ABF18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 887

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ABF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 887

File number(s):

SYG 55 of 2018

Judgment of:

JUDGE LAING

Date of judgment:

18 October 2023

Catchwords:

MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority (“IAA”) – whether the IAA’s reasoning was illogical or unreasonable – whether the IAA unreasonably failed to exercise or consider exercising the discretion under s 473DC – whether the IAA failed to address an integer of the applicant’s claims – whether the IAA failed to give proper, genuine and realistic consideration to whether the applicant would face a real chance of harm in the reasonably foreseeable future – whether the IAA misapplied the test for relocation – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 5H, 36(2), 36(2B), 473DC, 473DD

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551

DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134

DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160; (2019) 272 FCR 152

ENT19 v Minister for Home Affairs [2021] FCAFC 217; (2021) 289 FCR 100

Minister for Home Affairs v AYJ17 [2019] FCA 591; (2019) 165 ALD 64

Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559

MZYZS v Minister for Immigration [2012] FMCA 1149; (2012) 135 ALD 125

MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436

NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37

SZFUJ & Ors v Minister for Immigration & Anor [2006] FMCA 1159

Division:

Division 2 General Federal Law

Number of paragraphs:

61

Date of hearing:

4 August 2023

Place:

Sydney

Counsel for the Applicant:

Mr B Zipser

Solicitor for the Applicant:

K & D Lawyers Pty Ltd

Counsel for the First Respondent:

Mr M Cleary

Solicitor for the First Respondent:

HWL Ebsworth Lawyers

Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 55 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ABF18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	18 OCTOBER 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

1. Before the Court is an application for judicial review of a decision made by the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).

   BACKGROUND

2. The applicant is a citizen of Pakistan who arrived in Australia as an unauthorised maritime arrival in 2012.

3. On 7 December 2012, the applicant participated in an Irregular Maritime Arrival Entry Interview (Entry Interview).

4. On 13 April 2016, the applicant applied for a protection visa.

5. On 10 February 2017, the Delegate refused the application.

6. On 11 December 2017, the IAA affirmed the Delegate’s decision.

   THE IAA’S DECISION

7. The IAA observed that it had received various new information that had been provided after the Delegate’s decision (at [5]). The IAA was satisfied that certain country information could not have been provided to the Delegate and that exceptional circumstances justified its consideration in accordance with s 473DD of the Migration Act 1958 (Cth) (Act) (at [6]-[7]). The IAA was not satisfied that exceptional circumstances justified consideration of other new information, having regard to its nature and probative value within the context of other information that was before the IAA (at [8]-[15]).

8. The IAA accepted that the applicant was a citizen of Pakistan, that he was of Qandhari Yousafzai ethnicity, that he was a Shia Muslim, and that he regularly attended a Qandhari mosque in Pakistan and regularly attends a Shia centre in Australia to pray (at [17]-[19]).

9. The IAA observed that the applicant claimed to have received a call from a man in June or July 2012 who identified himself as a member of Lashkar-e-Jhangvi (LeJ) and stated that they knew the applicant was a Shia and threatened to kill him. The applicant claimed that later that day, he saw two masked men on a motorbike parked near his office gate when he was leaving the office for lunch. He claimed that the men followed him when he rode off on his motorbike, although he managed to escape them and return home (at [20]).

10. As the IAA’s reasoning regarding this claim (Motorcycle Pursuit Claim) is central to a ground of review, it is appropriate to set it out reasonably fulsomely. The IAA raised a number of concerns regarding this claim (at [21]-[24]):

    21.Some aspects of the applicant’s evidence regarding the claimed threatening telephone call, the pursuit of him by men on a motorbike, and the subsequent events, are of concern to me. For example, during the entry interview conducted shortly after his arrival in Australia, the applicant referred to the threatening telephone call but did not refer to the claimed pursuit of him by masked men on a motorbike on the same day. While the recording of that interview shows that the applicant was asked to explain his reasons for leaving Pakistan ‘very briefly, in one or two sentences’, I note that the applicant initially stated only that he ‘had a threat call’ and that was why he had to leave. The interviewing officer asked the applicant who called him, to which the applicant replied ‘Lashkar-e-Jhangvi’. Asked what LeJ threatened him with, the applicant indicated that they said he was Shia and an infidel and they were going to kill him. The applicant was not cut off in his responses. At the end of the interview, he was asked whether there was anything he had not been asked that he wished to say, he indicated there was not.

