BWB15 v Minister for Immigration and Border Protection

Federal Court of Australia|2017-09-11|Before: Murphy J

The appeal be dismissed.
The Appellant pay the First Respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 This proceeding is an appeal from a judgment of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal: see BWB15 v Minister for Immigration & Border Protection [2017] FCCA 133. The decision of the Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse to grant the appellant a Protection (Class XA) visa pursuant to the Migration Act 1958 (Cth) (the Act). 2 The appellant seeks leave to amend his notice of appeal to rely upon a ground of appeal not advanced before the Court below. The proposed amended appeal centres on whether, before the Tribunal, the appellant objected to relocation to one of a number of postulated large cities in Pakistan on the basis that he feared he would suffer serious harm in those cities through generalised sectarian violence (as distinct from violence targeted at him at the hands of the Taliban). If that objection was before the Tribunal, there are questions as to whether the Tribunal properly considered and dealt with it and whether the Tribunal applied the wrong test in deciding that it was reasonable to expect the appellant to relocate to such cities. 3 For the reasons I set out below, it is appropriate to grant the appellant leave to amend the notice of appeal in the terms he seeks, and to dismiss the appeal.

The facts 4 The appellant is a 36 year old citizen of Pakistan of Pashtun ethnicity and Sunni Muslim religion, who was born and lived in the Swat Valley, Khyber Pakhtunkhwa (KPK) in that country. Together with a business partner, he ran a successful education business in Swat providing courses and promoting and acting as an agent for overseas courses for foreign education providers. The business employed nine people including two female teachers, one of whom is his wife. 5 The Tribunal accepted the appellant's account of the events leading up to his application for a protection visa, as follows. In 2009 the Taliban forcibly took the appellant and his business partner from their business premises to an unknown location where they were beaten, in punishment for educating females and linking students with courses in Western countries. The Taliban demanded a two million rupee ransom and upon payment of that amount the appellant and his business partner were released. 6 That period was marked by conflict between the Taliban and government forces which forced several thousand people to flee KPK. Many gradually returned over the ensuing months once it appeared the Taliban had been driven out. When the appellant and his business partner returned to their business they found that the Taliban had smashed their office and had taken much of the valuable equipment. Even so, they recommenced their business and over time succeeded in rejuvenating it. 7 The business ran successfully and profitably over the ensuing years. In this period the appellant travelled overseas to several countries including Australia to promote the business and gained the rights to market the courses of educational institutions in some of those countries. He came to Australia on a business visitor visa on 19 June 2013 to discuss business opportunities, only intending to stay for a few weeks and then to return to Pakistan. Prior to coming to Australia he had been in Turkey with his wife and daughter, who had returned to Pakistan. 8 While the appellant was in Australia his business partner informed him by email on 30 June 2013 that the Taliban had again attacked their business, had demolished some advertising hoardings, burnt some advertising banners, and sent a letter making threats against the business and stating that the appellant and his wife were on a Taliban "hit list". As a result the appellant's business partner went into hiding and the appellant lost contact with him. The employees of the business also feared for their lives and stopped attending work, and the appellant's wife and daughter fled KPK and went to Lahore and other places.

