BCP18 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2022] FedCFamC2G 644

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BCP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 644

File number(s): SYG 605 of 2018
Judgment of: JUDGE LAING
Date of judgment: 12 August 2022
Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming decision not to grant the applicant a protection visa – relocation – whether the Tribunal failed to consider the applicant’s claims regarding his lack of personal, familial, religious or tribal connections – whether the Tribunal did not adequately determine the applicant’s claim he would or may travel to see his family – jurisdictional error demonstrated – application for leave to reopen to raise additional ground contending interpretation error refused - substantive application succeeds.
Cases cited:

AFP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 375

Ample Source International Limited v Bonython Metals Group Pty Limited; In the Matter of Bonython Metals Group Pty Limited (No 6) [2011] FCA 1484; 285 ALR 488

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503

BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131

Bing! Software Pty Ltd v Bing Technologies Pty Limited (No 2) [2008] FCA 1761

BZAID v Minister for Immigration and Border Protection [2016] FCA 508; 242 FCR 310

CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 156

CYF16 v Minister for Immigration and Border Protection [2018] FCA 2034

DEO19 v Minister for Immigration, Citizenship, Multicultural Affairs and Migrant Services [2022] FCA 608

Inspector‑General in Bankruptcy v Bradshaw [2006] FCA 22

Matson v Attorney-General (Cth) [2021] FCA 161

Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526

Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317

MZADT v Minister for Immigration & Anor [2015] FCCA 2702

MZANX v Minister for Immigration and Border Protection [2017] FCA 307

MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 289 ALR 541

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1

SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18

SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216

SZSTE v Minister for Immigration & Anor [2015] FCCA 178

SZVRA v Minister for Immigration and Border Protection [2017] FCA 121

Division: Division 2 General Federal Law
Number of paragraphs: 50
Date of hearing: 7 June 2022
Place: Sydney
Counsel for the Applicant Mr P Reynolds appeared in person
Solicitor for the Applicant Varess
Counsel for the First Respondent Ms K Hooper appeared in person
Solicitor for the First Respondent Australian Government Solicitor
Counsel for the Second Respondent Submitting appearance, save as to costs

ORDERS

SYG 605 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BCP18

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LAING

DATE OF ORDER:

12 AUGUST 2022

THE COURT ORDERS THAT:

1.The interlocutory application of the applicant filed on 30 June 2022 seeking leave to reopen his case is refused.

2.A writ of certiorari issue, quashing the 31 January 2018 decision of the second respondent affirming the decision (Delegate’s Decision) of a delegate of the first respondent to refuse to grant the applicant a protection visa.

3.A writ of mandamus issue directing the second respondent to review the Delegate’s Decision 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

INTRODUCTION

  1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 31 January 2018. The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a protection visa.

    BACKGROUND

  2. The applicant is a citizen of Pakistan who arrived in Australia on 23 June 2012. On 23 November 2012, he applied for a protection visa.

  3. The Delegate refused the applicant’s visa application on 5 August 2013.

  4. The applicant sought review by application to the (then) Refugee Review Tribunal (RRT). On 20 October 2014, the RRT affirmed the Delegate’s decision (RRT decision).

  5. The RRT decision was quashed by Markovic J on 21 February 2017: SZVRA v Minister for Immigration and Border Protection [2017] FCA 121. Her Honour found that the Tribunal had failed to consider two objections to relocation that had been made by the applicant; namely, that he would be unable to practice his religion freely and that he would lack religious or tribal connections (at [37]-[43]).

  6. On remittal, further submissions regarding the issue of relocation were made to the Tribunal.

  7. On 31 January 2018, the Tribunal affirmed the Delegate’s decision.

    TRIBUNAL’S DECISION

  8. The Tribunal had some concerns with the applicant’s credibility. Whilst the Tribunal did not accept the applicant’s claims to have been specifically targeted, it accepted, based on available country information, that he would face a real chance of serious harm as a Pashtun Shia if he was to live in Parachinar again. This was “in light of the recent attacks in the Kurram Agency, and taking into consideration the possibility of the applicant having to travel out of Parachinar for business as he did when he lived there”. However, the Tribunal considered that it would be reasonable to expect the applicant to relocate to Islamabad, where there was no appreciable risk of the feared persecution (at [6]-[22]).

