SZVWD v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 This is an appeal from orders of the Federal Circuit Court of Australia dismissing the appellant's application for review of a decision of the (then) Refugee Review Tribunal (the Tribunal) affirming the refusal to grant the appellant a Protection (Class XA) visa. The orders of the Federal Circuit Court were consequential on reasons for judgment in SZVWD v Minister for Immigration & Anor [2017] FCCA 82. 2 There are two grounds relied upon to support the contention that the Federal Circuit Court ought to have found that the Tribunal's decision was affected by jurisdictional error and was thus invalid. First, that the Tribunal had not considered a claim or component integer of a claim by the appellant that he had a well-founded fear of persecution by virtue of travelling between Rawalpindi and Parachinar or by virtue of travelling outside Rawalpindi. Second, that the Tribunal failed to correctly apply a relevant principle analogous to the internal relocation principle as discussed in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317. 3 The dispute between the parties in respect of the first ground of appeal concerned only the characterisation of the appellant's claims, not any question of principle. For the appellant it was contended either that his claims squarely raised, or that it was implicit within his claims, that he held a well-founded fear of serious harm related to travel in Pakistan (and thus necessarily outside of Rawalpindi) including travel to Parachinar. For the first respondent it was contended that there were no such claims either expressly or implicitly and thus the Tribunal did not err by not dealing with these issues. 4 The relevant principles, as noted, were not in dispute. As discussed in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [56] to [63]: (1) "The Tribunal is required to deal with the case raised by the material or evidence before it". (2) "…a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal". (3) The Tribunal "is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it". (4) "…if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances". 5 The appellant said in his application for a Protection (Class XA) visa that he moved from Parachinar to Rawalpindi in 2000 but, as he was Shia, he and his family were targets for harm in Rawalpindi and all over Pakistan. His accompanying statutory declaration provided additional information. It appears that when the family moved from Parachinar to Rawalpindi in 2000 the appellant's mother continued to teach in Parachinar and the appellant thus travelled from Rawalpindi to Parachinar to visit her. The trip was not safe. If he returned to Pakistan he feared he would be targeted as a Shia. He also said: I fear the barriers placed around Parachinar by the Taliban impact on my ability to live a life free from danger. Life for me is a constant fear. I fear the barriers of the Taliban, in preventing me from traveling, impact on my ability to operate my business and impacts on my ability to subsist. There is nowhere safe for me in Pakistan. Shias are targeted everywhere. 6 Supporting newspaper articles referred to roadblocks which cut Parachinar off from the rest of Pakistan. 7 Subsequent submissions in support of the appellant's claims repeated the references to barriers of the Taliban preventing the appellant from travelling and ability to operate his business (albeit without clarifying what the appellant's business was or why it involved travel). In one of those submissions it was said that the appellant's claims are not localised to Parachinar or Rawalpindi as he feared harm given he was a Shia and of Turi ethnicity in other parts of Pakistan. As such, it was submitted that relocation was not relevant because the appellant's fear was not localised. 8 The transcript of the hearing before the Tribunal is not available. In its reasons for decision the Tribunal found that the appellant's home region was Rawalpindi. The Tribunal said it was therefore unnecessary to consider whether the appellant had a well-founded fear of persecution in Parachinar where the appellant had not lived for 14 years. While accepting some risk of harm existed for Shias in Rawalpindi and throughout Pakistan the Tribunal rejected the appellant's claim of a risk of serious harm if he returned to Rawalpindi. The Tribunal noted the evidence in relation to barriers to and difficulty of travel to and from Parachinar. It said that it was not satisfied that it was necessary to consider the situation for the appellant in Parachinar as although the appellant had some family members in Parachinar, his wife, child, parents and sister reside in Rawalpindi and he has not claimed that he wishes to operate a business in Parachinar on his return. 9 I am unable to accept the appellant's first ground of appeal. It is true that the appellant, in describing his fear if he returned to Pakistan, referred to barriers around Parachinar and, perhaps, barriers more generally preventing him from travelling and operating his business and ability to subsist. One difficulty is that nothing in the appellant's apparent claims (the transcript before the Tribunal being unavailable) identified any intention to travel to Parachinar if he returned to Pakistan or even any reason to do so in circumstances where, according to the appellant, the only reason he travelled from Rawalpindi to Parachinar in the past was to visit his mother who had subsequently retired and had joined the rest of the appellant's immediate family in Rawalpindi. Nor did the appellant explain what his business was or why he might travel more widely in Pakistan for that or any other purpose if he returned. As such, I am unable to discern any claim of a fear of persecution by reason of any intention to travel to Parachinar or elsewhere in Pakistan if the appellant returned to Rawalpindi. 