The procedural background 9 On 21 August 2013 the appellant applied for a protection visa. He said that he feared that he would suffer serious harm at the hands of the Taliban if he returned to Pakistan and that the Pakistani authorities were unable to protect him. 10 On 14 April 2014 the delegate of the Minister refused to grant the visa. The delegate accepted that the appellant faced a real chance of serious or significant harm at the hands of the Taliban in KPK because of his political opinion or imputed political opinion in favour of secular education, education overseas and the education of females. However, the delegate considered it was reasonable to expect the appellant to relocate away from KPK and the Federally Administered Tribal Areas (FATA) to one of several postulated large cities in Pakistan where he did not face such persecution. 11 On 24 April 2014 the appellant sought review of the delegate's decision by the Tribunal (at the time constituted as the Refugee Review Tribunal). His representative, BMA Lawyers acting as a registered migration agent, lodged materials with the Tribunal including: (a) updated country information from a range of sources addressing the question of the reasonableness of the proposed relocation; (b) a report from Ms Elizabeth Chetcuti, the appellant's treating psychologist, dated 6 December 2014; and (c) a written submission dated 21 July 2015 addressing the reasonableness of the proposed relocation in detail. 12 The Tribunal heard the application on 28 July 2015. Shortly after the hearing the appellant's representative lodged an updated report by Ms Chetcuti, several reports on mental health treatment in Pakistan, a further submission in relation to the reasonableness of relocation in light of the poor state of the appellant's mental health, and information on suspected Taliban operatives being arrested in Lahore. 13 On 13 August 2015 the Tribunal affirmed the delegate's decision not to grant the visa, doing so for essentially the same reasons as the delegate. The Tribunal accepted that the appellant faced a real chance of serious or significant harm if he returned to KPK, but considered that it was reasonable for him to relocate away from KPK and the FATA to a large city in Pakistan, such as Lahore, Islamabad or Rawalpindi, where the Tribunal decided he did not face a real chance of harm. 14 On 10 September 2015 the appellant filed an application in the Federal Circuit Court seeking judicial review of the Tribunal's decision. On 16 June 2016 he filed an amended application, and then on 15 November 2016 a further amended application and withdrew certain parts of that amended application on 29 November 2016. As amended, the application alleged that the Tribunal erred: (a) in finding that the appellant could avoid harm in Pakistan by conducting business in a discreet manner; and (b) by failing to consider the reasonableness of the appellant's relocation within Pakistan in light of his mental health issues and his lack of family support. 15 On 29 November 2016 the Federal Circuit Court heard the application. JT Lawyers Pty Ltd acted for the appellant and he was represented by counsel at the hearing. The Court refused both grounds and dismissed the application.

THE NOTICE OF APPEAL 16 On 20 February 2017 the appellant filed a notice of appeal to this Court, acted for by Clothier Anderson and Associates. The notice alleged the following ground of appeal: The Federal Circuit Court erred, in that it did not conclude that [the Tribunal] failed to properly consider whether relocation with[in] Pakistan was reasonable in the Appellant's circumstances in light of his mental health issues. 17 Before me the appellant abandoned that ground and sought leave to file an amended notice of appeal alleging a ground not advanced before the Federal Circuit Court. The proposed new appeal ground is as follows: The Federal Circuit Court erred in not finding that the decision of the Tribunal is affected by jurisdictional error in that the Tribunal applied the wrong test and/or failed to consider a submission of substance. 18 The Minister opposes a grant of leave to raise this new ground. The Minister submits that the appellant has proffered no explanation, adequate or otherwise, for his failure to advance the proposed new ground before the Court below. He argues that the appellant was legally represented before the Court below and, with the assistance of lawyers, he advanced grounds of judicial review alleging misapplication of the principles concerning the reasonableness of relocation and, to that end, amended his application on two occasions. The appellant's counsel conceded in oral submissions that there is no acceptable explanation for the appellant's failure to earlier advance the new ground, and said only that it was possible the appellant's previous lawyers did not see the point. 19 The Minister also submits that the new ground is not attended by reasonable prospects of success, but both counsel said that it is appropriate to hear the application in full and decide whether the application has reasonable prospects of success at the conclusion. Considering the merits of the proposed new ground as part of the application will take no more court time than dealing with the appeal as previously framed. 20 Parties to an appeal are, of course, bound by the way in which a case is conducted below: see Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2015) 227 FCR 95; [2015] FCAFC 7 at [161]-[162] (Kenny, Besanko and White JJ). It is established however that the Court has a discretion to entertain a new point on appeal, where it is expedient and in the interests of justice to do so. In Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 at 497 the High Court said: More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; O'Brien v Komesaroff (1982) 150 CLR 310 at 319. 21 The proposed new ground of appeal requires the Court to consider the material that was before the Tribunal and the Tribunal's decision, to determine whether the submission the appellant now puts was before the Tribunal, if it was, to determine whether the Tribunal properly considered that submission and/or applied the correct legal test in relation to the reasonableness of relocation. There is no factual contest and the new ground of appeal could not have been met by calling evidence below. 22 The question of prejudice is also relevant: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [48] (Kiefel, Weinberg and Stone JJ). As an applicant for refugee status the appellant may suffer substantial prejudice if leave to advance the proposed ground of appeal is refused and he is forced to return to Pakistan, where he fears he will be seriously harmed or killed. As against that, the Minister will not suffer any significant prejudice. The appellant is not legally qualified and he could not have understood the legal arguments regarding jurisdictional error that were advanced below, being entirely reliant upon his lawyers to advance appropriate grounds. 23 In all the circumstances I consider it expedient and in the interests of justice to grant leave to amend the notice of appeal in the terms sought, although I have concluded that the amended appeal should be dismissed: see Martinaj v Minister for Immigration and Border Protection [2016] FCA 868 at [14] (Kenny J); MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [68] (Lander, Jessup and Middleton JJ).

