BUZ15 v Minister for Immigration and Border Protection

Tribunal's reasons 6 The Tribunal's reasons are similar, in many respects, to the reasons given by the Tribunal in the case of BUY15. The appellant did not make any complaint about that. To the contrary, Mr Williams submitted that the factual and legal questions in the two appeals were identical. 7 At para 21 of its decision record, the Tribunal accepted that the appellant "is a Shia Muslim of Turi and Pashtun ethnicity who lived in Parachinar". 8 At para 42 of its decision record, the Tribunal accepted that there was a real chance that the appellant would face serious harm upon his return to Parachinar. The Tribunal also accepted that "the significant and essential reason for this would be because [the appellant] is a Pashtun Shia Muslim or because of imputed political opinion of being anti-Taliban". 9 From para 43 of the decision record, the Tribunal considered whether it would be reasonable for the appellant to relocate to another part of Pakistan. At the Tribunal hearing, the Tribunal discussed possible relocation to Lahore, Islamabad or Rawalpindi. 10 At para 47 of the decision record, the Tribunal accepted that the appellant would be identified throughout Pakistan as a Turi Shia from Parachinar, Kurram Agency. At para 49 of the decision record, the Tribunal accepted that, as a Turi Shia from his home region, the appellant would be imputed with a political opinion that is opposed to the Taliban and other Sunni extremists. 11 The Tribunal found, at para 54 of the decision record, that the Taliban is located primarily within the Federally Administered Tribunal Areas ("FATA"), but that reports indicated that the Taliban is capable of reaching targets in Lahore. The Tribunal stated that it had had regard to reports that the Punjab police forces appease Sunni militant groups and that the Lashkar-e-Jhangvi (a Sunni militant group) ("LeJ") acts with impunity. 12 At para 55, the Tribunal stated that it was mindful that Taliban, LeJ and other Sunni militant groups are present in the Punjab. The Tribunal considered a January 2014 report of the Immigration and Review Board of Canada on the issue of treatment of Shias, including in Lahore (para 56 of the decision record), information from the Australian Department of Foreign Affairs and Trade ("DFAT") and the South Asian Terrorist Portal ("SATP") (paras 57 to 59 of the decision record) 13 At para 60, the Tribunal accepted that "capacity restraints faced by Pakistani authorities limit the government's ability to protect the Shia population at all times and in all places". The Tribunal accepted that "sectarian and terrorist attacks including those aimed at Shias and other religious minorities continue to occur sporadically". 14 At para 61 of the decision record, the Tribunal made the following finding (which the appellant argued was made in error): However given the significant number of Shias living in Lahore together with the sporadic nature of those attacks particularly in Lahore and DFAT's assessment and the SATP statistics that Lahore remain relatively free from the threat of militant, sectarian and politically motivated violence cause the Tribunal to consider that the chance of the applicant being harmed in such an attack is remote, and therefore not real. The Tribunal considers that this is the case even if the applicant were to attend mosque or find employment, have to rent a room or find accommodation. 15 Paragraph 62 of the decision record states: The tribunal accepts the applicant will practise his religion and may attend the mosque and processions. The Tribunal accepts that where the applicant is most likely at risk because he is a Shia, is when he attends religious processions or is at a location where large numbers of Shias gather. There have been a number of attacks on Shia Muslims at Ashura processions in Pakistan in the past, although there is considerable information the police in Lahore do take active steps to boost security in preparation for Moharram, including calling out mass troops with air support. Further, DFAT reports that official security for mosques and processions are put in place on a case by case basis related to the level of threat and resources available. This can include shutting down mobile phone services, deploying increased police to patrol. The government has also introduced a ban on loudspeakers at mosques for hate speech and other measures are often put in place to pre-empt communal tensions. The army has also been put on standby to respond to attacks and community level violence. However a lack of resources limits the ability to protect the Shia community at all times and in all places given the population is large and dispersed. (footnotes omitted) 16 After further consideration of DFAT risk assessments, the Tribunal found (at para 64 of the decision record) that "attacks that have taken place ... in Lahore are sporadic, have declined and considered in the context of the size of the Shia population and the state protection offered the Tribunal regards the risk of the applicant suffering serious harm on that ground to be remote". 17 Paragraph 65 of the decision record states: Given the relatively low levels of sectarian violence in Lahore, and the applicant's lack of a particular profile with the Taliban or any of its associated extremist groups, combined with the large number of Shia Muslims in Pakistan and in urban areas, including Lahore, DFAT's assessment that Lahore remains relatively free from the threat of militant, sectarian and politically motivated violence the Tribunal is satisfied that the chance of the applicant being harmed in an act of targeted sectarian or generalised violence in Lahore is remote. The Tribunal is also not satisfied that the applicant will have to modify his religious practise in order to avoid the harm he fears. 