CBR19 v Minister for Immigration

[2020] FCCA 285

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBR19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 285

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority failed to give proper, genuine and realistic consideration to the applicant’s claims – whether the Authority should have taken into account new information – whether it was legally unreasonable for the Authority not to extend time for the applicant to provide submissions – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DF, 473DD, 476

Applicant: CBR19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1264 of 2019

Judgment of: Judge Street

Hearing date: 4 February 2020

Date of Last Submission: 4 February 2020

Delivered at: Sydney

Delivered on: 14 February 2020

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The further amended application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1264 of 2019

CBR19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 7 May 2019 affirming the decision of a delegate not to grant the applicant a Temporary Protection visa.

2. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant migrated to Pakistan in the 1960s. The applicant became a citizen of Pakistan in 1975. The applicant’s village was in the Balochistan province of Pakistan, where his wife, three daughters, mother and sister still live. The applicant was also found to be a Hazara Shia.

3. On 27 June 2013, the applicant arrived in Australia, as an unauthorised maritime arrival. On 27 July 2017, the applicant applied for a Temporary Protection visa.

4. The applicant claimed to fear harm by reason of being a Hazara Shia. The applicant also claimed to fear harm from groups such as Lashkar-e-Jhangvi (LEJ), Sipah-e-Sahaba Pakistan (SSP) and their sympathisers. The applicant also alleged that he was kidnapped in 2008, tortured by members of the Taliban and released after his family paid a ransom. The applicant alleged that nowhere in Pakistan is safe for him and that he can easily be identified by his facial features and Hazaragi language. The applicant also alleged that the Pakistani authorities are unwilling and unable to provide him with protection.

5. On 4 February 2019, a delegate found that the applicant failed to meet the criteria for the grant of a Temporary Protection visa.

6. On 7 February 2019, the Authority wrote to the applicant explaining that his application for a Temporary Protection visa had been referred to the Authority for review. The letter attached a fact sheet and practice direction which provided the applicant an opportunity to put on new information and submissions.

7. The Authority also wrote to the applicant on further occasions.

8. On 19 March 2019, the Authority sent the applicant a letter which referred to a Department of Foreign Affairs and Trade (“DFAT”) Country Information Report: Pakistan dated 20 February 2019 (“the 2019 DFAT Report”).

9. In that letter, the Authority referred to the situation for Shia Hazaris in the applicant’s home region, Lahore, Islamabad and Karachi and the security situation in those cities.

10. On 2 April 2019, the Authority sent the applicant a further letter replacing the letter dated 19 March 2019. In that letter, the Authority referred to the 2019 DFAT Report.

11. In that letter, the Authority referred to the decline in the number of terrorist attacks in Pakistan in 2018, marking a nine-year downward trend.

12. The Authority also referred to sectarian violence having reduced by 40% in 2018 compared to 2017 and that the number of targeted religious terrorist attacks had reduced to four in 2018 from six in 2017.

13. The Authority also noted the highest decrease in attacks compared to 2017 was in Punjab province, which ranked fifth in the number of attacks out of six areas.

14. The Authority also noted that security and law enforcement personnel were the target of the largest number of attacks during 2018.

15. The Authority also noted that, although DFAT indicated that sectarian violence disproportionally affected religious minorities, the risk of violence and societal discrimination varied across different groups and locations within Pakistan.

16. The Authority also noted that sectarian tensions and violence were more prevalent in the south of Punjab and parts of northern Punjab province and that these were areas where conservative madrassas and militant groups were more prominent and the Sunni and Shia communities more segregated. The Authority also noted that Shias and the Shia and Sunni communities tended to be more integrated in cities.

17. The Authority also noted that DFAT assessed that Shias in Islamabad faced a low risk of sectarian violence.

18. The Authority also noted that Islamabad had lower levels of violent crime than other major cities due to the large number of security personnel deployed there relative to the population.