PRINCIPLES REGARDING THE REASONABLENESS OF RELOCATION 24 There is no issue between the parties as to the appropriate test to be applied in an assessment of the reasonableness of relocation. In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 (SZATV) the plurality (Gummow, Hayne and Crennan JJ) discussed the formulation of the relevant test (at [23] and [24]) as follows: The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a "hypothetical assumption", nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a "safe area" within the country of nationality as determinative of the existence of a well-founded fear of persecution. However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. 25 In a separate judgment Kirby J said (at [80]-[81]): Thus, internal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven. Nor if the evidence indicates that there are other and different risks in the propounded place of internal relocation; or where safety could only be procured by going underground or into hiding; or where the place would not be accessible on the basis of the applicant's travel documents or the requirements imposed for internal relocation. An inability or unwillingness on the part of the national authorities to provide protection in one part of the country may make it difficult to demonstrate durable safety in another part of that country. In some circumstances, having regard to the age of the applicant, the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable. In each case, the personal circumstances of the applicant; the viability of the propounded place of internal relocation; and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution, will need to be weighed in judging the realism of the hypothesis of internal relocation. (Citations omitted.) 26 It is common ground that the test for reasonableness of relocation in the context of the Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the Status of Refugees, 1967 is that it must be reasonable, in the sense of practicable, for an applicant for refugee status to relocate to a region in his or her country of nationality where, objectively, there is no real chance of the occurrence of the feared persecution: SZATV; SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51; [2007] HCA 41 at [14]-[15] (Gummow, Hayne and Crennan JJ). Both parties accepted that, for present purposes, the test for reasonableness of relocation in the Refugees Convention and the Refugees Protocol context is broadly similar to the test for reasonableness of relocation in the complementary protection context. The Minister did not take issue with the contention that an assessment of whether relocation is reasonable is dependent upon the particular circumstances of the applicant, nor argue against the potential relevance of the factors identified by Kirby J, although noting that the relevance of such factors will depend upon the case put forward. 27 The test in relation to the reasonableness of relocation therefore has two limbs and requires consideration of: (a) whether or not the applicant for refugee status faces a real chance of the feared serious or significant harm in the proposed place of relocation (the safety limb); and (b) whether or not it is reasonable, in the sense of practicable, for the applicant to relocate to the proposed place having regard to the particular circumstances of the applicant (the reasonableness limb).

CONSIDERATION 28 The Tribunal accepted that the appellant would face a real chance of serious or significant harm at the hands of the Taliban for reasons of his actual or imputed political opinion if he returned to KPK or the FATA. The key issue before the Tribunal was whether it was reasonable to expect the appellant to relocate, away from KPK and the FATA, to one of a number of large cities in Pakistan such as Lahore, Islamabad or Rawalpindi. 29 The appellant contends that there was sufficient material before the Tribunal to make an express claim that the appellant objected to relocation to one of the postulated cities on the basis that there was an unacceptable amount of violence in those places. He says that one aspect of the claim was that even if the risk of harm which the appellant may face in one of the postulated cities did not amount to a well-founded fear of persecution or to a real risk of significant harm, such risks of harm as did exist (whether less than serious or significant harm or less that a real chance or real risk) nevertheless made it unreasonable to expect him to relocate to such places. 30 The first issue in the appeal is whether the appellant made a case to the Tribunal that it was unreasonable to require him to relocate to the postulated cities because doing so would expose him to a risk of harm through generalised sectarian violence. 31 It is only if that question is answered in favour of the appellant that two further issues arise, being: (a) whether the Tribunal properly considered and dealt with the case before it; and (b) whether the Tribunal misunderstood the test in relation to the reasonableness of relocation.