18 At para 66 of the decision record, the Tribunal found that "the chance of the applicant being harmed in such an attack in Lahore or when travelling to Lahore is remote, and therefore not a real chance". That finding mirrors a similar finding made in the case of BUY15. 19 At paras 71 and following of the decision record, the Tribunal considered if it would be reasonable for the appellant to relocate to another part of Pakistan, such as Lahore. 20 The appellant's written submissions noted the following findings at paras 72 to 76 of the decision record: 72. The applicant claimed he could not relocate because he only speaks a little Urdu and could not get a job or accommodation and he would be targeted by the Taliban or SSP or Lej. As discussed above the tribunal does not accept that he will be targeted by the Taliban, SSP or Lej in Lahore. 73. While the applicant may not speak Punjabi, the tribunal does not accept he will not be able to communicate as he learned Urdu at school and it is the national language of Pakistan and 8% of the population speak Urdu as their first language, but it is the second language of most people in the larger cities, such as Lahore, speak Urdu. Further, the tribunal does not accept his claims that he spoke little Urdu as that is not how he specified it on his application form, he learned it at school and he spoke them during the hearing. 74. While the tribunal accepts he has not worked in Pakistan and not lived outside Parachinar in Pakistan, he has worked and found accommodation in Australia and managed to navigate in a new environment, in English and without family support. He has completed high school (or year 10) and commenced college. 75. The tribunal does not accept he is a vulnerable young man. He presented as a confident young man who clearly understood some English at hearing. The tribunal accepts he may have been inexperienced and lacked employment skills when he left Pakistan, but considers his experience is quite different now, three years later. Further, he was confident enough to tell his brothers they could stop work and he could provide for them as he was working in Australia. While he did not complete college, he completed 10 years of education. Country information is that only 37 per cent enrol in secondary education and ten per cent in tertiary education. The tribunal considers his education in Pakistan and work skills and employment in Australia place him in a good position to find employment and accommodation, even without support of family or friends and in a new and unfamiliar place in Pakistan. The applicant has shown he has been resourceful in the past in finding employment in a new place. The tribunal accepts that the culture may be different in a big city compared to living in Parachinar, but he has lived in Australian cities and managed to adapt and navigate his way living in Malaysia and Indonesia for four months on his way to Australia. The Tribunal is satisfied that the applicant would be able to re-settle in a different city in his own country where he is at least familiar with social customs and various other factors which will enable him to re-integrate into Pakistan society. Further, the applicant will be able to send money to his family in Parachinar if he wishes, as he has done in Australia. In any event, the applicant is the youngest and his brothers have worked previously and have their own families and his father has a pension. 76. The Tribunal has considered carefully his circumstances and relocation. It is mindful the applicant will face difficulties relocating to Lahore, finding work and accommodation. The tribunal does not accept that he would not able to find affordable accommodation. The Tribunal accepts that it may take the applicant some time to re-establish himself in terms of employment and that there are high levels of unemployment throughout Pakistan and accommodation costs higher in larger cities, but these are offset by higher wages paid in cities. Further, the applicant has been working in Australia for some time earning a good income and his father draws a regular pension and there is no reason he could not rely on some savings or help from his father (as he has in the past), if needed in establishing himself. The Tribunal does not accept that having to find work, accommodation in a new or unfamiliar place outside Kurram Agency without friends, family or support, like Lahore is unreasonable. (footnotes omitted) 21 In his written submissions, the appellant contended that the Tribunal erred in making the finding in the last sentence of para 76. 22 At para 84 of the decision record, the Tribunal concluded: For the reasons given above the Tribunal considers that it is reasonable, in the sense of practicable, having regard to all of the applicant's circumstances, for him to relocate to Lahore. 23 In essence, the Tribunal was satisfied that it was reasonable for the appellant to relocate to Lahore because there was "no appreciable risk" of harm to him there, and none of the particular circumstances that the appellant identified led to a conclusion that it was not reasonable for him to relocate to Lahore.

