BSH18 v Minister for Immigration and Border Protection
[2023] FedCFamC2G 1079
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BSH18 v Minister for Immigration and Border Protection [2023] FedCFamC2G 1079
File number: MLG 883 of 2018 Judgment of: JUDGE FORBES Date of judgment: 29 November 2023 Catchwords: MIGRATION – protection visa – application for judicial review of a decision of the Immigration Assessment Authority – where applicant found not to be a citizen of Afghanistan – whether Authority should consider possibility that undocumented applicant is a citizen of Pakistan – identification of receiving country for assessment of refugee and complementary protection criterion – whether formal finding of nationality or statelessness required - whether Authority misunderstood or misapplied refugee criterion – where risk of persecution in former home city found -whether applicant can relocate to another area of Pakistan – whether brief trip to former city poses unacceptable risk –illogicality and unreasonableness considered - whether invitation to comment on country information misleading - whether applicant entitled to hearing to address country information Legislation: Migration Act 1958 (Cth) s 5, 5H, 5J, 36, 473DC Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14
ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683
BVA17 v Minister for Immigration and Border Protection [2019] FCAFC 44
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
CQI18 v Minister for Home Affairs and Anor [2020] FCCA 3104
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Hussain v Minister for Immigration & Multicultural Affairs [2001] FCA 523
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) HCA 18
Minister for Immigration and Citizenship v Singh [2014] FCAFC 1
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Sneddon v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 170
Wei v Minister for Immigration and Border Protection [2015] HCA 51
Division: Division 2 General Federal Law Number of paragraphs: 130 Date of hearing: 27 September 2022 Place: Melbourne Counsel for the Applicant: Mr Aleksov Solicitor for the Applicant: WLW Migration Lawyers Counsel for the First Respondent: Ms McInnes Solicitor for the First Respondent: Sparke Helmore ORDERS
MLG 883 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BSH18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The First Respondent’s name be changed to “Minister for Immigration and Border Protection”.
2.The Applicant’s application for judicial review, as amended on 7 September 2022, be dismissed.
3.The Applicant pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as at 27 September 2022.
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 FORBES
INTRODUCTION
In this matter the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (the IAA or the Authority) on 14 March 2018. The Authority affirmed a decision made by a delegate of the Minister (the delegate) not to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (the visa).
For the reasons set out below, I have determined that the Authority’s decision was not affected by error.
BACKGROUND
The applicant, who claims to be a citizen of Afghanistan and a Hazara Shia, arrived on Christmas Island as an unauthorised maritime arrival on 27 November 2012. He was approximately 16 years of age at the time.
On 26 May 2016 the applicant applied for the visa[1].
[1] Court Book (CB) 26-88
In his statement accompanying the visa application, the applicant claimed to have fled Afghanistan for Pakistan with his parents when he was very young, somewhere between the ages of 2 and 5. He has no memory of life in Afghanistan and has never returned.
The applicant possessed neither a birth certificate nor a Taskera from Afghanistan to verify his identity. The applicant also did not have any Pakistani identity documents, including a Computerised National Identity Card (CNIC). He claims to have resided illegally in Quetta, Pakistan with his family until his parents arranged for him to leave the country, assisted by a smuggler. He departed Pakistan illegally using a false passport which he said had been taken from him by an agent in Malaysia.
The applicant claimed a well-founded fear of persecution if he is returned to Afghanistan. He believes he will be killed due to his race and religion (being a Hazara Shia living in Pakistan). He said his father had received threats from unknown people at his shop in Pakistan. The applicant claimed that he would be killed by extremist groups if he returned to Afghanistan because he is westernised and has been educated in Australia and would be perceived as being wealthy. He also claims that he will be especially vulnerable due to his age and limited connections in and knowledge of Afghanistan.
The applicant’s representative provided a pre-hearing submission to the delegate on 13 September 2016[2]. He also provided a letter from the Embassy of Afghanistan in Canberra, dated 2 August 2016, which states that the applicant is a citizen of Afghanistan having been born in Zabul[3].
[2] CB 97-121
[3] CB 122
On 14 September 2016 the applicant attended an interview with the delegate. The delegate questioned the applicant about the letter from the Afghan Embassy, including how it had been obtained, and ultimately decided that no weight would be attached to the letter as either verification or evidence of the applicant’s claimed identity. Moreover, the delegate did not accept that the applicant is of Hazara race as claimed, or that he is a Shia Muslim[4].
[4] CB 184-185
On 26 April 2017, the delegate of the Minister refused the visa application[5] and the delegate’s decision was referred to the Authority for review under Part 7AA of the Migration Act 1958 (Cth) (the Act)[6].
[5] CB 173-190
[6] CB 191-200
Immigration Assessment Authority
On 26 May 2017 the applicant’s representative provided the IAA with a submission, a statutory declaration from the applicant declared on 25 May 2017 and various other supporting documents[7].
[7] CB 205-215
In his statutory declaration, the applicant provided an explanation as to when and how he purportedly obtained the letter from the Afghan Embassy. Relevantly, he stated:
“[…] As I have explained they did not give the letter on the same day. They said that they would check their records and that I should contact them in one week to see if they could issue the letter. When I called after one week they confirmed they could send me the letter. I then received in [sic] the mail. I have no idea what the procedure is or how they confirmed my identity.”[8]
[8] CB 216
On 16 February 2018 the IAA invited the applicant to provide new information and to comment on specific information that may be the reason, or part of the reason, for affirming the delegate’s decision[9].