    22.Even having regard to the limited opportunity given to the applicant to describe his reasons for leaving Pakistan in the entry interview, it is of some concern to me that the applicant did not refer to being chased by two masked men on the same day that he claimed to have received the threatening phone call to which he referred. This seems particularly odd given the applicant’s later claims that he was very frightened by this incident and it, as well as the claimed threatening telephone call, led him to stop work and to leave Pakistan. I also find it odd that in circumstances where the applicant claimed he had received a telephone call in which he was threatened with death earlier that morning, he would, on seeing two masked men on a motorbike parked outside the gate to his office, proceed to get on his own motorbike rather than stay on his employer’s premises.

    23.The applicant claimed the LeJ knew about his Shia faith because until 2010, he and his family had lived in a Sunni area where LeJ were active. He said they were known to be Shia. It is hard to understand why, if the LeJ knew about his Shia faith for many years, they would, one day in 2012, decide to call the applicant and threaten to kill him, then send two masked men to chase him on a motorbike.

    24. The applicant claimed that the LeJ were well connected and it would have been easy for them to locate the applicant’s place of work and telephone number at work. He said that he used to travel from his former home in a Sunni area of Quetta to his office, apparently suggesting that this may have been how LeJ found his place of work. The applicant does not claim that the LeJ visited his home during the month following the claimed threatening telephone call and motorbike pursuit, prior to his departure from Australia. Nor does he claim that the LeJ visited his family home after his departure from Pakistan. I find it difficult to accept that if the LeJ’s ability to access information about the applicant was such that its members were able to easily obtain his work phone number and locate his work address, the LeJ could not also have located his home in [redacted], where his family had been living since approximately 2010. Further, if, as claimed, the LeJ wished to kill the applicant, it is not clear why they would call him to warn him they wished to do so rather than simply killing him.

11. The IAA had regard to country information indicating that “prominent” Shias had been targeted. It was unclear to the IAA why someone of the applicant’s profile would have been targeted in the manner claimed. Although the IAA accepted that the applicant occasionally assisted a Shia organisation (Shia Organisation) with seating attendees during events, it was not satisfied that he, or any members of his family, were of interest to LeJ on account of such involvement (at [27]-[30]).

12. At [31]-[33], the IAA reasoned:

    31.Having regard to the country information discussed, and to the applicant’s profile, I consider it unlikely that he would have been individually targeted in the manner claimed. This, together with the concerns in relation to the applicant’s evidence discussed, leads me to have significant reservations in relation to the applicant’s claims that he was threatened in a telephone call and pursued on a motorbike. Given the applicant’s failure to mention his pursuit by masked men on a motorbike in the entry interview, and the concerns I have discussed in relation to his evidence about this claimed incident, I do not accept that it occurred. I think it highly likely that the applicant advanced this claims to create the impression that the LeJ had a greater level of adverse interest in him than was the case.

    32.With some reservations, I am willing to accept that the applicant received a threatening telephone call from a man identifying himself as a member of the LeJ in June or July 2012. I find that he was known to the LeJ as a Shia Muslim due to his family’s past residence in… a Sunni-dominated area in Quetta in which LeJ was active. The delegate found that the applicant was targeted on the basis of his Shia faith and his employment. I note that the claimed content of the call referred only to the applicant’s Shia faith. Having regard to the country information discussed, and to the nature of the applicant’s role at [a company], including its relatively junior level, I do not accept that the applicant was threatened by the LeJ for any reason related to his employment. I find that he was threatened solely because he became known to be a Shia Muslim due to his former residence in a Sunni-dominated area of Quetta in which LeJ was active.

