AON18 v Minister for Home Affairs
[2024] FedCFamC2G 850
•11 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AON18 v Minister for Home Affairs [2024] FedCFamC2G 850
File number: MLG 311 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 11 September 2024 Catchwords: MIGRATION – Protection Visa – Where claim that it was not reasonable for the applicant to relocate within Pakistan because of his family did not clearly emerge from the materials – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 5H, 5J, 36, 476 Cases cited: AWT15 v Minister for Immigration and Border Protection [2017] FCA 512
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
CRI028 v Republic of Nauru (2018) 356 ALR 50
DOU16 v Minister for Home Affairs (2019) 272 FCR 358; [2019] FCAFC 212
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1; [2004] FCAFC 263
NAVK v Minister for Immigration [2004] FCA 169
SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214; [2016] FCA 45
Division: Division 2 General Federal Law Place: Melbourne Number of paragraphs: 71 Date of last submissions: 2 September 2024 Date of hearing: 2 September 2024 Counsel for the Applicant: Mr Aleksov Solicitor for the Applicant: Tang Law Counsel for the First Respondent: Mr Fitzgerald Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 311 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AON18
ApplicantAND: MINISTER FOR HOME AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
11 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $8,371.30.
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 CHAMPION:
WHAT IS THE ISSUE?
In the Applicant’s judicial review application under s. 476 of the Migration Act 1958 (Cth), the issue for decision is whether the Authority made a jurisdictional error by failing to consider a claim said to clearly arise from the materials, namely the reasonableness of the Applicant’s wife and young child joining him were he to relocate within Pakistan from Quetta to Lahore.
As to relocation, under s. 5J(1)(c) of the Act, for an applicant to have a well-founded fear of persecution under the refugee criterion, the real chance of harm must relate to all areas of the receiving country. Under the complementary protection criterion set out in s. 36(2B)(a) of the Act “there is taken not to be a real risk that a non-citizen will suffer significant harm” if:
it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm…
In summary, if the visa applicant can reasonably relocate within the receiving country, he or she will not be a person to whom Australia owes protection obligations under s. 36(2)(a) or s. 36(2)(aa).
The Applicant did not contend that he “squarely raised” a claim that it was not reasonable for him to relocate from Quetta to Lahore within Pakistan because of the circumstances of his family unit.
I have found that a claim that it was not reasonable for the Applicant to relocate within Pakistan because of his family circumstances did not “clearly emerge” on the materials.
I will dismiss the application. My reasons follow.
WHAT IS THE RELEVANT BACKGROUND?
The Applicant is a Shia Hazara national of Pakistan. He lived in Quetta, in the Balochistan province of Pakistan.
On 6 April 2013 the Applicant arrived in Australia as an unauthorised maritime arrival.
On 8 June 2013 he participated in an arrival interview.
On 18 January 2017, the Applicant lodged his visa application. In support of his application, he lodged a written statement dated 10 January 2017.
Because the Authority accepted that there was a real risk of significant harm to the Applicant if he returned to Quetta and the dispositive issue as to whether he should be granted a visa depended on whether it was reasonable for him to relocate within Pakistan it is not necessary to set out in any significant detail the Authority’s findings as to particular events that the Applicant says occurred in his life when he lived in Quetta.
In brief summary as to those personal events, the Applicant said that he had continuously lived within a Hazara community in Quetta, Pakistan from his early childhood until he left for Australia in February 2013.
In Quetta, he had performed clerical work for the Civil Defence Training School (CDTS). He had other part-time employment with the “Fayyaz Lab.”
In March 2010, the Applicant married his wife.
In 2010 and 2011, “[t]he situation in Quetta worsened with…increasing attacks on Hazaras…and there were numerous incidents with Hazaras being targeted and killed” (Applicant’s written statement (AWS), 10 January 2017, [7]).
The Applicant said, but the Authority did not accept as credible, that in February 2012, while travelling from his morning job at the CDTS to the Fayyaz Laboratory, he was chased by a motorcyclist with a passenger who pulled out a gun.
In February 2013, the Applicant fled from Pakistan (AWS, [14]).
The Applicant did not believe he could be safe anywhere in Pakistan. He “[did] not accept that Hazaras are safer in other parts of Pakistan” other than Quetta. He said that he did “not have any family members, relatives, friends or contacts in any other city in Pakistan other than Quetta.”
Shortly after he left Quetta and Pakistan, the Applicant’s child was born (AWS, [6]).
Based on other available material, it appears that the Applicant’s wife and child remained in Quetta following his departure.
On 17 March 2017 the Applicant participated in an interview with a delegate.
