MZZQV v Minister for Immigration and Border Protection

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: BARKER J DATE: 29 MAY 2015 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant is a male citizen of Pakistan, who applied for a protection (class XA) visa under the Migration Act 1958 (Cth) on 18 September 2012. 2 The appellant claimed to fear serious harm from the Tehrik-e-Taliban because his family is politically active and has worked in direct opposition to the Taliban in his village in the Swat valley district in Pakistan. 3 The appellant claimed that on 28 August 2008 his uncle was captured, and later brutally killed, by the Taliban. He said that following this incident, he and his father became members of the Qumi Aman Committee in his village, a peace committee providing essential support to the Pakistani army to maintain peace in the area. He claimed he was involved in the peace committee from 2007 to the end of June 2012, when he came to Australia. He said he carried out duties which included leading the army to houses of persons of interest and helping the army to identify those participating in Taliban activity, claiming his role with the committee was significant and that the Taliban would seek to harm him because of it. 4 The appellant claimed the Taliban has attacked and threatened his family and himself. He claimed he was stopped by a group of Taliban in early 2009 while driving in his car and listening to music. He said the Taliban brought him before their local leader who ordered that he be given ten lashes on his back. 5 Further, the appellant claimed that on 10 May 2009 a verdict was issued by the Taliban against his father and family, stating they were spies for the army and ordering them to be killed. The appellant said following this threat his family left Swat and travelled to Peshawar as internally displaced persons. The appellant claimed that on return to Swat he found his uncle's house destroyed and his family's house damaged by the Taliban. 6 He also claimed to have been attacked and injured by the Taliban while performing a night watch with the peace committee on 17 November 2011. 7 The appellant stated that the Taliban's hidden network continues to exert influence in Pakistan, despite being defeated by the army. He claimed the president of the peace committee was killed by the Taliban on 20 April 2010 and that in February 2011 a further verdict was issued by the Taliban against his father and himself ordering them to be killed. Further, he claimed that since arriving in Australia on 1 July 2012, another of his uncles was killed by the Taliban in April 2013 after receiving letters and telephone calls from the Taliban demanding he cease trade in cosmetics and jewellery. 8 The appellant claimed to fear persecution at the hands of the Taliban and related extremists if he returned to Pakistan. He claimed the Taliban would target him due to his political opinions and politically active family, his membership of the peace committee, his support for the Pakistani army and his refusal to cooperate with the Taliban. 9 Alternatively, the appellant claimed he would be targeted because of his moderate religious beliefs, or because he would be considered a spy due to his travel and studies in Australia, or because he would be viewed as a failed asylum seeker in Pakistan. 10 The appellant also claimed that it would be difficult for him to move to another part of Pakistan, such as Punjab, because of his Pashtun ethnicity. He claimed that people would suspect he was affiliated with the Taliban, making it difficult for him to rent a house or find a job. For example, the appellant said that when he travelled to Islamabad on a previous occasion he was questioned at a police checkpoint as to his knowledge of the Taliban in Swat and his hotel room was searched by a police officer. He also claimed he would have difficulty speaking local languages such as Punjabi and Urdu. He claimed that as a Pashtun he would remain isolated in other areas of Pakistan, unable to travel or go anywhere for fear of being targeted and harassed. 11 On 29 November 2012, a delegate of the Minister for Immigration and Border Protection refused to grant the appellant a protection visa. 12 The appellant sought review of this decision before the Refugee Review Tribunal, but the Tribunal affirmed the delegate's decision on 24 July 2013. 13 The Federal Circuit Court gave judgment on 29 August 2014, dismissing the appellant's application for judicial review of the Tribunal's decision. See MZZQV v Minister for Immigration and Border Protection & Anor [2014] FCCA 1912. 14 The appellant now appeals from the Federal Circuit Court's decision on the sole ground that the Court erred by failing to ask whether the appellant could safely relocate in Pakistan in circumstances where he would have no family support.