  9. At [25], on the question of the reasonableness of relocation, the Tribunal stated that “people of his ethnicity and religion live in that city and people have come from other parts of Pakistan to establish themselves there”. It also referred to the applicant’s education and use of Urdu for business. The Tribunal considered that, accordingly, the applicant “should be well placed to be able to establish himself in Islamabad, to find shelter and accommodation and subsist there.”

  10. Having first expressed its reasoning on the question of relocation in this manner, the Tribunal then proceeded to deal with the applicant’s submissions on relocation as follows:

    (a)at [27], it acknowledged the applicant’s submission that the underlying causes of militancy had not been resolved, but concluded that there had been a significant reduction in militant and sectarian violence in recent years. The Tribunal found that the risk for the applicant in Islamabad was low and that it was too speculative to find that this may change in the reasonably foreseeable future so as to amount to a real chance;

    (b)at [28], it referred to the applicant’s claim that he could not practice his religion freely in Islamabad without fear of harm. The Tribunal concluded that the risk of serious harm was remote. Whilst the Tribunal accepted that the applicant may fear that he could be attacked as a Shia, it did not accept that he would be prevented from practicing his religion. Attending a mosque to practice his religion in these circumstances was considered not to amount to serious harm;

    (c)at [29], it referred to a claim that there were no Bangash mosques in Islamabad. The Tribunal concluded that there was no country information suggesting that the applicant could not attend a Shia mosque that was not Bangash;

    (d)at [30]-[31], it had regard to country information regarding attacks. It did not accept that this information demonstrated a real risk of harm to the applicant in Islamabad;

    (e)at [32]-[33], the Tribunal referred to the applicant’s submission that Pashtun Shias were at greater risk of harm. The Tribunal accepted that the applicant may be identifiable as a Pashtun Bangash Shia from Parachinar and that this might place him at greater risk of harm above ordinary Shias. However, it did not consider that the country information indicated Pashtun Shias were attacked on this basis in Islamabad;

    (f)at [34], the Tribunal rejected the applicant’s submission that differences between Turi and Bangash in Islamabad could inhibit support or protection for the applicant. This was in the absence of country information to that effect. The Tribunal also did not accept that the applicant was at risk by reference to country information regarding arrests on suspicion of terrorist activities, given the lack of evidence that the applicant would be suspected of such activities;

    (g)at [35]-[37], the Tribunal referred to the applicant’s submissions that it would be unreasonable for him to relocate because he did not have family outside Parachinar and did not have tribal or religious connections to Islamabad. However, whilst the Tribunal accepted that such connections would “help him to establish himself in that city in terms of providing social support and assisting him to find accommodation and work”, it rejected that without those connections, the applicant would be unable to subsist. The country information did not indicate that the applicant would “be denied employment and accommodation nor that the ability to subsist… can only occur if one has ‘connections’ in that place”;

    (h)at [38]-[39], in relation to the applicant’s submissions concerning his level of education, his lack of particular skills, and language limitations, the Tribunal concluded, after considering his background and capabilities, that “he should be well placed to secure employment and accommodation in Islamabad…”;

    (i)at [40], in respect of the applicant’s claim concerning the dangers of travelling back to his native town to see his family, the Tribunal concluded that “relocation to Islamabad remains reasonable notwithstanding the fact that he could not safely travel to Parachinar to see his family…”. Whilst the Tribunal accepted that “he may not be able to travel to see his family”, it considered that this would have also applied had he been granted protection in Australia; and

    (j)at [42], the Tribunal accepted that the applicant may have some degree of fear about being the victim of violence in Islamabad and considered his claim that he was tormented by the deaths of people on his boat trip to Australia. However, the Tribunal considered that “none of these matters mean[t] that it is not reasonable to expect him to relocate to Islamabad”.