19. The Authority attached the 2019 DFAT Report to the letter dated 2 April 2019. The Authority explained that the information was relevant to the applicant’s case because it indicates that the overall security conditions in Pakistan have been improving. The Authority noted that the 2019 DFAT Report indicates a stable and secure security situation in Islamabad for Shias or Hazara Shias and that the situation in other areas has not affected the security otherwise enjoyed in Islamabad. The Authority noted that the 2019 DFAT Report does not indicate any significant changes to the overall conditions in Islamabad, as reported on in other earlier reports which were before the delegate. The Authority also explained that the information was relevant because it does not indicate Hazara Shias are targeted in Islamabad, including during road travel or through being kidnapped. The Authority also referred to the 2019 DFAT Report indicating there is a substantial labour force across Pakistan, better economic circumstances in large urban centres like Islamabad and a lower incidence of violent crime in Islamabad.

20. The Authority explained that it may make findings that there is not a real chance of persecution or a real risk of significant harm to the applicant in Islamabad and that it would be reasonable for the applicant to relocate there.

21. The Authority identified that the applicant was invited to give comments and any new information in response to the above information and attached 2019 DFAT Report by 25 April 2019. That Authority also identified that if no comments or information was received by 25 April 2019 then a decision may be made on the review.

22. On 9 April 2019, the applicant’s representative sent an email to the Authority requesting a further seven days beyond 11 April 2019 to respond. That was clearly in reference to the letter dated 19 March 2019 which was replaced by the letter dated 2 April 2019.

23. On 9 April 2019, the Authority sent an email to the applicant’s representative explaining that the comments and information must be received by 25 April 2019.

24. On 24 April 2019, the applicant’s migration agent sent an email to the Authority requesting an extension of time up until 1 May 2019 taking into account the three working days which were lost due to public holidays.

25. On 24 April 2019, the Authority sent the applicant’s migration agent an email confirming that the response was required by 25 April 2019.

26. The applicant’s representative provided submissions on 25 April 2019.

27. The submissions addressed the Authority’s possible findings in relation to the 2019 DFAT Report, whether or not the applicant faced a real chance of persecution or a real risk significant harm in Islamabad and whether it would be reasonable for the applicant to relocate there.

28. The submissions referred comparatively to the DFAT Country Information Report: Pakistan dated 1 September 2017 (“the 2017 DFAT Report”) and the 2019 DFAT Report. The submissions referred to Hazaras facing a high risk of violence from sectarian militants because of their religious beliefs in the 2019 DFAT Report as opposed to a moderate risk for sectarian violence which was assessed in the 2017 DFAT Report. The submissions asserted that this reflected a deteriorating security situation throughout Pakistan for Hazaras.

29. The submissions referred to the 2019 DFAT Report in relation to the risk of violence and societal discrimination. The submissions maintained that the applicant faced a real chance of persecution across the entirety of Pakistan, including Islamabad.

30. The submissions referred to the letter dated 2 April 2019, wherein the Authority noted findings in the 2019 DFAT Report, such as that Shias in Islamabad faced a low risk of sectarian violence in relation to the risk faced by the Shia population. The submissions also referred to the risk being able to vary on geographic location and for members of specific groups, referring to Hazaras. The submissions contended that the 2019 DFAT Report did not support the stability and security of the Islamabad region. The submissions maintained that the applicant would face a real chance of persecution and of significant harm in Islamabad, as well as other areas of Pakistan.

31. The submissions also addressed the reasonableness of relocation.

32. Also on 25 April 2019, there was a further submission provided by the applicant’s representative which again referred to the 2019 DFAT Report and submitted that, accordingly, there were exceptional circumstances to consider new information.

33. Relevantly, the submission included a medical report prepared by a particular doctor from Leading Medical Practice in Merrylands. The submission referred to the applicant’s claim that his foot was injured in 2008 when he was kidnapped. The submission referred to the applicant’s claim that he never stated that this injury was sustained during a motor vehicle accident, as recorded in his IHMS records, and that he believes this was an error made by staff who prepared the record.

34. The delegate in his reasons referred to the injury to the applicant’s foot and to the IHMS referral letter and the reference to the traumatic amputation of the applicant’s left toes in an “MVA”, which was interpreted as being a reference to motor vehicle accident four years ago. The delegate, identifying there being two different accounts regarding the circumstances around the applicant’s foot injury, found it more likely that the applicant was injured in a motor vehicle accident as this is what he had declared to the IHMS in 2014.