On 20 March 2017, the Applicant’s migration agent lodged post-interview submissions with the Department in support of the Applicant’s claims to protection. The Applicant’s representative submitted that the Applicant’s “principal claim” was “that all Hazaras are subject to persecution in Quetta and there is no safe place for them (at least in the absence of any family or work connection with any of the other Hazara communities) elsewhere in Pakistan.”
The Applicant’s representative’s submissions addressed the issue of the Applicant’s possible relocation within Pakistan in detail, mainly with reference to available country information. The Applicant did not make a submission that it was unreasonable for him to relocate within Pakistan to a large urban centre such as Lahore because of the Applicant’s wife and child.
WHAT DID THE DELEGATE AND THE AUTHORITY DECIDE?
The delegate’s decision
On 28 March 2017, the delegate refused the visa application.
The delegate did not accept as credible most components of the Applicant’s personal narrative.
The delegate found that there was a real risk of significant harm to the Applicant if he returned to Quetta because of his Shia Hazara identity. The delegate said that he was “satisfied that there is a real chance of the applicant suffering serious harm in the sectarian violence in Quetta in the reasonably foreseeable future.”
The delegate was also “satisfied that it is reasonable for him to relocate to Islamabad or Lahore” within Pakistan. The delegate found that because it was reasonable for him to relocate within Pakistan the Applicant would not suffer significant harm upon his return to Pakistan if he relocated.
Further, the delegate found:
I find his wife and child in Quetta could safely join him in Islamabad or Lahore once he has secured suitable employment and established himself in that area.
The Authority’s decision
The Authority accepted that the Applicant was a Shia Muslim of Hazara ethnicity from Quetta (Authority’s Reasons, [13]).
The Authority did not accept that the Applicant that “was pursued by armed men on a motorcycle, that his name was on a terrorist death list, or that he was of any adverse interest to any Sunni extremist group, or any other group or person at the time that he left Pakistan for any reason related to his employment” ([28]).
The Authority found in its reasons at [33]:
Having regard to the evidence before me, I am satisfied that there is a small, but nevertheless real, chance of harm to the applicant in the form of death or serious injury as a result of sectarian attacks on the basis of his Shia Hazara identity in Balochistan.
The Authority continued, correctly, to note that at [34]:
34.Pursuant to s.5J(1)(c), in order for the applicant to be found to have a well-founded fear of persecution, the real chance of harm must relate to all areas of Pakistan.
The Authority concluded at [54] of its reasons that it was “not satisfied that any combination of the applicant’s circumstances would combine to expose him to a real chance of harm in Lahore, now or in the foreseeable future.” As a result, the Applicant did not meet the requirements of the definition of a “refugee” in s 5H(1) of the Act and Australia did not owe the Applicant protection obligations under s. 36(2)(a) ([55]).
When addressing the complementary protection criterion, the Authority accepted that the Applicant faced a real risk of significant harm in Quetta as a result of his Hazara identity (Authority’s Reasons, [59]).
In considering s. 36(2B)(a) of the Act — as to whether the Authority was satisfied that “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm” — the Authority found that the Applicant would not face a real risk of significant harm in Lahore (Authority’s Reasons, [60]).
It found that the Applicant had “live[d] independently from his family in Quetta for an extended period of time,” and that he had demonstrated “a willingness to continue to live apart from his family, in Australia” ([64]).
The Authority accepted that the Applicant did not have any family members or other contacts in Lahore and that, as a result “he may experience a degree of initial social and cultural isolation on his arrival in Lahore” but “notwithstanding his lack of family or other contacts there”, he would “be able to find employment and accommodation in Lahore” ([64]).
As to the question of whether relocation within Pakistan was reasonable in all the circumstances under s. 36(2B)(a) the Authority was “satisfied that it would be reasonable for the applicant to relocate to Lahore” where he “would face no real risk of significant harm” ([66]).
The Authority concluded that there was not a real risk that the Applicant would suffer significant harm as a necessary foreseeable consequence of being returned from Australia to Pakistan and concluded that it was not satisfied that the Applicant was a person to whom Australia owed protection obligations under s. 36(2)(aa) ([67]).
In affirming the delegate’s decision, the Authority did not expressly consider in its Reasons the reasonableness of the Applicant’s wife and child joining him should he relocate within Pakistan to Lahore.
DID THE AUTHORITY FAIL TO CONSIDER A CLAIM CLEARLY ARISING ON THE MATERIALS?
The single ground of judicial review is as follows:
The IAA failed to consider a matter arising on the materials relevant to the reasonableness of relocation.
Particulars
a)In this case, the applicant, a Hazara, was accepted to be at risk of persecution and significant harm in his home region of Quetta, Pakistan. The delegate determined that he could relocate to avoid the harm, including to have his wife and child join him in the postulated place of relocation
b)The IAA did not consider the prospect of, or reasonableness of, his wife and child joining him at all.