Application to FCCA 24 On 7 September 2015, the appellant applied to the FCCA for judicial review of the Tribunal's decision. An amended application was filed on about 3 November 2015. 25 The FCCA conducted its hearing on 21 June 2016. At the hearing, the appellant relied solely on ground 3 of his amended application. Ground 3 was in the following terms: Ground 3: Jurisdictional Error of Law - Misapplication of law or failure to ask the correct question 3. The [Tribunal] erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question. Having accepted that the applicant has a well-founded fear of being persecuted for a convention or complementary reason if he is returned to Parachinar, Pakistan, objectively, there was an appreciable risk of the feared persecution occurring if the applicant was relocated in Lahore. Alternatively, it was unreasonable, in the sense of being practicable, to expect the applicant to be relocated to Lahore having regard to a) the particular circumstances of the applicant, b) the circumstances the applicant would reasonably be expected to face in the place of relocation, or c) the impact on the applicant of being relocated to Lahore.

Appeal to this Court 26 The notice of appeal contains the following single ground of appeal, which is relevantly identical to the ground of appeal in BUY15: 1. With regard to ground three of the amended application filed 3 November 2015, the primary judge erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the relocation of the appellant from Parachinar to Lahore in Pakistan. Particulars a) The Tribunal erred at [79] of the decision record, by finding that the 'Tribunal does not accept the applicant faces any appreciable risk of harm by relocating to Lahore from Parachinar, Pakistan.' b) Alternatively, the Tribunal erred at [84] of the decision record, by finding 'that it is reasonable, in the sense of practicable, having regard to all of the applicant's circumstances, for him to relocate to Lahore.' c) The primary judge therefore erred at [14] of the judgment by finding there are 'two parts to this ground: first is the assertion that there was an appreciable risk of harm in Lahore. As will be seen, that amounts to no more than an attack on the merits of a finding of fact made by the Tribunal. The second is that it was unreasonable to expect the applicant to relocate to Lahore. Put in that way, it is another assertion of fact and raises no jurisdictional error.'

Legal principles 27 The appellant referred to the decision of the High Court in SZATV v Minister for Immigration & Citizenship [2007] HCA 40; 237 ALR 634. At [19] to [22], Gummow, Hayne and Crennan JJ said: [19] … [I]t will be seen that the matter of "relocation" finds its place in the Convention definition by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department. His Lordship said: "The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason." [20] The reference in the passage to the unavailability of the protection of the country of nationality of the refugee is best understood as referring not to the phrase "the protection of that country" in the second limb of the definition, but to the broader sense of the term identified in Respondents S152/2003. This was the international responsibility of the country of nationality to safeguard the fundamental rights and freedom of its nationals. [21] Lord Bingham went on in Januzi to refer to the statement in the UNHCR Handbook, at [91]: "The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so." [22] His Lordship, significantly both for Januzi and the present appeal to this Court, added: "The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country." (Footnotes omitted) 28 At [23] and [24], their Honours concluded that the applicable test is whether it is reasonable, in the sense of practicable, for the applicant to relocate to a region where, objectively, there is "no appreciable risk" of the occurrence of the feared persecution, taking into account that what is reasonable, in the sense of practicable, must depend upon the particular circumstances of the applicant.

Consideration 29 Mr Williams made no criticism of the FCCA judge's summary of the Tribunal's reasons, at [5] to [12] of his Honour's judgment.