Issue 1: Was there a case before the Tribunal that the appellant objected to relocation to the postulated cities on the basis that he feared that he would face harm through generalised sectarian violence? 32 Whether relocation is practicable depends upon the framework set by the particular objections raised to relocation: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443 (Black CJ); SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [124] (Tracey and Foster JJ, with whom Moore agreed at [1]). The Tribunal's inquiry is circumscribed by the case made by the appellant with respect to the relocation issue and its inquisitorial role does not extend to making the appellant's case for him: MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352 at [60]-[61], [73] (Kenny J); AZAEH v Minister for Immigration and Border Protection [2015] FCA 414 at [21] (Kenny J). 33 The appellant relies on four matters to argue that the Tribunal should have understood that the appellant advanced a case that he objected to relocation to the postulated large cities in Pakistan on the basis that there was an unacceptable amount of violence in such places. Counsel contends that: (a) the Tribunal should be treated as experienced and expert in dealing with the question of reasonableness of relocation. I accept this contention, which informs my view as to whether the Tribunal member in the present case should have appreciated the claims advanced by the appellant: see MZAJC v Minister for Immigration and Border Protection [2016] FCA 208 (MZAJC) at [8] (Mortimer J); (b) while the Tribunal was conducting a de novo hearing it was nevertheless undertaking a review of the delegate's decision. The appellant argues that the delegate recognised the issue of the risk of harm through generalised sectarian violence, and says that the Tribunal should be taken to be aware of the claims recognised by the delegate and that the appellant is entitled to assume the issues before the delegate remained issues before the Tribunal. In this regard the appellant points to the following passage in the delegate's decision: Pakistan is a large and populous country with several cities having a population over a million (some several) e.g. Rawalpindi, Karachi, Lahore, Faisalabad, Hyderabad to name a few. These are cities are fully functioning (employment, education, government services, security, travel points, entertainment, sport etc) and to which [the appellant] is not restricted from accessing. Where such large populations exist, there are opportunities to exist and subsist within communities one has an affinity to. There is also a degree of security that comes from anonymity. Country information does indicate that these cities are not entirely free from the sectarian violence and there have been victims of targeted as well as random violence. However, I am not satisfied that the violence is of a level comparable to the KPK. (c) the appellant's submissions to the Tribunal advanced an objection to relocation on the basis of a fear of generalised violence. The appellant relies on the following passage of those submissions: In considering the issue of relocation, the [delegate] suggested the Applicant may move to other areas of Pakistan such as…. Available country information indicate[s] that the security situation in Pakistan has not improved and that it has deteriorated after Prime Minister Nawaz Sharif's peace agreement with the Taliban unravelled. A number of reports by various organisations attest to the fact that there has been increasing sectarian violence as well as targeted attacks arranged by the [Taliban] in Pakistan. (d) the country information before the Tribunal indicated that the appellant objected to relocation on the basis of a fear of generalised sectarian violence. In this regard counsel relies on press reports which show that there were suicide bomb attacks and other terrorist attacks which caused significant casualties and injuries to innocent bystanders in Rawalpindi in January 2014, Islamabad in March and May 2014, on the outskirts of Islamabad in April 2014, Peshawar International Airport in June 2014, Karachi International airport in June 2014 and Lahore in March 2015. The country information also included travel warnings for Australian citizens from the Australian Department of Foreign Affairs and Trade website (the DFAT website), as at 15 November 2014. It said "[t]errorist attacks can occur anywhere at any time in Pakistan. There is a high threat of terrorist attack against places that are frequented by foreigners, including Australians" and that "[t]here has been an increase in terrorist activity in Pakistan in 2014, with a series of deadly attacks in Karachi, Islamabad and Rawalpindi." The website provided a list of possible terrorism targets which included any "crowded locations likely to result in a large number of casualties" and "educational facilities including universities and international schools." 34 The issues surrounding whether an applicant before the Tribunal has clearly made a particular claim or objection and/or whether such a claim or objection can fairly be said to arise on the materials, have been the subject of much judicial consideration. In NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK) at [15], Allsop J considered some of the leading authorities and explained: The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]-[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. (Emphasis added.) 35 In my view the appellant did not advance a case to the Tribunal that he objected to relocation, away from KPK and the FATA, to one of the postulated large cities in Pakistan on the basis that he feared he would suffer harm because there was an unacceptable amount of violence in such places, nor did that case arise clearly on the materials before the Tribunal. 