Discussion
41 The sole question to be determined on this appeal is whether the Tribunal gave any or any real consideration to the reasonableness of proposed relocation within Pakistan in light of the particular concerns expressed by the appellant.
42 In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 535, a Full Court of this Court (Black CJ, Beaumont and Whitlam JJ) recognised that the Convention definition of a refugee does not refer to parts or regions of a country, but nonetheless it does not accord refugee status to those who, although having a well-founded fear of persecution in their home region, could nonetheless avail themselves of the real protection of their country of nationality elsewhere within it.
43 The Court accepted, however, that if it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of the country from which they have fled, to relocate to another part, it may be said that, in the relevant sense, their fear of persecution in the country as a whole is well-founded.
44 Whitlam J, at 453, agreed that the appeal before the Court in that case should be dismissed for the reasons given by both Black CJ and Beaumont J.
45 His Honour further said that proof of persecution will often be difficult. He remarked that the Office of the United Nations High Commissioner for Refugees handbook acknowledged this problem (as at that time) and set out procedures for the determination of refugee status. His Honour noted that Beaumont J had referred particularly to [203] and [204] of the handbook and noted that the delegate had accepted the appellant's "story" of the reasons for the deaths of his father and his brother. Whitlam J, however, considered it worth emphasising that what Black CJ had said about a decision-maker's task being largely determined by the case sought to be made out by an applicant, applies to all aspects of such a case, both personal circumstances and what might be called "country conditions".
46 Black CJ, at 442, said that in the case before the Court, the Minister's delegate correctly asked whether the appellant's fear was well-founded in relation to his country of nationality, not simply the region in which he lived. He said the delegate correctly went on to ask not merely whether the appellant could relocate to another area, but whether he could reasonably be expected to do so.
47 The Chief Justice added:
This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.
48 The Chief Justice then said the range of the realities that may need to be considered in this context extend beyond physical or financial barriers, to circumstances discussed by Professor Hathaway in The Law of Refugee Status (Butterworths, 1991) at p 134, including situations where financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognised.
49 The Chief Justice added, at 443, that once the question of relocation had been raised the decision-maker was obliged to give that aspect of the matter proper consideration.
50 In that case, however, the Chief Justice did not consider that the delegate was obliged to do this with the specificity urged by counsel for the appellant. His Honour said the decision-maker's task will be largely determined by the case sought to be made out by the applicant. In that case, the applicant raised several issues all of which were dealt with by the decision-maker.
51 In NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37, the Full Court (Branson, RD Nicholson and North JJ) allowed an appeal from the Federal Magistrates Court and remitted consideration of a refugee application, from a Fijian citizen, to the Refugee Review Tribunal.
52 Branson J, in her separate reasons, after reference to what Black CJ had said in Randhawa, explained, at [14], that in that case the Tribunal was satisfied that if the appellant moved away from her present neighbours, she would not be at the same risk of harm as she had been in the past. Her Honour said there was nothing before the Tribunal that even raised the possibility that if the appellant were to return to Fiji she would be required by the Fijian authorities to return to live in proximity with those who were her neighbours before she came to Australia. Her Honour said, at [15], the critical issue for the Tribunal's determination was thus whether it was reasonable to expect the appellant on return to Fiji to live in a new neighbourhood.
53 At [18], her Honour said that it seemed to her that the statements of the appellant summarised by the Tribunal member were intended to convey a concern by the appellant about where she would live if she left her own home and how, without a friend or family members in close proximity, she could be "looked after" in the way that, as a 55 year old unemployed widow in Fiji, she needed to be looked after.
54 Her Honour found that the Tribunal had failed to give explicit consideration to how the appellant would find a new home in which to live in Fiji and access the support she might reasonably require to live in that home.
55 Her Honour finally concluded, at [22], that the "summary way" in which the Tribunal dealt with the issue of relocation, including its failure to explore the significance of the appellant's reference to having no one in Fiji "to look after her", caused her to conclude that the Tribunal did not apply the right test when it concluded that it was satisfied that, with the assistance of her daughter, the appellant would be able to relocate within Fiji. Accordingly, the Tribunal did not, as Randhawa required, give consideration to the "practical realities" facing the appellant with respect to accommodation and care should she seek to relocate within Fiji.