  11. The Tribunal concluded that it would be reasonable for the applicant to relocate to Islamabad, where there was no appreciable risk of the feared persecution nor any real risk of significant harm.  The Tribunal therefore found that the applicant was not a person to whom protection obligations were owed and affirmed the Delegate’s decision (at [45]-[50]).

    PROCEEDINGS BEFORE THIS COURT

  12. The applicant commenced the proceedings before this Court on 7 March 2018. An amended application for judicial review was filed by the applicant on 2 August 2018 containing the following grounds of review:

    1.The Tribunal engaged in jurisdictional error by misconstruing or failing to apply the correct law.

    Particulars

    In considering whether it was reasonable to expect the applicant to relocate, the Tribunal was obliged to consider the practical realities facing the applicant in the proposed place of relocation:

    a.The Tribunal failed to consider the effect of the applicant’s lack of personal, familial, religious and tribal connection with, and the applicant’s isolation in, the proposed area of relocation, beyond their impact on the applicant’s ability to subsist (such as their social and psychological impact);

    b.Further and in the alternative, the Tribunal failed to consider the risk posed to the applicant by travelling to and from Parachinar, as the applicant claimed he would do. The Tribunal, instead, erroneously proceeded on the assumption that the applicant would not undertake such travel by misconstruing the applicant as having claimed that he could not afford such travel, when no such claim had been made.

    2.The Tribunal engaged in jurisdictional error by failing to deal with a claim or component integer thereof.

    Particulars

    The Tribunal failed to deal with, or misconstrued and therefore constructively failed to deal with, a claim or component integer thereof before it to the effect that, if the applicant were to relocate, the applicant would travel to and from Parachinar to see his family, which would give rise to a well-founded fear of persecution.

  13. In written submissions, the applicant identified that there were in substance two issues raised by the grounds; namely,

    (a)whether the Tribunal failed to correctly construe and apply the second limb of the internal relation principle by addressing the applicant’s claims pertaining to the lack of personal, familial, religious and tribal connection with Islamabad, and his isolation there, without considering their impact beyond the applicant’s physical safety and ability to subsist; and

    (b)whether the Tribunal failed to correctly construe and deal with the question of relocation vis-à-vis the applicant’s claim that, upon his return, he would travel to and from Parachinar to see his family and, instead, erroneously assumed the applicant would not undertake such travel (without considering and rejecting the applicant’s express claims that he would).

    Relevant principles

  14. Relevant principles regarding relocation were recently summarised by Cheeseman J in DEO19 v Minister for Immigration, Citizenship, Multicultural Affairs and Migrant Services [2022] FCA 608 at [35]:

    (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, Charleswroth 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).

    Ground 1(a) – lack of personal, familial, religious and tribal connection with, and the applicant’s isolation in, the proposed area of relocation

  15. As noted above, by ground 1(a) the applicant contended that the Tribunal failed to consider his lack of personal, familial, religious and tribal connections in Islamabad beyond their effect upon his physical safety and ability to subsist.

  16. In this regard, Mr Reynolds for the applicant took the Court to various parts of the materials in which the applicant broadly raised as relevant considerations his familial, religious and tribunal connections in addition to, and separately from, practical matters relating to subsistence. The Court was also taken to materials submitted by the applicant to the effect that ethnic commonality did not, without more, overcome a “lack of social support”. Additionally, the Court was directed to submissions that had been made regarding the importance of close relationships with “kinsfolk” and the emphasis upon tribal and family relations within Pashtun culture.

  17. Based upon this material, Mr Reynolds contended that the applicant’s claims in this regard were not limited to practical matters capable of bearing on the question of subsistence. He submitted that the Tribunal was obliged to deal with them beyond their relevance to this issue.

  18. I accept this. However, I do not accept that the Tribunal limited itself in the manner contended by the applicant nor that it failed to consider the broader import of his claims.

