Pakistan, the cost of living in other areas, the prospect of the appellant finding employment, the appellant’s obligation to support his family, whether the appellant’s family would relocate with him if he was to return to Pakistan and the question of employment and accommodation in areas such as Hyderabad. The primary judge then set out [84] of the Tribunal’s decision record where his Honour noted that the Tribunal considered the question of risk of harm and where his Honour found that the Tribunal expressly addressed the submission that it would not be reasonable for the appellant to relocate because of communal violence on religious grounds.

23    The primary judge rejected the appellant’s submission that at [84] the Tribunal did not deal with the submission that the appellant would be perceived, regardless of his agnosticism, to be a Shia in Pakistan for reasons including his name, tribe and the societal pressure from his community to practice Islam. His Honour found that, having accepted that the appellant was neither agnostic in terms of practising his religion, there was no other basis for the Tribunal considering how he might be impacted as a Shia other than that he might be imputed with such a faith by reason of the matters put forward by him. The primary judge found that this latter basis was expressly referred to by the Tribunal at [75] of its decision record: CYF16 at [15].

24    The primary judge then noted that, having assessed the risk in the context of reasonableness, the Tribunal then summarised its findings at [85] where it stated that “it would be reasonable, in the [appellant’s] particular circumstances, for him to relocate to another part of Pakistan where there was no appreciable risk of the occurrence of the persecution that he fears in his home area”. The primary judge considered that the Tribunal’s reference to the appellant’s “particular circumstances” included a reference to its findings at [84] of its decision record which dealt with the risk of harm which was said to arise if the appellant were to relocate to Hyderabad. The primary judge found that the reference to “appreciable risk of harm” referred to in the Tribunal’s earlier findings was a reference to its earlier finding that it made “prior to turning to the reasonableness of relocation”. The primary judge found that the structure of the Tribunal’s reasons clearly showed that it did not err by conflating the two areas of inquiry: CYF16 at [17]-[19].

The Appeal

25    In his amended notice of appeal filed on 6 March 2018 the appellant raises one ground of appeal. At the hearing the appellant sought leave to file a further amended notice of appeal raising an additional ground. The grounds in the further amended notice of appeal are:

1.    The Federal Circuit Court (FCC) erred in failing to hold that the second respondent (Tribunal) had erred by misconstruing or misapplying the test of whether it was reasonable for the appellant to relocate within Pakistan, or otherwise asked itself the wrong question in holding that it would be reasonable for the appellant to relocate within Pakistan.

Particulars

a.    The FCC erred by one or more of:

i.    holding that, at [84] of the Tribunal’s decision (Tribunal’s Decision), the Tribunal had dealt with the appellant’s submission that it would not be reasonable for the appellant to relocate to Hyderabad because of communal violence on religious grounds: Judgment [14];

ii.    treating [84] of the Tribunal’s Decision as assessing the impact of risks faced by the appellant, aside from the risk that the appellant would face if he participated in religious activities, upon the reasonableness of the appellant relocating to Hyderabad: Judgment [15], [17];

iii.    holding that the Tribunal did not conflate the two areas of inquiry that arose in respect of relocation, Ie, whether there was objectively, an appreciable risk of harm in Hyderabad, and secondly, whether it was reasonable, in the sense of practicable for the appellant to relocate to Hyderabad: Judgment [7], [18].

b.    The FCC should have held that the Tribunal erred in failing to consider whether a risk of harm that was remote impacted upon whether it was reasonable for the appellant to relocate, or otherwise erred in the manner identified in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212.

2.    The FCC erred in not finding that the Tribunal failed to take into account the claim and component integers thereof of the claim before it as to why it was not reasonable for the appellant to relocate

Particulars

The following claims and/integers of claims were made and/or clearly arose on the material before the Tribunal, but were not considered:

a.    the appellant’s visitation of his family. The Tribunal found that the appellant’s family would not relocate to join him but did not consider whether or not the appellant would seek to visit them, or them him, or the reasonableness of this occurring from Hyderabad;·

b.    the risk associated with travel in Pakistan, within the context of the appellant’s separation from his family and claimed employment as a driver;

c.    whether it was reasonable for the appellant to be deprived of his social and communal ties and the psychological impact thereof;·

d.    the risk to the appellant and his family by reason of having previously come to the attention of the Taliban and its supporters.

