MZACX
65 In MZACX the visa applicant claimed to be a person in respect of whom Australian had protection obligations under the 1951 Convention relating to the Status of Refugees (opened for signature 28 July 1952, 189 UNTS 137, entered into force 22 April 1953) as amended by the 1967 Protocol relating to the Status of Refugees (opened for signature 31 January 1967, 606 UNTS 267, entered into force 4 October 1967) and to satisfy the criteria in s 36(2)(a) or s 36(2)(aa) of the Act. The Administrative Appeals Tribunal (Tribunal) in that case accepted that the visa applicant faced a real chance of persecution for reasons of his religion and ethnicity if he were to return to his home region in Pakistan, but did not accept that his fear of persecution was well-founded throughout Pakistan. Rather, the Tribunal found that:
There was not more than a remote chance that the visa applicant would face persecution on account of his religion, ethnicity or former residence;
Taking into consideration independent information and an assessment of the visa applicant's particular circumstances it would be reasonable, in the sense of practicable, for the visa applicant to relocate to Islamabad or Rawalpindi.
66 This finding was referable to s 36(2B) of the Act which provided, in relation to the requirement in s 36(2)(aa) that the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen will suffer significant harm:
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
67 The issue before the Court relevant to the present appeal was whether the Tribunal fell into jurisdictional error in its application of the legal test for relocation. In particular, the visa applicant argued that the Tribunal erred in its application of the relocation test by failing to give proper consideration to the risk of harm established to the Tribunal's satisfaction, and conflating the two limbs of the relocation test.
68 Kenny J examined principles of relocation taken up in s 36(2) of the Act, noting that 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, and it may be reasonable for the person to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Her Honour observed:
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 [2007] HCA 40; 233 CLR 18 at [24]; see also SZFDV [2007] HCA 41; 233 CLR 51 at [14]; and SZSCA [2014] HCA 45; 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…
69 The visa applicant submitted inter alia that, by its findings, the Tribunal accepted that there existed some residual risk in respect of politically motivated terrorist and sectarian violence in various areas across Pakistan, including the putative relocation areas. Even accepting that there was no appreciable risk of the persecution feared by the appellant in Islamabad or Rawalpindi, the Tribunal was required, in the visa applicant's submission, to consider the whole of his claims in relation to relocation, including the other risks for him when considering the practicability of relocation. The visa applicant argued that the Tribunal had failed to consider the practicability of relocation for him, by reference to sectarian and generalised violence that it found existed, and had wrongly conflated:
the question whether there was an appreciable risk of the feared persecution in the putative safe havens of Islamabad and Rawalpindi; with
the question whether relocation to those places was reasonable, in the sense of practicable, given his particular circumstances.
70 Her Honour observed:
35. In considering the possibility of relocation within a visa applicant's country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk, then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is "reasonable", in the sense of "practicable", having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus. Jurisdictional error may arise where a Tribunal conflates the two stages of the inquiry, as MZYQU [2012] FCA 1032; 206 FCR 191 and MZZJY [2014] FCA 1394 illustrate.
36. In MZYQU [2012] FCA 1032; 206 FCR 191, Dodds-Streeton J held (at [61]) that there was jurisdictional error in treating a risk of serious harm (within s 91R(1)(b) of the Migration Act) as the only kind of harm that could affect the reasonableness of relocation. Her Honour explained (at [55] and [60]):
Consistently with SZATV, factors such as "other and different risks in the propounded place of internal relocation" ... may be relevant, albeit not mandatory, considerations when determining the reasonableness of a proposed relocation.
...
The I[ndependent] M[erits] R[eviewer] did not consider the impact of the risk of harm in the form of generalised violence or harm (of an unspecified nature or level) due to personal circumstances on the reasonableness of the appellant's relocation. By inference, the IMR proceeded on the basis that unless the harm were serious within the meaning of s 91R(1)(b), it was unnecessary to do so.
37. In MZZJY [2014] FCA 1394 Davies J held that the Tribunal had erred in considering whether the applicant in that case could relocate within Pakistan to avoid persecution. Her Honour said (at [16] and [21]):
The applicant's primary contention in support of the proposed ground of appeal is that the FCC erred in not finding that the Tribunal, in assessing the reasonableness of the applicant relocating to Karachi, was obliged, but failed, to consider the risk of the applicant suffering harm having regard to the particular circumstances of the applicant. It was argued that the Tribunal wrongly conflated the two limbs of the relocation test, namely "appreciable risk" and "reasonableness", by failing to address the personal circumstances of the applicant in addressing the question whether it was reasonable, in the sense of practicable, for the applicant to relocate to Karachi in the face of a risk of the applicant suffering sectarian and generalised violence, however remote...
