AOA19 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 965
•3 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AOA19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 965
File number(s): SYG 329 of 2019 Judgment of: JUDGE LAING Date of judgment: 3 October 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA reasoned in a way that was relevantly open to it – whether the IAA unreasonably failed to exercise power under s 473DC of the Migration Act 1958 (Cth) – whether the IAA misunderstood country information that it relied upon – whether the IAA relevantly erred in dealing with the question of relocation – where not all of the impediments to relocation raised by the applicant were considered by the IAA in assessing relocation – application succeeds Legislation: Migration Act 1958 (Cth) ss 36(2B), 473DC & 473DD Cases cited: AWG18 v Minister for Home Affairs [2020] FCA 744
BFR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 87
CEO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1472
DEO19 v Minister for Immigration, Citizenship, Multicultural Affairs and Migrant Services [2022] FCA 608
DFE16 v Minister for Immigration and Border Protection [2017] FCCA 308
DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134
MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2016) 161 ALD 73
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 3 September 2024 Place: Sydney Counsel for the Applicant (Direct Brief): Mr C Honnery Counsel for the First Respondent: Ms N Maddocks Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 329 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AOA19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
3 OCTOBER 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 11 January 2019.
2.A writ of mandamus issue directed to the second respondent requiring it to determine the review of the decision of a delegate of the first respondent dated 27 November 2018 according to law.
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:
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
The applicant is a citizen of Pakistan who applied for a protection visa on 13 April 2017.
On 27 November 2018, the Delegate refused the application. The matter was subsequently referred to the IAA for review.
On 11 January 2019, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA’s findings regarding the applicant’s claims may be summarised as follows:
(a)The IAA accepted that the applicant was a Hazara Shia from Quetta in Pakistan (at [10]).
(b)The IAA did not consider that the applicant was the target of intimidation or violence in relation to his claim that the son of his employer had been threatened by Lashkar-e-Jangawi (LeJ) members (at [11]).
(c)The IAA accepted that the applicant’s claim about his van being shot at by Sunni extremist groups could have occurred, but considered that because the applicant was not harmed and the motivation for the incident was unknown, this specific claim did not need to be considered further (at [12]).
(d)The IAA was satisfied that no incident had caused the applicant to have a raised profile in Pakistan, with the LeJ, the Sipah-e-Sahaba Pakistan (SSP) or any other militant group in Pakistan (at [13]).
(e)The IAA accepted that members of the Hazara community and Shia Muslims are targeted by militant groups and that, due to the applicant’s ethnicity and religion, he may be imputed with a political opinion that is in opposition to Sunni insurgent groups. The IAA considered that any claimed fear of harm the applicant had on the basis of his imputed political opinion was indistinguishable from the harm he feared on the basis of his ethnicity and religion (at [14]).
(f)The IAA did not accept a new claim raised by the applicant at the protection visa interview (PV interview) to face harm from the government in Pakistan, which was found not to be supported on the evidence (at [15]).
(g)Having regard to country information, the IAA accepted that there was a real and not remote chance of sectarian violence being committed against Hazaras in Quetta. The IAA accordingly found that the applicant faced a real chance of serious harm in Quetta (at [16]-[20]).
(h)However, the IAA was satisfied that there was only a remote chance that the applicant would be harmed by sectarian violence in Islamabad, including as a Shia and/or a Hazara (at [24]). In the context of its assessment of the refugee criterion, the IAA also was not satisfied that the applicant faced a real chance of harm from generalised violence, discrimination, or as a returned Shia asylum seeker from the West (at [25]-[34]). The IAA concluded that it was not satisfied that the applicant had a well-founded fear of persecution from anyone in Islamabad (at [35]).
(i)The IAA accepted that the applicant may face a real risk of significant harm in Quetta but found that he did not face this in Islamabad (at [39] and [41]).
(j)For reasons that will be elaborated upon below, the IAA concluded that it would be reasonable for the applicant to relocate to Islamabad (at [42]-[26]).
Having regard to the above, the IAA found that the applicant was unable to meet the criteria for the grant of a protection visa. Accordingly, the IAA affirmed the Delegate’s decision (at [36]-[47]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 15 February 2019. The applicant ultimately relied upon the following grounds contained in an amended application filed on 12 August 2024:
1.The decision of the Authority (IAA) is affected by jurisdictional error because the IAA:
a.failed to perform its statutory function by failing to deal with a claim or its component integers; and/or
b. misapplied the real chance test; and/or
c. engaged in reasoning that was irrational; and/or
d.unreasonably failed to exercise its discretion under s 473DC of the Act to get information from the applicant.