35. The Authority in its reasons identified the background to the visa application. The Authority had regard to the material provided by the Secretary under s.473CB of the Act.

36. The Authority identified taking into account the 2019 DFAT Report. The Authority was satisfied that there were exceptional circumstances to justify considering the same. The Authority’s reasoning in that regard referred to the 2019 DFAT Report not being available before the delegate made his decision refusing the applicant a Temporary Protection visa. The Authority also noted that the applicant was provided with a copy of the 2019 DFAT Report for consideration and sent an invitation to make comment.

37. The Authority referred to the applicant’s submissions dated 25 April 2019 and had regard to the same insofar as they engaged with the delegate’s decision. The Authority also took into account the applicant’s submissions insofar as they engaged with the 2019 DFAT Report. The Authority was satisfied that there were exceptional circumstances to justify considering this new information because the 2019 DFAT Report was not available before the delegate’s decision.

38. The Authority referred to other new information, being the applicant’s claim that he has spent considerable time in a Western country seeking asylum and would be returning to Pakistan as a failed asylum seeker with no networks in other parts of Pakistan. The Authority noted that the applicant had not explained why such a claim had not been advanced at the primary stage. The Authority also noted that the applicant had not provided any evidence in support of that new claim. The Authority was not satisfied that there were exceptional circumstances to justify considering the new claim.

39. The Authority referred to the medical certificate which was provided and allegedly corroborated the applicant’s claims in relation to his foot injury. The Authority was not satisfied that there were exceptional circumstances to justify considering that new information.

40. The Authority also referred to the applicant’s new claim that the information recorded in the IHMS records must have been an error. The Authority correctly identified that that was new information. The Authority found that there were not exceptional circumstances to justify considering the same.

41. The Authority summarised the applicant’s claims.

42. The Authority found that the applicant departed Islamabad by air on 3 June 2013 using his own passport. The Authority found that the applicant departed Pakistan legally.

43. The Authority noted that the applicant did not claim to have experienced any harm prior to 2008 or between 2008 and his departure from Pakistan in 2013.

44. The Authority did not accept that the applicant was kidnapped and tortured by the Taliban in 2008. The Authority found that the applicant’s account was not one which reflected a lived experience. The Authority found that the applicant provided two different accounts regarding the circumstances around the foot injury. The Authority accepted, however, that something happened to the applicant in 2008 and placed weight on his arrival interview where he stated that an alleged unknown militant group threatened him for money and he paid them.

45. The Authority did not accept that the applicant was targeted for reasons beyond being a successful Hazara businessman. The Authority found that no other contact was made by the extortionists after the money was paid in 2008. The Authority found that there were no apparent ramifications for the applicant and his family in the remaining time he spent in his home region between 2008 and 2013. The Authority was not satisfied that the applicant was of any personal interest to anyone in or around his home region.

46. The Authority referred in detail to country information concerning the security situation in the applicant’s home region. The Authority was satisfied that there is a real chance of sectarian violence being committed against Hazara Shias in the applicant’s home region. The Authority was satisfied that the applicant faces a real chance of persecution should he return to his home region.

47. The Authority, however, correctly identified that s.5J(1)(c) of the Act requires that a real chance of persecution relates to all areas of the receiving country. The Authority referred to country information and, in particular, whether the applicant could relocate to an area such as Islamabad. The Authority referred to the fact that the applicant advised that he had a number of business contacts in Islamabad, including Hazaras, Sayyids and Punjabi friends, as Islamabad has very good people and he had no problems doing business there.

48. The Authority found, because of the size and diversity of Pakistan and on the country information, that there are locations in Pakistan where Shia Hazaras do not face a real chance of persecution, including Islamabad, where the applicant had Hazara contacts and other business contacts. The Authority referred to country information that there are a significant amount of Hazara communities across Pakistan and relocation will normally be a viable option.

49. The Authority found that the applicant would be safe flying into Islamabad from Australia. The Authority found that the country information indicates that Islamabad has a particularly unblemished security record.

