FEDERAL COURT OF AUSTRALIA

BBN16 v Minister for Immigration and Border Protection [2019] FCA 1478

ORDERS

THE COURT ORDERS THAT:

1.    The appeal filed on 20 November 2018 is dismissed.

2.    The appellant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCC) delivered on 30 October 2018 and reported as BBN16 v Minister for Immigration and Border Protection [2018] FCCA 3087.

2    The decision of the primary judge dismissed an application for judicial review under s 476 of the Migration Act 1958 (Cth) of a decision of the Administrative Appeals Tribunal delivered on 8 April 2016. By that decision, the Tribunal affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa.

Background

3    The appellant is a citizen of Pakistan. He arrived in Australia as the holder of a visitor visa on the 9 April 2014, aged 19 years. He applied for a protection visa which was received by the Department in July 2013.

4    The appellant claimed to fear harm in Pakistan from the family and relatives of a Shi’a Muslim girl in the city of Sargodha. He and the girl had fallen in love whilst at high school and had wished to marry, but she was a Shi’a Muslim and he was a Sunni Muslim. That difference in their respective faiths was an obstacle to them marrying. As a consequence, he converted from Sunni to Shi’a.

5    The appellant also feared harm from Sunni extremists on account of being a Shi’a Muslim and a convert. He detailed various attacks that had been made on him, and also visits that had been made to his father since the appellant had come to Australia. Sunni Ullama (preachers) seemed to be looking for him. He said that he feels very unsafe to return and live anywhere in Pakistan.

6    The delegate of the Minister found the appellant to be an unreliable witness and did not accept that he changed his religious faith or practice, or that he or his family had been subjected to harm or threatened because of his relationship with a young Shi’a woman. On that basis, the delegate refused his visa application.

7    The appellant then sought a review of the delegate’s decision before the Tribunal. The Tribunal accepted that the appellant commenced a relationship with a Shi’a Muslim woman, and that he converted from Sunni to Shi’a Islam. The Tribunal also accepted that people in the appellant’s local area had become aware of his conversion and made threats to his family and that an incident occurred in which he had been threatened by a man with a gun.

8    The Tribunal did not accept that the appellant had been pursued outside his home area by members of his local village or anyone else. The Tribunal accepted that unknown men came to the appellant’s father’s house looking for him in June 2013, after the appellant had arrived in Australia, but that his family had not been contacted since that time.

9    The Tribunal accepted that in the event that the appellant returned to his home area, his presence would come to the attention of the people who have an adverse interest in him and that there was a small but real chance that he would be subjected to serious harm. For reasons of his conversion to Shi’a Islam, the Tribunal also accepted that the state of Pakistan could not meet the level of protection which citizens are entitled to expect. The Tribunal concluded that the appellant’s fears of being persecuted in his home area in the reasonably foreseeable future are well-founded.

10    However, the Tribunal did not accept that the appellant faced a real chance of being seriously harmed outside his home area for reasons relating to any past events in Pakistan. The Tribunal reasoned that the risks of harm to the appellant came from extremist members of his local community.

11    The Tribunal also considered, but did not accept, that there was a real risk that the appellant would suffer serious harm outside of Sargodha for reasons of his conversion to Shi’a Islam and his status as a convert, or for reasons of his Shi’a religious beliefs, practice or identity.

12    Finally, the Tribunal considered whether relocation would be reasonable. In that context, the Tribunal noted that the appellant had said that “he would have to get a new ID card and people from his home area would track him down once he did that”. However, the Tribunal did not accept there was a real chance he would suffer serious harm outside Sargodha.

The FCC

13    The appellant was legally represented before the primary judge. Only one ground of review of the Tribunal’s decision was asserted in the FCC. It was stated as follows:

When making the finding that the applicant could safely relocate to an area in Pakistan outside his home town, the second respondent failed to consider or to make findings on the applicant’s claim and supporting evidence to the effect that he would be discovered and pursued by terrorist sympathisers who had corruptly infiltrated the National Database and Registration Authority (NADRA) kept by the Pakistani authorities.

14    The primary judge stated that the appellant’s argument was that his relevant claim was that he feared harm because of his conversion to Shi’a Islam. Prior to the Tribunal hearing, the harm feared was said to be from extremists in his local area who would locate him anywhere in Pakistan, and would use the NADRA for that purpose.