(underlining and strike-out omitted)

Ground one

26    By ground one the appellant alleges that the primary judge erred in not finding that the Tribunal erred in its application of the test for relocation.

27    Ground one focuses on [84]-[85] of the Tribunal’s decision record where the Tribunal said:

84.    The Tribunal has also considered the issue of state protection in Pakistan if the [appellant] were to return to Pakistan either now or in the reasonably foreseeable future. In that regard the Tribunal notes the DFAT thematic report for Shias in Pakistan which indicates that the Department assessment is that Pakistani authorities are broadly willing to protect Shia communities but as indicated the Tribunal does not accept the [appellant] would participate in religious activities outside his home area in Pakistan. The DFAT country report in referring to state protection notes that the Department assessment is state protection in Pakistan is limited by resource shortages, personal means and in some cases political will. However as indicated given the Tribunal’s assessment of the [appellant’s] profile the risk to the [appellant] would appear to be greater, based on country information, if he participated in religious activities in terms of the Shia Muslim faith outside of his home area and given the [appellant] would not participate in such religious activities unless he was forced to, the Tribunal’s assessment is the [appellant] does not face such a risk outside his home area in the FATA. The country information that has been referred to elsewhere in these reasons also suggests that the security position overall in the FATA region is improving.

85.    The Tribunal after considering the totality of the evidence and country information finds that it would be reasonable in the [appellant’s] particular circumstances for him to relocate to another part of Pakistan where there was no appreciable risk of the occurrence of the persecution that he fears in his home area. …

Appellant’s submissions

28    The appellant relies on the decisions in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 (MZACX), MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 (MZZJY) and MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 (MZYQU). The appellant submitted that the primary judge erred in failing to find that the Tribunal misapplied the test for relocation and fell into the same error as was found in each of those decisions.

29    The appellant submitted that the primary judge erred because, contrary to his Honour’s findings, at [84] and [85] of its decision record the Tribunal was not dealing with any differential standard of harm to that applied in the conclusory sentences. He further submitted that there was an insufficient basis for concluding that the “particular circumstances” referred to in [85] were intended to invoke a different assessment to that conducted in the balance of the sentence in [85]. The appellant observed that that very phrase did not save the reasoning in MZACX.

30    The appellant contended that the Tribunal’s reasoning was affected by the same vice as was identified at [48]-[49] of MZACX as follows:

48    The fact that a risk of serious harm, or that a person may be the victim of ethnically motivated crime, is remote does not answer the question whether it is reasonable, having regard to all the circumstances of a visa applicant, that the applicant face that risk. Further, the Tribunal did not directly address the appellant’s claim that he would face a risk of harm, particularly during attendance at Shia Muslim mosques or participation in religious festivals. In considering whether or not it was reasonable for the appellant to relocate to Islamabad or Rawalpindi, the Tribunal was obliged, as Davies J said in MZZJY [2014] FCA 1394 at [21], to consider the practical realities for him.

49    Instead, in this case, the Tribunal’s analysis persistently confused the issue of whether there was no appreciable risk of the occurrence of the feared persecution in Islamabad or Rawalpindi with the different issue of whether the risk of harm by reason of his Shia Muslim or Turi identity militated against relocation in all the circumstances of his case. The conclusion in paragraph [47] cannot be untied from this confusion. Indeed, the extent of the confusion is emphasised by the fact that the statement set out in [17] above (that there is less than a remote chance of the appellant being targeted on the basis of his Shia religion or as a member of the Turi tribe from Parachinar or being caught up in the generalised or sporadic violence which may occur in the country including in Islamabad and Rawalpindi) does not appear to flow out of the Tribunal’s preceding analysis. Instead, this further confusion only emphasises the Tribunal’s failure to consider whether relocation was reasonable, having regard to all the circumstances of the appellant’s case, including whether the appellant faced a risk of harm in these cities by reason of his religion or ethnicity. The failure to address this question resulted in jurisdictional error.

31    In the alternative, the appellant submitted that the Tribunal fell into the same error as found in MZYQU at [61]. This was said to be because, when considering harm in the context of both limbs of the relocation test, the Tribunal only considered the risk of the occurrence of serious harm and thus failed to consider the impact of harm that was less than serious harm in the application of the second limb of the relocation test.