    33.As discussed, the applicant was not contacted by the LeJ during the month following the call, prior to his departure from Pakistan. While his evidence suggests that this was because he hid at his family home, as discussed above, I find it difficult to accept that the LeJ would be easily able to find the applicant’s place of work and his telephone number at work because they ‘are very well-connected and have networks all over Pakistan’ but would not be able to find his home address… where his family had been living since 2010. This suggests to me that the applicant was not of such a level of interest to the LeJ that they wished to locate and harm him following the threatening telephone call. I do not accept that the applicant was actively sought by LeJ or any other Sunni extremist group at the time he left Pakistan.

13. The IAA was not satisfied that the applicant would face a real chance of harm, at the time or in the foreseeable future, on the basis of having previously received a threatening call from LeJ, as the oldest son of his family, due to his previous employment, because he had been known as a Shia from his previous home area, or due to his involvement with the Shia Organisation (at [36]-[39]).

14. Having regard to country information, the IAA accepted that the applicant faced a small but real chance of death or serious injury as a result of sectarian attacks in Balochistan. The IAA therefore accepted that the applicant faced a real chance of serious harm in Balochistan (at [40]-[44]). 

15. However, the IAA was not satisfied, having regard to country information before it (at [45]-[54]) and the applicant’s personal characteristics and circumstances (at [55]-[56]), that there was a real chance of harm in the foreseeable future to the applicant on the basis of his Shia faith or as a result of the security situation in Lahore (at [57]).

16. The IAA was not satisfied that the applicant would face a real chance of harm on the basis of being mistaken for a Pashtun on account of his appearance (at [58]-[61]). The IAA was not satisfied that the applicant would face any chance of harm on the basis of being an “outsider” in Lahore (at [62]) or in Pakistan generally on the basis of having applied for asylum and having lived in Australia (at [63]-[64]).

17. The IAA considered that there was no evidence that the applicant would be suspected of having committed an offence of illegal emigration or any other crime. Although the IAA accepted that the applicant may be questioned at the airport, it was not satisfied that this would amount to or result in serious harm (at [66]). The IAA found that the applicant would be able to access Lahore safely. It found, having regard to the above, that the applicant did not meet the definition of a refugee in s 5H(1) of the Act and was therefore unable to meet s 36(2)(a) of the Act (at [65]-[69]).

18. The IAA was satisfied that the applicant would not face a real risk of significant harm in or en route to Lahore (at [72]-[74]). Having regard to country information, including regarding the diversity of Lahore, the IAA was not satisfied that it would be unreasonable for the applicant to relocate there because he was not Punjabi and did not speak Punjabi, because he would be considered an “outsider” there, or because he did not have friends or family there (at [77]-[78]). Given the applicant’s education and work experience, the IAA was satisfied that he would be able to secure employment in Lahore and find appropriate accommodation (at [79]-[80]). The IAA did not accept that the applicant would have lost familiarity with cultural behaviours and practices to the extent that he would be unable to re-establish himself in a new city or that it would be unreasonable for him to relocate there (at [81]). The IAA was not satisfied that the security situation rendered relocation unreasonable (at [82]).

19. Having regard to the above, the IAA was satisfied that it would be reasonable for the applicant to relocate to Lahore, where it found that he would face no real risk of significant harm (at [83]). The IAA concluded that the applicant was unable to meet s 36(2)(aa) of the Act and affirmed the Delegate’s decision (at [84]).

    PROCEEDINGS BEFORE THIS COURT

20. The applicant commenced the current proceedings through an application filed on 9 January 2018. He ultimately relied upon an amended application filed on 28 July 2023 containing the following grounds:

    1. The applicant claimed that on a day in June or July 2012 two men on a motorbike with their faces masked pursued the applicant when he was riding his motorbike and attempted to stop the applicant, but the applicant escaped (Motorcycle Pursuit claim – “MPC”). The Immigration Assessment Authority (“IAA”) in its decision at [31]-[32] did not accept the MPC occurred, in part because the applicant did not mention the incident during his entry interview in December 2012. The IAA fell into jurisdictional error in the following ways:

    a) The IAA’s reasoning process leading up to its finding not accepting that the incident occurred was legally unreasonable.

    b) The IAA unreasonably failed to exercise, or failed to consider exercising, its power under s 473DC of the Migration Act to obtain new information from the applicant concerning the MPC.