15    The primary judge stated that the assertion before the FCC was that at the Tribunal hearing the appellant’s claim was “broadened” to include a fear of harm from extremists in other parts of Pakistan.

16    The primary judge then analysed the appellant’s claim before the Tribunal. The primary judge concluded that the appellant’s claim up to, and including, the Tribunal hearing was that he feared harm from local Sunni extremists who would be able to locate him, through the use of contacts and their “network” throughout Pakistan. The primary judge stated that before the FCC the appellant’s argument also appeared to be that the post-hearing submissions on behalf of the appellant “broadened” his claim. It was that “terrorists” (other than those from his local area) had “infiltrated” the NADRA, which was a corrupt organisation. The primary judge stated that this was said to be another group from whom the appellant feared harm, and that the Tribunal did not address this aspect of his claim.

17    The primary judge did not accept the appellant’s submission that a reasonable inference can be drawn that the appellant had “broadened” his claim to include a fear of harm from “terrorists or terrorist sympathisers” generally who had infiltrated the NADRA.

18    The primary judge held that on a fair reading of the post-hearing submissions, the claims expressed there were consistent with the appellant’s expression of his own claims in his written statement and all other evidence at the Tribunal hearing. It was found that in the post-hearing submissions, the appellant’s representative was seeking to emphasise that part of the appellant’s own evidence was that the local extremists would be able to locate him anywhere in Pakistan.

19    The primary judge agreed with the Minister’s submission that the “claim” was not “broadened” before the Tribunal to include a fear of terrorists, or terrorist sympathisers, and Sunni extremists, beyond the appellant’s local area, who had infiltrated the NADRA. The primary judge held that the terrorist sympathisers was said, before the Tribunal, to be the vehicle through which the local Sunni extremists would locate the appellant (“track him down”) anywhere in Pakistan.

20    The primary judge, on a review of the evidence, held that the appellant had made two relevant claims before the Tribunal. The first was the specific claim to fear harm from local Sunni extremists who would be able to locate him throughout Pakistan. The second was a general claim to fear harm as a Shi’a Muslim anywhere in Pakistan.

21    The primary judge held that on a fair reading of the Tribunal’s reasons, the Tribunal considered both of these claims, and also considered both of the claims as they specifically related to the issue of relocation.

22    The primary judge concluded that the Tribunal considered all of the elements of the appellant’s claim to fear harm throughout Pakistan from Sunni extremists due to his conversion. The primary judge therefore dismissed the sole ground of review.

The appeal to this Court

23    Although the appellant was represented before the Tribunal and in the FCC, he was unrepresented before me. He filed a notice of appeal which, in manuscript, records his sole ground of appeal as follows:

Federal Circuit Court made a “jurisdictional error” and therefore dismissed my appeal.

24    This ground of appeal is essentially meaningless for lack of particularity. However, on the morning of the hearing of the appeal the appellant filed written submissions. They can be taken to seek to give the appeal ground some content and particularity. They assert two grounds, or possibly sub-grounds, of appeal.

25    The first ground is identified as being the same ground that was asserted as the ground of review in the FCC. The second ground is characterised in the written submissions as “the reasonableness of relocation”. I will consider each in turn.

Ground 1: fear of harm from “terrorist sympathisers”

26    I have carefully reviewed the reasons of the Tribunal, as well as the different ways in which the appellant put his claim to the Tribunal on the critical issue, namely, from whom he feared to suffer harm if he returned to Pakistan and therefore whether he was at risk of harm if he returned to Pakistan but relocated to somewhere distant from his home area of Sargodha.

27    I am unable to find any error in the primary judge’s reasons. Whilst it is clear that the appellant’s case before the Tribunal was that he feared harm throughout Pakistan, that he did not know who the people are who had attacked him and who had threatened him in their visits to his father, and that these people will be able to track him down wherever he relocates in Pakistan through their corrupt access to NADRA, he never put a case that he is under threat of harm in Pakistan because of his conversion to Shi’a Islam from “terrorist sympathisers” or from people other than those who knew of his conversion from his local area.

28    Before me the appellant submitted that his case was that he is under threat of harm from Sunni extremists throughout Pakistan on account of his conversion because the fact of his conversion was published in newspapers. However, on enquiry he stated that the newspapers in question were published in Sargodha and distributed only in the local area.