50. The Authority accepted that the applicant may be identified as a Shia and a Hazara because of his physical characteristics. The Authority did not accept that the applicant’s apparent identity would be an impediment to his living and working in Islamabad. The Authority considered that the applicant’s previous regular travel to Islamabad and his own personal experiences in Islamabad supported the Authority’s findings.

51. The Authority referred to the country information that Islamabad is one of the safest places in Pakistan for Shias. The Authority referred to Islamabad having a population of around two million people, including a large number of internal migrants from all parts of the country. The Authority referred to the 2017 DFAT Report indicating that there is a strong security presence in Islamabad. The Authority also noted that the 2017 DFAT Report had no reporting that Hazaras generally have been targeted by sectarian violence in Islamabad in recent years or that the situation for Hazaras has been deteriorating in that city.

52. The Authority found that the 2019 DFAT Report had not assessed generalised violence, including violent crime, to be a significant issue in Islamabad, nor has it been for a sustained period of time.

53. In these circumstances, the Authority found that the country information did not indicate that Shia or Shia Hazaras have been targeted or impacted by these issues in Islamabad, or that there is a real chance they will be targeted or impacted in the future.

54. The Authority referred to the applicant’s submissions. In particular, the Authority referred to the assessments made in relation to the 2019 DFAT Report that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. The Authority referred to the applicant’s submissions in relation to his appearance in that regard and allegedly facing harm or risk.

55. The Authority found that the broad assessment advanced in the applicant’s submissions does not take into account the specific situation in Islamabad, in which there have been no recent incidents targeting Hazara Shias and there is no evidence of a deteriorating security situation. The Authority also referred to the 2019 DFAT Report’s assessment that the overall security situation outside the applicant’s home region is more severe than within the applicant’s home region. The Authority, however, noted that this assessment refers specifically to violence in a particular location.

56. The Authority referred to the applicant’s submissions in respect of the unstable, complex and volatile security situation in Pakistan. The Authority found that there is no evidence in the 2019 DFAT Report or anywhere else before the Authority that Islamabad is experiencing cycles of violence which are likely to impact Shia Hazaras in the foreseeable future. The Authority also referred to the 2019 DFAT Report overall assessment that Shias in Islamabad face a low risk of sectarian violence.

57. The Authority expressly referred to having considered the applicant’s claim that he would face harm outside of his home region as a result of discrimination as a Hazara Shia. The Authority also took into account that the applicant did not claim to have faced discrimination in the past when he worked in Islamabad. The Authority also took into account the applicant’s description of Islamabad as being a place with good people where he had contacts from a range of ethnic backgrounds.

58. The Authority referred to other country information that there are no discriminatory laws, policies or action by the authorities against Hazaras in Pakistan. The Authority did not accept that there is a real chance the applicant would be discriminated against in terms of accessing health services in Pakistan as a result of his ethnicity or religion in Islamabad. The Authority did not accept that there is a real chance the applicant would be denied access to police services on the basis of his ethnicity and/or his religion. The Authority was satisfied that the applicant would be able to freely practise is Shia Islam in Islamabad.

1. The Authority referred to country information in relation to Hazara enclaves in the applicant’s home region and Hazaras facing a moderate risk of societal discrimination outside those enclaves. The Authority found that this reflects individual prejudice rather than systemic or other official discrimination.

2. The Authority noted that the applicant had not claimed he had faced discrimination in the past and that he had successfully conducted business in Islamabad. The Authority did not accept that the applicant would face a real chance of societal discrimination in Islamabad. The Authority was not satisfied that the applicant faced a real chance of harm as a Shia Hazara or a Shia Hazara from state or non-state actors in Islamabad.

3. The Authority found that the applicant does not have a well-founded fear of persecution from anyone in Islamabad on the basis of his Hazara ethnicity and Shia faith or for any other reason.

4. The Authority found that the applicant did not meet the definition of “refugee” in s.5H(1) of the Act. Accordingly, the Authority found that the applicant did not meet the criteria of s.36(2)(a) of the Act.