    2.The IAA accepted that the applicant, before he departed Pakistan, had an “occasional low-level involvement in the [Shia Organisation]’: at [30]. If the applicant was required to return Pakistan and relocate to Lahore, a question was whether he would continue his active involvement with the Shia community and, if so, face a real chance of serious harm. While the Minister’s delegate considered this issue arose on the materials before him and addressed the issue (see CB 205.7), the IAA did not consider or address this issue. In the circumstances, the IAA failed to address an integer of the applicant’s claims which arose on the materials before the IAA. This was a jurisdictional error.

    3. The IAA at [67] and [68] concluded that “there is not a real chance of any other harm to the applicant in Lahore as a Shia Muslim” and it was “not satisfied that any combination of the applicant’s circumstances would expose him to a real chance of serious harm in Lahore”. The IAA, in its reasoning process leading up to these findings, did not give proper, genuine and realistic consideration to whether the applicant would face a real chance of serious harm within the reasonably foreseeable future. Specifically, the IAA did not give proper, genuine and realistic consideration to the reasonably foreseeable future. The IAA made the same error at [74] in respect of the complementary protection limb.

    4. Section 36(2B)(a) of the Migration Act required the IAA to consider whether “it would be reasonable for the [applicant] to relocate to” Lahore. However, the IAA erroneously considered whether it would be unreasonable for the applicant to relocate to Lahore: see at [78] and [82]. The IAA addressed the wrong question, which is a jurisdictional error.

    (Emphasis in the original)

    GROUND 1

21. Ground 1 contended that the IAA’s reasoning regarding the Motorcycle Pursuit Claim was affected by jurisdictional error in the following ways:

    (a)firstly, it was contended that the IAA’s reasoning process leading up to its non-acceptance that the incident occurred was legally unreasonable;

    (b)secondly, it was contended that the IAA unreasonably failed to exercise, or failed to consider exercising, its power under s 473DC of the Act to obtain new information from the applicant in relation to the claim.

    The IAA’s reasoning process

22. The IAA’s reasoning process regarding the Motorcycle Pursuit Claim is set out above. The IAA did not accept the Motorcycle Pursuit Claim for the reasons that it gave at [21]-[31] of its decision. Those reasons included the applicant’s lack of reference to the claim during his Entry Interview. This reasoning differed from the reasoning of the Delegate. The Delegate had been prepared to accept that the Motorcycle Pursuit Claim had occurred.

23. The applicant submitted that there was some unfairness in the IAA:

    (a)without giving notice to the applicant, not accepting the claim which had been accepted by the Delegate after interviewing the applicant; and

    (b)not accepting the claim partly because the applicant did not refer to the event in his Entry Interview.

24. The applicant submitted that the lack of reference to the claim at the Entry Interview formed a significant part of the IAA’s concerns. However, the applicant had been asked to explain his reasons for leaving Pakistan at that interview “very briefly, in one or two sentences”. Within this context, the applicant submitted that it was “perverse” not to accept a claim because it was not referenced in the Entry Interview. The applicant submitted that the “threat call” was the principal reason that he left Pakistan, which is why it was referred to in the interview. The IAA’s acceptance of this claim, and non-acceptance of the Motorcycle Pursuit Claim, was also submitted to have been “perverse”.