  19. Whilst many parts of the Tribunal’s reasoning concerned the potential impact of the applicant’s lack of connections upon his safety and ability to subsist, this was consistent with the written submissions before the Tribunal which also adopted this as a significant focus. The Tribunal’s reasoning demonstrates that the Tribunal nonetheless considered the applicant’s claims beyond his physical safety and ability to subsist, including at:

    (a)[29], where the Tribunal accepted that there may not be Bangash mosques in Islamabad although found that the information before it did not demonstrate that attending a Shia mosque that was not Bangash would prevent the applicant from practising his religion; and

    (b)[35]-[37], where the Tribunal stated:

    35.The applicant and representative submitted that it was not reasonable for the applicant to relocate because he did not have family outside Parachinar and had never lived away from family. They both submitted that the applicant did not have any tribal or religious connection to Islamabad. They both claimed that without those connections the applicant would not secure accommodation, employment, including being able to start a business and therefore he would not be able to subsist.

    36.To support these submissions the representative referred to a source of country information issued as long ago as 2011 referring to the importance of close relations with ‘kinsfolk’. The representative referred to a further source issued in March 2017 stating that ethnicity did not amount to social support that would arise from familial connections. The representative also referred to a report by DFAT issued in 2016 relating to Shias (now superseded by the report relied on in this decision) referring to Shias being able to relocate because of family and communal networks, the representative suggesting that therefore such networks were essential to relocation. To this, the representative added that Pashtun culture emphasised tribal or family relations.

    37.The Tribunal is willing to accept that if the applicant had familial, tribal, or, in some sense, religious connections in Islamabad, this would help him to establish himself in that city in terms of providing social support and assisting him to find accommodation and work. However, that does not mean that without those connections, the applicant will be unable to subsist. Country information provides that there is not significant discrimination against Shias and Islamabad has populations of Pashtuns, Shias and Pashtun Shias. People from other parts of Pakistan have come to live there. Country information relied on in this decision does not indicate that for being a Pashtun Shia from Parachinar the applicant will be denied employment and accommodation nor that the ability to subsist in a different location can only occur if one has ‘connections’ in that place.

  1. These parts of the Tribunal’s reasoning, on my reading, demonstrate that the Tribunal did consider the broader import of the applicant’s claims regarding his lack of personal, familial, religious and tribal connection with, and potential isolation in, the proposed area of relocation. In doing so, it engaged with the material that had been submitted by the applicant regarding the importance of tribal and family relations.

  2. The applicant submitted that the Tribunal’s reasoning in the latter part of [37] regarding subsistence, and focus elsewhere in its decision upon the risk of serious harm and the ability of the applicant to subsist, indicates that it discounted the relevance of social and psychological support to the reasonableness of relocation.

  3. I do not accept this. The language used by the Tribunal in [37] demonstrates that it considered the availability of “social support and” assistance with practical matters such as accommodation and work as being relevant to the reasonableness of relocation. To the extent that the applicant’s claims raised the psychological impact of isolation, this was dealt with through the Tribunal’s consideration of the issue of social support. Additionally, the Tribunal’s consideration of the applicant’s fear and apprehensiveness about living in Islamabad (referred to in [42]) demonstrates that the Tribunal appreciated that the psychological impact of relocation was relevant to its reasonableness. Whilst I accept that a significant focus of the Tribunal’s reasoning was dedicated to matters relating to physical safety and subsistence, this was also true of the applicant’s submissions that were before the Tribunal. The fact that this was the case did not mean that the broader import of the applicant’s claims was not advanced by the applicant. Nor did it mean that it was not considered by the Tribunal.

  4. During the hearing, Mr Reynolds additionally referred to the Tribunal’s statement at [42] where it did not accept that the applicant’s fears regarding violence in Islamabad, or experiences travelling to Australia, meant “that it is not reasonable to expect him to relocate to Islamabad”. Mr Reynolds drew attention to concerns raised in SZSTE v Minister for Immigration & Anor [2015] FCCA 178 (SZSTE) at [39]-[40] regarding the use of similar language, which could potentially indicate a misunderstanding of the fact that it is for the Tribunal to be satisfied that relocation is reasonable. However, I do not consider that such a misunderstanding is apparent in this case, in which the balance of the Tribunal’s reasoning demonstrates an understanding of the correct test that was to be applied (including at [22], [45] and [46]). The applicant did not ultimately seek to rely upon any additional or separate ground of review relying upon the observations in SZSTE.

