SZUJV v Minister for Immigration and Border Protection

Federal Court of Australia|2019-09-06|Before: Mr J, Wheelahan JJ, Reeves J

The applicant's application filed on 11 February 2019 is dismissed.
The applicant is to pay the first respondent's costs of the application to be taxed failing agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The applicant has applied for an extension of the time set by r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) so that he may file an appeal from a judgment of the Federal Circuit Court (see SZUJV v Minister for Immigration & Anor [2019] FCCA 26 (SZUJV)). In determining whether to exercise the discretion to grant such an extension, the Court will normally have regard to the length of any delay, the explanation offered for the delay, any prejudice that may be suffered by the respondent and the applicant's prospects of success in the proposed appeal if an extension were to be granted (see EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214 at [19] per Perry, Derrington and Wheelahan JJ). 2 The agreed period of the extension required in this instance is relatively short - six days. The applicant has offered what I consider to be a satisfactory explanation for his delay, namely that his erstwhile lawyer failed to provide him with timely advice on his proposed appeal, notwithstanding his repeated requests for that advice, and then terminated his retainer at about the same time as the appeal was due to be filed. The Minister for Immigration and Border Protection, the first respondent, does not claim to have suffered any relevant prejudice. It therefore only remains to consider the applicant's prospects of success in the proposed appeal because it would be futile to grant an extension of time if the appeal has no reasonable prospects. 3 In his draft notice of appeal, the applicant has raised two proposed grounds as follows: 1. The Tribunal failed to apply correct test in "serious harm', at least substantially, to the determination of the question whether it would be reasonable for the Applicant to relocate to Karachi and in effect, considered that any harm less then 'Serious harm' did not affect the question of the reasonableness of relocation. Particulars A. The Tribunal failed to adequately consider applicant's objections to relocation to Karachi on the basis of the sectarian perpetrated against Shia professionals on the basis that the Applicant was not considered to be a Shia professional and therefore was not at risk of 'serious harm'. B. The Tribunal though acknowledged that there were a number of attacks on Shia religious processes and places where they gathered, but stated that based on the overall Shia population in Karachi, there was no evidence that the Applicant, as a Pashtun Shia, would suffer 'Serious harm'. C. The Tribunal failed to consider and dismissed applicant's religion as placing him at risk in Karachi, because the Tribunal was not of the view that the risk was one of the applicant's suffering 'serious harm'. 2. The Tribunal failed to consider and to have regard to practicalities of relocation. Particularly, under the Complementary protection ground, the Tribunal failed to consider practical difficulties in relation to the assessment of relocation. Particulars The Tribunal failed to take into consideration of the effect of the country information concerning attacks on Shia neighbours specifically, given that the practical effect of relocation would have been for the applicant to live in Karachi. (Errors in original)

FACTUAL BACKGROUND 4 The applicant is a citizen of Pakistan who arrived in Australia on 24 May 2012. On 9 August 2012, he applied for a Protection (Class XA, subclass 866) visa. In that application, he claimed to fear persecution in Pakistan because of his ethnicity and religion. More specifically, he claimed to fear harm from the Taliban, Sunni extremist groups and Sunni persons generally in Pakistan on the basis of his religion, ethnicity, real and imputed "anti-insurgent" political opinions and his membership of two social groups: "Shiites of Bangash tribe from Parachinar" and "members of the Bangash tribe from Kurram Agency". 5 A delegate of the Minister refused his application on 8 March 2013. The applicant then applied to the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), for a merits review of the delegate's decision. When the Tribunal affirmed the delegate's decision, he applied to the Federal Circuit Court for a judicial review of the Tribunal's decision. The primary judge's rejection of that application led to the present application.