Notice of appeal 30 The single ground of appeal is set out at [26] above. 31 As I explained in BUY15, in relation to the similar ground of appeal in that case, although particular (c) of the particulars to the appellant's ground of appeal is expressed as a conclusion from the premises stated in particulars (a) and (b), that conclusion does not follow as a matter of logic. 32 As I said in BUY15 at [28]-[32]: [28] Particular (c) records: (1) the FCCA judge's analysis (at [14] of his Honour's reasons of the ground for judicial review that was argued before his Honour); and (2) the FCCA judge's summary of his conclusion that the ground for judicial review did not raise any possible jurisdictional error but only questions of fact. [29] I do not accept that the FCCA judge made the error asserted by particular (c). To the contrary, the FCCA judge accurately analysed the ground for review in the passage set out in particular (c), as appears from a comparison of the ground of review (set out at [21] above) with the words quoted in particular (c). (Noting that in this case the ground of review is set out at [25] above.) [30] Further, as appears from particular (a), the appellant plainly sought to challenge (and continues on this appeal to challenge) the Tribunal's factual finding that the appellant did not face any appreciable risk of harm by relocating to Lahore. [31] Similarly, as appears from particular (b) the appellant was seeking to challenge (and continues on this appeal to challenge) the Tribunal's factual finding that it was reasonable, in the sense of practicable, for the appellant to relocate to Lahore. [32] The matters particularised in the notice of appeal do not, without more, reveal any misinterpretation, misunderstanding or misapplication of the applicable law by the FCCA judge. Nor do they reveal that the FCCA judge failed to ask the correct question with regard to the relocation of the appellant from Parachinar to Lahore in Pakistan. 33 As was the case in BUY15, it follows that the appellant's case, as identified by the notice of appeal, must fail.

Written submissions 34 I have separately considered whether the written submissions identify any appellable error on the part of the FCCA judge.

Risk of harm in Lahore 35 The written submissions asserted that the Tribunal erred at para 61 of its decision record, by finding that the chance of the appellant being harmed in an act of targeted sectarian or generalised violence in Lahore was "remote and therefore not a real chance". The submissions continued: 13. However, at [62], the Tribunal 'accepted the applicant will practise his religion and may attend the mosque and processions. The Tribunal accepted that where the applicant is most likely at risk because he is a Shia, when he attends religious processions or is at a location where large numbers of Shias gather. There have been a number of attacks on Shia Muslims at Ashura processions in Pakistan in the past.' Further, the second respondent observed, that '[h]owever a lack of resources limits the ability to protect the Shia community at all times and in all places given the population is large and dispersed.' 14. In light of the foregoing, having accepted that the [appellant] has a well-founded fear of being persecuted for a convention or complementary reason if he is returned to Parachinar, Pakistan, objectively, there was an appreciable risk of the feared persecution occurring if the applicant was relocated in Lahore. 36 In substance, this is the same submission that was made in the written submissions made on behalf of the appellant in BUY15. 37 There is a difference between the findings made by the Tribunal that are recorded in para 13 of the appellant's submissions, set out above and the findings made by the Tribunal in BUY15. In particular, in this case, the Tribunal made findings about the incidence of attacks on Shia Muslims at Ashura processions and about the limited ability of the Pakistani government to protect the Shia community at all times and in all places. However, those additional findings did not preclude the Tribunal's conclusions, based upon the material which the Tribunal identified, that there was a "remote" chance of harm to the appellant in Lahore, that there was no "real" chance of harm; and that there was no "appreciable" risk of the feared persecution in Lahore. 38 Otherwise, the reasons in BUY15 at [36] to [42] apply to this case. 39 Consequently, I am not persuaded that there was any error on the part of the FCCA judge in his consideration of this aspect of the appellant's application for judicial review and, in particular, the FCCA judge's conclusions (at [44] of his Honour's reasons) that the appellant's real complaint was that a different factual finding ought to have been made.