  5. For the above reasons, I am not satisfied that ground 1(a) ought to succeed.

    Ground 1(b) and 2 – travel to and from Parachinar

  6. By grounds 1(b) and 2, the applicant contended that the Tribunal failed to deal with his claim that he would travel to see his family in the Kurram Agency and thereby be exposed to the dangers of travel. The applicant contended that instead, the Tribunal erroneously proceeded on the basis that he would not undertake such travel. This was without considering and rejecting his claims that he would do so.

  7. In support of the grounds, the applicant relied upon cases such as CYF16 v Minister for Immigration and Border Protection [2018] FCA 2034 and MZADT v Minister for Immigration & Anor [2015] FCCA 2702, in which the Tribunal and its predecessor were found to have erred in failing to deal with claims relating to the dangers of travel to visit family members. The applicant also relied upon Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317, in which the Tribunal’s predecessor was found to have failed to consider the reasonableness of an expectation that the applicant would confine himself to a particular area.

  8. The Tribunal in this case considered the issue of travel to visit family at [40] of its decision:

    40.It was submitted that the applicant would want to travel back to his native town to see his family and making such road travel (in and out of Parachinar) would be dangerous. The applicant also claimed that he would not be able to afford such travel. The applicant said that his time away from family in Australia had been difficult. The Tribunal can acknowledge the applicant’s desire to see and be with family. The Tribunal has accepted that there is a real chance that the applicant will suffer serious harm in Parachinar taking into account the danger of travel in and out of that city. However, even so, relocation to Islamabad remains reasonable notwithstanding the fact that he could not safely travel to Parachinar to see family. The risk of the applicant suffering serious harm there on any ground is remote and the Tribunal finds that he is sufficiently resourced from his education and past employment experience to be able to subsist there. While he may not be able to travel to see family this would also apply had he been granted protection in Australia (on the grounds he now claims protection).

  9. For the applicant, Mr Reynolds contended that the Tribunal erred in characterising the applicant’s claim as being that he would “want to” travel to see his family. The applicant’s claim was that he would so travel. This was contended to have been erroneously discarded on the basis that the applicant had also claimed he would be unable “to afford such travel”.

  10. Mr Reynolds drew attention to parts of the materials in which the applicant claimed that he would (or may need to) travel to see his family, including:

    (a)page 226 of the Court Book, where it was submitted that he “would have to travel to Parachinar and the roads remain dangerous”;

    (b)page 227 of the Court Book, where it was submitted that he “may need to travel to Parachinar to be with his family”;

    (c)page 304 of the Court Book, where it was submitted that he “may need to travel to Parachinar to be with and see his family”, thus unreasonably exposing him to danger; and

    (d)page 19 of the transcript of the 2017 Tribunal hearing, in which the applicant stated (inter alia): “… in order to visit my family, I have to travel back and forth to Parachinar”.

  11. Contrary to [40] of the Tribunal’s decision, Mr Reynolds contended that the applicant had not claimed that he would be unable to afford such travel.

  12. In this regard, at the time of the hearing before this Court Ms Hooper relied upon the following extract from the transcript of the hearing before the Tribunal in 2017:

    INTERPRETER: … And the, the issue is will be again for me to travel – travelling would be another issue for me, if I want to travel.

    APPLICANT: If I am going to see my family –

    INTERPRETER: Uh financially I cannot afford my family uh, in order to visit my family, I have to travel back and forth to Parachinar.

  13. At the time of the hearing, Mr Reynolds contended that the Tribunal’s interpretation of the applicant’s evidence regarding the affordability of travel did not reflect what was said by the applicant. After the hearing, the applicant sought leave to reopen his case in order to challenge the above interpretation of what was said. This is considered further below.