1. The applicant relied upon what was said by Moshinsky J in Minister for Home Affairs v AYJ17 [2019] FCA 591; (2019) 165 ALD 64 (AYJ17) at [38] and [41]-[42]:

   38.The second ground of appeal concerns the primary judge’s conclusion that the IAA’s rejection of the respondent’s claim concerning the death of his brother because he did not mention the claim at the arrival interview was perverse in a manner constituting jurisdictional error…

   41.In the present case, I consider that it was illogical or irrational in the sense described by Crennan and Bell JJ in SZMDS for the IAA to reject the respondent’s claim concerning the death of his brother on the basis that he did not mention it at the arrival interview. First, the purpose of the arrival interview in this case was primarily to obtain details about biodata and travel to Australia; its purpose was not to obtain a detailed description of the respondent’s claims. This is indicated by the introduction on page 1 of the form (which is to be contrasted with the “Important Information” set out on page 1 of the entry interview form); the structure of the form (divided into two parts, one dealing with biodata, the other with travel); the length of the form; and the limited space available for a response to question 21.

   42.Secondly, the respondent’s response to question 21 (which asked, “Why did you leave your country of nationality (country of residence)?”) was: “I was an officer with Police in Iraq + I was threatened by religious groups.”  In my view, this was a high-level summary of the respondent’s claims and was capable of encompassing the respondent’s claim regarding his brother’s death.  As set out in the delegate’s decision, the respondent claimed that he was the real target of the bombing due to his employment as a police officer and, in particular, that he was a Sunni working in that field. In light of this, the respondent’s response to question 21 was capable of encompassing the claim regarding the brother’s death. In addition, I note that the respondent’s response to question 21 in the arrival interview was repeated in the entry interview, where it served as the introductory sentence to a longer explanation of why he left Iraq.

2. The applicant also relied upon what was said in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 (MZZJO) at [56]-[57] per North, Bromberg and Mortimer JJ, regarding the caution that should be exercised in relying upon omissions made at an entry interview and the potential for this to result in error if this is the sole matter relied upon by a decision maker.

3. I accept the Minister’s submissions as to why the present case is distinguishable from AYJ17. The interview in question in the present case was an Entry Interview, not an arrival interview as was considered in AYJ17. The different content and purposes of such an interview were acknowledged in AYJ17 at [9]-[11] and [41]. The interview in the present case took place around 3 weeks after the applicant’s arrival in Australia. It contained the following statement, in contrast to the arrival interview:

   … This interview is your opportunity to provide any reasons why you should not be removed from Australia. If you do not answer questions a decision may be made on the basis of the information we have.  

   You are expected to give true and correct answers to the questions I ask.  You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.

4. The IAA in the present case was also aware that the applicant had been asked in the Entry Interview to explain his reasons for leaving Pakistan “very briefly, in one or two sentences”. This was acknowledged at [21] of the IAA’s decision. However, the IAA considered that the applicant had not been cut off in his responses and had been given a further opportunity at the end of the interview to raise anything further that he wished to raise. This is consistent with the materials. Although the applicant appears to have been asked questions about the “threat call” that he raised, this does not mean that he was “cut off” from giving the responses that he wished to give. The applicant appears to have been given additional opportunity later in the interview to raise anything further he wished to say, that had not already been solicited by the questions asked (at question 19).

5. I consider that the IAA’s reasoning was reasonably open to the IAA, considering (inter alia) that the applicant’s claims in this regard were capable of being expressed succinctly and in one or two sentences. The applicant’s primary claims were that he had been threatened in a telephone call and followed by two masked men on a motorcycle later that day. This is not a case, such as AYJ17, where the applicant’s subsequent claims were capable of being encompassed in the generality of what was expressed at the Entry Interview. At the Entry Interview, the applicant claimed to have received a “threat call”. He did not claim to have been threatened more generally, or that the threat was also expressed in person.

6. The lack of reference to the Motorcycle Pursuit Claim at the Entry Interview was also only one of a number of reasons that the IAA gave for rejecting this claim. The IAA additionally found it difficult to understand why the applicant would not have stayed at his employer’s premises when he claimed to have seen the men, why the LeJ had suddenly threatened the applicant despite having known about his faith for many years, why the LeJ would not have located the applicant at his home, why he would have been warned if the LeJ had wished to kill him, and why other members of his family had not similarly been threatened (at [22]-[26]). Further, the IAA considered that country information indicated that it was unlikely that the applicant would have been targeted in the manner claimed (at [25]-[31]).