Particulars
a.The applicant claimed to have been shot at while driving by Sunni extremists targeting Hazaras, resulting in him overturning on the side of the road (the shooting claim): CB 49 [9]-[10].
b. The IAA disregarded the shooting claim, reasoning:
“I am satisfied that such an incident could have occurred, however, I consider that the applicant was not harmed and the motivation for the incident and the perpetrators are unknown and as such, I have not considered this specific claim further”: CB 294 at [12].
c.The fact that the applicant was not harmed, or that the motivation and perpetrators of the shooting were unknown, were not rational bases to disregard, and not consider, the shooting claim.
d.The IAA’s determination of the applicant’s claims, and in turn what was likely to occur to the applicant, was materially tainted by it not considering the shooting claim, such that his risk of harm if forced to return to Pakistan was not properly evaluated.
e.It was also unreasonable for the IAA to disregard the shooting claim without exercising its power under s 473DC of the Act to get information from the applicant about the incident in circumstances where the shooting claim was bypassed by the delegate at the SHEV interview.
2. The IAA:
a.misconstrued, or failed to properly consider, the applicant’s submissions, based upon DFAT’s assessment that Hazaras face a moderate risk of sectarian violence in Pakistan; and/or
b.misconstrued the 2017 DFAT Report, or made findings without a proper basis.
Particulars
a.The applicant submitted to the IAA that “the Delegate blatantly ignored the findings by the Australia’s Department of Foreign Affairs (DFAT) on 1 September 2017, that Hazaras face a moderate risk of sectarian violence in Pakistan because of their religious belief and distinctive facial features”: CB 271.
b.The IAA accepted the applicant faced a real chance of serious harm should he return to Quetta but found there is only a remote chance that he will be harmed by sectarian violence in Islamabad: CB 295 – 297 [18]-[24].
c.The IAA reasoned, “DFAT assessed that Hazaras in Quetta faced a moderate risk of sectarian violence and a higher risk than other Shias, due to their distinctive appearance” (at [18]) but distinguished the situation for Hazaras in Islamabad based on the same DFAT report not specifically “reporting that Hazaras had been targeted by sectarian violence in Islamabad in recent years or that the situation for Hazaras had been deteriorating in that city”: CB 297 at [18].
d.The IAA’s consideration of the applicant’s submission relying upon DFAT’s assessment of the degree of risk faced by Hazaras in Pakistan was tainted by it misunderstanding, and misconstruing, DFAT’s moderate risk assessment as pertaining to “Hazaras in Quetta” rather than Hazaras throughout Pakistan.
e.The IAA drew a false dichotomy between the situation for Hazaras in Quetta and elsewhere in Pakistan, as DFAT did not differentiate between risks faced by Hazaras in Quetta and other parts of the country, assessing that “Hazaras face a moderate risk of sectarian violence in Pakistan”: DFAT country information report on Pakistan dated 1 September 2017 at [3.17].
3.The IAA’s assessment of the reasonableness of relocation pursuant to s 36(2B)(a) of the Act is affected by jurisdictional error.
Particulars
a.The applicant raised discrimination against Hazaras as an objection to relocation, and the issue of societal discrimination against Hazaras arose from the country information: DFAT country information report on Pakistan 1 September 2017 at [3.12 – 3.13].
b.While the IAA considered whether the applicant would face discrimination in Pakistan as a Hazara Shia in its refugee assessment (CB 298 – 299 at [27]-[31], this was not determinative of the distinct question of the reasonableness of relocation in the complementary protection assessment, which may still be informed by forms of harm which do not rise to the level of significant harm.
c.The IAA failed to consider discrimination against Hazaras in the context of assessing the reasonableness of relocation under complementary protection, which was an error because societal discrimination not constituting ‘serious harm’ remains relevant to the assessment of the distinct question of whether relocation is reasonable.
Ground 3
It is convenient to deal with the third ground relied upon by the applicant first.
Under ground 3, the applicant contended that the IAA’s assessment of the reasonableness of relocation pursuant to s 36(2B)(a) of the Migration Act 1958 (Cth) (Act) was affected by jurisdictional error.