  14. However, a further question raised by the ground is whether or not the Tribunal relied upon this evidence to find that the applicant could not or would not travel to Parachinar at all.

  15. The applicant’s evidence regarding affordability and travel (disputed though it may be) had to be considered against the claims he made elsewhere in the materials. This included in post hearing submissions, where he claimed that he may nonetheless need to undertake travel to Parachinar to see his family and thereby be unreasonably exposed to risk. Whilst the Tribunal noted what it understood to be the applicant’s claim regarding the affordability of the travel that he wanted to do, it made no clear finding that the applicant would not travel back to Parachinar at all for this reason. The Minister did not contend otherwise at the hearing, relying instead upon the balance of [40].

  16. In this regard, at the hearing Ms Hooper for the Minister submitted that I should read [40] as rejecting that the applicant would be able to travel to see his family due to safety considerations and effectively finding that he would not. However, as I discussed with the parties at hearing, the Tribunal’s reasoning in [40] appears far more equivocal than this. The Tribunal’s finding that he could not “safely” travel to Parachinar did not dispose of the claim that he may in any event do so in order to see his family. The Tribunal’s conclusion in [40] that the applicant “may not be able to travel to see family” left open its acceptance of the possibility that he may nonetheless attempt to do so (whilst not directly acknowledging this possibility).

  17. In post hearing submissions, Ms Hooper alternatively suggested that [40] may be read as contemplating two possibilities: (1) that the applicant cannot travel to see his family because it would be unsafe for him to do so; or (2) that the applicant could only travel ‘unsafely’.

  18. However, if the Tribunal had concluded that the applicant would not travel to see his family, one would have expected less equivocal language to have been used in [40]. Had the Tribunal accepted that the applicant may so travel, but found that the risk thereby posed to him did not change its conclusion regarding reasonableness, then one would have expected the Tribunal to have engaged with this more directly in its reasoning. This is particularly so having regard to the Tribunal’s reliance upon the dangers of travel (inter alia) in accepting that the applicant faced a real chance of harm in Parachinar. As Mr Reynolds submitted, what the applicant would do upon return was relevant to the practical realities of relocation. Having not excluded the possibility of travel to Parachinar, the Tribunal was obliged to consider the potential consequences of this.

  19. Mr Reynolds submitted that the Tribunal’s reasoning demonstrates that it did not adequately grapple with or determine the applicant’s claim that he would (or may) travel to see his family and that he would therefore be exposed to an unreasonable level of risk. The applicant’s exposure to that risk affected the reasonableness of relocation. The Tribunal’s failure to grapple with and determine this claim was submitted to have resulted in jurisdictional error.

  20. I accept this. As the Tribunal did not reject the applicant’s claim that he may travel to see his family, it was obliged to grapple with the consequences of this possibility in assessing the reasonableness of relocation. The equivocal language used by the Tribunal at [40] did not do so. Had the Tribunal grappled with this unexcluded possibility, then the outcome could potentially have been different. This was in circumstances where the Tribunal accepted that the applicant faced a real chance of serious harm in Parachinar taking into account, inter alia, the dangers of travel in and out of that area.

  21. For these reasons, I am persuaded that relevant error has been demonstrated in the decision of the Tribunal. This is so regardless of whether the Tribunal accurately characterised the applicant’s evidence regarding his ability to afford travel to see his family.

    Application for leave to reopen

  22. After judgment was reserved in this matter and the parties were notified of a proposed date for handing down, the applicant sought leave to reopen his case to rely upon an additional ground of review and an affidavit in support. An application in this regard was filed on 30 June 2022. The additional ground was as follows:

    3.Further and in the alternative, the Tribunal engaged in jurisdictional error as a result of a mistranslation of the applicant’s evidence at the hearing before it.