The issue in dispute is whether the claim that it was unreasonable for the Applicant to relocate to another part of Pakistan because of his wife and child “clearly arose” on the materials.
The relevant legal principles
The relevant legal principles were not in dispute. It was the application of those relevant principles to the facts in this case which was at issue.
The relevance of the family unit and relocation principles
In CRI028 v Republic of Nauru (2018) 356 ALR 50; [2018] HCA 24 the High Court found that the Tribunal erred because it failed to consider that where the relocation within a country involved a threat to family unity it was essential to consider the family’s circumstances in evaluating whether relocation was reasonable.
The High Court recognised that the position of the applicant’s wife was “relevant” to the decision-maker’s task as to whether it was reasonable for the visa applicant to relocate and the wife’s position was “an essential part” of the reasonableness of the relocation (at [55]). In CRI028, there were “powerful reasons” for the wife’s reluctance to relocate as the High Court explained at [56]:
Those powerful reasons included that she was a Shia Muslim woman who had studied and grown up in Karachi, who did not want to leave her family and support networks in Karachi, as well as her fears of honour killings and other harm, including from her husband’s family and extended family, on the grounds that she was a Shia Muslim woman and a Shia Muslim woman married to a Sunni Muslim of Punjabi ethnicity.
In this case, if there were family reasons which meant there were issues or difficulties as to the Applicant’s relocation from Quetta to Lahore which clearly arose on the materials the Authority had to consider those claims under s. 5J(1)(c) and s. 36(2B)(a) in an evaluation of whether it was reasonable for the Applicant to relocate. His family’s circumstances were an “essential part” (CRI028, [55]) of that consideration.
A claim which clearly arises on the materials
In NAVK v Minister for Immigration [2004] FCA 1695 at [15] Allsop J (as he then was) explained the principle of when a claim will clearly arise on the materials with reference to the Administrative Appeals Tribunal. His Honour’s explanation is equally applicable to the Authority: “the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it.” His Honour continued as to the “apparentness of the unarticulated claim” that it must either “in fact be appreciated by the tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence.” In NAVK, at [15], His Honour continued:
A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
In AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 a Full Court said at [18]:
The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials:
In AYY17 at [18] the Full Court also said that the review function “requires it to consider all claims made by an applicant and its essential components or integers”.
It is also worth setting out, because of the assistance it affords in examining whether a claim clearly arose from the materials in this case, a longer quote as to how the Full Court in AYY17 applied the applicable principles as to whether a claim clearly arose on the materials in that case at [30]:
The delegate had expressly found that the appellant would not be harmed by the Taliban were he to return to Afghanistan and the IAA made available to the appellant the relevant practice direction stating that he could make submissions as to why the delegate’s decision was wrong. Having made further submissions and made a further statutory declaration, the appellant did not articulate those matters. He was represented by a migration agent before the delegate and before the IAA and, as noted, in such circumstances it is more difficult to persuade the Court an articulated claim has clearly emerged from the materials. The primary judge was correct to think that there was no reason for the IAA to conclude that the appellant’s future prospective employers would cause information about his former employment to be disclosed to the Taliban. His Honour was correct to note that this was a matter of pure speculation and far from being based on established facts. The established fact was that the IAA had reached the conclusion that “any limited adverse profile the [appellant] may have had in the past would pose no risk or chance of harm to him on return to the country”. This appears to embrace an all-encompassing view that even if the Taliban became aware of his return and his previous employment, on the assessment on the merits of the IAA and for reasons rationally stated, the appellant would still face no real risk of being harmed.
In DOU16 v Minister for Home Affairs (2019) 272 FCR 358; [2019] FCAFC 212 at [35] a Full Court said that determining whether a claim clearly emerged from the materials before the Authority “involves an issue of judgment”.
In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1; [2004] FCAFC 263 a Full Court held at [60]: “[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made”. The fact that a claim “might” be said to arise from the materials is not enough for it to be said to clearly arise on the materials (NABE, [68]).
Claim not determined in a vacuum
In AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 Barker J said at [68] that whether a claim clearly emerges from the materials “cannot be considered in a vacuum [but] must be considered in light of the way… claims were presented over time”.
A claim must be based on established facts
In SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214, [2016] FCA 45 Markovic J said at [37] to “clearly emerge” from the materials, the claim must be based on established facts.
The court will be more willing to draw the line in favour of an unrepresented party
Finally, in AYY17 the Full Court said that:
while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”
Did a claim clearly emerge from the materials?