Consideration

32    The principles governing the test for relocation were summarised by Kenny J in MZACX at [24]-[26] as follows:

24    The requirement that a “fear” be “well-founded” in Art 1A(2) of the Convention “incorporates a consideration as to whether a claimant for refugee status can relocate within the country of his nationality so as to avoid persecution”: see MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [8], citing SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [19]-[22]. A person is not a refugee within the meaning of the Convention if he or she could obtain real protection in his or her country of nationality by relocating to another part of the country. The “factum upon which the principle of relocation operates is that there is an area in the visa applicant’s country of nationality where he or she may be safe from harm”: Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [25] (French CJ, Hayne, Kiefel and Keane JJ). Further, it “may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”: SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; 233 CLR 51 at [14] (Gummow, Hayne and Crennan JJ). This analysis is taken up by Australian law in s 36(2) of the Migration Act, set out above.

25    The issue of relocation does, however, raise the separate and distinct issue of reasonableness since “[w]hat 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”: SZATV 233 CLR 18 at [24]; see also SZFDV 233 CLR 51 at [14]; and SZSCA 254 CLR 317 at [25].

26    Clearly enough, whether relocation to a particular place is reasonable can raise different issues to those raised by the question whether a visa applicant faces a “fear of persecution”. Unlike fear of persecution, the reasonableness of relocation imports a question of practicability, the boundaries of which are different from fear of persecution for a Convention reason and in the Convention sense, even though the question of persecution in the Convention sense remains: see SZFDV 233 CLR 51 at [14]; SZATV 233 CLR 18 at [24] and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; 52 FCR 437 at 443 (Black CJ, Whitlam J agreeing).

33    Before turning to consider the appellant’s submissions, it is convenient to set out a summary of each of the decisions relied on by the appellant to support ground one:

(1)    in MZYQU at [61] Dodds-Stretton J held that the Independent Merits Reviewer (IMR) erred not in considering that a risk of serious harm (as required by s 91R(1)(b) of the Migration Act 1958 (Cth)) 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. Her Honour explained at [60] that the IMR proceeded on the basis that, unless the harm was serious harm within the meaning of s 91R(1)(b), it was unnecessary for it to consider the impact of the risk of harm in the form of generalised violence or harm due to personal circumstances on the reasonableness of the appellant’s relocation;

(2)    in MZZJY Davies J held that the Tribunal erred in applying the relocation test. At [21] her Honour accepted the applicant’s contention that the Tribunal had conflated the two limbs of the relocation test, “appreciable risk” and “reasonableness”, by finding that the applicant could be reasonably expected to relocate to Karachi where there was not an appreciable risk of the occurrence of the feared persecution. Her Honour found that the Tribunal did not consider the practical realities facing the applicant as a person at risk of attack in Karachi because of his religion and that, in doing so, wrongly elided the question posed by the reasonableness criterion with the inquiry into whether there is a lack of appreciable risk of harm. Her Honour continued:

… 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.

(3)    in MZACX at [49] Kenny J found that the Tribunal’s analysis confused the issue of whether there was no appreciable risk of the occurrence of feared persecution in Islamabad or Rawalpindi with the different issue of whether the risk of harm by reason of his Shia Muslim or Turi identity militated against relocation in all the circumstances of the appellant’s case as set out at [30] above.

34    It is, as the Minister submitted, necessary to consider this ground having regard to the structure of the Tribunal’s decision record. As the primary judge found, the structure of the Tribunal’s reasons clearly indicate that it was aware of the two limbs of the test for relocation and that it dealt with the question of relocation according to the two elements of the test.

35    At [70]-[79] of its decision record the Tribunal addressed the first limb of the test: whether there was an appreciable risk of the occurrence of the feared persecution in areas of Pakistan other than the appellant’s home area. It concluded at [79] that there was not such a risk saying:

The Tribunal’s overall assessment of the evidence and the country information is that the applicant would not face a real chance of serious harm on the basis of his religion or implied political opinion or his Pashtun ethnic extraction if he were to relocate to an area such as Hyderabad. The Tribunal also does not accept, based on the country information that has been referred to, that the applicant would face a real chance of serious harm if he relocated to such an area on the basis of his having lived in a Western country should he return to Pakistan either now or in the reasonably foreseeable future.