36 I say this, first, because in his initial application for a protection visa on 21 August 2013 the appellant referred to the Taliban kidnapping him and damaging his business in 2009, again attacking his business in 2013, and threatening the lives of he and his wife. He said that "we have spent our life in big trouble because of militants/Taliban" and that the Taliban had decided that he was working as an agent for English countries and "now they want to kill me at any cost". He claimed that his name was on the Taliban hit list. 37 In answer to the question: "Who do you think may harm/mistreat you if you go back?" he answered that the Taliban were the people who would harm him as they had said they will kill him "at any cost". His application for a protection visa was based entirely on his stated fear that the Taliban would target him for serious harm or death and he made no mention of any fear of suffering harm through generalised violence. 38 Second, the appellant did not suggest that he feared harm because of the level of violence in the postulated places of relocation when he was interviewed by the delegate on 8 April 2014. Again, he referred to Taliban kidnapping and beating him in 2009, attacking his business in 2013, and to the letter which said that he and his wife were on the Taliban's hit list. The delegate noted in his decision that the appellant said that he feared "coming to serious and significant harm from the Taliban" (emphasis added) and that "having come to their attention of the past, there is no place in Pakistan he could find safety in". Importantly, when the delegate asked him if there were any other part of Pakistan he could relocate to the appellant claimed: …that there was no part of Pakistan he could find safety in. He claimed the Taliban could reach him anywhere in Pakistan and the authorities would do little to protect him. Many of his students had moved to other parts of Pakistan and through these links word of his whereabouts could get back to the Taliban in KPK. He raised no objection to relocation to large urban areas of Pakistan because he feared suffering harm through generalised violence. 39 In my view, read fairly, the passage from the delegate's decision upon which the appellant seeks to rely (extracted at 33 above) does not show that the delegate recognised the appellant objected to relocation to one of the postulated large cities on the basis that he feared he would suffer harm because of generalised sectarian violence in those places. Rather, that passage was part of the delegate's rejection of the appellant's claim that he had a profile that meant he faced the risk of harm in a targeted attack by the Taliban even if he relocated to a large city. The delegate considered the appellant to be an ordinary person who "does not possess a profile of any significance and hence is not exposed to a risk of attack above anyone else in other parts of Pakistan". The delegate concluded that the appellant may be an opportunistic target for the Taliban if he were in KPK, but he did not consider that the Taliban would have the interest or the means of tracking him down if he relocated to one of the postulated large cities. 40 Third, before the Tribunal the appellant criticised the delegate's decision that it was reasonable to expect him to relocate away from KPK and the FATA, to a large city such as Rawalpindi, Karachi, Lahore, Faisalbad or Hyderabad, as follows: In arriving at this conclusion, the [delegate] failed to take into consideration the Applicant's submission that the Taliban has placed him on their Hit List and as a result could reach him even after he relocates to another part of Pakistan. The [delegate] in arguing [for] relocation contends that these large cities are fully functioning where opportunities exist as well is the fact that a degree of security may be conferred on the Applicant due to anonymity. Available country information indicate[s] that the security situation in Pakistan has not improved and that it has deteriorated after Prime Minister Nawaz Sharif's peace agreement with the Taliban unravelled. A number of reports by various organisations attest to the fact that there has been increasing sectarian violence as well as targeted attacks arranged by the [Taliban] in Pakistan. The appellant only relied on the last two sentences of this passage and counsel avoided reference to the preceding sentences. Those sentences expressly said that the appellant objected to the proposed relocation on the basis that he had been placed upon a Taliban hit list and he feared the Taliban would still reach him if he relocated to one of the postulated large cities. 41 In the next paragraph of his submissions the appellant confirmed that his objection to the proposed relocation was based in fear of a targeted attack by the Taliban, rather than fear of the level of general violence. He stated: Available country information on the [Taliban] leadership… indicates that the current leadership crop considers education, especially Western education and values as one of the core evils that they campaign and fight against. This is evident in the well-known case of the assassination attempt on education campaigner Malala Yousafai and the recent Peshawar school massacre. Violence and threats of harm and death continue to be perpetrated against individuals and groups that uphold the value of education. We acknowledge the [delegate's] concern that relocation to a large city may offer a degree of anonymity. However we submit that the Applicant's background as a prominent businessmen and educator as well as the fact he has been included on the Taliban Hit List should not be down played in light of the current security situation in Pakistan. 42 In my view, on a fair reading, the appellant's submissions were directed to rebutting the delegate's conclusion that the Taliban would not be interested in, nor have the means of, tracking him down and attacking him if he relocated to one of the large postulated cities. The discussion of the deteriorating security situation in Pakistan was put in support of the argument that the Taliban's reach was extensive and they could still target the appellant in the postulated large cities. The appellant did not object to relocation to those cities because he feared harm because of an unacceptable level of general violence in those places. 