THE TRIBUNAL'S DECISION 6 The Tribunal accepted that there was a real chance that the applicant would suffer serious harm in Parachinar and Kurram Agency generally on the basis of his religion and his imputed political opinion. However, the Tribunal found that the "risk of the applicant suffering serious harm … [in Karachi was] remote" and concluded that it would be reasonable for the applicant to relocate there. Accordingly, because it was not satisfied that the applicant met the criteria set out in ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act), the Tribunal affirmed the delegate's decision.

THE FEDERAL CIRCUIT COURT DECISION 7 The applicant raised two grounds of review in his application to the Federal Circuit Court, as follows (at [7] of SZUJV): 1. The Tribunal fell into jurisdictional error by misdirecting itself or asking the wrong question when it made the finding that it would be reasonable for the applicant to relocate to Karachi. Particulars i. The Tribunal incorrectly imported the criteria of "serious harm" under s.91R of the Migration Act 1958 into the relocation principle. 2. The Tribunal fell into jurisdictional error by failing to take into account a relevant consideration when it made the finding that it would be reasonable for the applicant to relocate to Karachi. Particulars i. There was country information before the Tribunal that there had been a number of serious attacks on neighbourhoods in Karachi, where Shias lived. ii. The Tribunal did not take this country information into account in finding that there had been attacks in Karachi "on religious processions and places where large members of Shias are likely to gather", rather than on locations where Shias lived. (Italics in original) 8 The primary judge rejected both grounds, concluding that the Tribunal had not committed any jurisdictional error (SZUJV at [21]). 9 On the first ground, his Honour did not accept that the Tribunal misunderstood its statutory task or elevated the claimed risk of serious harm to a "singular and decisive consideration" as claimed by the applicant. Further, he found that, having adopted the correct approach, the Tribunal had concluded that the applicant would not face a real risk of serious harm in Karachi and "was unpersuaded that it would not be practicable for the applicant to relocate to Karachi for the reasons he propounded and concluded that it was reasonable to expect him to make that move" (SZUJV at [14]). 10 On the second ground, while the primary judge accepted that the Tribunal "may not have undertaken an express, detailed consideration of the matters [of country information] to which the applicant referred" (SZUJV at [19]), his Honour nonetheless concluded that its reasons disclosed that it was aware of, and duly considered, the country information available to it "concerning sectarian attacks on Shi'a Muslims in Karachi which it had rehearsed earlier in its decision record, including the information concerning the outrages particularised by the applicant in his submissions".

THE CONTENTIONS 11 The applicant filed a set of written submissions in which he essentially replicated his proposed grounds of appeal. However, he then added references to a number of authorities and, based thereon, submitted that the Tribunal had committed jurisdictional error by failing to "accurately identify and consider the [applicant's] objection to relocation [to] Karachi" and "failing to give consideration to the practical realities [faced by him]". He also contended that the Tribunal had improperly failed to have regard to his "distinct Pashto accent" and his "national [i]dentification" which would denote his name and place of residence were he to relocate to Karachi. Further, he claimed that the Tribunal had failed to give consideration to the difficulties he would face "accessing housing, clean drinking water and sanitation" if he were to relocate to Karachi. Consequently, he claimed that the Tribunal had failed to have regard to the "practical difficulties" that confronted him in relocating to Karachi and thereby committed jurisdictional error. 12 The Minister also filed a set of written submissions. As to appeal ground 1, the Minister contended that the Tribunal "clearly understood and applied the relevant legal test when assessing the [a]pplicant's claims to fear harm". Noting that the "real chance" test is an essential component of the "well-founded fear of persecution" test in s 5H(1), he submitted that meant that there must be a "substantial, as distinct from a remote chance" (emphasis removed) of the persecution occurring. In applying this test, the Minister submitted that, after concluding the applicant would face serious harm if he were to return to his home region, the Tribunal proceeded to have regard to country information and the applicant's submissions in respect of the reasonableness of his relocation to Karachi and concluded that the risk of harm he faced if he were to relocate there was remote. Consequently, the Minister submitted, the Tribunal "properly had regard to the … information … relevant to the [a]pplicant's relocation" and, thus, had not fallen into error. 13 In respect of appeal ground 2, the Minister made three points. First, he contended that the applicant misrepresented the submission he made to the Tribunal in respect of the practical difficulties he may face in relocating to Karachi because he seemed to be referring to the country information provided rather than his submission about the reasonableness of his relocation to Karachi. Secondly, he submitted that the Tribunal did consider the applicant's submissions regarding the practical difficulties which may result from such a relocation (see at [65] of the Tribunal's reasons). Thirdly and finally, he submitted that the Tribunal identified the applicant's objections to relocation and considered the potential impacts. In doing so, he submitted it did not restrict its consideration of the reasonableness of relocation "only by reference to the risk of harm" (emphasis removed) in Karachi. To the contrary, he claimed that the Tribunal had outlined its consideration of the reasonableness of relocation by reference to the conditions in Karachi, to the applicant's access to familial support, to the impact on his mental health and to his ability to obtain and maintain employment and accommodation. Accordingly, he submitted that no jurisdictional error had been made out in the Tribunal's decision.