The Tribunal's decision 15 The Tribunal expressed some concerns about the credibility of the appellant's claims and considered some aspects of the appellant's claims to have been embellished to strengthen his claim for protection. 16 The Tribunal accepted, however, that the appellant was a member of the peace committee for some period prior to his departure in 2012 but found that his involvement with that committee was limited. The Tribunal was prepared to accept that the peace committee in his village existed from some time in 2008, on the basis of an independent source corroborating this claim. The Tribunal also accepted that the appellant's father is or was a member of that peace committee and that his deceased uncle may have been a member of that committee in 2008. Further, the Tribunal accepted the appellant was involved in the peace committee in 2011 and prior to leaving Pakistan in 2012, on the basis of the original untranslated membership card he provided, and that he participated in night patrols of the peace committee in 2011. The Tribunal found the appellant suffered minor injuries as the result of an attack by the Taliban on his night patrol in November 2011. 17 However, the Tribunal did not accept that the appellant was an active member of the peace committee from 2007 to 2010, given his age in 2007, and evidence which suggested the peace committee only commenced in 2008 and the appellant attended university in Peshawar in 2010. The Tribunal did not give evidentiary weight to two letters from the peace committee's vice president, provided as evidence of the appellant's membership in the stated period, given the first letter referenced only the appellant's father, and the second letter was produced only after the Tribunal hearing. 18 With regard to the appellant's claims of further Taliban threats and attacks, the Tribunal accepted the appellant's evidence that his uncle was killed by the Taliban in August 2008. The Tribunal also accepted the appellant's evidence of being apprehended by the Taliban in 2009. However, the Tribunal did not accept that the appellant was personally identified by the Taliban in this attack, merely that he was stopped for listening to music. Similarly, the Tribunal found that an untranslated letter received in 2009, which the appellant claimed contained threats from the Taliban, was not directed at the appellant and mentioned only his father's activities. 19 The Tribunal further accepted that when the family returned to the appellant's village, the appellant's uncle's house had been destroyed, the appellant's house partially destroyed and the family's guest house demolished. However, the Tribunal did not accept that the family was specifically targeted by the Taliban, given the appellant's evidence that many other houses were damaged in the fighting and that the family had been accused by Pakistani authorities of assisting the Taliban. 20 Nonetheless, the Tribunal accepted that the appellant, his father and uncles have been involved in the peace committee, that this would be known in the Swat district, and that they would be imputed as holding anti-Taliban, pro-Pakistani army political opinions. The Tribunal accepted, therefore, there was a real chance the appellant would be known to the Taliban and other extremists in Swat. The Tribunal acknowledged country information which indicated that, despite indications the Taliban's influence is greatly diminished, militant extremists remain active in Swat. The Tribunal therefore accepted that the appellant faces a real chance of persecution in the reasonably foreseeable future in his home village and in Swat. 21 The Tribunal then considered whether the appellant's well-founded fear of persecution in his village and Swat extended to Pakistan as a whole. The Tribunal found that the harm feared by the appellant is localised to Swat and did not accept that the Taliban or other militant extremists would pursue him in other parts of Pakistan. While the Tribunal accepted country information that extremists are present in the Punjab, it did not accept that such extremists would target a person with the appellant's profile in the cities of Islamabad or Rawalpindi. 22 With regard to the appellant's claim that he would be targeted by Pakistani authorities in other parts of Pakistan due to his Pashtun ethnicity, the Tribunal did not accept that security checks by Pakistani authorities amounted to "serious harm", even in circumstances where they are discriminatorily applied to people of Pashtun ethnicity. The Tribunal had regard to country material provided by the appellant's representative following the hearing, and did not find that Pashtuns are targeted for serious harm in Islamabad or Rawalpindi. Nor did the Tribunal accept that the appellant faced a real chance of serious harm in Islamabad or Rawalpindi on any other basis, including being perceived to be a spy, westernised or a failed asylum seeker, or because of his moderate Sunni beliefs. 23 The Tribunal found that it was reasonable for the appellant to relocate within Pakistan, to Islamabad or Rawalpindi. In considering this issue, the Tribunal found the appellant's family remained in his home village for the reasonably foreseeable future. Further, the Tribunal found the appellant was able to earn a living and access accommodation in Islamabad or Rawalpindi, in circumstances where he has completed his schooling, undertaken some tertiary education and speaks both Urdu and English. 24 In those circumstances, given the reasonableness of relocation within Pakistan, the Tribunal was not satisfied the appellant met the refugee criterion under s 36(2)(a) of the Act, or that the appellant was a person in respect of whom Australia has protection obligations under the complementary protection criterion in s 36(2)(aa) of the Act.