36    At [82]-[87] of its decision record the Tribunal then turned to consider the second limb of the test. That is, whether it was reasonable, in the sense of practicable, for the appellant to relocate. At [82]-[83] of its decision record the Tribunal considered aspects of the appellant’s claims in the context of reasonableness namely, the cost of living in other areas of Pakistan, the prospect of finding employment, the ability to find accommodation and the issue of whether the appellant’s family would relocate to be with him in another area of Pakistan. As the primary judge found, at [84] of its decision record the Tribunal expressly dealt with the appellant’s submission that it would not be reasonable for him to relocate to Hyderabad because of communal violence on religious grounds.

37    The Tribunal is required to consider whether relocation is reasonable by reference to the practical realities for the appellant. That inquiry is undertaken having regard to the appellant’s particular circumstances largely delineated by his claims. The task is not at large: see SZVRA v Minister for Immigration and Border Protection [2017] FCA 121 at [18]. Those claims were set out in the appellant’s solicitor’s submissions dated 22 August 2016. As the primary judge held, the Tribunal did not fail to properly consider the question of relocation because it did not analyse the extent of risk that might fall between zero and a real chance. Its assessment at [84] of its decision record was based on the particular circumstances that the appellant claimed might affect him were he to relocate to Hyderabad. It was not required, in the circumstances of the claim made, to analyse the extent of risk that might fall between zero and a real chance.

38    The Tribunal then summarised its findings at [85] (see [27] above). As the primary judge found the reference to the appellant’s “particular circumstances” can only be read as including a reference to the findings at [84] about the risk of harm that was said might arise if the appellant was to relocate to Hyderabad. The reference in [85] to there being “no appreciable risk of the occurrence of the persecution” was, as the primary judge found, a reference back to the Tribunal’s earlier findings, for example at [79], as the Tribunal was permitted to do: see MZZZA v Minister for Immigration and Border Protection [2015] FCA 594 at [42] (Mortimer J).

39    The issues that arose in each of the decisions relied on by the appellant do not arise here. The Tribunal applied the relocation test as it was required to – it did not conflate the two limbs. It did not confuse the issue of whether there was no appreciable risk of the occurrence of the feared persecution in Hyderabad with the different issue of whether it was reasonable, in the sense of practicable, for the appellant to relocate.

40    There was no error in the approach of the primary judge. Ground one is not made out.

Ground two

41    By ground two, which was not raised before the primary judge, the appellant alleges that the Tribunal failed to address all of his objections to relocation. The Minister objects to the ground being raised for the first time on appeal.

42    In support of the application for leave to rely on ground two the appellant relies on an affidavit affirmed by his solicitor, Farid Varess, on 31 May 2018. In that affidavit Mr Varess explains that the counsel he had retained to act for the appellant before the primary judge and initially on appeal returned his brief on 27 April 2018, causing him to subsequently need to brief other counsel. Mr Varess said that ground two only came to his attention on 18 May 2018 when he received draft submissions from the newly retained counsel acting in the appeal.

Appellant’s submissions

43    The appellant submitted that a failure to consider claims, and integers thereof, as to an applicant’s particular circumstances which bear upon the practical realities facing him if he were to relocate and which are raised by the material will constitute a jurisdictional error.

44    The appellant particularises four claims and/or integers of his claims which he alleges clearly arose on the material before the Tribunal but were not considered by it. A summary of the appellant’s submissions setting out how the claims were made and why it was not addressed by the Tribunal and the Minister’s submissions in response are set out below.

45    First, the appellant contends that, while the Tribunal found that his family would not relocate to join him, it did not consider his subsidiary claim that he would seek to visit his family if they were not living with him (Visitation Claim). He said that the Tribunal did not consider the reasonableness of him doing so from Hyderabad which was of some distance from his home area. The appellant relied on various aspects of the material that was before the Tribunal and which he said gave rise to a claim that he would seek to visit his family if they were not living with him which may expose him to harm.

46    The Minister submitted that the Tribunal considered this claim at [83] and [86] of its decision record where it found that the appellant is not close to his family, his family is largely self sufficient and that the appellant could send money to his family from Hyderabad but would not be able to return to his home area where his family resided.