5. The Authority found, taking into account the applicant’s personal circumstances, that it would be reasonable for the applicant to relocate to Islamabad, where he does not face a real risk of significant harm. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Pakistan from Australia, there is a real risk the applicant would suffer significant harm. Accordingly, the Authority found that the applicant did not meet the criteria of s.36(2)(aa) of the Act.

6. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 23 May 2019. On 13 June 2019, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions.

2. The applicant filed an amended application most recently on 1 November 2019, which identified three grounds and was described as a further amended application.

3. At the commencement of the hearing, counsel for the applicant informed the Court that his retainer and instructions had been withdrawn, as had those of his instructing solicitor. In these circumstances, the Court granted leave for the applicant’s solicitor and counsel to withdraw.

4. Subsequently, with the benefit of an interpreter, the Court explained to the applicant the nature of the hearing. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

5. The Court explained to the applicant that there had been filed a further amended application and that it proposed to let the applicant rely upon the three grounds identified. There was opposition to this course by the first respondent on the basis that the third ground had been abandoned in submissions filed on the applicant’s behalf. The Court does not regard that as a basis upon which the applicant should be precluded from having the benefit of the legal assistance that had been provided in reformulating the applicant’s claims. Accordingly, the Court granted leave to the applicant to rely upon the further amended application filed on 1 November 2019.

6. The Court also explained to the applicant that it would take into account the written submissions which had been filed on behalf of the applicant in relation to those three grounds.

7. From the bar table, the applicant identified that he disagreed with the Authority’s assessment in relation to the risk of harm to him in Pakistan as a Hazara Shia. It is apparent that the Authority carefully considered the applicant’s claims in relation to being a Hazara Shia and accepted the applicant’s claim to fear harm in his home region. The Authority, however, found that it was reasonable and practical for the applicant to relocate to Islamabad where he did not face a real risk or real chance of serious harm or significant harm.

8. The Authority provided logical and rational reasons in support of those adverse findings, based on the country information as well as the applicant’s own evidence and experience in Islamabad. Those findings were open to the Authority for the reasons given by the Authority, as summarised above. Nothing said by the applicant in his disagreement with the Authority’s adverse findings in respect of the risk of harm identified any jurisdictional error by the Authority.

9. The applicant also maintained that he would not be safe in Islamabad. The Authority carefully considered the applicant’s claims and submissions in relation to Islamabad. On the face of the Authority’s reasons, the Authority had a real and active intellectual engagement with the applicant’s submissions and the evidence. The Authority made adverse findings which were open to it in relation to the applicant’s ability to reasonably relocate to Islamabad. Those findings cannot be said to be illogical or irrational and were open to the Authority for the reasons given by the Authority, as summarised above.

10. The applicant otherwise invited the Court to determine the matter on compassionate or discretionary grounds. This Court has no power to do so. The applicant’s submissions also invited the Court to engage in merits review. This Court has no power to review the merits.

11. Accordingly, nothing said by the applicant from the bar table identified any jurisdictional error.

Grounds of the Further Amended Application

1. The grounds in the further amended applications are as follows:

   1. The Second Respondent fell into jurisdictional error by failing to give proper, genuine and realistic consideration to the Applicant’s claims.

   Particulars

   (i) The 2017 DFAT Country Report referred to in the Applicant’s submissions which assessed that Hazaras face a “moderate risk” of sectarian violence in Pakistan at CB 239.

   (ii) The 2019 DFAT Country Report referred to in the Applicant’s submissions which assessed that Hazara face a “high risk” of sectarian violence in Pakistan at CB 239.

   (iii)The Applicant’s submissions that the 2017 DFAT Country Report read with the 2019 DFAT Country Report “demonstrates the deteriorating security situation throughout Pakistan” at CB 239.

   (iv)The Second Respondent’s finding that there is “no evidence” of a deteriorating security situation at [31] of the Second Respondent’s reasons for decision.

   (v) The Second Respondent failed to give proper, genuine and realistic consideration to the matters in (ii) and (iii) above.

   2. The Second Respondent fell into jurisdictional error by failing to consider whether the information provide by the Applicant was credible personal information which was not previously known.