There was no claim that clearly emerged from the materials that it was not reasonable for the Applicant to relocate from Quetta to Lahore because of the circumstances of his family unit and in particular, his wife and young child.
First, with reference to the discussion in CR1028, there is a distinction between the fact that the Applicant identified that he had a wife and young child and a claim that clearly arose from the materials that the circumstances of his family meant that it was unreasonable for him to relocate from Quetta to Lahore. The High Court’s discussion in CR1028 exposes the distinction. In CR1028, the wife’s “powerful reasons” for not wishing to relocate were before for the decision-maker. In sharp contrast, in this case, the Applicant did not provide any material from his wife to the delegate or to the Authority as to the impact of the prospective relocation on them. The Applicant’s wife’s attitude to the Applicant’s claims, and the specific issue of relocation, were simply unknown.
Second, the issue as to whether a claim clearly emerges on the materials is not to be determined in a “vacuum” (AWT15, above) and involves “an issue of judgment” (DOU16, above).
The delegate had expressly found that the Applicant’s wife and child could safely join him in Islamabad or Lahore once he secured suitable employment and established himself in that area.
As the Full Court observed had occurred in AYY18 at [30] of its reasons in that case, so too in this case the Authority made available to the Applicant the relevant practice direction stating that he could make submissions as to why the delegate’s decision was wrong.
Specifically, on 31 March 2017, the Applicant was notified that the delegate’s decision had been referred to the Authority for review. The Authority provided the Applicant’s representative with its Practice Direction. The Practice Direction recorded at item 20 that the Applicant could “provide a written submission” as to “why you disagree with the decision of the Department” and “any claim or matter that you presented to the Department that was overlooked”.
On 20 April 2017, the Applicant’s representative submitted further material to the Authority including additional written submissions. In those submissions, the representative addressed at length the delegate’s finding in relation to the reasonableness of the Applicant relocating to Islamabad or Lahore. It was argued that relocation was not reasonable because Hazaras continued to face risks in the main cities of Pakistan. It was not argued that relocation was not reasonable for the Applicant because of his personal family situation.
The Applicant’s representative did not address or refer to (1) the Applicant’s wife or child at all in those submissions, (2) the reasonableness of the Applicant’s wife and child relocating with the Applicant or their attitudes towards that issue, or (3) the reasonableness of the Applicant relocating in light of his wife and child being in Quetta.
Because whether a claim emerges material involves an issue of judgment (DOU16, above), the Authority was entitled to proceed on the basis that the Applicant’s family circumstances were not an issue given that he did not cavil with the delegate’s findings when given an opportunity to do so. Further, the Authority could not in a “vacuum” (AWT15, above) bring its mind to bear on the Applicant’s family situation without any material that relocation would be unreasonable because of their circumstances.
As the Minister noted, the Applicant’s submissions filed under the Practice Note do not refer to the Applicant’s wife or child at all (Minister’s Submissions, [12]).
Third, as Allsop J said in NAVK, it was not the Authority’s task to undertake an independent analytical exercise for the discovery of potential claims which might be made but which have not been made. This case provides an example that the Applicant might have made a claim that the circumstances of his family unit made relocation unreasonable but he did not. He did not expressly make such a claim; nor did such a claim clearly arise from the material. The fact that such a claim “might” have been made — it is unreasonable for me to relocate because of my family for the following reasons — is insufficient (NABE, [68]). There was no material by reference to which a reasonably competent Authority might appreciate a claim that the circumstances of the Applicant’s family made relocation not reasonable (Cf. NAVK, [15]).
The Applicant’s submissions to the Authority did not raise the issue of the circumstances of the Applicant’s family. There was a single passing reference to the fact that the Applicant fled Pakistan in the late stages of his wife’s pregnancy (Submissions, [9]). That submission did not mean that a claim clearly emerged from the materials that it was unreasonable for the Applicant to relocate to Lahore because of his family.
Fourth, as Markovic J said in SZUTM at [37], for a claim to clearly emerge on the materials it must be based on established facts. There were no “established facts” about any issues or difficulties to the Applicant’s family relocating to Lahore. For the Authority to have found that it was unreasonable for the Applicant’s family to relocate would have been a matter of speculation.
Fifth, in any evaluation of whether a claim clearly emerged from material, at all times the Applicant was represented by an agent. Because the Applicant was represented, the Applicant cannot derive any benefit from the principle that the court will be more willing to draw the line in favour of an unrepresented party (AYY17, [18]).
The Authority did not fail to consider a claim that clearly emerged from material that it was not reasonable for the Applicant to relocate to Lahore because of his family situation.
WHAT IS MY CONCLUSION?
I will dismiss the application. I will order the Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 11 September 2024
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