[9] CB 247-251
In particular, the applicant was invited to comment on the reasonableness of relocation within Afghanistan (to Mazar-e-Sharif) or to another city within Pakistan (such as Islamabad or Lahore) and about information regarding the treatment of returnees to Pakistan. As to the reasonableness of relocation within Pakistan, the Tribunal invited the applicant to comment, amongst other things, on information that “[a]pplications for the renewal of Computerised National Identity Cards (CNICs) can be lodged online”[10].
[10] CB 249
On 5 March 2018 the applicant’s representative provided the Authority with a lengthy submission[11] and a further statutory declaration[12] from the applicant declared on 1 March 2018.
[11] CB 254-301
[12] CB 302-305
The submission reiterated the applicant’s claim that he is an Afghan Shia Hazara, stated that there is no evidence that the applicant is of Pakistan nationality and again drew the IAA’s attention to the letter from the Afghan Embassy. It was submitted that the applicant’s home region should therefore be considered Zabul, Afghanistan and not Pakistan. The submission from the applicant’s representative also argued that it would not be safe or reasonable for the applicant to relocate within Afghanistan, or within Pakistan. In support of that submission, country information was provided which addressed the general security and human rights situations which the applicant says would not make relocation viable.
In light of the fact that this information was provided by the applicant in response to a specific request for information, the Authority was satisfied that the information could not have been provided to the delegate before the decision was made, and was satisfied that there were exceptional circumstances to justify considering it as new information[13].
[13] CB 315 at [12]-[13]
THE AUTHORITY’S DECISION
On 14 March 2018, the Authority affirmed the delegate’s decision[14].
[14] CB 311-343
In respect of the applicant’s nationality, and contrary to the findings made by the delegate, the Authority accepted that the applicant was of Hazara ethnicity and was a Shia Muslim[15].
[15] CB 316-317 at [16]
However, on the available evidence, the Authority was not satisfied that the applicant originated from Afghanistan or that he was an Afghan national. Although the Authority took note of the consistency and veracity of the applicant’s claim as to his Afghan nationality, the Authority’s concerns discussed at [19]-[37] “strongly outweigh these factors”[16].
[16] IAA reasons at [38]
Among its concerns, the Authority was not persuaded about the authenticity of the letter which the applicant had purportedly obtained from the Afghan Embassy attesting to his Afghan citizenship. When considering the information contained in the applicant’s statutory declaration sworn on 25 May 2017, the IAA was not satisfied that the applicant’s explanation of the process he had followed to obtain the letter was new information, as that explanation could have been provided to the delegate at the time[17]. It found that the information did not constitute credible personal information and there were no exceptional circumstances which would justify considering it. Accordingly, the Authority gave the Embassy letter no weight as an evidentiary document of the applicant’s citizenship and nationality, place of birth or date of birth.
[17] CB 313 at [7]-[8]
Moreover, the Authority noted that a series of other documents obtained from various community organisations attested to the applicant’s ethnicity as a Hazara and also to his Shia faith. While the Authority accepted that the applicant was a Hazara Shia Muslim, it gave the correspondence no weight as evidence of the applicant’s nationality.
The Authority accepted that the applicant had resided in Pakistan prior to his departure, noting that his only recollections and his only documentary evidence (not obtained in Australia) was from Pakistan. However, while the Authority had “serious concerns” about whether the applicant was residing in Pakistan illegally (as he had claimed), it ultimately accepted that there was no positive evidence before the Authority that the applicant holds Pakistani citizenship[18].
[18] CB 323 at [49]
Under the heading “Finding on receiving country”, the IAA stated at [52] that:
“For the reasons explained above, I am not satisfied that the applicant is an Afghan national. I accept that he has resided in Pakistan; however unless I am satisfied either that he is a citizen of Pakistan or stateless, I am unable to consider Pakistan as his ‘receiving country’ as defined in s.5 of the Act. He has insisted that he is a national of Afghanistan and of no other country and I have no solid basis on which to be satisfied that he is a national of Pakistan. In those circumstances, it appears there is no country in relation to which I can assess his claims and on that basis he is unable to satisfy the criteria for a Protection visa.”
Relevantly, however, the IAA went on to say[19] at [53]
“[…] I accept that the applicant has resided in Pakistan most of his life and in the absence of any satisfactory evidence that he is a citizen of Pakistan, and because he claims to have lived there unlawfully, I have considered an alternative view of the applicant’s status in Pakistan and proceeded on the basis that that is his country of former habitual residence. For the purposes of this review I accept Pakistan is the applicant’s receiving country.” (emphasis added).
[19] CB 323 at [53]
At this point I digress to note that ground one of the applicant’s judicial review application seeks to impugn these two paragraphs of the Authority’s findings. The applicant contends that these paragraphs of the Authority’s reasons are illogical and/or reveal a misunderstanding of s 5H(1) of the Act.
Return to Quetta, Pakistan
The Authority considered the applicant’s claim that his father had received death threats over the phone from unknown people whilst working in his shop in Quetta. Whilst the IAA considered this claim was vague, it accepted that it was “plausible”. However, the Authority was not satisfied that the applicant himself was a specific target of these callers or that he was ever personally threatened[20]. Therefore, the IAA did not accept that the applicant would be personally targeted upon return.
[20] CB 324 at [56]-[57]
At [58] the Authority had regard to the fact that the applicant’s family had remained in Quetta in the five years since the applicant left and there was no evidence that they had been harmed or threatened, save for the applicant’s brother who the IAA accepted had been hurt in a bomb explosion. The Authority notes, however, that the explosion was likely targeted at the Hazara Shia community generally and that the brother had been injured as a civilian bystander, not as a personal target of attack.
In light of the above findings, at [63] of its reasons the IAA concluded that the applicant would not be personally targeted by any person or group upon return to Quetta and that he would not face a real chance of harm on the basis of the phone threats his father received a year prior to his departure.