I accept the submission for the applicant that the Tribunal conflated the two limbs of the relocation test, namely "appreciable risk" and "reasonableness", by finding that the applicant could be reasonably expected to relocate to Karachi "where there is not an appreciable risk of the occurrence of the feared persecution". In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 Gummow, Hayne and Crennan JJ stated that what is "reasonable" in the sense of practicable must depend upon the particular circumstances of the visa applicant and the impact upon that person of relocation of the place of residence within the country of nationality. This criterion was recently affirmed by the High Court in Minister for Immigration and Citizenship v SZSCA [2014] HCA 2014. In the present case, the Tribunal dealt with the position of Shias generally in Karachi but did not consider the practical realities facing the applicant, as a person at risk of attack in Karachi because of his religion. In so doing, the Tribunal wrongly elided the question posed by the "reasonableness" criterion with the inquiry, is there a lack of "appreciable risk" of harm? 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.
71 Her Honour noted at [39] that whether the Tribunal erred depended, in part, on the claims made by the visa applicant before the Tribunal concerning the reasonableness of his relocation to Islamabad or Rawalpindi, including the harm he claimed to face there. The visa applicant submitted, inter alia, that in Islamabad and Rawalpindi, he would face a heightened risk because of his status as a Turi Shia Muslim and his "profile as a renewed Turi shopkeeper"; that the level of sectarian fuelled violence in those cities was expected to increase dramatically; and that he would face a risk of harm as a result of ethnically and religiously motivated attacks if he were to relocate to those cities and that this circumstance was relevant to the reasonableness of his relocation there.
72 Her Honour continued:
45. Paragraph [47] of the Tribunal's reasons set forth the Tribunal's conclusion about relocation to Islamabad or Rawalpindi. The paragraph commences with the statement that the Tribunal considered that "there is not more than a remote chance" that the appellant would "face persecution on account of his Shia religion, his Turi ethnicity, being a former resident of Parachinar in Kurram Agency" if he returned to Islamabad or Rawalpindi. This statement also addressed the issue whether there was an appreciable risk of the feared persecution in these cities.
46. There is only one statement in paragraph [47] that touches on the second issue of whether, given some level of risk, it was reasonable in his circumstances to relocate to one of the cities. This is the stated conclusion that:
While the Tribunal considers that there is less than a remote chance of the applicant being targeted on the basis of his Shia religion or as a member of the Turi tribe from Parachinar or being caught up in generalised or sporadic violence which may occur in the country including in Islamabad and Rawalpindi, the Tribunal finds it is reasonable for the applicant to relocate to these urban centres in these circumstances.
47. There is, however, no prior acknowledgement in the Tribunal's reasons that a risk of harm as a result of ethnically and religiously motivated violence might, as the appellant claimed, militate against relocation, bearing in mind all the circumstances of his particular case. It is true that the Tribunal in fact stated that it did not accept that, in Islamabad or Rawalpindi, the appellant would face a heightened risk because of his status as a "renewed Turi shopkeeper in Parachinar". As noted above, however, the appellant relevantly claimed that he would face a risk of harm as a result of ethnically and religiously motivated attacks if he were to relocate to Islamabad or Rawalpindi and that this circumstance was relevant to the reasonableness of his relocation to those places. It will be recalled that the Tribunal accepted that: (1) the appellant faced "a real chance of persecution" in his home area of Pakistan because of his religion and ethnicity (and thus had a well-founded fear of persecution on those grounds in that area); (2) the appellant's religion, ethnicity, tribal identity and origins were identifiable from his accent, identity documents, spelling of his name and the way he practised his religion; (3) there had been attacks, including in November 2013, on Shias in Rawalpindi; (4) there may have been some instances of the kidnapping of Turis in Islamabad and Rawalpindi in 2011; and (5) there had been incidents of violence against Shias and there will be further attacks against Shia targets in various parts of the country. As to (4), the Tribunal stated that it did not accept that there was a "real chance" that the appellant would be the victim of such crime, having regard to the size of the population and the limited number of reports over time. The Tribunal also referred to the existence of Turi political rallies as the basis for not accepting that the appellant's profile as a Turi or Turi Shia would lead to a "real chance" of serious harm away from his home region or "adversely impact on his ability to relocate".
(Emphasis added.)
73 Importantly, her Honour said:
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.
74 The principles set out by Kenny J in MZACX are not disputed by either party, and further were given limited consideration recently by the Full Court in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526. In particular we note [108] of that decision where the Court said:
108. For these reasons, the Authority's reasoning was not at odds with MZYQU, MZZJY and MZACX insofar as they stood for the proposition that a risk of encountering violence in a putative place of relocation of an unspecified nature or level (that is, below the threshold of serious harm) may be relevant to the reasonableness of relocation.
75 Further, the Court observed:
110. Thirdly, the question of reasonableness is one that required a factual inquiry to be undertaken and an evaluative judgment to be made. While the practical realities facing an applicant will be relevant, s 36(2B)(a) did not specify any mandatory relevant considerations. As Allsop J observed in SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 at [22], a decision-maker is not required in addressing relocation "to elaborate on every aspect of its practical application." Insofar as MZYQU, MZZJY and MZACX, if considered to apply equally to the relocation test under s 36(2B)(a), may suggest that consideration must always be given to the risk of generalised violence when assessing the reasonableness of relocation, they were, with respect, wrong as they descended to a greater level of particularity than was called for by the Migration Act, and should not be followed.
76 For present purposes we accept the principles set out in MZACX as correct.