47    Secondly, the appellant contends that the Tribunal failed to consider the risk associated with travel in Pakistan within the context of his separation from him family and his claimed employment as a driver (Travel Claim). The appellant submitted that the material before the Tribunal was replete with references to the dangers of travelling in Pakistan which he claimed disproportionately affected Shias. He noted that the main incident in which he claimed to have been directly exposed to a risk of harm occurred when he was travelling by bus from the airport and relied on his solicitor’s submission dated 28 July 2016 (July 2016 Submission) in which he had claimed that he “feared travelling on the roads which were always necessary for use.” He gave the example that “if he was to fly into Peshawar, Islamabad, Lahore or any other city he would still be forced to initially drive through Taliban controlled areas”.

48    The appellant also contended that, while the Tribunal considered his claim that his work would provide him with insufficient income to support his family, it did not consider his claim that his work as a driver would disproportionally expose him to a risk of harm, which constituted jurisdictional error. The appellant noted that if he relocated to Hyderabad he would only be able to work as a driver which he had informed the Tribunal would be problematic because of limited earning capacity and the dangers of driving in Pakistan where he would be exposed to persecution because he would be required to deal with checkpoints.

49    The Minister submitted that this was part of the appellant’s claims as to why he feared harm in his home area, not an objection to relocation other than on the assumption that the appellant would have to travel from his home area if he were to relocate. The Minister further submitted that as the Tribunal accepted that the appellant would not be able to return to his home area that assumption is plainly unfounded. The Minister contended that, as the Tribunal found that the appellant did not face an appreciable risk of harm in Hyderabad, it plainly did not accept that he would face such a risk if he worked as a driver.

50    Thirdly, the appellant contends that the Tribunal failed to consider his objection to relocation that he would be deprived of his social and communal ties and the psychological impact of that (Social Ties Claim). The appellant said that he had submitted to the Tribunal that relocation would be unreasonable because, among other things, he would be deprived of his familial, communal and social connections by reason of him being identifiable as a Pashtun Shia from FATA; and that, in considering relocation, it would be necessary to consider whether “there are family connections and employment opportunities”. The appellant contended that, while the Tribunal considered the effect of his lack of a communal network on his ability to obtain employment and accommodation, it did not consider his claim that he faced ostracism nor the impact of this on the reasonableness of relocation.

51    The Minister submitted that the appellant did not claim any compelling social ties in his home area other than to his family, a matter which was addressed by the Tribunal at [82]-[83] of its decision record. The Minister noted that, as the Tribunal stated in those paragraphs, the appellant had been living in Dubai since 1998 with occasional visits to Pakistan to see his family. The Minister contended that there was no basis to suggest that he would suffer any “psychological impact” from being away from his home area because of social deprivation if he relocated given this history.

52    Fourthly, the appellant contends that the Tribunal failed to consider his objection to relocation because of the risk to him and his family occasioned by having previously come to the attention of the Taliban and its supporters (Taliban Claim). The appellant submitted that in his entry interview and before the Tribunal he had claimed that he and his family had previously come to the adverse attention of the Taliban and/or Taliban sympathisers which affected both his and his family’s risk of harm in Pakistan. He submitted that whether and to what extent it did affect their risk of harm was not considered by the Tribunal.

53    The Minister submitted that the appellant did not claim this particular as an objection to relocation. He said that the appellant relies on a claim made by him to the RRT which, in the Minister’s submission, appeared to have been overtaken by what the appellant said subsequently. The Minister submitted that, in any event, the appellant’s suggestion that he could not relocate because of his family was addressed by the Tribunal at [82]-[83] of its decision record and the Tribunal’s findings that there was no appreciable risk of harm to the appellant in Hyderabad is contrary to any suggestion that he faces harm from the Taliban there.

Consideration

Leave to raise ground two

54    Leave to raise a ground of review not argued below where an appellant has had the opportunity to raise the ground below, as is clearly the case here, is only permitted where it is expedient in the interests of justice to grant leave. In determining whether that is so, the merit of the proposed ground is an important consideration as is the question of prejudice to the respondent: see BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 at [66] (Allsop CJ).