56 In SYLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 942, by reference to NAIZ and Randhawa, Branson J concluded, at [22], that humanitarian considerations personal to a particular applicant, such as the applicant's marital status and need for care, are relevant to the assessment of whether the applicant can reasonably be expected to relocate within his or her country of nationality. By analogy, her Honour said, factors such as the possible impact of relocation on an applicant's psychiatric health must also be relevant to this assessment.
57 In that case the applicants were a married couple and citizens of the Federal Republic of Yugoslavia, renamed Serbia and Montenagro in 2003. The applicants were ethnic Albanians. Her Honour said, at [27], that to determine whether it was unreasonable to expect the female applicant to relocate within her country of nationality, the Tribunal was obliged to review her personal circumstances and to consider the circumstances that she could be expected to face should she return with her husband and relocate. Having undertaken those two steps, the Tribunal was then obliged to make a judgement as to whether it would be unreasonable to expect her, having regard to her personal circumstances and those she could be expected to face in the proposed place of relocation, to avail herself of the diplomatic or consular protection of her country on the basis of relocation.
58 Her Honour then noted the personal circumstances presented by the female applicant.
59 Her Honour found, at [30], that it did not appear that the Tribunal appreciated the need for it to make a judgement as to whether it would be unreasonable to expect the female applicant, having regard to her personal circumstances and those she could be expected to face on relocation, to avail herself of the protection of her country, on the basis of relocation. In those circumstances, her Honour made an order quashing the decision of the Tribunal.
60 Following these decisions, in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40, the High Court had occasion to consider the relocation principle. The plurality (Gummow, Hayne and Crennan JJ), by reference to what Lord Bingham had said in Januzi v Secretary of State for Home Department [2006] 2 AC 426, in effect confirmed the approach taken by the Full Court of this Court in Randhawa.
61 At [26], the plurality, while generally accepting that the Convention is concerned with persecution in a defined sense, not living conditions in a broader sense, observed that nevertheless in particular cases territorial distinctions may have an apparent connection with the particular reason for the asserted well-founded fear of persecution. The plurality stated:
There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for a well-founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography.
62 In relation to the case before the Court, the plurality said, at [32], that the effect of the Tribunal's stance was that the appellant, a journalist, was expected to move elsewhere in the Ukraine, and live "discretely" so as not to attract the adverse interest of the authorities in his new location, lest he be further persecuted by reason of his political opinions. It thereby sidestepped consideration of what might reasonably be expected of the appellant with respect to his relocation and presented an error of law, going to an essential task of the Tribunal.
63 It is also appropriate to note that in SZATV, in a passage that the appellant relies on in this appeal, Kirby J also dealt with the question of the reasonableness of internal relocation as a factor in assessing an applicant's refugee status. At [79], Kirby J asked whether the prospect of internal relocation would always be more reasonable and thereby exclude the requirement of external protection where internal location was, or is, a reasonable option.
64 His Honour then said, at [80], that a review of the literature suggested that this conclusion will not invariably follow, either as a matter of fact or law. His Honour said:
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 [footnote omitted]. Nor if the evidence indicates that there are other and different risks in the propounded place of internal relocation [footnote omitted]; or where safety could only be procured by going underground or into hiding [footnote omitted]; or where the place would not be accessible on the basis of the applicant's travel documents or the requirements imposed for internal relocation [footnote omitted].
65 His Honour added, at [81], that 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 the country. His Honour added that:
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 [footnote omitted].
66 His Honour said that, 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.
67 For present purposes, I would accept that what Kirby J said in these respects is not inconsistent with, and usefully helps to explain, the more generally stated relocation principles discussed by the plurality, and set out above.
68 All the authorities cited to this point, including the passages from Kirby J's judgment, are to the effect that a range of issues may become relevant to the question of whether internal relocation is reasonable, depending on the circumstances and the issues raised by an applicant for refugee status, and, when they do, must be carefully regarded by the decision-maker.
69 Here, the appellant contends that the Tribunal failed to evaluate an express, clear and repeated objection to relocation that was made to it by the appellant, on the basis that it would be unreasonable in his particular circumstances to relocate to a place in Pakistan where he has no family. The appellant says that the primary judge erred in not finding that this was so.