Reasonableness of relocation to Lahore 40 As was the case in BUY15, the written submissions record various claims made by the appellant, and recorded by the Tribunal, about circumstances which would make it unreasonable for him to relocate to Lahore. 41 Then, the written submissions put the same argument made on behalf of the appellant in BUY15, namely that: 34. After finding that the identity documents and family name is one which would readily identify the applicant as a Shia, that there have been attacks against Shia Mosques, that the applicant is at risk because he is a Shia who attends religious processions, that country information indicates the targeting of Shia groups by Sunni extremist, and that it will be difficult for the applicant to find accommodation and employment in Lahore, the [Tribunal] erred by finding it was reasonable for the applicant to relocate to Lahore and misapplied the applicable law or failed to ask the correct question. 42 The submissions do not identify any part of the Tribunal's reasons in which it is said to have misapplied the applicable law. 43 The written submissions next contend: 35. What was absent from the Tribunal's reasons for the decision is evidence that it asked itself what the relocation principle required it to ask itself; and that is whether it was reasonable, in the sense of practicable, to expect the applicant to relocate to Lahore having regard to the fact that the circumstances the applicant would reasonably be expected to face in Lahore would include the asserted practical realities. By failing to ask itself this question, the Tribunal's conclusion that it was reasonable for the applicant to relocate to Lahore was arrived at as a result of jurisdictional error. 36. Not only did the Tribunal not ask itself whether, having regard to the asserted practical realities, it was reasonable to expect the applicant to relocate to Lahore, it did not consider all of the personal circumstances of the applicant relevant to determining the reasonableness of the applicant's relocating to Lahore. 44 However, the Tribunal addressed itself correctly to the relevant law at [43] of its decision record. It said: Having found that there is a real chance that the applicant will face serious harm upon his return to Parachinar, his home region, the Tribunal has considered whether there is a real chance that the applicant will suffer harm if he relocated to another part of Pakistan. The range of factors which are relevant in any particular case as to whether relocation is reasonably available will largely be determined by the case sought to be made out by the applicant. [Randhawa v MILGEA (1994) 52 FCR 437, per Black CJ at 443, per Whitlam J at 453.] Thus, a person will be excluded from refugee status if it is reasonable, under all the circumstances, in the sense that it is practicable, to expect him or her to seek refuge in another part of the country. 'Reasonable' will depend upon the particular circumstances of the applicant and the impact of relocation upon that person within the person's country. However, whether relocation is reasonable in not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense. [SZATV v MIAC [2007] HCA 40 and SZFDV v MIAC [2007] HCA 41, per Gummow, Hayne and Brennan JJ, Callinan, J, agreeing.] para para 45 The appellant did not suggest that the Tribunal had failed to identify the "asserted practical realities" in its decision record. 46 There is nothing in the Tribunal's decision record to indicate that the Tribunal failed to ask itself the question identified in the appellant's written submissions. To the contrary, at para 85 of the decision record, the Tribunal explicitly said that it had regard to "all of the [appellant's] circumstances" in reaching the view that it was reasonable for the appellant to relocate to Lahore. 47 Similarly, the written submissions do not identify anything in the FCCA judge's reasons demonstrating that his Honour made any jurisdictional error in his consideration of this aspect of the appellant's application for judicial review.

Requirement to "act reasonably" 48 The appellant made a submission, also made in BUY15, that there was no relevant difference between the error identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 (which he paraphrased as a requirement that the applicant "act reasonably" by behaving discreetly as a homosexual in Bangladesh) and the requirement in this case that the appellant "act reasonably" by relocating to another part of Pakistan, so as to avoid upsetting persecutors. 49 For the reasons set out in BUY15 at [52] to [55], I reject that submission.

Oral submissions 50 At the hearing of the appeal, Mr Williams did not make separate oral submissions in support of the appellant's case, stating that "the factual and legal questions are identical" to the case put by the appellant in BUY15. 51 I rejected the oral submissions made in support of the appellant in BUY15 for the reasons set out in BUY15 at [56] to [67]. To the extent that those submissions applied to the appeal in this case, I reject them for the same reasons.

Conclusion 52 The appeal must be dismissed. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.