Judicial review in the Federal Circuit Court 25 The appellant brought an application for judicial review in the Federal Circuit Court on 21 August 2013. His amended application asserted one ground of review, namely that the Tribunal fell into jurisdictional error in that it failed to consider two integers of the appellant's claim: (1) it would be unreasonable for the appellant to be required to return to Pakistan because he would be subject to discrimination on the basis of his ethnicity and/or appearance throughout Pakistan; and (2) because he would be without family support outside Swat and/or at the suggested places of relocation. 26 In respect of the appellant's claim he would be subject to discrimination throughout Pakistan, the appellant submitted that the Tribunal did not engage with the underlying contention that his ethnicity and appearance meant he would face discrimination across Pakistan, making it unreasonable for him to return. In the appellant's submission, the Tribunal merely considered whether the targeting of the appellant on the basis of ethnicity amounted to "serious harm", not whether it was unreasonable to require him to relocate internally. 27 The primary judge found the Tribunal had addressed the appellant's concerns about discrimination on the basis of his ethnicity. Her Honour found that the Tribunal made a specific finding that the appellant would not be targeted in Islamabad or Rawalpindi because of his Pashtun ethnicity. Further, the Tribunal considered the issue of adverse attention from authorities, and made specific findings that it did not accept he would be unable to earn a living or access accommodation and that it was not unreasonable for the appellant to relocate on that basis. Her Honour held it was reasonable for the Tribunal to concentrate on the matters the appellant raised as manifestations of such discrimination, and that the Tribunal could not be expected to consider more generalised claims, such as, that Punjabi people made fun of Pashtuns and abused them. 28 In respect of the appellant's claim he would be without family support if he moved to one of the suggested places of relocation, and it would be unreasonable to demand that he live far away from extended familial support, the primary judge noted that the Tribunal did not expressly refer to the impact on the appellant of relocating to a place where he did not have family. However, her Honour found that the Tribunal did refer to the appellant's age, education, language skills, and the fact he had lived in Australia for some 12 months without family support. Her Honour noted that the authorities do not suggest that the absence of family networks or other social support will always be relevant when determining whether relocation is unreasonable, and that the Tribunal's failure to mention such matters in its statement of reasons "does not establish they were not considered, merely that they were not regarded as having any weight", citing SZSUY v Minister for Immigration and Border Protection [2014] FCCA 1. The primary judge found the Tribunal considered the appellant's claims in this regard to be less significant than his other characteristics, for example his age, single status, level of education, capacity to read and speak English and Urdu and ability to live away from his family in Australia. 29 The primary judge was not satisfied that the Tribunal fell into jurisdictional error by failing to consider an integer or integers of the appellant's claim.

Appeal to this Court 30 The appellant applied, at the commencement of the hearing of the appeal, to amend the notice of appeal in accordance with a proposed amended notice of appeal dated 27 January 2015. In the circumstances, the appellant having obtained legal advice and representation since he commenced the appeal as a self-represented person, the Court considered it appropriate to grant that leave. 31 The appellant raises just one ground of appeal, namely, that the Federal Circuit Court erred by failing to conclude that the Tribunal was in error by failing to ask the right question, namely whether the appellant could reasonably relocate to Islamabad or Rawalpindi in the particular circumstance where the appellant would have no family support in either place.