Proposed ground 1 - failure to apply correct test to relocation 14 In CRI028 v Republic of Nauru (2018) 356 ALR 50; [2018] HCA 24, Gordon and Edelman JJ (Bell J agreeing), held that the assessment whether a person could be expected to relocate was "not answered only by reference to the risk of harm" (emphasis in original), but also required "consideration of the individual circumstances of the person, and what is practicable and reasonable for that person". Specifically, their Honours said (at [25]-[26]): [25] Whether a person could reasonably be expected to relocate to another area in the country of their nationality involves a comparison between the circumstances or conditions that prevail in the person's existing area of residence and those circumstances or conditions that prevail in the other identified area, with a view to assessing the impact of the relocation on the person. The assessment is not concerned with comparing a person's quality of life in the other identified area with the basic norms of civil, political and socio-economic human rights recognised in international human rights instruments. Importantly, the reasonableness of relocation "depend[s] 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". [26] Put in different terms, the assessment of whether a person can relocate is not answered only by reference to the risk of harm. The assessment also requires consideration of the individual circumstances of the person, and what is practicable and reasonable for that person. As this Court said in SZATV, "[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". The practical realities must be carefully considered. And, as will be explained, the particular circumstances may include the person's family situation. It will be necessary to return to those principles. (Emphasis in original; footnotes omitted) 15 Subsequently, in BWB16 v Minister for Immigration and Border Protection [2018] FCAFC 158 at [27]-[33], the Full Court of this Court (Besanko, Markovic and Banks-Smith JJ) held that the task for this Court in an appeal concerning this issue required "an examination of the [Tribunal's] reasons in order to determine whether it assessed the reasonableness of relocation taking into account the [applicant's] claims in relation to [their] circumstances" (at [28]). 16 In examining the Tribunal's Statement of Decision and Reasons (the Tribunal's Reasons) in this matter, it is appropriate to begin (at [49]) where, after concluding "that there is a real chance the applicant will suffer serious harm … if he was to return to Parachinar and, more broadly, the Kurram agency", the Tribunal turned to consider this relocation issue as follows (at [50]): 50. The Tribunal must therefore turn to the issue as to whether it may be reasonable for the applicant to relocate in Pakistan to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. The Tribunal assessed whether it may be reasonable for the applicant to relocate to Karachi in the event that, objectively, there is no appreciable risk of the occurrence of the feared persecution in that city. In essence, the applicant and the representative claimed that he feared persecution on the ground that he was a Pashtun Shi'a from Parachinar. In terms of appreciable risk of the feared persecution the Tribunal drew the following inferences from the country information mentioned earlier in this decision. (Footnote omitted) 17 Then, in the paragraphs that followed, the Tribunal conducted a review of the available country information and the claims made by the applicant concerning the question of relocation. In the course of that review, the Tribunal mentioned, among other things, the applicant's claim to be a Shi'a professional, which it rejected (at [51] and [59]); its conclusion that the applicant did not belong to any relevant criminal or political group (at [53] and [67]); that the applicant was a Pashtun Shi'a from Parachinar and would be identified as such by his accent, appearance and religious practice (at [57] and [62]); the manner in which the applicant practised his religion (at [61]); the applicant's cousin's desire to leave Karachi because of the criminal gang violence there (at [65]); the applicant's claim that he was a person of financial means, which the Tribunal essentially rejected (at [65] and [68]); the applicant's lack of any family network in Karachi (at [66] and [68]); and the applicant's present mental state (at [66] and [69]). 18 Having conducted that review, the Tribunal concluded (at [70]) that: For the reasons given, the Tribunal finds that it is reasonable to expect the applicant to relocate to Karachi where there is no appreciable risk of the occurrence of the feared persecution … all the Tribunal need do is identify a proposed site of relocation and the Tribunal considers that to be Karachi. It is reasonable to expect him to relocate there. Accordingly, the applicant does not hold a well founded fear of persecution based on any convention ground in Pakistan. 19 Accordingly, the Tribunal's ultimate conclusion on this issue was (at [76]): For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a). 20 In my view, these parts of the Tribunal's reasons indicate that it did not focus exclusively on the risk of harm connected with relocation to Karachi, but rather it duly undertook a consideration of the applicant's individual circumstances and made an assessment as to whether it was practical and reasonable for him to relocate to Karachi. I therefore consider that the primary judge was correct in his conclusions on the similar ground of review before him (see at [9]) above). Accordingly, this proposed ground of appeal has no merits.