At [64], the Authority accepted that the applicant feared being harmed in an ethnic/religious attack by Lashkar-e-Jhangvi (LeJ) who are opposed to Hazaras in Pakistan and/or other Sunni militant groups. It also accepted the applicant’s claims about past violence against Shia in Quetta, including that most victims of sectarian attacks had been Hazaras.
While noting that the applicant’s claims were generally consistent with country information regarding the situation for Hazara Shia in Quetta, the Authority found that in recent years there had in fact been very few such attacks[21].
[21] CB 327 at [69]
Overall, the IAA considered there to be a small chance of the applicant being targeted, but acknowledged that a Shia Hazara living in Quetta, who may need to use buses and other road services in their daily lives, would face a somewhat elevated risk. To that end, the Authority was prepared to accept that “if the applicant was to return and live in Quetta in Balochistan, where he would as a matter of course need to engage in road travel and use buses with frequency unmatched by non-residents”, he would face a small, but more than remote chance of harm[22].
[22] CB 327 at [69]
Relevantly, at [70], the Authority accepted that:
“[…] the applicant has a well-founded fear of persecution from LeJ and/or other Sunni militant groups for the combined reasons of his race and/or religion now or in the reasonably foreseeable future, if he returns and lives in Quetta, Balochistan province.” (emphasis added and discussed later)
Return to another area in Pakistan
The Authority then turned its consideration to the real chance of persecution in other areas of Pakistan. To that end the Authority gave consideration to the viability of the applicant returning and residing in another urban area of Pakistan where there is an existing Hazara Shia population.
Based on country information and the applicant’s personal circumstances, the Authority found that the applicant would not face a real chance of harm if he relocated to Islamabad[23]. It found that there was little evidence of attacks against Shias of any ethnicity in Islamabad over an extended period. It considered any such attacks to be sporadic and the risk of the applicant being harmed in such an attack to be remote[24].
[23] CB 327-334 at [71]-[108]
[24] CB 330 at [88]
The Authority found that the applicant would likely experience some official and societal discrimination as a Hazara and Shia in Pakistan. Relevantly, at [91] the Authority noted the applicant’s claims that he was undocumented and his belief that he had no right to access formal identification in Pakistan such as CNIC. The Authority noted credible sources having told DFAT that public servants could cause delays for Hazaras applying for official documentation such as CNICs. The Authority also recorded, but dismissed as uncorroborated, suggestions that Pakistani Hazaras had had their CNICs systematically cancelled.
On balance, the Authority found, based on country information, that any official and societal discrimination which might be experienced by the applicant was not systemic and would not be of a nature that would amount to serious harm[25].
[25] CB 332 at[94]
The IAA also considered the applicant’s claim to fear harm on the basis of his status as a returnee from the west. The Authority accepted that the applicant would return with a Western influence and that he may be perceived as somewhat westernised[26]. However, based on country information, it found that the applicant would not face a real chance of harm on the basis of returning from a western country, having a western education or being perceived as “westernised” or wealthy[27].
[26] CB 332 at [95]
[27] CB 332 at [97]
The Authority had regard to Pakistani immigration laws and accepted that on return the applicant may be found to have contravened the law by departing Pakistan illegally using a fraudulent passport. The IAA accepted that the applicant may be arrested and detained upon his return. However, based on country information, it found that the applicant would most likely be issued with a fine and released after a brief period of detention, and that this would not amount to serious harm[28].
[28] CB 333-334 at [100]-[106]
At [107] the Authority also considered the risk of the applicant being harmed through criminality or generalised violence in Islamabad, but was not satisfied that the applicant would face a real chance of harm as a consequence.
In sum, the Authority accepted that the applicant faces a real chance of serious harm in Quetta on the basis of his profile as a Hazara Shia resident, but found that the risk of harm did not relate to all areas of Pakistan. The Authority was satisfied that there is not a real chance of the applicant facing serious harm in Islamabad on the basis of his profile as a Hazara Shia returnee from Australia, nor was it satisfied that the applicant would suffer serious harm for departing on a fraudulent passport. The IAA found that the applicant does not face a real chance of suffering serious harm in Islamabad from any targeted attacks, nor from generalised/insurgent or criminally motivated violence[29].
[29] CB 334 at [108]
Accordingly, the IAA found that the applicant failed to meet the refugee definition in s 5H(1) or the criteria in s 36(2)(a) of the Act[30].
[30] CB 334 at [109]
Complementary protection
Having found that the applicant would face a small but real chance of being seriously harmed if he were to return to and live in his home area in Quetta[31], the Authority was satisfied, for the same reasons, that the applicant would face a real risk of significant harm if he returns and lives in Quetta.
[31] CB 335 at [112]
Based on its earlier findings, however, the IAA was not satisfied that the applicant would face a real risk of significant harm if he was returned to and resided in Islamabad[32]. In making this finding, the Authority had regard to the applicant’s personal circumstances, including[33]:
(a)the applicant’s submissions that he had no family or support networks in Islamabad or anywhere in Pakistan outside Quetta and that he would face hardship and difficulties obtaining employment[34]. The IAA accepted the applicant did not know anyone in Islamabad but found it would be reasonable for him to make enquiries with Islamabad’s Hazara community[35];
(b)that the applicant was a single able-bodied male of working age, demonstrated resilience and adaptability in making the journey to Australia, had continued his education and excelled in academic programs, had undertaken some tertiary study, and spoke both Urdu and English, which would assist in him relocating to and settling in Islamabad[36];
(c)that the applicant had not previously held a CNIC. The information before the IAA indicated that while renewals of CNICs could be completed online, this was not possible for first time applicants. The Authority accepted that in order to apply for a CNIC the applicant would be required to visit Quetta where it had found that he would face a real risk of significant harm as a resident[37]. However, the IAA found the risk the applicant being harmed during a brief visit to Quetta would be remote[38] and substantially lower than the risk associated with ongoing residency and ordinary civilian movement around the city. The Authority considered the possibility that the visit to Quetta would only be brief, noting that there was no requirement for an applicant to wait in the city while the application is processed or for him to be present in person to collect the CNIC when ready. Furthermore, in terms of travel, the Authority was satisfied that the applicant could travel by air to Quetta. The IAA was not satisfied the applicant would face a real risk of harm through targeted or generalised harm or criminality during a brief visit, nor did it consider it would mean his relocation to Islamabad would not be reasonable[39]; and
(d)the IAA was satisfied that after obtaining a CNIC identity card it would be reasonable for the applicant to remain in Islamabad[40].