10 The appellant's second ground of appeal depends on the reasoning in SZSCA. It was submitted for the appellant that the reasoning in SZSCA applied to the facts as found by the Tribunal so that the Tribunal necessarily erred in failing to consider whether it might reasonably be expected that the appellant would remain in the place the Tribunal had found to be the appellant's home area (Rawalpindi), a location in which the appellant was not at risk of serious harm. In SZSCA, the claimant was truck driver who drove long distances around Afghanistan from his home area of Kabul. The Tribunal had found that the claimant was not at risk of serious harm in Kabul. Hence, the claim for a protection visa failed and relocation within Afghanistan was immaterial. However, the High Court held that the Tribunal had erred explaining at [25] that: The factum upon which the principle of relocation operates is that there is an area in the visa applicant's country of nationality where he or she may be safe from harm. In this matter it was found by the Tribunal that Kabul was such a place. By analogy with the internal relocation principle, given the existence of a place within his country of nationality where the respondent would have no well-founded fear of persecution, it could not be concluded that he is outside Afghanistan and unable to return to that country owing to a well-founded fear of persecution if it could reasonably be expected that he remain in Kabul and not travel outside it. As in SZATV [SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18], it is the question of what may reasonably be expected of the respondent which must be addressed. 11 Specifically, as explained at [29] in SZSCA, the High Court said that: The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul. The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach. Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it. An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned - specifically, whether such an expectation is reasonable. 12 In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [24] it was said that: What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. 13 I do not accept that the reasoning in SZSCA was engaged in the particular circumstances of the appellant and the impact upon him of residing in Rawalpindi. I also do not accept that the reasoning in SZSCA must mean that SZQEN v Minister for Immigration and Citizenship [2012] FCA 387; (2012) 202 FCR 514 was wrongly decided. At [38] in SZQEN Yates J said: I propose to apply the statement of principle in Randhawa [Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437] by Black CJ (at 440-441) which plainly proceeds on the basis that the relocation principle concerns relocation from a claimant's home region to another place in the claimant's country of nationality that is not the claimant's home region. This position is supported by the United Kingdom authorities to which I have referred. In proceeding on this basis I do not think that the reference in the cases to "home region" or "home area" (or similar expressions) is to be given a narrow or restrictive meaning to refer, for example, only to the place where the claimant happens to be living at the time of the feared persecution, or that a "home region" or "home area" is necessarily limited to one location if similar and substantial ties exist at another location that would also appropriately characterise that location as a "home region" or "home area" of the claimant. Whether such ties exist and whether a particular location can be appropriately characterised as a "home region" or "home area" are matters of fact. 14 SZSCA, SZQEN and the present case depend on their facts. In SZSCA the claimant did run a business before he left Afghanistan which involved him driving trucks around the country. The failure to consider the reasonableness of the claimant remaining in Kabul, his home area and a place where the Tribunal found he would not be at risk of serious harm, was jurisdictional error given the circumstances of the claimant and the impact on him of remaining in Kabul. In SZQEN nothing arose which called for consideration of the reasonableness of the claimant remaining in his home area of Jaghori. In the present case, unlike SZSCA, there was nothing in the circumstances which called up for consideration the reasonableness of the appellant remaining in Rawalpindi. The appellant had lived in Rawalpindi since 2000 before coming to Australia. His immediate family lived in Rawalpindi. He claimed risks of travelling when he visited his mother in Parachinar but she now lived in Rawalpindi as well. He did not identify any intention to continue to travel to Parachinar now his mother no longer lived there. He did not identify any actual intention or need to travel for a business or other purpose. He said that for a Shia no part of Pakistan was safe and he feared Taliban travel restrictions impacted upon his ability to travel, "operate my business" and subsist, but he did not say what this business was or why it might require him to travel. As noted, apart from travel to see his mother when she was in Parachinar, as far as can be ascertained without a transcript, he did not mention any other travel that he had undertaken. 15 Given this, I am not satisfied that SZSCA required the Tribunal to consider the reasonableness of the appellant remaining in Rawalpindi and not travelling to Parachinar or elsewhere in Pakistan. As far as may be ascertained, the appellant had remained in Rawalpindi since his mother left Parachinar. Further, insofar as Parachinar is concerned, while not addressing the issue in the terms expressed in SZSCA, it is apparent that the Tribunal considered that there was no reason why the appellant would travel there if he returned to Pakistan given that he had lived in Rawalpindi since 2000, his wife and child, parents, and sister all resided in Rawalpindi, and no claim had been made of any business in Parachinar. These facts bear no resemblance to those in SZSCA. 16 For these reasons I consider that the appeal must be dismissed, with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.