7. MZZJO occurred in a different statutory context and, in any event, declined to find jurisdictional error by reference to reliance upon an omission in an entry interview where, as here, there were also additional bases relied upon by the decision maker in coming to their conclusions on credibility.

8. I accept the Minister’s submission that in the circumstances of this case, it was open to the IAA to give the applicant’s omission at the Entry Interview the weight that it was given in the IAA’s decision. In this way, I accept the Minister’s submission that AYJ17 is distinguishable in a similar manner to that considered in DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160; (2019) 272 FCR 152 at [39]-[64] per McKerracher, Banks-Smith and Jackson JJ.

9. This aspect of ground 1 is therefore unable to succeed.

   Section 473DC

10. Section 473DC of the Act provided as follows:

    Getting new information

    (1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

    (a)were not before the Minister when the Minister made the decision under section 65; and

    (b)       the Authority considers may be relevant.

    (2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

    (3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a)       in writing; or

    (b)at an interview, whether conducted in person, by telephone or in any other way.

11. The applicant submitted that the non-exercise of power under s 473DC was legally unreasonable in circumstances where:

    (a)the IAA disagreed with the Delegate’s evaluation of the materials in relation to a significant matter;

    (b)the IAA accepted the applicant’s claims on other matters;

    (c)despite the gap between the applicant’s statutory declaration and interview, the applicant’s version of events was largely consistent;

    (d)the Delegate had found that the Motorcycle Pursuit Claim was plausible and “fit[ted] with known country information”;

    (e)the IAA was concerned by the omission of the claim at the Entry Interview, which was a matter about which the applicant did not appear to have been questioned by the Delegate (because the Delegate took a different view); and

    (f)the applicant may have provided an explanation that satisfied the IAA’s concerns had the IAA raised those concerns with the applicant.  

12. The applicant relied upon DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 (DPI17). In that case, the IAA was aware that the Delegate had accepted the applicant’s account through reliance upon demeanour at interview. The IAA subsequently rejected the applicant’s credibility without considering inviting the applicant to an interview in order to undertake its own assessment of his demeanour. Instead, the IAA relied upon inconsistencies that the Delegate had indicated would not be given substantial weight. This approach by the IAA was found to have been legally unreasonable.

13. The applicant also relied upon the reasoning in AYJ17 at [31]-[37], where it was stated (inter alia):

    34.Applying these principles in the present case, I consider that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The circumstances included: that the delegate had not raised with the respondent during the protection visa interview any question regarding why the respondent had not referred to his claim regarding his brother’s death during the arrival interview; the delegate had not relied on the fact that the respondent had not referred to his brother’s death in the arrival interview; the arrival interview was primarily concerned with biodata and travel and the form contained only limited space for an answer to be recorded for question 21; and the arrival interview was conducted through an interpreter. Had the respondent been asked a question about the omission to refer to his brother’s death in the arrival interview, he may have provided an explanation for the omission, or he may have provided evidence that he did in fact mention it and this part of his response to the question was not recorded on the form. In circumstances where the IAA knew that it did not have any evidence from the respondent about this matter (because he had not been asked about it by the delegate) and that the respondent was likely to be able to provide relevant evidence, it was legally unreasonable to rely on the arrival interview in the way the IAA did and not to consider exercising the power in s 473DC…

    36.This is not to suggest that the IAA is obliged to provide an opportunity to comment simply because it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. Clearly, there is no such obligation: DGZ16 at [72]. But the circumstances here are quite different. The IAA proposed to rely on a matter that had not been explored before the delegate and about which the respondent was likely to be able to provide evidence. This is not merely a matter concerning credibility. Accordingly, I do not regard the above analysis as inconsistent with DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [74].

14. I accept the Minister’s submission that the present case is distinguishable from DPI17, for reasons including the lack of reliance upon demeanour. I also accept that the case is distinguishable from AYJ17. As considered above, of significance to the reasoning in AYJ17 was the Court’s consideration that unreasonable reliance had been placed upon an omission in an arrival interview.