The applicant relied upon the principles summarised by Cheeseman J in DEO19 v Minister for Immigration, Citizenship, Multicultural Affairs and Migrant Services [2022] FCA 608 at [35] as follows:
(1)reasonableness is referable to what is practicable for the appellant to relocate to a region where, objectively, “there is no appreciable risk of the occurrence of the feared persecution”: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at 26 - 27 [23] (Gummow, Hayne and Crennan JJ);
(2)the enquiry is fact dependent and will turn on the particular circumstances of the applicant and the impact of relocation within the receiving country: SZATV, 27 [24] (Gummow, Hayne and Crennan JJ); Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 at 328 [27] (French CJ, Hayne, Kiefel and Keane JJ);
(3)a “broad brush approach” typified by general statements will be insufficient. Detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. Likewise the circumstances of the individual taking into account the individual’s strengths and weaknesses; skills; and material and family support will need to be considered in some detail: MZANX v Minister for Immigration and Border Protection [2017] FCA 307, [55] (Mortimer J);
(4)assessing reasonableness is an inquisitorial task that is informed by what the applicant puts forward but is not necessarily confined to those matters: CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 156 at [10] (Jagot, [Charlesworth] and Snaden JJ); MZANX, [58] (Mortimer J);
(5)a decision-maker is not obliged to deal with claims that do not clearly arise from the material (in the sense understood in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (Black CJ, French and Selway JJ): BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131 at [10] (Jackson J). The task is not limited to the material submitted by the applicant and extends to claims arising clearly on the decision-maker’s own findings: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [26] (Collier, McKerracher and Banks-Smith JJ);
(6)there are no mandatory relevant considerations applicable to the question of whether it is reasonable to relocate. Minute examination of every circumstance of the proposed relocation is not required: BDA17 at [15] (Jackson J); see also SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 at [22] (Allsop J, as his Honour then was); and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 at [110] (Robertson, Murphy and Kerr JJ);
(7)a failure to consider a relevant matter going to the reasonableness of relocation can be a jurisdictional error: MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 289 ALR 541 at [19] – [20] (Flick and Jagot JJ), [38] (Yates J).
The applicant observed that risks not rising to the level of a real chance, and potential forms of harm other than serious or significant harm, may inform the IAA's task in determining whether relocation would be reasonable in all the circumstances. This is because the reasonableness of relocation imports a question of practicability, the boundaries of which are different from other criteria for the visa: MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2016) 161 ALD 73 at [25]-[26] (Kenny J).
In the present case, the IAA considered the issue of discrimination within the context of the refugee criterion as follows at [27]-[31] of its decision (footnotes omitted):
27.I have also considered whether the applicant would face discrimination in Pakistan as a Hazara Shia. DFAT assesses that Pakistan’s Hazara community is not subject to official Government policies of discrimination and there is little discrimination at the community level. The Government recognised the Hazara tribe as ‘local’ in 1962 and Hazara residents at that time became citizens of Pakistan24. The applicant has not claimed that he was ever denied the right to own property, the right to vote or the right to access employment, education or healthcare. The applicant has not claimed that he has been denied the opportunity to practice his religion.
28.With respect to health and education services, health care in Pakistan is generally free and accessible to all Pakistanis and Section 25A of the Constitution establishes a basic right to education for children between the ages of 5 and 1625.
29.In terms of general discrimination, DFAT noted26 that some Shias have reportedly experienced delays in applying for, or unblocking identity documents. These delays are said to have occurred at the hands of individual public servants rather than because of any official or systematic discrimination. I am satisfied that the applicant faces only a remote, and therefore not a real, chance of harm arising from his need to renew any identity documents.
30.DFAT also reported that no laws or government policies discriminate against Shias on the basis of religion. There is no evidence to indicate that the applicant would not be able to freely practise his Shia Muslim religion in Islamabad. DFAT assesses that in larger cities there is a higher level of communal integration between Sunnis and Shias27. Broadly speaking, there was also little community prejudice and societal discrimination was largely confined to local nepotism, favouritism or patronage. DFAT assessed that the greatest threats for Shias in Pakistan came from militant groups and, at times, sectarian clashes but as I have noted above, the risk of such incidents is very low in Islamabad compared with other parts of Pakistan.
31.Having regard to all of the above, I am not satisfied that the applicant faces a real chance of harm, including from extremists or generalised violence, or discrimination, as a Shia, a Hazara, or a Shia Hazara in Islamabad.