29    The appellant referred me to specific parts of the transcript of his interview by the Tribunal in support of his submission that his case before the Tribunal was that he was under threat of harm throughout Pakistan from people other than those in his local area. However, aside from his claim to be under threat of persecution throughout Pakistan on account of being of the Shi’a Islam faith, which claim the Tribunal rejected on the basis of country information, he did not assert a claim before the Tribunal that people other than those in his local area who knew of his conversion would seek to track him down elsewhere in Pakistan.

30    I agree with the primary judge (at [71]) that the claim involving the NADRA was that the local Sunni extremists would be able to locate the applicant elsewhere in Pakistan by accessing, through their network and corrupt officials, the data held by the NADRA.

31    In the circumstances, there is no substance to the appellant’s complaint that he asserted a basis for a protection visa before the Tribunal which the Tribunal did not deal with. Equally, there is no appealable error on this point by the primary judge. Ground 1 accordingly fails.

Ground 2: “the reasonableness of relocation”

32    The appellant’s second ground of appeal sought to argue that it was unreasonable for the appellant to relocate to another area of Pakistan. During the appellant’s hearing before the Tribunal it was put to the appellant that there are numerous other large cities and towns outside of his local area of Sargodha that would provide him with opportunities for relocation within Pakistan. In considering this issue, the Tribunal used Hyderabad as an example of a possible place of relocation, being Pakistan’s fifth largest city and one of the country’s main commercial hubs. At the hearing, the Tribunal asked the appellant about the possibility of relocating to Hyderabad or some other city outside Sargodha and whether it might be difficult for him to do so.

33    In response, the appellant told the Tribunal that he had no family or friends in Hyderabad or outside the Punjab and that “he would have to get a new ID card and people from his home area would track him down once he did that”. However, as discussed above, the Tribunal did not accept there was a real chance he would suffer serious harm outside Sargodha.

34    The appellant’s migration agent submitted to the Tribunal that the appellant may be a young and intelligent man but he has little work experience and no tertiary qualifications which would make him virtually unemployable. However, the Tribunal did not accept that submission and in doing so pointed to the appellant’s evidence which indicated that he had worked in Sydney as an Uber driver and had obtained a security guard licence in Australia and was currently studying for his taxi driver licence. The Tribunal considered that as a Punjabi Shi’a Muslim who can speak Urdu, Punjabi and some English and Hindi, who is educated and has some work experience, who has been able to adapt to life in Australia and who comes from a relatively wealthy family who are supportive of him and his situation, it would be reasonable and practicable for the appellant to relocate to another city or town if he returned to Pakistan.

35    In the appeal, the Minister rightly submitted that this ground was not asserted before the primary judge and should not be allowed to be asserted in the appeal without leave. The Minister also properly accepted that whether or not I would grant leave to the appellant, as an unrepresented litigant, to raise this ground would for the most part turn on the prospects of success of the ground. It is relevant that the appellant was represented before the FCC where this ground could have been asserted.

36    The principal difficulty with this ground is that it takes issue with the Tribunal’s conclusion on the relevant question, but fails to identify jurisdictional error in the manner in which the Tribunal reached that conclusion.

37    The Tribunal asked itself whether it would be reasonable for the appellant to relocate to another part of Pakistan where there was no appreciable risk of the occurrence of the persecution that he fears. That is the correct question: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [22], [24] and [32] per Gummow, Hayne and Crennan JJ and Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [23] per French CJ, Hayne, Kiefel and Keane JJ.

38    Although the appellant’s submissions in the appeal raise various reasons as to why it would not be reasonable for the appellant to relocate to another city or town within Pakistan, I do not consider that the submissions raise any matter that was not raised during the hearing before the Tribunal when the question of relocation was put to the appellant. The Tribunal heard those reasons but came to a conclusion that was different to the conclusion that the appellant urged on it. It was within its powers in so doing.

39    In the absence of the identification of jurisdictional error, this ground could not have succeeded in the FCC. I accordingly decline leave to raise it in the appeal.

Conclusion

40    In the circumstances, the appeal falls to be dismissed. There is no reason why the costs should not follow the event.

Associate:

Dated:    9 September 2019