55    Also relevant to the question of leave to raise a new ground on appeal are the comments of Wigney J in SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 (SZCWO) where his Honour said at [29]-[32]:

29    In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 (SZKMS), Lander J was required to entertain an application to amend a notice of appeal in similar circumstances to this matter. His Honour noted that it would be undesirable for a number of reasons to permit an appellant to raise, for the first time, on appeal, new grounds for reviewing a Tribunal’s decision.

30    First, it would mean that the appeal court in effect becomes the de facto primary court. In those circumstances, the appeal court would be determining issues of fact and considering arguments for itself without the benefit of consideration and determination by the court from which the appeal is brought. That is particularly unsatisfactory where, as here, the appellate jurisdiction of the Court is being exercised by a single judge pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) and any appeal from that single judge is to the High Court of Australia. This Court’s role as an intermediate court of appeal would as a result be significantly undermined. The High Court would be burdened by applications for special leave to appeal from judges sitting alone who have not had their decisions reviewed on appeal.

31    Second, and perhaps more fundamentally, to allow new grounds to be raised for the first time on appeal would effectively defeat the statutory scheme in relation to judicial review of decisions of the Tribunal in respect of protection visas. Parliament has conferred jurisdiction in respect of such review applications on the Federal Circuit Court to the exclusion of this Court: s 476A of the Act. If new grounds are allowed to be advanced on appeal, that jurisdiction is effectively being exercised by this Court.

32    Third, there is ample authority to the effect that, other than in exceptional circumstances, a party should be bound by the conduct of his, her or its case: Metwally v University of Wollongong (1985) 60 ALR 68 at 71; [1985] HCA 28 at [7]; H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at [6]-[8]; Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543; [2002] FCAFC 105.

56    Here, as was the case in SZCWO, the appellant was represented by the same solicitors in the court below and this Court and was represented by counsel in both courts. I would infer from the evidence relied on by the appellant that the new ground is raised because counsel briefed on the appeal, who were not briefed before the primary judge, identified ground two as a new claim. In my opinion, that is not a satisfactory explanation for not raising the ground below. However, as I have already identified, that is not the only factor that is relevant to the Court’s consideration of whether the leave sought should be granted.

57    I note that the Minister does not point to any prejudice that would be occasioned to him if the Court were to grant the leave now sought by the appellant. The Minister has in fact had some notice of ground two, has considered the appellant’s submissions in relation to it and has filed his own submissions addressing it.

58    As set out at [54] above, the question of merit of the proposed ground of appeal is an important consideration. In my opinion, for the reasons that follow, ground two clearly has merit. That being so, on balance, in my opinion, it is expedient in the interests of justice to grant leave to the appellant to file and rely on the further amended notice of appeal.

Did the Tribunal fail to consider a claim?

59    As I have already observed at [37] above, the question of whether relocation is reasonable, in the sense of practicable, having regard to the appellant’s own circumstances, in turn, depends on the framework set by the particular objections raised and evidence provided by the appellant to relocation. The Tribunal is not required to consider all theoretical possibilities: see SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [123]-[124] (Tracey and Foster JJ).

60    The Tribunal set out the appellant’s objections to relocation at [73] of its decision record. The appellant contends that what appears there is not a complete record of all of the objections he raised and that the Tribunal failed to consider a number of his objections or integers of his objections as particularised in ground two. In my opinion, that is so, at least in relation to the Visitation Claim. My reasons for reaching that conclusion follow.

61    The appellant points to a number of different parts of the material before the Tribunal where he says aspects or integers of the Visitation Claim were made including:

(1)    his claim made in his entry interview and subsequently that when he returned to Pakistan to visit in 2010 the bus he was travelling on from the airport to his home area was shot at by the Taliban;

(2)    his travel history showing his return to Pakistan for two to three months at a time in 2002, 2004, 2005, 2008 and 2010; and

(3)    a description of his family, including that his father and his father’s two wives, one of his sisters and his two minor brothers live with his wife and children in the same house.

62    These matters indicate, as the appellant contended, that his family, including his extended family, reside in his home area; he visited them on a number of occasions while living in Dubai; and he had been the subject of an attack in 2010 when travelling to visit his family. Each of these matters was then repeated in the July 2016 Submission in which the appellant’s solicitors also expressly included under the heading “Is it reasonable, in the sense of practicable, for the [appellant] to relocate?”:

(1)    at [56] on p 18 (at appeal book p 339):

In determining whether it would be reasonable for the [appellant] to relocate, it is necessary to look at:

…

c.    travel conditions between regions to see his family in Pakistan.