70 The appellant submits that the unreasonable relocation factor, by reference to having no family support, was fairly and squarely raised in submissions. In a written submission made to the Tribunal on behalf of the appellant, it was stated, for example, that:
[i]t would be manifestly unreasonable to expect [the appellant] to relocate to another city in Pakistan. The dangers he would face both while travelling and on arrival in an unfamiliar city where he has no supports, and the difficulties he would have finding work and safely accessing education would make the situation very difficult. Furthermore, we submit that relocating to a city in Pakistan alone without any family or community support is not reasonable in the circumstances of [the appellant]. [The appellant] is only 23 years old. His parents and siblings are awaiting visas to live permanently in the United States of America. His extended family reside only in the Swat Valley. It is submitted that it would be difficult for him to live without his parents and siblings, but it would be unreasonable to demand that he also live far away from any extended familial support he may have.
71 The submission to the Tribunal made on behalf of the appellant also referred to an earlier decision of another Tribunal, dated 7 December 2011, where it was found that it would not be reasonable for the applicants in that case to relocate away from Swat. The appellant's submission to the Tribunal noted that in that case, one of the applicants held professional work experience as a teacher, yet despite this, the Tribunal recognised the difficulties involved in Pashtuns from Swat relocating. The Tribunal, in that other case, accepted the applicants had little work experience and no family support outside Swat and the surrounds.
72 The appellant's submission to the Tribunal further stated that the other Tribunal had also noted that:
The family structure is incredibly important for Pakistanis and for Pashtun in particular. If the applicants were to relocate to one of these urban conglomerations they would have few support structures, and only the possibility of finding work, and a young child to care for.
73 The appellant says that this was the particular submission, as well, put to the Tribunal but not regarded or adequately regarded by it in his case.
74 The precise point put on behalf of the appellant is that the family support question, going to reasonableness of relocation, was simply not dealt with in substance by the Tribunal.
75 Counsel for the appellant is at pains to emphasise the sequencing of the Tribunal's decision-making in order to identify what is submitted to be the failure to deal with the substance of the relocation objection made by the appellant, and the primary judge's failure to recognise that jurisdictional error as well.
76 First, counsel draws attention to [45] of the Tribunal's decision where it finally accepted that the appellant faces a real chance of persecution in the reasonably foreseeable future in his home village and the Swat region more generally by reason of his anti-Taliban political opinion.
77 Counsel acknowledges that, at [49] of its reasons, the Tribunal identified SZATV as endorsing the proposition that a person will not be excluded from their refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. Counsel notes that the Tribunal also emphasised that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the refugee applicant and the impact upon that person of relocating within their country.
78 Counsel then emphasises that while the Tribunal addressed the question of whether it would be reasonable for the appellant to relocate to Islamabad or Rawalpindi, it did not canvas the issue of family support that had been squarely raised by the appellant in written submissions.
79 Counsel on behalf of the appellant notes the statement made by the Tribunal at [59] of its reasons, as follows:
Having made this finding, it is necessary to consider whether it would be reasonable for the applicant to relocate to Islamabad or Rawalpindi. It is submitted in this regard that the applicant would face dangers both travelling to and on arrival in an unfamiliar city in which he has no supports and would face difficulties finding work and safely accessing education. It is submitted that it is unreasonable to expect the applicant to relocate to a city where he has no family or community support and that his parents and siblings are awaiting visas to live permanently in [the United States of America].
80 The appellant accepts that the Tribunal's statement in this regard accurately reflects what was contained in the submission made to the Tribunal on his behalf. But, counsel for the appellant says the passages of the Tribunal's decision that follow are crucial, although less for what they say and more for what they do not say.
81 First, the Tribunal points out, as a matter of fact, that the family of the appellant will be in Pakistan, because they do not currently have visas to enter the United States of America.
82 I accept the submission made on behalf of the appellant that that appears to be a factual statement that might be said to bear, to some extent, on the submission made on behalf of the appellant to the Tribunal that he would be all alone in Pakistan, with his immediate family in the United States of America. To the extent that that submission was being made, plainly the Tribunal did not consider it to be factually correct.
83 The point is, the appellant submits, that the Tribunal then did not proceed to deal with the "central objection" to relocation, which was that, in Islamabad or Rawalpindi, the appellant will have no family at all. Rather, the Tribunal went on to find that the appellant would be able to earn a living and access accommodation in Islamabad and Rawalpindi, and that it would be reasonable for the appellant to relocate, even though he may face many demands for security documents based on the presumption that he is a Taliban supporter.