However, the applicant contended that the IAA failed to consider discrimination against Hazaras in the context of assessing the reasonableness of relocation under complementary protection. The applicant acknowledged that the IAA at [31] had expressed that it was “not satisfied that the applicant faces a real chance of harm, including from … discrimination, as a Shia, a Hazara, or a Shia Hazara in Islamabad”. However, the applicant submitted that this did not complete the task required of the IAA. The applicant contended that the IAA’s reference to “harm” within this context contemplated a particular type of harm that was relevant to the criterion under consideration. I accept that this is so, noting that the IAA when using the word “harm” appears to have been concerned with particular types of harm depending upon the context of usage in its decision. Another example of this is considered below. In any event, the applicant submitted that the IAA’s consideration of the country information relied upon by the IAA in this particular context did not mean that it had been considered for all purposes for which it was relevant: AWG18 v Minister for Home Affairs [2020] FCA 744 at [123] and [130] (Greenwood J).
In written submissions, the Minister contended that the applicant did not claim that it would be unreasonable for him to relocate on account of discrimination not amounting to harm as defined in the Act and that, in these circumstances, there was “no suggestion of any residual type of harm” that needed to be considered: DFE16 v Minister for Immigration and Border Protection [2017] FCCA 308 at [57] (Judge Smith). However, this was not pressed in oral submissions by Counsel who was ultimately engaged by the Minister. No criticism can be made of the Minister in this regard. The Minister’s representatives in this matter have capably responded, with some level of agility, to arguments that were made quite late in the proceedings by the applicant. The hearing date in this matter was therefore able to be maintained. However, the approach taken by Counsel for the Minister at hearing was a sensible one, in circumstances where, as set out below, the applicant did make claims regarding discrimination that went, at least potentially, beyond the definitions of serious and significant harm.
In the statutory declaration submitted with his protection visa application, the applicant had claimed that he was unable to seek safety in another part of Pakistan because he did “not have familial links or social connections” outside of Quetta. At a subsequent interview with the Department (PV interview), the applicant had gone into some detail explaining how he would feel socially ostracised or unwanted as a Hazara in other parts of Pakistan, due to his perception that people would not wish to associate with him. That perception was based upon violence and discrimination against Hazaras more generally. In the transcript of that interview that is in evidence (Transcript), the following was stated (at p 32-34):
637.Delegate: I see .. ls there anything else you'd like to say in regards to why you feel you wouldn't be able to relocate to any other part of Pakistan?
638.Applicant: Ah .. yea .. My features is very obvious that we are very different from them. We are very recognised or identified, My eyes and my face and my nose and so they target us very easily.
639.Delegate: Ah .. there is information before me which notes that there are 25000 Hazara families living in Karachi. This is an example. In the Hussein Hazara GOTH areas. Furthermore the information before me doesn't indicate umm sorry indicates a very low risk of sectarian violence in major urban centres in Pakistan. Would you like to make comment on that? It doesn't as though you would be at risk at level of umm.. sorry doesn't seem as though umm .. those particular areas are particularly dangerous for Hazara Shias just like yourself.
640.Applicant: Actually those people also live in danger and in fear and they are not safe as well but still they may have some income that they live there but for me I have no one. I don 't know anyone for support and so I cannot get job there because no one want to be harmed because of me if they give me job to be harmed and even the bus drivers don't pick you because they know that if they pick up a Hazara in their bus then their bus could be attacked because of that Hazara…
644.Applicant: I mean that because I am Hazara and so Hazara are like people who are under attack and target so everyone want to keep away from Hazara, not to be harmed because of them. if one hazara work with them at shop or in the home then may be because of one Hazara person that person also be harmed…
648.Applicant: Actually I want to say that because of our feature, our face we are at risk any place anywhere even because of that we are very cautious to leave our house or, and so our people were attacked on the roads, in the streets and the shops.
The applicant’s claims, therefore, went beyond an objective measure of risk relating to harm capable of attracting protection under the refugee or complementary protection criteria. They also spoke to the applicant’s fears and sense of social ostracisation he believed that he would experience due to how he would be perceived in an area that was away from his social connections, on account of his appearance as a Hazara. These matters were capable of informing the reasonableness of relocation.