[32] CB 335 at [114]
[33] Minister’s Written Outline of Submissions
[34] CB 336 at [119]
[35] CB 336 at [121]
[36] CB 337 at [122]
[37] CB 337 at [123]-[124]
[38] CB 337 at [125]
[39] CB 337 at [125]
[40] CB 338 at [127]
In light of those findings, the IAA concluded that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country (Pakistan), there is a real risk that the applicant will suffer significant harm[41]. As such, the Authority found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Act[42].
[41] CB 338 at [130]
[42] CB 338 at [130]
APPLICATION FOR JUDICIAL REVIEW
By his amended application filed on 7 September 2022 the applicant contends that the decision of the Authority is affected by jurisdictional error and should be quashed. The applicant identifies two grounds of jurisdictional error articulated as follows:
1.The decision of the IAA is affected by jurisdictional error, in that the IAA misunderstood or misapplied s 5H(1), or acted illogically.
Particulars
(a)The IAA did not make any finding that the applicant “does not have a nationality”, and therefore, did not have authority to determine the review on the basis of s 5H(1)(b).
(b)The inability of the IAA to make any finding as to whether the applicant was a citizen of Afghanistan or Pakistan does not amount to a finding that the applicant does not have a nationality, in the sense that the applicant does not have any nationality, as it is apparent that the IAA considered, at least, that there was a real chance that the applicant is a citizen of either Pakistan or Afghanistan.
2. The decision of the IAA is affected by legal unreasonableness, in that the IAA unreasonably failed to consider inviting, or failed to invite, the applicant to provide more information in relation to how he could obtain his CNIC, after having misled him about the country information it would apply.
Statutory framework
At the time of the Authority’s decision, the relevant country of reference for both refugee criteria (s 36(2)(a)) and complementary protection criteria (s 36(2)(aa)) was to be determined by the s 5(1) definition of “receiving country”, which states
“receiving country”, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality -- a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
A decision-maker must consider the applicant’s “receiving country” when applying the definition of “well-founded fear of persecution” contained in s 5J(1) of the Act, which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
The definition of “well-founded fear of persecution” in s 5J of the Act is a critical element of the definition of “refugee” in s 5H(1), which in turn feeds into the refugee criterion in s 36(2)(a).
Relevantly, s 5H(1) states in relation to the meaning of “refugee” that:
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Jurisdictional error
In order to demonstrate jurisdictional error, it must be shown that the Authority has acted outside its power and authority or failed to exercise its statutory responsibilities. Jurisdictional error, in the sense relevant here, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by the Act[43].
[43] Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [23]
An error will be jurisdictional where it involves a failure to comply with one or more statutory preconditions or conditions that must be met or observed in order for the decision-maker to make a decision that is within the scope of authority which the statute confers on the decision-maker[44].
[44] Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23]-[24] (Hossain)
A species of error is revealed if the decision-maker misunderstands the relevant legislative scheme or a misapplies the law in a manner which amounts to a constructive failure to exercise jurisdiction. Ground one seeks to impugn the Authority’s decision on this basis.
Legal unreasonableness
The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power[45].
[45] Abebe v Commonwealth of Australia [1999] HCA 14 at [187] (Gummow and Hayne JJ)
Whether the decision in a particular case meets the required standard of reasonableness (and is therefore within power) must be decided by the Court on review based upon a consideration of the facts of the particular case. It is invariably a fact-dependent exercise[46].
[46] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [61]-[70] (Gageler), [84] (Nettle and Gordon JJ) and [140]-[141] (Edelman J) (SZVFW); Minister for Immigration and Citizenship v Singh [2014] FCAFC 1 at [42] (Singh)
Where reasons are given for the exercise of a discretionary power, the focus should be upon those reasons. Where those reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered legally unreasonable[47]. The Court should generally give the reasons a beneficial and not a pedantic construction[48]. Reasons should be read fairly and as a whole and “not with an eye attuned to error”[49].
[47] SZVFW at [61]-[70] (Gageler), [84] (Nettle and Gordon JJ) and [140]-[141] (Edelman J); Singh at [42]
[48] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [271]-[2] and [291]
[49] Sneddon v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 170 at [19]
The concept of legal unreasonableness does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness. Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality[50].
[50] Minister for Immigration and Citizenship v Li (2013) HCA 18 at [30], [66] and [105]
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Allsop CJ cautioned at [12] that it is “crucial to remember” that the task is not to assess what the Court thinks is reasonable and thereby conclude that any other view displays error. Rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power.
At all times it must be borne in mind that “[s]omeone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable”, or even “so unreasonable that no reasonable person could adopt it”. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence[51]”.