43 Fourth, I do not accept that those parts of the country information which evidence terrorist attacks in the postulated large cities of Pakistan have the significance for which counsel contends. They were drawn from 195 pages of country information and the appellant's legal representatives did not highlight those excerpts in submissions, nor expressly state that the appellant feared harm in the postulated cities because of an unacceptable level of violence in those places. 44 That terrorist attacks occur in large cities in Pakistan, even outside KPK and the FATA, and that bystanders may be killed or injured as a result, is no secret. It must have been known to the Tribunal, which referred, for example, to recent deaths from a terrorist attack in Lahore. The press reports and the DFAT website were put forward by the appellant in aid of his argument that the Taliban's reach extended into the large cities of Pakistan outside KPK and the FATA, and that it was unreasonable to expect him to relocate there because he would continue to be targeted. 45 Fifth, and importantly, counsel for the appellant did not point to anything in the appellant's evidence before the Tribunal to show that he objected to relocation to the postulated large cities on the basis that he feared harm because there was an unacceptable level of violence in those places. The Tribunal noted (at [39]-[40]) the appellant's evidence as only referring to a fear of being targeted by the Taliban and stated: The applicant claimed he would not be safe from the [Taliban] anywhere in Pakistan as they had a network throughout the country. He also said that they had sent him a letter threatening to kill him, so they had 'acquired' him on their hit list and would seek to harm him and would search for him throughout Pakistan... I noted that the country information indicated that the [Taliban] were most active in KPK and the FATA, that urban areas in other parts of Pakistan saw relatively few attacks, and that the attacks that did occur were targeted against military or other authorities or minorities, none of which I considered him to be or would be considered to be. The applicant insisted that the [Taliban] was active in Lahore, Islamabad/Rawalpindi and pointed to country reports of attacks in these areas. He cited the example of Malala Yousafzai, who had been targeted for her views on the education of girls. I pointed out that Ms Yousafzai lived and was shot in the Swat valley. The applicant then said that the attack on the school in Peshawar earlier this year showed the [Taliban] could reach any part, and noted Peshawar was quite a distance from Swat. I note that Peshawar sits just outside the boundary of the FATA and whilst some distance, is relatively close to Swat and the KPK… The applicant conceded that people did relocate and live in Lahore, but said that people could still be chased there. He said that his id card indicated his domicile was in Swat, and this… may lead to him being found… He said that obviously a lot of people have moved to different urban areas, but that the people who are targeted cannot live a safe life in any part of the country. 46 I do not consider that an objection to relocation to one of the postulated large cities, on the basis that there was an unacceptable amount of violence in such places was (to use the expression in NAVK) "tolerably clear" on the materials before the Tribunal. The appellant objected to relocation to the postulated large cities on the basis that he feared that he would suffer harm because he would continue to be targeted by the Taliban in those places. He now seeks to assert that a different objection to relocation would have been apparent to a reasonably competent Tribunal. 47 In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [60] (Black CJ, French and Selway JJ) the Full Court said that the Tribunal "is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it." As Allsop CJ said in NAVK at [15] the Court should take a practical and common sense approach in deciding whether the apparentness of an unarticulated claim arises sufficiently from the material so as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. The Tribunal's task was to assess claims by reference to the material before it, "not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been." 48 In his initial application the appellant did not claim to fear that he would suffer harm through generalised sectarian violence, and when the delegate raised the possibility of relocation he did not say that he feared harm from such a source. Before the Tribunal he did not expressly submit that he objected to relocation to one of the postulated large cities on the basis that he feared harm because of the unacceptable level of violence, nor did he give evidence to that effect. I consider there was insufficient material before the Tribunal such that, acting reasonably, it should have appreciated the existence of such an objection. In my view the appellant's argument involves an exercise of picking through the materials before the Tribunal in order to retrospectively piece together a possible claim that might arguably be said to have been advanced. That is not the approach which the authorities require a reviewing Court to adopt. As Mortimer J said in MZAJC (at [11]) "the reviewing court will always have before it a formulation of the claim that was 'not appreciated', but the court should be astute not to scrutinise the Tribunal's reasons, nor the material before the Tribunal, too assiduously with that perspective of hindsight." 49 I do not consider that the Tribunal erred in its treatment of the objection to relocation made by the appellant or clearly arising from the materials before it.