15. I do not accept that the mere fact that the IAA reasoned differently to the Delegate, in a manner that was significant, rendered it legally unreasonable for the IAA not to have sought further information from the applicant. Finding such an obligation upon the IAA would be inconsistent with the statutory scheme under Part 7AA of the Act: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [75] per Reeves, Robertson and Rangiah JJ. Whilst the applicant may have provided further information, including further explanation, in response to such an invitation, this will often be the case. It does not mean that it was legally unreasonable for the IAA not to have sought it. The fact the IAA was willing to accept other aspects of the applicant’s claims also did not render it legally unreasonable for the IAA not to have invited further information from the applicant. This was in circumstances where the IAA appears to have considered that it had sufficient information before it to allow it to undertake its statutory task in assessing the applicant’s claims.

16. Having regard to the above, I do not accept that it has been demonstrated that the high threshold associated with a ground of legal unreasonableness has been met in relation to the IAA’s non-exercise of its discretion under s 473DC of the Act. Nor, in the above circumstances, do I accept that it has been demonstrated that the IAA unreasonably failed to consider exercising its discretion under s 473DC. The IAA was not obliged to provide reasons for its non-exercise. In circumstances where its non-exercise was intelligible, it has not been demonstrated that the IAA did not consider exercising it simply because it did not provide reasons for this in its decision.

17. Ground 1 is therefore unable to succeed.

    GROUND 2

18. Ground 2 contended that the IAA failed to consider a claim that arose on the materials, being whether the applicant would continue his active involvement with the Shia community in Lahore and, if so, face a real chance of harm. The applicant observed that this was considered by the Delegate at Court Book 205.7:

    Overall I am not satisfied the applicant’s profile is commensurate with those who as outlined above have been individually targeted in Lahore. Even if the applicant were to continue an active involvement with the Shia community, similar to that he engaged in Quetta, and continue to work in a role similar to that he held in Quetta I am not satisfied this would lead him to face a real chance of harm in Lahore.

19. The Minister submitted that this claim was dealt with in the IAA’s findings of greater generality: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593 at [47] per French, Sackville and Hely JJ.

20. At [55], the IAA considered (footnotes omitted):

    55. The applicant claims that he will be readily identified as a Shia Muslim due to his physical appearance and his manner of praying. I accept that the applicant may be easily identified as a Shia as a result of one or more of these factors. However, as discussed, the country information before suggests that attacks on Shia Muslims in Lahore are rare. The applicant states that he fears harm in Pakistan as a practising Shia Muslim. While Shia religious events, as well as places of worship have been targeted by Sunni extremists in the past,⁴⁹ there is information to suggest that the Pakistani Government takes steps to ensure the safety of participants in Shia religious events.⁵⁰ SATP data includes no reports of deaths of Shias as a result of attacks on Shia mosques, imambargahs or religious events such as Ashura processions in Lahore in 2014, 2015 or 2016 to August 2016.⁵¹ DFAT reports that Shia mosques and places of worship are located throughout Pakistan. I am not satisfied there is a real chance of harm to the applicant in Lahore as a result of attacks on Shia religious venues or religious events, or that he would be prevented from practising his Shia faith in Lahore for any reason.

21. Having regard to the above, I accept the Minister’s submission that the IAA’s finding that the applicant would not face a real chance of harm through his attendance at religious events encompassed the applicant’s participation in Shia community events, such as those with which the IAA accepted that the applicant had previously been involved (at [27]-[30]). The focus appears to have been not so much upon the precise nature of the religious events, but upon the fact that they involved those of Shia faith congregating.

22. Ground 2 is therefore unable to succeed.

    GROUND 3

23. Ground 3 contended that the IAA failed to give proper, genuine and realistic consideration to whether the applicant would face a real chance of harm within the reasonably foreseeable future.

24. Although the applicant accepted that some reference was made to this expression in the IAA’s decision, the applicant submitted that mere reference to this does not mean that the IAA engaged intellectually with the concept: ENT19 v Minister for Home Affairs [2021] FCAFC 217; (2021) 289 FCR 100 at [64] per Katzmann J.