84 The appellant submits that, what is not in issue, is the Tribunal's finding that the appellant would be able to earn a living and access accommodation if he relocated to Islamabad or Rawalpindi. Rather, the submission, in essence, is that the test of reasonable relocation requires a consideration of all the personal circumstances of the appellant, and those personal circumstances include things that go beyond those relevant to earning a living or accessing accommodation.
85 The factors ultimately pressed on behalf of the appellant are that the Tribunal did not, or did not adequately, consider the appellant's age and culture, that is to say, that regardless of age, the cultural expectation and norm of the appellant's family would be that the family would remain together with all the emotional, familial supports that come with that. That assessment needed to be made in the context of the Tribunal having already found that the appellant had a well-founded fear of persecution in one part of the country; that he was a vulnerable person, having experience of serious harm.
86 The appellant submits that the submission he put to the Tribunal was that he would not have family support, in terms of community and familial support. In that regard, his earlier submission to the Tribunal was that it would be unreasonable to demand that he live far away from any extended familial support he may have. The submission emphasised the importance to Pashtuns in particular of the family structure. It is this, the appellant says, that was not considered by the Tribunal.
87 The appellant submits that the primary judge recognised this deficiency in decision-making when, in particular, at [27], her Honour said that the Tribunal decision did not deal with the objections the appellant had put. Thus her Honour stated: "Instead, there is a finding of fact only with respect to the location of the Applicant's immediate family".
88 Therefore, the appellant submits, the primary judge acknowledged the appellant's submission that the Tribunal's findings and reasoning were not responsive to the objection the appellant put in relation to family support.
89 The appellant complains that her Honour then impermissibly found, at [46], that a failure to mention each item on a list of an applicant's personal characteristics and family situation in a statement of reasons "does not establish that they were not considered; merely that they were not regarded as having any weight", citing the decision of SZSUY in support of this proposition.
90 In response to the above submissions of the appellant, the Minister, in effect, submits that more is being made of the lack of elaboration of the family support issue than is justified, given the materials in front of the Tribunal, and that no jurisdictional error is evident. Counsel for the Minister, for example, made the reasonable point that there was not any elaborate submission about the importance of extended family in the written representations made on behalf of the appellant and referred to above.
91 Counsel for the Minister submits there was nothing apart from what has been referred to above, including country information, to explain why family and extended family is important in the circumstances and that, without more, failure to deal with the issue could not spell jurisdictional error.
92 On behalf of the Minister, it is submitted that as to the challenged last sentence in [46] of the primary judge's decision, that particular proposition should be treated as passing commentary or obiter dicta.
93 In written reply submissions, provided with leave of the Court after the hearing, it is further submitted on behalf of the appellant as follows:
(1) On three occasions in the Minister's written submissions, the Minister relies on a "factual inaccuracy" in respect of the appellant's stated objection to relocation. Contrary to the Minister's repeated submission, the appellant did not limit his objection to relocation to a lack of familial support from his "immediate family because they were imminently to migrate to the USA". The appellant made the objection to relocation in the following terms: "It is submitted that it would be difficult for him to live without his parents and siblings, but it would be unreasonable to demand that he also live far away from any extended familial support he may have". On behalf of the appellant it is said that this is a clear and express objection that was not limited to his nuclear family and was not dependant on a finding that they were going to move to the United States of America.
(2) Contrary to the Minister's submission, it is not relevant to a determination of the objection issue in this appeal that the appellant did not verbalise the objection in terms at the Tribunal hearing. Such hearings are not occasions on which all previous written submissions are rehearsed orally. To do so would be contrary to the Tribunal's statutory mandate to conduct hearings that are "fair, just, economical, informal and quick" in accordance with s 420(1) of the Act. At the very beginning of the Tribunal hearing, the Tribunal made it clear that it would have regard to the submissions of the appellant.
(3) The Minister submits that "there is no immediate connection between such emotional support [as a family provides] and the ultimate issue - the reasonableness of relocation". The appellant says this submission is inconsistent with established principles in respect of relocation. Those cases make it clear that all the personal circumstances of a person - especially those raised as express objections to relocation by a visa applicant - are relevant to the assessment of the reasonableness of relocation. These authorities are also inconsistent with the Minister's submissions that "the appellant's assertions that he would be without familial support were not central (nor even peripheral) to any critical issue within the framework of the relocation question". The "immediate connection" or "critical issue", contends the appellant, is established by both the express objection of the appellant in this case and the factors enumerated in his submissions and highlighted in the appeal, namely unreasonableness of relocation away from family in Pakistan given his young age, the importance of familial connection and support for Pashtuns like him, and his vulnerability as a person at real risk of serious harm by nearby extremists.