The remaining grounds of appeal 50 The remaining grounds of appeal only require consideration if there was a case before the Tribunal that the appellant objected to relocation on the basis that he feared he would suffer harm because the unacceptable amount of violence in such places. Given my conclusion that no such case was advanced and that such a case did not clearly arise on the materials before the Tribunal it is unnecessary to deal with the remaining grounds. It is appropriate to order to that the appeal be dismissed and the appellant pay the Minister's costs. 51 The Tribunal did not expressly deal with whether it was reasonable for the appellant to object to relocation to one of the postulated large cities because he feared harm through generalised violence in such places. It was unnecessary to do so because that case was not advanced. However, it is perhaps worth noting that, on a fair reading, it is implicit in the Tribunal's decision that it did not consider that any risk of harm in those cities was such that it was unreasonable to expect the appellant to relocate there. This can be seen in the Tribunal's decision which said: (a) at [37]: The DFAT report… identifies that options are available for most ethnic and religious groups to relocate to large, urban centres, that are home to mixed populations with access to services and employment opportunities. (b) at [39]: I noted that there is a population of Pashtuns in Lahore, Islamabad/Rawalpindi and other urban areas throughout Pakistan, that state protection is more available and Taliban and/or other militant Sunni activities are less prevalent in Lahore and Islamabad/Rawalpindi than other parts of Pakistan and have declined… I noted that the country information indicated that the [Taliban] were most active in KPK and the FATA, that urban areas in other parts of Pakistan saw relatively few attacks… (c) at [43]: Country information indicates that terrorist attacks and other violence are not endemic in these identified urban areas, and Lahore in particular is identified as, despite the recent church bombings, having 'largely escaped militant violence and is seen as a relatively peaceful city.' (d) at [46], that the appellant's wife and child had moved around between Lahore and Multan and other areas because of the threats and accepted that they did so because of their perception of threat. The Tribunal said, however, that: …the country information and the evidence before me does not support that there is an objective basis for their fear. I find that if the applicant returns that his wife and child will not be forced to continue moving around. (Emphasis added.) (e) at [48], that the Tribunal considered the appellant: "…would be able to relocate to another urban area, open another educational institute and rent and live quite comfortably." (Emphasis added.) While directed to the appellant's financial position, it is unlikely the Tribunal would have made that statement if it considered that relocation to large cities carried a real chance of harm through an unacceptable amount of generalised violence; and (f) at [59]-[60] the Tribunal stated: …on the basis of the evidence before me, I am not satisfied that the level of chance that the applicant would suffer harm in Lahore, Islamabad/Rawalpindi or another urban area outside KPK and the FATA… would make it unreasonable for him to relocate to Lahore, Islamabad/Rawalpindi or another urban area outside KPK and the FATA… …I am satisfied, having had regard to the applicant's particular circumstances, the circumstances he would reasonably be expected to face in the place of relocation, and the impact on the applicant of being sent to the place of relocation, that it is reasonable for the applicant to relocate to Lahore, Islamabad/Rawalpindi or another urban area outside KPK and the FATA. 52 I have made orders in accordance with the attached minutes. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (27)