Ground one
[51] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [40] (Gleeson CJ and McHugh J)
Applicant’s submissions
Ground one is directed to the Authority’s logic and chain of reasoning in identifying the applicant’s “receiving country” as Pakistan for the purposes of assessing his refugee claims. The applicant contends that the Authority’s reasons reveal an underlying confusion and misunderstanding of the refugee criterion in s 5H(1) of the Act, such that the disposition of the matter proceeded on an uncertain or incorrect premise regarding the applicant’s status.
As mentioned, the thrust of the applicant’s attack is directed at paragraphs [52]-[53] of the Authority’s reasons.
At [52] the IAA found that the Applicant was not an Afghan national but accepted that he resided in Pakistan. However, the Authority stated that it had no solid basis on which to be satisfied that he is a national of Pakistan. The Authority found that “unless I am satisfied either that he is a citizen of Pakistan or stateless, I am unable to consider Pakistan as his “receiving country” as defined in s 5 of the Act”. Furthermore, the Authority found that “[i]n those circumstances, it appears there is no country in relation to which [it] can assess his claims”.
The applicant submits that the error and confusion in this case arises from paragraph [53] of the Authority’s reasons. There the Authority considered “an alternative view of the applicant’s status in Pakistan and proceeded on the basis that it is his country of former habitual residence” and thereby the applicant’s “receiving country”.
The applicant submits that the Authority failed to determine whether the applicant met the refugee criterion in s 5H(1) of the Act according to the correct test.
The applicant contends that other than in respect of the applicant’s claim in respect of Afghan citizenship, the Authority failed to make critical definitive findings in relation to the refugee criterion in s 5H(1). The applicant submits that s 5H(1) required the IAA to make an express finding that either the applicant “has a nationality” or “does not have a nationality”. That is, the applicant either has a country of nationality or he is stateless. Since the Authority was not satisfied that the applicant was a citizen of Afghanistan or Pakistan, it is submitted that the only finding open to the IAA was that the applicant “does not have a nationality” and is therefore stateless. Yet, the applicant contends that the Authority rejected the prospect that the applicant is stateless and thus erroneously proceeded to consider Pakistan as the applicant’s “receiving country”.
The applicant submits that the Authority adopted an unstated and undescribed “alternative view” of the law which involved an incorrect application of the legislation. The applicant’s case seems to be that it was not open to the Authority to adopt an ambiguous position in relation to the issue of nationality and to embark upon an analysis leaving that ambiguity unresolved.
The gist of the applicant’s submission, as I understand it, is that the Authority should have made a finding that the applicant was stateless if it was not able to make a finding that he had a nationality. If that had occurred, the Tribunal would then have proceeded to assess the applicants refugee claims, in particular his fears of persecution relating to possible return to Pakistan, from the perspective of the applicant as a stateless individual. However, the Tribunal never assessed the refugee claims from that perspective, but rather did so from some other perspective notwithstanding its finding that he was not a national of Afghanistan and (with a lesser degree of confidence) not a citizen of Pakistan.
The applicant submits that the question of whether or not a person is a citizen or a stateless person is a critically important issue and any failure to properly determine a person’s status injects error into the Authority’s analysis and assessment of the person’s claims for protection.
By way of example, the applicant contends that paragraphs [52] and [53] of the reasons do not sit together and that there is no tenable reconciliation between them. The applicant submits that the Authority’s confusion of mind at [52] and [53] of the reasons injects error into the Authority’s analysis, at paragraph [91], where it considers the prospect of the applicant obtaining formal identity documentation in Pakistan such as a CNIC. There, the Authority speculates that if the applicant was a citizen of Pakistan he would be able to apply for and access a CNIC. However, the error of reasoning according to the applicant, is that the Authority did not give consideration to whether “a stateless person” who had lived illegally in Pakistan without documentation, would be able to access such an identity document. It is the Authority’s failure to properly determine the applicant’s status which leads to the possibility that its analysis is deficient.
Another example is the Authority’s finding that the applicant can safely relocate to Islamabad. The applicant contends that consideration of the suitability of Islamabad would be very different for a stateless person (who might suffer discrimination because of that status) compared to a person who is a citizen or entitled to citizenship of Pakistan. The applicant submits that without properly establishing the premise from which the analysis is undertaken, the Authority’s analysis is potentially flawed and incomplete.
According to the applicant, the Court should infer a confusion of mind or some degree of irrationality from the IAA, based on the conflicting propositions in [52] and [53], and essentially find that there has been a misapplication of the law - therefore constituting jurisdictional error.
Minister’s submissions
In relation to ground one the Minister submits that the IAA did not misunderstand or misapply s5H(1) of the Act or act illogically. The Minister contends that having found that the applicant was not an Afghan national, and not being able to be satisfied that the applicant was a national of Pakistan or stateless, the IAA did not err by proceeding to assess whether the applicant had a well-founded fear of persecution in Pakistan as his notional “receiving country”[52].
[52] Minister’s Written Outline of Submissions at [2.1]
The Minister submits that the Authority was not required to make a positive finding that the applicant was a national of Pakistan or that he was “stateless”. Rather, once the Authority found that the applicant was not an Afghan national, the only other claims he raised related to returning to Pakistan, his country of former habitual residence and where he claimed not to be a citizen.
The Minister submitted that once an applicant’s claim of citizenship is disbelieved and rejected there is no requirement for the decision-maker to make any further finding as to nationality[53]. There is no legal requirement for the decision-maker to go on and make a finding as to the applicant’s actual nationality[54]. Accordingly, it is submitted that once the applicant’s claim to be an Afghan national was rejected, there can be no criticism of the Authority for not making a positive finding as to the applicant’s actual nationality or statelessness.