   Particulars

   (i) The Applicant provided new information that the IHMS records contained an error at CB 245.

   (ii) The Second Respondent knew that the Applicant did not speak English at CB 47.

   (iii)The Second Respondent failed to consider whether the Applicant knew of the error in the IHMS record prior to the delegate making their decision: at [8] of the Second Respondent’s reasons for decision.

   3. The Second Respondent fell into jurisdictional error by refusing the Applicant’s request for additional time to give new information.

   Particulars

   (i) The Second Respondent made an error of law by stipulating that the deadline for the Applicant to provide new information was 25 April 2019 contrary to s.36(2) of the Acts Interpretation Act 1901 (Cth).

   (ii) The Second Respondent made an error of law by finding that it could not extend the deadline for an applicant to provide new information pursuant to s.473DF of the Migration Act 1958 (Cth) at CB 236.

   (iii) By its error of law, the Second Respondent failed to consider whether or not it should extend the deadline for an applicant to provide new information.

   (iv)By its error of law, the Second Respondent failed to consider whether or not it could consider new information provided otherwise than in accordance with the terms of its invitation to provide new information.

   (v) The Second Respondent’s refusal to extend the time for the Applicant to provide information to account for the three public holidays was legally unreasonable.

Ground 1

1. In relation to ground 1, contrary to the particulars advanced in support, it is apparent from the Authority’s reasons, as summarised above, that the Authority had a real and meaningful engagement with the applicant’s submissions and the evidence in relation to the applicant’s relocation to Islamabad.

2. The Court was taken to the 2019 DFAT Report in detail by counsel for the first respondent in relation to the assessment of the security situation in Pakistan, including the risk of violence. It was correct that the 2019 DFAT Report did not address the risks in Islamabad, other than to note that these urban areas were preferred relocation options and that Hazaras were safer living in the general community in such areas.

3. The Court was also taken to the submissions which were advanced to the Authority in relation to the deteriorating security situation by reference to the 2019 DFAT Report and the submissions in relation to the assessment of risk for Shias in Islamabad.

4. The Authority dealt with the applicant’s claims and considered his ethnicity and religion in a comprehensive manner while making dispositive findings in respect of the applicant’s claims. The Authority accepted the applicant’s claim in relation to his home region and gave detailed reasons for the adverse finding in relation to the applicant’s ability to relocate to Islamabad. Those adverse findings were open to the Authority and reflect a real and genuine engagement with the applicant’s claims and the country information before the Authority. Further, it is apparent that the Authority assessed a range of country information concerning Islamabad and the Shia community, which necessarily includes the Hazara community.

5. The Authority also expressly referred to the applicant’s claim concerning a high risk of violence. The Authority noted that there was no evidence of a deteriorating security situation in Islamabad. That was a finding open to the Authority. The Authority rejected the applicant’s claims that the security situation outside the applicant’s home region was more severe. That was a finding also open to the Authority on the information before the Authority. The Authority found that there was no evidence that Islamabad is experiencing cycles of violence which are likely to impact Shia Hazaras in the near future. That, again, was a finding open to the Authority.

6. The Authority expressly identified and addressed the critical submissions advanced by the applicant in respect of the deteriorating security situation in Pakistan, the applicant’s appearance and the severity of the security situation outside the applicant’s home region. That the country information in relation to the general security assessment did not exclude Islamabad was a matter on which it was open for the Authority to make findings on that country information.

7. There is no failure by the Authority to take into account the applicant’s submissions concerning the security assessment or the country information or the applicant’s submissions in relation to the chance of persecution of the applicant because of his Hazara ethnicity and his Shia religion.

8. A fair reading of the Authority’s reasons reflects a consideration of the reasonableness of the applicant relocating to Islamabad in the applicant’s circumstances. It was open to the Authority to find that there was no evidence of a deteriorating security situation in Islamabad and to take the same into account.

9. There was no failure by the Authority to consider the substance of the applicant’s claims or submissions. Rather, the adverse findings by the Authority reflect a rejection of the applicant’s claims. The particulars advanced in support of ground 1 and written submissions are, in substance, an invitation to this Court to engage in merits review.