The Minister submitted, and I accept, that information regarding discrimination informed the IAA’s findings in relation to the reasonableness of relocation (at least to some extent). In particular, the IAA considered that the applicant would be able to live apart from his family and possessed identity documents. The IAA had regard to country information, which indicated (inter alia) that a significant number of Hazaras resided in Islamabad. Taking into account country information and certain features of the applicant’s circumstances, the IAA was satisfied that the applicant would be able to obtain employment and accommodation in Islamabad.
At [6], in summarising the applicant’s claims at the PV interview regarding relocation, the IAA had stated:
•He is afraid to travel in Pakistan and if he was required to relocate he would live in danger and fear. He would also be subject to discrimination and would not be able to get a job or use public transport.
Although this went some way to acknowledging what the applicant had claimed regarding discrimination, employment and public transport, the applicant’s claims were not limited to this. At interview, the applicant had spoken more generally to his perception that people would not want him around, or wish to associate with him, on account of his appearance as a Hazara.
In any event, the IAA’s reasoning regarding the reasonableness of relocation was set out at [40]-[46] of its decision. After setting out s 36(2B) of the Act (at [40]), the IAA made the following preliminary finding at [41]:
41.I have found above that the applicant does not face a real chance of harm from Sunni militants, terrorists, criminals or the Indian authorities including the FC, because of his Hazara ethnicity and Shia faith; his imputed political opinion of opposition to the LeJ, SSP and other Sunni insurgent groups in Pakistan; and as a returnee from a Western country in Islamabad. As noted above, 'real chance' and 'real risk' equate to the same threshold and for the same reasons as given above I am not satisfied that the applicant faces a real risk of significant harm for any of those reasons, or any combination of those reasons, in Islamabad.
At [42]-[46], the IAA reasoned (footnotes omitted):
42.DFAT reports that many large urban centres such as Islamabad are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a higher level of state protection30. DFAT reports that Islamabad is home to a significant Hazara community and that some Hazaras from Quetta have relocated to Islamabad31.
43.Based on the evidence before me, I am satisfied that the security situations in Islamabad is such that it is reasonable, in terms of his overall safety and security, for the applicant to relocate to this city. There is no information before me to indicate that the applicant would not be safe flying into Islamabad from Australia.
44.I am conscious that the applicant has demonstrated that he is resourceful and he has successfully lived apart from his family and settled in unfamiliar places for extended periods including travelling to and working in Iran on multiple occasions and living and working in Australia. I am not satisfied that living in a different part of Pakistan separate from most of his immediate family place the applicant at greater risk of harm in Islamabad. Further it would be open to the applicant’s family to visit him in Islamabad as there are no reported impediments to travel between Quetta and Islamabad.
45.I have considered the applicant’s ability to gain employment upon return to Pakistan. While the official unemployment rate in Pakistan is 5.9 per cent32, Islamabad offers better opportunities33. Based on the applicant’s work history and participation at interview, I am satisfied that he is educated and has communication skills. I note that he remained in continuous employment from 1988 until just prior to his departure from Pakistan in… 2013 as a shoemaker and that he also worked in Iran. The applicant declared in his SHEV interview that he is now working as a supervisor within the cleaning department of a small-good’s head office in Sydney. He appears to be in good health, having worked in Australia since he was granted work rights, he is of working age and is multilingual with the ability to speak in Hazaragi, Urdu and English (the applicant noted that he has studied English in Pakistan and Australia and communicates with his girlfriend in English). He has identity documents to support him in obtaining employment and accommodation. Overall, I do not consider that finding employment would be an impediment for the applicant relocating to Islamabad. Having regard to the applicant’s personal circumstances, work experience, ability to secure accommodation in unfamiliar locations, language skills and the country information discussed previously, I am satisfied that the applicant will be able to obtain employment and accommodation in Islamabad.
46.Having taken into account available country information and the applicant’s circumstances, I am satisfied that it would be reasonable the applicant to relocate to Islamabad, where he does not face a real risk of significant harm.
However, as set out above, the applicant’s claims went beyond this. They spoke to social ostracisation (and the sense of social ostracisation) that the applicant believed he would experience if he relocated within Pakistan due to discrimination against Hazaras. This was by reference to the applicant’s perception that people would not want him around, or wish to associate with him, because of his appearance as a Hazara. The IAA’s findings regarding the applicant’s ability to be apart from his family, live safely, and obtain employment and accommodation, were not an answer to these broader claims.