[53] Hussain v Minister for Immigration & Multicultural Affairs [2001] FCA 523 at [23] per Carr J (Hussain)
[54] CQI18 v Minister for Home Affairs and Anor [2020] FCCA 3104 at [154] (CQI18)
However, in the present case, unlike Hussain v Minister for Immigration & Multicultural Affairs [2001] FCA 523 (Hussain), the applicant here made claims to fear persecution in both Afghanistan and Pakistan. For that reason, it was not the case that there was nothing more for the Authority to do once it had found that the applicant was not an Afghan national. The Minister accepts that the Authority needed to then move on to consider the claims that the applicant had raised about being returned to Pakistan.
Accordingly, once Afghan nationality had been rejected, the next logical question, in light of all the evidence, was whether the IAA was satisfied that the applicant is a national of Pakistan, being the other place where he feared persecution. The Minister submits that the Authority was not required to consider whether the applicant is a national, or former resident, of any country other than Pakistan, given that the applicant did not advance any other “receiving country”, nor did he claim to be stateless. If it was not satisfied as to citizenship of Afghanistan or Pakistan, then that would conclude the Authority’s inquiry for the purposes of s 5(1)(a).
However, whilst the Authority could not be satisfied that the applicant was a citizen of Pakistan, it made that finding with some degree of uncertainty. Because of that lack of confidence in its finding, the Minister submits that the IAA was permitted to consider an alternative hypothesis of the applicant’s nationality in the event that the IAA was wrong. That alternative hypothesis permitted assessment of the applicant’s claims as if he was in fact a citizen of Pakistan and Pakistan was the “receiving country”.
The Minister submits that the Authority’s consideration of the alternative hypothesis in assessing claims for protection is a conventional and permissible application of the “what if I am wrong?” test[55] derived from Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 (Rajalingham). By electing to proceed in that way, the Minister contends that the Authority did not display any misunderstanding or irrationality in respect of s 5H.
[55] Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 per Sackville J at [60] – [67]
When boiled down, the Minister’s case is that the applicant in this case sought to establish a well-founded fear of persecution for the purpose of s 5J of the Act by reference to both Afghanistan and Pakistan. Once the IAA found that the applicant was not an Afghan national and could not be satisfied that he was a Pakistan national, it was open to the Authority to assess the claim against Pakistan on the basis that Authority might be wrong about Pakistan as his nationality (s 5H(1)(a)) or that Pakistan would be the “receiving country” (s 5(1)(b)).
Ultimately, the Minister submits that the application required the Authority to assess the applicant’s claims to fear harm in Pakistan. No other “receiving country” was put forward by the applicant and the Authority was entitled to assume that Pakistan was the applicant’s receiving country in the absence of any other country being established to the Authority’s satisfaction. That was the assessment that was undertaken by the Authority and there was nothing illogical about its approach, including applying the alternative hypothesis of assuming Pakistani citizenship for the sake of the exercise. The Minister submits that identification of Pakistan as the “receiving country” is unimpeachable and that it does not matter how the IAA came to that view.
The Minister submits that it must also follow that any uncertainty or lack of clarity in the Authority’s reasoning process was not material, as the asserted errors could not have resulted in a different outcome[56]. If the IAA had found that the applicant was a national of Pakistan, then Pakistan would have been receiving country for the purposes of the first limb of the definition of refugee in s 5(1). Alternatively, if the Authority had found that the applicant was stateless, then Pakistan would have been the receiving country for the purposes of the second limb of the definition. Either way, Pakistan would have been correctly identified as the receiving country and the IAA would have been required to perform its statutory task of considering the applicant’s protection claims by reference to Pakistan.
[56] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]; Hossain at [30]-[31]
It cannot be said that, on any view, the IAA failed to perform its statutory task to consider the applicant’s protection claims[57]. Any asserted error in approach did not lead the Authority astray from the task it was required to perform.
[57] BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683 at [97]
Consideration
In my view ground one does not reveal material error. I accept the substance of the Minister’s submissions.
Even if it is accepted that that the Authority’s reasons are unclear, at the end of the day the Authority did what it was required of it - namely to assess the applicant’s claims against Pakistan as the receiving country after having rejected his claims of Afghan nationality.
In assessing the criteria for a protection visa, it is necessary to establish the person’s ‘country of reference’ – usually the country in which they claim to fear harm.
At [5] of the applicant’s submissions, it is suggested that the question pertaining to the applicant’s ‘receiving country’ is only relevant to the criterion under section 36(2)(aa) (complementary protection) and not s 36(2)(a) (Refugees Convention). That premise is incorrect.
For all protection visa applications lodged on or after 16 December 2014, the relevant country of reference for both the refugee and complementary protection criteria is the “receiving country” as defined in s 5(1) of the Act.
Section 5J(1), which sets out the meaning of “well-founded fear of persecution”, refers to the relevant country of nationality or former habitual residence as a “receiving country”. Thus, for both the refugee criteria and the complementary protection criteria, the “receiving country” provides the reference point for the assessment of the risk of harm.
For persons who have a nationality, the “receiving country” is the country of nationality. Whether a person is a national of a particular country is to be determined solely by reference to the law of the relevant country.
For persons without a nationality, the receiving country is the country of former habitual residence, with the added (but not unimportant) qualification that it does not matter whether return to that country would be possible.
The Authority clearly found on the evidence that it was not satisfied as to the applicant’s claim to be a citizen of Afghanistan[58]. That finding was open to it and is not the subject of challenge in this application for judicial review. Once the applicants claim of Afghan citizenship was rejected, there was no requirement for the Authority to determine the applicant’s actual nationality or to identify him as stateless[59].
[58] IAA reasons at [46]
[59] Hussain at [23]; CQI18 at [154] (not disturbed on appeal)
However, as the Minister pointed out, unlike Hussain, the applicant here made claims to fear persecution in both Afghanistan and Pakistan.