(4) The Minister's characterisation of the appellant's objections to relocation on the basis of an absence of family is incomplete. The appellant's vulnerability as a person at real risk of serious harm (which was accepted by the Tribunal) and the importance of familial support as a Pashtun ought properly be added to the Minister's list. As with the emotional support needed because of his youth, these factors were also raised clearly on the material and were required to be evaluated by the Tribunal for that reason. It is worthy of note that the Minister concedes that the Tribunal did not explicitly deal with the lack of emotional support for the appellant in Islamabad/Rawalpindi by being relocated away from any family in Pakistan. By the Minister's written submissions, it was also relevantly conceded further "that an applicant must [not] in each case identify with erudite precision how a particular matter will affect the reasonableness of relocation".
(5) The extensive analysis by the Minister of the facts of some of the cases cited by the appellant misunderstands the reason for their citation. The appellant relies on them at the level of principle, not merely to draw factual analogies. To the limited extent that factual analogies exist, they are instructive but the primary reason for their mention was to draw upon general statements of law binding on the Court below and this Court in its consideration of the grounds of appeal.
(6) In respect of the decision in SZSUY, the Minister relies on the decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 to submit that the quote from SZSUY relied upon by the primary judge twice in her reasons is correct as a matter of law. The appellant says there is no doubt that Yusuf is good law binding on the Court, but there is equally no doubt that the same paragraphs to which the Minister refers sit uncomfortably with the statement relied upon from SZSUY. In Yusuf, Gaudron J, at [37], noted that "the failure to make a finding on a particular matter raised by the applicant may, in some cases, reveal an error of law". Similarly, at [69], McHugh, Gummow and Hayne JJ concluded that a failure by the Tribunal to analyse an issue raised by an applicant "may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error". The appellant says the failure by the Tribunal to consider the repeated, express objection to relocation in this case is one revealing such error. It is for that reason that the bald proposition taken and applied by the primary judge from SZSUY is erroneous.
94 This is not an easy matter to determine on appeal. In the result, the Court considers the submissions made on behalf of the appellant should be accepted.
95 What is clear is that the familial support objection to relocation was made in reasonably broad terms. It is true to say that there was no detailed set of particulars, if one likes, to flesh out that objection. But the objection was made. And it was not expressly responded to and, on the face of it, not expressly considered by the Tribunal.
96 The paragraph in which the Tribunal found that relocation would not present any obstacle, not unreasonably focussed on the age and prior personal experience of the appellant in undertaking education in Australia and apparent general ability to relocate. But having said all of that, it does not necessarily follow that the Tribunal was thereby responding to the very particular proposition and objection that, in Islamabad or Rawalpindi, a Pashtun without familial support would be placed at risk.
97 The question is finely balanced but, given the importance of Tribunal fact-finding in relation to protection visa applications of this sort, I consider the appellant is entitled to the benefit of the doubt, as it were. The Tribunal effectively found in favour of the appellant in all other significant aspects of the protection visa application. Critically, the Tribunal found that he was - subject to the relocation issue - a person to whom Australia owed protection obligations and to whom the complementary principle applied. The only question left outstanding was whether he could relocate.
98 It appears that at the hearing in the Tribunal much attention was given to establishing the primary integers that give rise to refugee status. Less attention, perhaps - and this does appear to be the case from reading the Tribunal's decision - was given to the relocation question. It was relatively briefly dealt with.
99 Nonetheless, in my view, the relocation objection based on the familial support ground, including the reference to another decision of another Tribunal on this very point, appeared to raise a broader proposition than the mere emotional and intellectual or personal and financial capacity of the appellant to look after himself in a different city in Pakistan.
100 In my view, therefore, it is not open to infer that this was a case where the Tribunal did consider all of the material matters raised by way of objection to relocation.
101 In all these circumstances, the Court considers that the appellant has established that an error was made by the Tribunal in not considering the particular familial support objection to relocation raised by the appellant, which error amounts to a jurisdictional error.
102 For these reasons, the primary judge was wrong to find that the Tribunal did not commit jurisdictional error as alleged.