10. The Authority made findings in relation to the overall risk that Shias faced in Islamabad. The Authority clearly understood that the applicant was contending that Shia Hazaras were at a greater risk than Shias. There is no basis to find that the Authority did not understand the different risks in respect of the applicant’s religion and ethnicity which the applicant was advancing.

11. The applicant’s submission’s reference the delegate referring to attacks against Hazaras in Islamabad was a recording in respect of evidence about attacks having occurred in Islamabad and was not a finding by the delegate. Indeed, the delegate found that the applicant did not face a real chance of harm in Islamabad. The Authority was under no obligation to explain its departure from the delegate’s findings and was not bound by the delegate’s findings. Indeed, both the delegate and the Authority found that Islamabad was a place to which the applicant could reasonably relocate and would not face a real of a real chance of serious harm or significant him.

12. The Authority considered the deteriorating security situation but concluded that it did not include in Islamabad. Contrary to the applicant’s submissions, that was a conclusion open to the Authority for the reasons given by the Authority, as summarised above. There was no failure by the Authority to give real and proper consideration or an active intellectual engagement to the applicant’s claims and the evidence in relation to the reasonableness of the applicant relocating to Islamabad.

13. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the applicant submits that the Authority failed to take into account the whole of the statutory provision in deliberating whether or not there were exceptional circumstances to have regard to the new information in respect of the applicant’s explanation as to why the IHMS record should not be accepted.

2. The Authority on the face of its reasons was clearly alive to both limbs of s.473DD(b) of the Act. The Authority in its reasons in earlier paragraphs expressly referred to considering new information and the substance of s.473DD(b)(i) of the Act. There is no basis in the circumstances of the present case to allege that the Authority failed to have regard to the whole of the provisions in s.473DD of the Act in determining whether or not there were exceptional circumstances justifying considering information identified in paragraph 8 of the Authority’s reasons.

3. Further, insofar as it is suggested that the Authority failed to have regard to s.473DD(b)(ii) of the Act, the reference by the Authority to the proposition that, if the applicant thought the information was incorrect he would have sought to clarify that when he supplied the documents, is, in substance, an identification of a consideration falling within s.473DD(b)(ii) of the Act.

4. The Authority did not display any misunderstanding of the nature and extent of s.473DD of the Act. There is nothing to suggest that the Authority misunderstood or was deflected from its task in forming the required state of satisfaction identified under s.473DD of the Act.

5. Further, the Court accepts the respondent’s submissions that the rejection under s.473DD(a) of the Act was open to the Authority.

6. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, this was withdrawn in the written submissions and advanced by the applicant when referred to the request for additional time. The request for additional time was made the day before the due date for the applicant’s further submissions in respect of the 2019 DFAT Report, in respect of which the applicant’s representatives had been on notice since 19 March 2019.

2. In circumstances where the Authority is required under the statutory regime, as identified in its fact sheet and practice direction, to determine matters expeditiously, there is no basis to find that the Authority acted legally unreasonably in refusing the extension of time.

3. Further, the period of time which was provided to the applicant was in excess of the period required by the regulations under s.473DF(2) of the Act. Accordingly, the Authority’s refusal of an extension of time, where in fact the period was in excess of that identified under the regulation, is one that cannot be said to lack an evident and intelligible justification.

4. The timing of the request is one in respect of which it is apparent it was made the day before the time when the applicant’s response was due. That is a further basis upon which the absence of any extension of the same cannot be said to lack an evident and intelligible justification. That intelligible and evident justification is the belated nature of the request, being the day before the submissions were due.

5. There is no need for the Authority to expressly address the applicant’s request for more time in its reasons. Furthermore, no further request was advanced by the applicant for further time to put on additional submissions in the two submissions provided on 25 April 2019.

6. Accordingly, no legal unreasonableness in the exercise of the Authority’s power to permit the getting of new information or submissions has been established.

7. No jurisdictional error as alleged in ground 3 is made out.

8. Accordingly, the further amended application is dismissed.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  14 February 2020