The authority found on the evidence that it had “no solid basis on which to be satisfied” that the applicant is a national of Pakistan[60]. The Authority’s doubts about the applicants illegal and undocumented status in Pakistan are dealt with in paragraphs [47] to [51] of the reasons.
[60] IAA reasons at [52]
Having regard to the evidence before the authority and its concerns pointing to the possibility of Pakistani citizenship, it was open to the Authority to engage in an analysis of the applicant’s claims on the basis that it may have been wrong about its finding in relation to Pakistan citizenship. There was nothing illogical in adopting a Rajalingham assessment of claims against that possibility.
But even if the IAA was required to make a positive finding on nationality or statelessness, the outcome could not have been different. In the event that the Authority found that the applicant was a Pakistani national, then Pakistan would have been the receiving country for the purposes of the first limb of the definition in s 5(1). Alternatively, if the Authority had found that the applicant was stateless, then Pakistan would have been the receiving country for the purposes of the second limb of the definition in s 5(1). Either way, Pakistan was the receiving country and so any alleged error would not have resulted in a different outcome.
It can be accepted that the path of reasoning adopted by the Authority was somewhat unclear. Nonetheless, the Authority arrived at the right destination and appropriately assessed the applicant’s protection claims against the only possible receiving country. The analysis undertaken by the Tribunal of the applicant’s claims in relation to Pakistan would not be materially different whether the applicant fell within the first or second limbs of the definition of refugee in s 5H.
Ground one must be dismissed.
Ground two
Applicant’s submissions
By ground two, the applicant asserts that the Authority acted unreasonably in not considering whether to invite, or in not inviting, him to present further new information in relation to the prospect of him having to return to Quetta in order to apply for a CNIC after it made an earlier representation to him that it had information that a CNIC could be obtained online.
The foundation for the applicant’s argument in relation to ground two is correspondence sent by the Authority to the applicant on 16 February 2018[61]. In that letter the Authority invited the applicant to provide new information and to comment on a range of information on issues that may be the reason, or part of the reason, for affirming the delegate’s decision to refuse a protection visa.
[61] CB 247-251
In respect of relocation within Pakistan, the applicant was invited to comment upon, inter alia, the Authority’s statement that “applications for the renewal of Computerised National Identity Cards (CNICs) can be lodged online”.
Counsel for the applicant submits that the Court should infer that this particular information and the applicant’s response in relation to the issue was regarded as important by the Authority in the exercise of its statutory discretion, in particular in relation to the applicant’s ability to live in Islamabad. I consider that a reasonable inference.
The applicant submits that at [124] of its reasons the Authority departed significantly from the information it had provided for comment. It did so by finding that the applicant could not in fact lodge his CNIC application online. Instead, noting that the applicant had not previously held a CNIC[62], the Authority found that first-time applicants are unable to apply online. Rather, the applicant would be required to attend a registration centre in his place of origin, namely Quetta, in order to submit the relevant paperwork, have his photograph taken and to provide his signature and an impression of his thumb.
[62] IAA reasons at [123]
The applicant contends that the initial information sent to the applicant on 16 February 2018 was misleading. The applicant submits that by stating the document “can be lodged online”, without any caveats, the Authority made a representation that was absolute and incorrect and that the applicant was misdirected.
Mr Aleksov, counsel for the applicant, emphasised to the Court that it was unreasonable for the Authority to make a finding that the applicant would be required to return to Quetta, a place where he faces a well-founded fear of persecution and where he would be required to engage with authorities in the process of lodging a CNIC, without first inviting him to address any risk of harm that he might face by virtue of this ‘brief’ trip.
The applicant says that if he had been aware of the requirement to make a short trip to Quetta in order to register for a CNIC, he would have addressed it in his submissions and/or provided further evidence to the IAA. It is submitted that applicant’s representative would have made submissions as to why the applicant would be unable to simply “slip in and out” of Quetta without being exposed to a risk of harm.
The applicant claims that the finding that he would be required to physically return to Quetta to obtain a CNIC was a decisive point in the IAA’s reasons. Mr Aleksov submits that it was incumbent on the Authority to send the applicant a notice once it became apparent that the applicant would be a first-time applicant for a CNIC. This critical opportunity was not afforded to the applicant, giving rise to unreasonableness.
Having regard to the fact that a great deal of the applicant’s submissions were accepted by the IAA, specifically in relation to Quetta, counsel submits that there is a possibility that the applicant could have persuaded the Authority to reverse the factual findings in [125]. The applicant submits that the Authority’s findings about risk in paragraph [125] are fundamental to his application for protection and if those findings are wrong, he would be entitled to a visa. On that basis materiality of the error is said to be established.
Minister’s submissions
The Minister accepts that a failure to exercise or consider exercising discretion under section 473DC of the Act to get new information may be unreasonable, but asserts that the threshold of legal unreasonableness in relation to the exercise of the IAA’s discretion is high[63].
[63] DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85]-[86]
The Minister also concedes that if the Authority lacks information which is critical to determining the review, a failure to consider exercising the power under s 473DC or a direct failure to exercise s 473DC may constitute legal unreasonableness. However, the exercise of that discretion is always fact-dependant and must be determined in light of the individual circumstances and evidence in a proceeding[64].
[64] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [30]-[33]
The Minister submits that the fact the Authority’s decision does not expressly state that it considered exercising its discretion under section 473DC does not necessarily support an inference, without more, that it did not consider doing so[65]. In fact the Minister contends that because the authority was aware of its power to seek new information and did so on 16 February 2018, it should be inferred that it considered exercising its power to obtain further information regarding CNICs but decided not to do so.