25. However, on the facts of this case I accept the Minister’s submission that the IAA did undertake the requisite analysis into the reasonably foreseeable future. At [48]-[55] the IAA considered country information indicating that the applicant did not face a real chance of harm in Lahore including by reference to his Shia faith and practice. At [55], the IAA found that it was “not satisfied there is a real chance of harm to the applicant in Lahore as a result of” such attacks as the country information indicated had occurred. Whilst such information was referable to past and present events (including information suggesting that “attacks on Shia Muslims in Lahore are rare”), the IAA was not precluded from considering that such events may provide a reliable basis for assessing what was foreseeable in the future: see Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 574 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

26. At [56], the IAA considered it unlikely that the applicant would be perceived to be Hazara “in future” and rejected that there was a real chance of harm to the applicant in Lahore on this basis. At [57], the IAA expressly reasoned that it was “not satisfied that there is a real chance of harm to the applicant now or in the foreseeable future on the basis of his Shia faith, or as a result of the security situation in Lahore” (emphasis added).

27. At [59]-[62], the IAA rejected that there was a real chance of harm to the applicant on the basis of his appearance, or as an “outsider”. At [64], the IAA rejected that there was any chance of harm to the applicant “now or in the foreseeable future” (emphasis added) by reference to him being an asylum seeker returning from Australia. These matters informed the IAA’s reasoning at [67] that there was not a real chance of harm to the applicant in Lahore by reference to the various matters that it had considered. They also informed the applicant’s conclusion at [84] that there were not “substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm” (emphasis added).

28. Having regard to the above, I accept the Minister’s submission that the IAA engaged with the risk to the applicant in the reasonably foreseeable future. The IAA expressed that it had done so. The balance of its reasoning, and its assessment of risk, is consistent with this. Although parts of the IAA’s reasoning referred in truncated terms more generally to the risk of harm to the applicant, I do not accept that in so reasoning, the IAA was not engaging with the situation into the reasonably foreseeable future.

29. I am therefore not persuaded that ground 3 ought to succeed.

    GROUND 4

30. Ground 4 contended that the IAA erroneously asked itself whether it would be unreasonable for the applicant to relocate to Lahore (at [78] and [82]), whereas the correct test concerned whether it would be reasonable for the applicant to locate to Lahore.

1. As the Minister observed, a similar argument was rejected by Judge Riley in MZYZS v Minister for Immigration [2012] FMCA 1149; (2012) 135 ALD 125 at [13]-[16]. This was by reference to what was said in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 at [22]-[23] per Branson J (with North J agreeing at [73]), where the difference in language was not considered to indicate error (see also SZFUJ & Ors v Minister for Immigration & Anor [2006] FMCA 1159 at [13] to [14] per Judge Lloyd-Jones).

2. The applicant submitted that there had been some developments since NAIS, including through the introduction of s 36(2B) of the Act. However, the applicant did not explain in any detail why this rendered the reasoning in NAIS inapplicable. In this regard, the applicant accepted that he had some difficulty in contending against the applicability of NAIS, although stated that he did not, at this stage, wish to abandon the ground.

3. Although I accept that the IAA at parts of its decision considered (and rejected) that certain considerations rendered relocation unreasonable, in doing so the IAA was responding (at least in part) to submissions that had been made on behalf of the applicant in this regard. I am not persuaded that the IAA’s rejection that certain matters rendered relocation unreasonable was incapable of informing the ultimate question of whether or not relocation would be reasonable in the applicant’s case.

4. The IAA expressly identified the correct test at [73] of its decision. It expressly applied that test in reaching its conclusion at [83].

5. Having regard to the above, I am not persuaded that ground 4 is able to succeed.

   CONCLUSION

6. For the above reasons, jurisdictional error has not been demonstrated in relation to the IAA’s decision.  

7. It follows that I am obliged to dismiss the application. I will hear from the parties in relation to costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       18 October 2023