Appellant's submissions 32 In detailed written submissions, the appellant contends that the Tribunal erred in failing to analyse the appellant's express, clear and repeated objection to relocation: that it would be unreasonable in his particular circumstances to relocate to a place in Pakistan where he had no family. The appellant submits that the Tribunal only considered the other objections he raised, including the location of his parents, his capacity to earn a living and access accommodation, and the demands for security documents he had experienced from authorities, in analysing the reasonableness of relocation. 33 The appellant submits that merely recording his objections without analysis or resolution does not amount to consideration, and that the Tribunal ignored the appellant's objection to relocation on the basis of a lack of family support. He submits that the primary judge erred in stating that the authorities do not suggest that the absence of family networks or other social support will always be relevant to determining if relocation is unreasonable. In the appellant's submission, support mechanisms in the place of relocation will form part of a lawful analysis of the reasonableness of relocation "in each case", as stated by Kirby J in SZATV v Minister for Immigration (2007) 233 CLR 18 at [80]-[81]; [2007] HCA 40. 34 The appellant also submits the primary judge's reliance on para [40] of the decision of the Federal Circuit Court in SZSUY for the proposition that "the fact that the Tribunal fails to mention such matters in the statement of reasons does not establish that they were not considered, merely that they were not regarded as having weight" is contrary to authority binding on the Federal Circuit Court and this Court: Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 at [50]; [2013] FCAFC 114; Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [65]. The appellant submits that the Court below did not deal with the objection relating to a lack of family in even a summary way, let alone explore the significance of the objection. 35 The appellant submits the objection to relocation relating to the absence of a family network in Islamabad or Rawalpindi was required by law to be analysed but was not so considered, thus the Tribunal fell into jurisdictional error and the Court below was wrong to conclude otherwise.

Minister's submissions 36 In response to the appellant's submissions, the Minister submits that whether relocation is reasonably practicable depends on all of the circumstances including the circumstances particular to the person, and involves an assessment of the impact of relocation of that person to the particular place to which that person would be reasonably expected to relocate. The Minister states this test is different from the test for persecution: it might be unreasonable for a person to relocate to a place for a reason unrelated to the Convention Relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967), or for a reason that impacts the person in the same way as other residents. 37 Further, the Minister submits that there is no obligation on the Tribunal to explicitly address the objections to relocation raised by a visa applicant, so long as it can be inferred that the Tribunal has dealt with each objection at some level, in the sense of active intellectual engagement. The Minister submits that the existence, or lack thereof, of familial support may be relevant to the question whether relocation is reasonable, as Kirby J stated in SZATV. However, in the Minister's submission, the relevance of such support, or lack thereof, is in each case a question of fact for the Tribunal to determine. Thus, there would not be a jurisdictional error if the Tribunal made an error of fact on this issue. 38 The Minister submits that the Tribunal specifically noted that the appellant would be without family support if he relocated to Rawalpindi or Islamabad, but nevertheless concluded that relocation was reasonable having regard to his youth, independence, education and linguistic abilities. The Minister submits the Tribunal implicitly found that the appellant was able to support himself, and the absence of family support did not render relocation unreasonable. Further, the Minister states that it was open and lawful for the Tribunal to place little or no weight on the lack of family support and not to mention it in the statement of reasons, but rather to place great weight on the factors tending to demonstrate the appellant's capacity for self-sufficiency in a new city. The Minister states it follows that the active intellectual engagement necessary on the part of the Tribunal to "consider" the objection was undertaken in the course of a broader analysis about whether the appellant needed any external support, having regard to all of his personal circumstances. 39 Additionally, the Minister notes the appellant does not suggest that living in a city without familial support amounts to a derogation from basic human rights standards or otherwise engages some other aspect of the Convention. 40 Finally, the Minister submits that the primary judge's proposition as to the Tribunals' failure to mention matters in the statement of reasons is not contrary to law, as submitted by the appellant. The Minister submits it is not necessary for the Tribunal to expressly respond to all objections to relocation made by an applicant, in terms. In the Minister's submission, the Tribunal is under an obligation to give reasons for the decision, not to refute every issue raised by a visa applicant, line by line. When read fairly and as a whole, the reason for an omission of explicit mention of some matter in a statement of reasons may become clear. Alternatively, the Minister submits the primary judge was in fact identifying an inference to be made in this case, having regard to a similar inference made in another case, rather than seeking to state a universal legal principle.

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.

conclusion and orders 103 For the reasons given above, the appellant should have leave to rely upon the amended notice of appeal dated 27 January 2015, and the appeal should be allowed. I will hear from the parties as to the final terms of the orders to be made. I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.