[65] BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [40]; BVA17 v Minister for Immigration and Border Protection [2019] FCAFC 44 at [46] and [50]
The Authority is not obliged to give reasons for the exercise or non-exercise of its discretion to obtain new information.
The Minister submits that the Authority had everything needed to make a decision. It is submitted that this is not a case in which the Authority did not have any information before it in order to complete its review or where there was an obvious “information gap”.
The Minister submits that the Authority well knew the applicant’s claim to fear harm by returning to Quetta, whether that be permanently or on a short trip. The applicant’s primary protection claims advanced before the delegate and maintained before the IAA involve the claim to fear harm in Quetta and the applicant had already commented on the risk that he would face if he travelled there[66]. The applicant at all times maintained that he faced a real chance of harm.
[66] CB 214 and 297
It is submitted that it was within the realm of decisional freedom for the Authority to assess the risk of significant harm during a short stay in Quetta based on the information available to it. Moreover, it is self-evident from the decision record that the Authority gave “careful consideration” to the issue of risk in light of the available information. Despite not being required to provide reasons, the Minister asserts that at [124] and [125] the IAA did have regard to the risk of harm that the applicant would face in a brief return to Quetta to obtain the CNIC.
Consideration
This second ground of review, like the first, is advanced on an incorrect premise. The information contained in the letter to the applicant dated 16 February 2018 was not in its terms incorrect. Contrary to the applicant’s submissions, the letter seeking a response to information did not state that a request for a CNIC “can be lodged online”, without any caveats. The wording indicated that renewals could be effected online. I see no error in the Authority not correcting the information it provided.
That said, I accept that the letter to the applicant was cast in more narrow scope than the question the Authority ultimately asked itself. There is some merit in the complaint that the Authority could have made it clear that a first-time applicant for a CNIC would not be able to apply online and that a physical journey to Quetta would have to be undertaken.
In circumstances where the Authority had acknowledged the legitimacy of the applicant’s fear of returning to Quetta and was aware of his claim to be undocumented, the relevant question is whether it was legally unreasonable for the Authority not to invite or to consider inviting the applicant to present new information in relation to the prospect of him having to travel to Quetta in order to apply for a CNIC.
In answering that question it is to be noted that the decision of the Authority was made in accordance with the FastTrack review provisions of Part 7AA of the Act. The statutory scheme must contextualise this Court’s review of the Authority’s decision. The exercise of power by Authority is subject to the implied condition that it act reasonably in considering or exercising its discretions[67], but this Court must remain mindful of the parameters of the scheme within which those discretions are granted.
[67] ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [3]
As was said by the Federal Court in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71]:
“[71]Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at [63], per Hayne, Kiefel and Bell JJ; [88], per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the “review material” and, subject to the statutory exceptions contained in Part 7AA, without obtaining “new information” or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.”
In CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 Thawley J surveyed relevant authorities and stated at [45]:
“[45]The question of legal unreasonableness is to be approached through the lens of the specific statutory scheme and not through the lens of the principles of natural justice unaffected by statute: CRY16 at [67]; DZU 16 at [99]; BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [81]. As noted earlier, Division 3 of Part 7AA (with ss 473GA and 473GB) contains its own exhaustive statement of the natural justice hearing rule: s 473DA(1).”
At [48] his Honour also observed:
“[48]It is also relevant to note that the statutory scheme contemplated by Part 7AA is one of limited review on the papers with a default position of not accepting or requesting new information: s 473DB(1). Section 473FA(1) contains a general exhortation that, in carrying out its functions under the Act, the Authority “is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)”.”
The fact that the Authority does not expressly state that it considered exercising its discretion under s 473DC to obtain further information does not, without more, infer that the Authority did not consider doing so. The Minister’s submission and the authorities cited in support of that proposition are sound.
There is no challenge to the Authority’s conclusion that based on country information an application for a CNIC would require the applicant to visit Quetta for only a brief time and that the applicant would not be required to wait in the city while the application was processed or to be present in person to collect the CNIC when ready.
The Authority’s finding that the applicant had a well-founded fear was based on him returning to and living in Quetta and engaging in daily life which might involve road travel and use of buses in and around the city with a frequency unmatched by non-residents[68].The Authority determined that the applicant had a well-founded fear of persecution for the combined reasons of his race and/or religion now or in the recently foreseeable future if he returns and lives in Quetta[69]. The risk attached to his presence as a resident was rated as small, but more than remote and therefore amounted to a real chance of serious harm.
[68] IAA reasons at [69], [124]-[125]
[69] IAA reasons at [70]
The Authority was not satisfied that the applicant would be targeted by any person or group in Quetta. The Authority was satisfied that the applicant did not have a high profile and is not personally of interest to any terrorist, separatist or criminal groups[70].
[70] IAA reasons at [85]
In my view it was open to the Authority to perform a comparative analysis of the risks which would attach to a brief visit to Quetta relative to the risk that would be faced if the applicant lived and travelled around the city as a resident. That is what the Authority did at [124] and [125] of its reasons. It was open to the Authority to conduct such an analysis without requiring more information from the applicant. It was open to the Authority to find after “careful consideration” that the risk of a brief return to Quetta would be “substantially lower” and “very small indeed, such that it would be remote”[71].
[71] IAA reasons at [125]
It was not legally unreasonable for the Authority to decide not to seek further information from the applicant. I accept the Minister’s submission that there was no informational “gap” that the Authority needed to address before completing its review of the delegates decision.
Ground two of the application does not reveal any jurisdictional error.
DISPOSITION
For the reasons set out above, the applicant has failed to identify error in the Authority’s reasons. The application should therefore be dismissed.
The applicant should pay the Minister’s costs of the application as agreed or, in default of agreement, at the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 29 November 2023
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