(2)    at [92] on p 22 (at appeal book p 343) under the subheading “The [appellant’s] individual characteristics and circumstances”, after setting out aspects of the country information:

Given the above, the following factors in relation to the [appellant] are relevant:

…

d.    The [appellant] would be compelled to return to the Orakzai Agency regularly to see his family. He would be compelled (sic) travel the dangerous roads of Pakistan where he would likely be persecuted...

63    In my opinion, the Visitation Claim was clearly made but, contrary to the Minister’s submissions, it was not addressed by the Tribunal. The Minister relies on [83] and [86] of the Tribunal’s decision record where the Tribunal said:

83.    The Tribunal’s overall assessment of the [appellant’s] evidence is that he is not particularly close to his family notwithstanding his claims that he is concerned about his family and his children and the written submissions of 22 August 2016 claimed that the family would be compelled to relocate with the [appellant] if he returned to Pakistan. That claim was not developed to any great extent in the written submissions. The Tribunal’s overall assessment of the evidence is that it is not satisfied that the [appellant’s] family would relocate to join the [appellant] if he returned to Pakistan and relocated to an area such as Hyderabad. The Tribunal assessment is based on the [appellant] having lived away from his family essentially since 1998 and not having returned to Pakistan since 2010(because (sic) he claimed to fear harm if he did so) and his evidence about his ongoing contact with his family since he has been in Australia together with his evidence about his lifestyle in Dubai. The totality of that evidence causes the Tribunal to not accept that the [appellant] is particularly close to his family and in those circumstances the Tribunal is not satisfied as to the claims that the [appellant’s] family would relocate to join him if he relocated in Pakistan away from his home area. …

…

86.    The Tribunal has taken into account that the [appellant] would not be able to return to his home area where his family is located however given the factors discussed above the Tribunal does not consider that it would be unreasonable for the applicant to relocate in order to avoid harm in Pakistan.

64    As is evident from the passage set out above, at [83] of its decision record the Tribunal did not accept that the appellant was “particularly close to his family” and did not accept the appellant’s claims that his family would relocate to join him. It did not address the appellant’s claim that he would visit his family either expressly or implicitly. At [86] the Tribunal referred to the fact that the appellant would not be able to return to his home area but did not there address whether the appellant would nonetheless travel to see his family because he would feel compelled to do so. That is, findings that the appellant was not close to his family and would not be able to return to his home area, taken individually or cumulatively, do not permit an inference to be drawn that the Tribunal in fact addressed the Visitation Claim. That claim clearly raised as an objection to relocation that the appellant would go to visit his family if he relocated to another part of Pakistan.

65    Having reached that conclusion in relation to the Visitation Claim, it is not necessary for me to consider the status of the Travel, Social Ties or Taliban Claims.

Conclusion

66    For those reasons the appellant should be granted leave to file and rely on the further amended notice of appeal and the appeal should be allowed. Order 1 made by the Federal Circuit Court should be set aside and in lieu thereof orders should be made setting aside the Tribunal’s decision and remitting the matter to the Tribunal for redetermination according to law. Given the appellant has been successful on appeal the Minister should pay his costs of the appeal.

67    That then leaves the question of Order 2 made by the Federal Circuit Court requiring the appellant to pay the Minister’s costs of the proceeding in that court. The appellant has succeeded on a ground raised for the first time on appeal which was not raised before the primary judge. That is so notwithstanding that the appellant was represented below by the same solicitors who continue to represent him on appeal but had different counsel. It is for that reason that I would presently decline to set aside Order 2 made by the Federal Circuit Court.

68    If the appellant contends that a different order should be made in relation to the costs of the proceeding in the Federal Circuit Court, he should file and serve submissions, not exceeding two pages in length, in relation to that issue by 16 January 2019. Should the appellant file such submissions, the Minister may file and serve submissions in reply, not exceeding two pages in length, by 25 January 2019. Any further consideration of the costs of the proceeding in the court below will be dealt with on the papers. Of course if no further submissions are filed and served then Order 2 made by the Federal Circuit Court will remain undisturbed and not be considered further.

69    I will make orders accordingly.

Associate:

Dated:    18 December 2018