    Particulars

    At the hearing before the Tribunal, the Applicant’s evidence in his native language (Pashto) was that he could not afford to keep his family in Islamabad (i.e. were he to relocate to Islamabad, he would be unable to afford to support his family living in Islamabad). This was misinterpreted by the interpreter, which mistranslation led to the Tribunal erroneously concluding that the Applicant had claimed that he would not be able to afford travel in and out of Parachinar (CB322[40]). Furthermore, the mistranslation affected or could have affected the outcome. As a consequence, the process was procedurally unfair and there was a failure to give the Applicant a hearing in accordance with the requirements of section 425 of the Migration Act.

  23. In written submissions filed in support, Mr Reynolds submitted that there was no deliberate decision not to raise the ground before reservation of judgment (per Ample Source International Limited v Bonython Metals Group Pty Limited; In the Matter of Bonython Metals Group Pty Limited (No 6) [2011] FCA 1484; 285 ALR 488 at [355]). I accept this. I also accept that there was a dispute regarding the construction of the words spoken in this regard at hearing (see [31]-[32] above). However, the significance of this part of the evidence would have long been apparent from the nature of the grounds relied upon by the applicant. I therefore accept Ms Hooper’s submission for the Minister that the applicant ought to have raised what he wished to raise in this regard before reservation of judgment.

  24. Mr Reynolds additionally contended that there was no real question of embarrassment or prejudice for the Minister, and that the justification for granting leave may be characterised as being referrable to “fresh evidence” and “mistaken apprehension of the facts” (per Inspector‑General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]). Further, Mr Reynolds contended that the “justice of the situation” strongly favoured the leave sought in circumstances where there was a proven misinterpretation that was capable of demonstrating jurisdictional error. This was in a context where the proceedings are of serious consequence for the applicant, he did not raise the matter previously because it was not previously known to him and he applied for leave promptly after learning of the misinterpretation.

  25. In response, Ms Hooper accepted that there was no evidentiary or other prejudice to the Minister if leave to reopen was granted. However, she observed that there is a public interest in the efficient conduct and finality of litigation: Matson v Attorney-General (Cth) [2021] FCA 161 at [180]; Bing! Software Pty Ltd v Bing Technologies Pty Limited (No 2) [2008] FCA 1761 at [15]. Ms Hooper submitted that the proposed additional ground was not sufficiently meritorious to justify a conclusion that the interests of justice required leave to reopen being granted.

  26. I agree. As discussed in relation to ground 1(b) and 2, the Tribunal’s conclusions in [40] did not turn upon its notation in the second sentence of that paragraph of its understanding of the applicant’s evidence regarding the affordability of travel. Whilst the Tribunal noted its understanding that the applicant had claimed not to be able to afford such travel, it ultimately made no finding in this regard. In particular, the Tribunal did not find that the applicant would not travel to see his family because he could not afford to do so. Instead, the Tribunal concluded that “relocation to Islamabad remains reasonable notwithstanding the fact that he could not safely travel to Parachinar to see his family” and “he may not be able to travel to see his family”.

  27. For the reasons given above, I have found that the Tribunal’s reasoning in this regard did not adequately grapple with or dispose of the applicant’s claims regarding travel. As the Tribunal did not dispose of those claims on the basis of any misinterpreted evidence, however, the contended misinterpretation was not material to the Tribunal’s decision. The proposed ground is therefore incapable of demonstrating jurisdictional error in the manner considered in such cases as BZAID v Minister for Immigration and Border Protection [2016] FCA 508; 242 FCR 310 and AFP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 375.

  28. In consequence, I am not persuaded that the proposed new ground enjoys sufficient prospects of success to warrant leave being granted for the applicant to reopen his case in order to rely upon it.

  29. For these reasons, I would refuse the application for leave to reopen.

    CONCLUSION

  30. As jurisdictional error has been demonstrated, the application before this Court succeeds.

  31. I will hear the parties in relation to costs.

51          I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Laing.

Associate:

Dated:       12 August 2022

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SZVRA v Minister for Immigration and Border Protection [2017] FCA 121
DEO19 v Minister for Immigration, Citizenship, Multicultural Affairs and Migrant Services [2022] FCA 608
SZATV v MIAC [2007] HCA 40