Proposed ground 2 - failure to have regard to the practicalities of relocation under complementary protection 21 In reaching its conclusions on the applicant's complementary protection claims under s 36(2)(aa), the Tribunal began by reiterating the findings it had made in relation to the applicant's primary protection claims under s 36(2)(a). Having summarised those findings, the Tribunal then came to the following conclusions about the applicant's complementary protection claims (at [74]): It is reasonable to expect the applicant to relocate Karachi and the Tribunal, essentially, reaches that conclusion for the-same reasons it finds it reasonable to expect him to relocate to Karachi in the terms of the Refugee Convention. In the context of assessing the reasonableness of relocation to Karachi, the Tribunal again acknowledges that there is generalised violence and crime in Karachi, but, because the applicant does not belong to a political or criminal group and is not a wealthy businessman, the risk of him suffering harm on that ground is remote. The Tribunal does not have country information that Pashtun Shi'as from Parachinar are harmed in Karachi and the prevalence of sectarian or generalised violence and crime there does not make relocation unreasonable. 22 And further (at [75]): As discussed above, the applicant should be well able to settle in Karachi in terms of finding employment and accommodation and will have the assistance of his cousin in that respect. It is therefore reasonable to expect him to relocate to Karachi where it considers that there is not a real risk he will suffer significant harm. Accordingly, there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant's removal from Australia to the receiving country, Pakistan, there is a real risk that he will suffer significant harm. 23 Those findings led the Tribunal to its ultimate conclusion on the applicant's complementary protection claims as follows (at [77]): Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). 24 As with the applicant's primary protection claims above, I consider that the Tribunal properly considered the applicant's complementary protection claims with respect to the issue of his relocating to Karachi. Accordingly, I consider that the primary judge was correct in his conclusions on the similar ground of review before him (see at [10]). For these reasons, I do not consider that this proposed ground of appeal has any merit.

CONCLUSION 25 It follows that neither of the applicant's grounds of appeal has merit. In those circumstances, it would be futile to grant the extension of time that he has sought. Accordingly, his application must be dismissed. 26 The orders will be:

The applicant's application filed on 11 February 2019 is dismissed.
The applicant is to pay the first respondent's costs of the application to be taxed failing agreement. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

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