This is so even if the IAA’s reasoning at [42]-[46] could be construed as implicitly somehow including, for example, a finding that the applicant would be allowed to get on a bus (contrary to what he had claimed at the PV interview). A finding that someone would be able to get on a bus (if it had been made) is not the same as a finding that it would be reasonable for that person to get on the bus perceiving that people didn’t want him there.
The applicant’s claims in this regard were informed by discrimination against Hazaras, which the country information indicated was known to occur at least at some level (DFAT Report at [3.12]-[3.13]). In any event, they were matters capable of informing the reasonableness of relocation. They were issues raised with the circumstances “on the ground” in the area of relocation proposed. They were required to be grappled with, but do not appear to have been considered, by the IAA in determining the reasonableness of relocation. Had the IAA taken them into account, then it is possible that its findings regarding this question may have been different.
Having regard to the above, I accept that jurisdictional error has been demonstrated under ground 3.
Ground 1
Given my findings regarding ground 3, it is not strictly necessary to determine grounds 1 or 2. However, for completeness, I will set out my views on those grounds. I will endeavour to do so reasonably succinctly.
Ground 1 took issue with the following paragraphs of the IAA’s decision:
11.The applicant does not claim to have been personally harmed in Pakistan. He provided accounts of harm to Shias in Quetta that he had witnessed or been told about such as the son of his employer being threatened by a group of men who were LeJ members. I do not consider that the applicant was the target of this intimidation or violence and I have not had regard to those specific claims in any further detail.
12.The applicant does claim that the event that prompted his travel to Australia was his van being shot at on a road which resulting in him speeding up and subsequently overturning on the side of the road. He claimed that the people shooting were Sunni extremist groups targeting him and his mother due to them being Shia and Hazara. He does not claim to have interacted with the drivers of the other vehicle. The applicant did not claim to have been harmed or to have sought treatment and does not claim to have pursued the matter at the time or lodged any complaint with the police for investigation. As the applicant generally provided an open and credible account of his life in Pakistan I am satisfied that such an incident could have occurred, however, I consider that the applicant was not harmed and the motivation for the incident and the perpetrators are unknown and as such, I have not considered this specific claim further.
At [13], the IAA further stated:
13.Overall I am satisfied that no incident has caused the applicant to have a raised profile in Pakistan with the LeJ, SSP or any other militant group in Pakistan. I am also satisfied that the claimed circumstances which led to the applicant’s departure from Pakistan do not suggest a targeted campaign specifically against the applicant or his family on the basis of their ethnicity or religion. I also note that the applicant’s brother in Australia recently returned to Quetta to get married and the applicant did not indicate that he was harmed while in Quetta with his family or prevented from travelling in or out of Quetta.
The applicant submitted that the IAA erred in disregarding his claims regarding the shooting on an irrational basis and, therefore, failing to consider them. The applicant’s submissions regarding this aspect of ground 1 depended upon a particular reading of the IAA’s decision. For the reasons given below, I do not accept that the applicant’s reading of these parts of the IAA’s decision is the more likely one.
In oral submissions, the applicant observed that he claimed to have faced “harm” in Pakistan by reference to this claim (CB [11]). This was contrasted with the IAA’s consideration that the applicant “did not claim to have been harmed”. However, the IAA in referring to harm in this sense appears to have contemplated physical harm. The applicant did not claim to have been physically harmed in the attack. I accept, as was submitted by the applicant, that a finding he had not been physically harmed was not sufficient to answer the question of whether he met the criteria for protection.
The applicant submitted that the IAA expressly decided not to consider his claims of past harm, and therefore did not make findings in respect of the shooting capable of discharging its statutory task. In this regard, the applicant submitted that the IAA’s statement that “I have not considered this specific claim further” ought to be read “literally”. However, I am not persuaded that this is the most likely interpretation of what the IAA was saying at [12] of its decision.
Paragraph 12 must be read with [13] of the IAA’s decision. I accept the Minister’s submission that the most likely reading of these paragraphs, when taken together, is the IAA expressing that it was not satisfied that the shooting incident was anything other than a one-off example of incidents of violence that it accepted occurred based upon available country information. As the IAA was not satisfied that the incident raised the applicant’s profile, or was other than an example of violence the IAA accepted had occurred more generally, the IAA did not consider that it was capable of bearing upon its overall assessment. I accept the Minister’s submission that it was open to the IAA to reason in this manner. I am therefore not persuaded that the IAA fell into the species of error contemplated at 1(a)-(c) of the ground.
By 1(d), the applicant contended that it was unreasonable for the IAA to have reasoned as it did without exercising its discretion under s 473DC of the Act to obtain information from the applicant. This was in circumstances where the following exchanges occurred at the PV interview (p 27-28 of the Transcript):
540.Applicant: Ahh.. Actually.. the danger is sorted when you left your home and the area I lived yea.. about three thousand people lost their lives or were killed during the 15 years.. ahh.. actually I also witnessed some of these incidents.. and.. I was at the incident and one time I was in my shop..
541.Delegate: Oh you don't need to talk about incidents of violence that you have seen. I don't need to hear about that.
542. Applicant: Ok
543.Delegate: umm..So who do you think would harm you if you did return to Pakistan?
This was notwithstanding the applicant’s written claims that the shooting incident, and an incident at the shop where he worked, were reasons he had left Pakistan (CB 49).
The applicant relied upon cases such as DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 (DPI17). In DPI17, the reliance placed by the IAA upon inconsistencies the Delegate had indicated would not be given substantial weight informed (inter alia) a finding of legal unreasonableness on the part of the IAA in relation to the discretion under s 473DC of the Act. In circumstances where the evidence that the applicant had put forward had, presumably, been influenced by the Delegate’s indication of what would be given weight, it was found that “the IAA was obliged to consider and determine whether or not it should exercise its discretion under s 473DC and invite the appellant to provide any “new information” (at [47] per Griffiths and Steward JJ).
The applicant also relied upon BFR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 87 (Judge Ladhams), in which a similar conclusion was reached in circumstances where (inter alia) representations that the delegate had made in the course of the interview had impacted the applicant’s presentation of his case.
However, the applicant accepted that cases in which legal unreasonableness is alleged inevitably turn on their own particular factual circumstances.
In the present case, I accept the Minister’s submission that the Delegate was conducting the interview in circumstances where the applicant’s claims regarding the shooting incident had been limited and the applicant had not directly (at least at the time of the Delegate’s interjection) spoken to it in the PV interview. I also accept that the Delegate had indicated that they did not wish to hear more about what the applicant had “seen” as the applicant had started talking about incidents he had “witnessed”.
However, as was submitted by the applicant, he had not claimed that he had experienced the incidents in question with no involvement other than as a general “spectator” who was entirely disconnected from the events. The applicant had claimed that a dangerous incident involving members of a Sunni insurgent group had occurred at the shop where he worked whilst he was working there. In another incident, the applicant claimed that he had been shot at, when targeted as a Hazara Shia, which had resulted in his vehicle overturning.
These matters concerned the applicant’s personal experiences of danger and violence in Pakistan. As the applicant submitted, his attempt to discuss these incidents at interview was framed as the commencement of a story or claim. This was cut short by what was said by the Delegate. When the applicant had started talking about the shop incident, the Delegate interjected in a manner suggesting that the Delegate did not wish for him to elaborate.
I therefore accept that what occurred at the PV interview was potentially problematic. This is so even though the Delegate’s approach was, to some extent, understandable. This is because the Delegate had, most likely, perceived that the applicant in his statutory declaration had not suggested that the incidents were specifically targeted towards him. Rather, his evidence suggested they had been experienced because (a) he had been present in the shop when his boss’s son had been approached; and (b) the group who shot at him were generally targeting Hazara Shias. The Delegate appears to have considered that the applicant’s individual experience of generalised violence (even if ethnically motivated) did not alter its assessment of the risk of harm. This was in circumstances where, based upon country information, the Delegate accepted that (a) such incidents of violence occurred in Quetta, and (b) there was accordingly a real chance that the applicant may face relevant harm there.
In any event, this was not the only context before the IAA. The IAA also had before it the Delegate’s decision, in which the Delegate had reasoned:
I am satisfied that no incident has caused the applicant to have a raised profile in Pakistan with LeJ, Sipah-e-Sahaba or any other militant group in Pakistan. I am also satisfied that the claimed circumstances which led to the applicant’s departure from Pakistan do not suggest a targeted campaign specifically against the applicant or his family. This is supported by the applicant not raising any such claims during his SHEV interview.
The applicant might have responded to this reasoning, at the IAA stage, by observing that he had been discouraged at interview from providing further information regarding the incidents in question, and by providing any further information that he wished to have considered. Any such information would, of course, have had to meet the requirements of s 473DD of the Act. However, the applicant did not raise any issue in this regard when his matter came to be considered by the IAA. This is notwithstanding the fact that he was represented at that stage and his representative had provided written submissions to the IAA raising (other) difficulties in relation to the Delegate’s decision.
It was in this context that the IAA reasoned at [11]-[12]. Essentially, the IAA did not accept that the applicant was targeted in the incident at his place of work, or that the motivation for the shooting incident was known. It was upon this basis that the IAA did not accept that these incidents raised the applicant’s risk profile in Pakistan. In any event, similarly to the Delegate, the IAA found based upon country information that the applicant faced a real risk of relevant harm in Quetta. The IAA’s reasoning in this regard bore some similarity to the reasoning of the Delegate, to which no objection had been raised.
Taking into account the circumstances of this matter as a whole, I am not persuaded that it was legally unreasonable for the IAA not to have exercised its powers under s 473DC of the Act. Although it may have been reasonable or prudent for the IAA to have done so, this does not demonstrate that the IAA’s approach was legally unreasonable.
Ground 1 is therefore unable to succeed.
Ground 2
Ground 2 contended that the IAA misconstrued, or failed to properly consider, evidence from a report by the Department of Foreign Affairs and Trade (DFAT Report) in which the following was stated:
3.17DFAT assesses that Hazaras face a moderate risk of sectarian violence in Pakistan because of their religious beliefs. Hazaras face a higher risk than other Shi'a due to their distinct appearance..
(emphasis added)
The applicant observed that his representative had made submissions to the IAA relying upon this “moderate risk” assessment.
This was contrasted with the IAA’s reasoning at [18] of its decision, in which the IAA cited the relevant part of the DFAT Report as communicating:
18.… In 2017 DFAT assessed that Hazaras in Quetta faced a moderate risk of sectarian violence and a higher risk than other Shias, due to their distinctive appearance…
(emphasis added)
The applicant submitted that the IAA's finding that there was only a remote chance that he would be harmed by sectarian violence in Islamabad (at [24]) was tainted by misconstruction of DFAT's moderate risk assessment as being confined to "Hazaras in Quetta".
The applicant’s case in relation to ground 2 is arguable. However, on balance, I accept the Minister’s submission that inferences ought not to be drawn that the IAA either misunderstood or failed to consider what was said about a “moderate risk” of violence in the DFAT Report.
As was accepted by the applicant in oral submissions, the IAA’s statement that the DFAT Report indicated a moderate risk of sectarian violence in Quetta (being a part of Pakistan) was not necessarily wrong. However, the applicant submitted that an inference should be drawn that this was misunderstood by the IAA as being limited to Quetta. This was in circumstances where the IAA did not refer to the “moderate risk” assessment when considering relocation to Islamabad. That assessment, the applicant submitted, was important: cf. CEO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1472 (Judge Driver).
I accept that the IAA did not directly refer to the general “moderate risk” assessment in its consideration of Islamabad. However, the IAA did consider, in some detail, at [23]-[31] of its decision, country information relating to the risk of (inter alia) violence in Islamabad. This included the following (at [24]):
24.As noted previously, DFAT has assessed that Hazaras in Pakistan more generally face a higher risk of harm due to their distinctive appearance. They remain segregated and key targets for sectarian militants but the risk of violence is partly mitigated by the high levels of security maintained by the Hazara communities themselves. DFAT had no reporting that Hazaras had been targeted by sectarian violence in Islamabad in recent years or that the situation for Hazaras had been deteriorating in that city. Having regard to all of the information above, I am satisfied that there is only a remote chance that the applicant will be harmed by sectarian violence in Islamabad, including as a Shia and/or a Hazara.
The language used by the IAA in this regard, and reference to its earlier findings, suggests that the IAA was (a) conscious of the more general application of [3.17] of the DFAT Report, but (b) considering it in relation to other information before it (including information specific to Islamabad) in this part of its reasoning. This part of the IAA’s reasoning may also be contrasted with what the IAA had found at [17]-[20] regarding attacks that had taken place in Quetta.
Having regard to the above, I have not been persuaded to draw an inference that the “moderate risk” assessment in the DFAT Report was either misunderstood or overlooked by the IAA in assessing the situation in Islamabad.
It follows that I have not been persuaded that ground 2 ought to succeed.
CONCLUSION
As the applicant has succeeded under ground 3, the application before the Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 3 October 2024
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