CDX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 309
•26 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDX17 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2020] FCCA 309 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority’s findings on relocation were legally unreasonable – whether the Immigration Assessment Authority failed to consider relevant evidence in its consideration of new information in the context of s.473DD of the Migration Act 1958 (Cth) – jurisdictional error – matter remitted for determination according to law. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 65, 473BA, 473BC, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 474, 476 Treaties: |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | CDX17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1554 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 5 February 2020 |
| Date of Last Submission: | 5 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Angel Aleksov |
| Solicitors for the Applicant: | Beena Rezaee Legal & Migration |
| Solicitor for the Respondents: | Mr Julian Pinder (Minter Ellison) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1554 of 2017
| CDX17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 20 April 2017 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 9 November 2016 refusing the applicant a Temporary Protection Visa (“TPV”).
The applicant is a citizen of Pakistan and of Shia faith and Hazara ethnicity, who fears harm from Lashkar-e-Jhangvi (“LEJ”), Sunni militant groups including the Taliban and unknown individuals in Pakistan.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a TPV, a summary of the decision of the Delegate, and a summary of the Authority’s review and decision.
Background
The applicant arrived in Australia on 28 November 2012 as an unauthorised maritime arrival.
On 6 March 2016, the applicant lodged an application for a TPV with the Department of Immigration and Border Protection (“the Department”).
On 9 November 2016, the Delegate refused the applicant’s application for a TPV.
On 14 November 2016, the Delegate’s decision refusing the applicant a TPV was referred to the Authority.
On 20 April 2014, the Authority handed down its decision affirming the decision of the Delegate not to grant a TPV.
On 19 May 2017, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a TPV (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 5J of the Act defines the meaning of well-founded fear of persecution.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:
“Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”
Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.
Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:
“Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.
The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.
Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:
“Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
Section 473DD of the Act provides as follows:
“Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”
The applicant’s application for a TPV
The applicant provided a statement in support of his TPV application which can be summarised as follows:
i)The applicant fears that if he were forced to return to Pakistan he would be seriously harmed because of his Hazara ethnicity and his Shia religion.
ii)The applicant was born in Quetta, Baluchistan Province, Pakistan and was 46 years old when he submitted his application for a TPV. The applicant is married and has two children. Apart from the applicant’s father who died in 2010, his family, including his mother and unmarried sister were living in Quetta.
iii)The applicant is a Pakistani citizen and does not have a right to enter and reside in any other country.
iv)The applicant cannot return to Pakistan as he is at risk of being killed by LEJ, the Taliban, and other Sunni extremists.
v)Around 1996, after graduating from University of Baluchistan, the applicant started work as a teller with Soneri Bank. The applicant was one of three Shia Hazaras working at the bank.
vi)The applicant described the deteriorating situation for Shia Hazaras in Pakistan and raised concerns about the safety and security of both himself and his family.
vii)The applicant described an incident that occurred around 2010, where one of the applicant’s friends who worked opposite the Soneri Bank was targeted by LEJ because he was a Shia Hazara and was killed trying to enter the bank. The applicant described another incident where two Hazara shopkeepers, who were known by the applicant, were killed less than 100m from his office.
viii)The applicant described another incident where he was approached by a man with his face covered while the applicant was sat in his car after work. The man told the applicant to leave that place as soon as he could and showed him a gun pouch on his belt. The applicant reported the incident to police.
ix)After that incident the applicant only caught public transport to work and asked his manager if he could move so he would not be visible when people enter the bank.
x)The applicant fears if he return to Pakistan he will be killed by the Taliban, LEJ and other Sunni extremists for reasons of his race and religion.
xi)The applicant describes the security situation in Pakistan as poor and deteriorating, and notes that the Taliban is becoming very influential and powerful.
xii)The applicant fears that the Taliban will persecute him on the basis of his status as a failed asylum seeker who has sought protection in Australia.
xiii)The applicant claims he cannot relocate within Pakistan as he is able to be identified as a Shia Hazara because of his facial features. The applicant notes that Shia Hazaras have been targeted throughout Pakistan and that he would not be able to find employment in other cities in Pakistan.
The Delegate’s decision
On 10 October 2016, the applicant attended an interview with the Delegate.
The Delegate summarised the applicant’s written claims and claims made at interview, including two post interview submissions from the applicant’s representative.
The Delegate accepted that:
a)The applicant is a Hazara from Quetta and a Shia Muslim.
b)The applicant worked for Soneri Bank in Quetta.
c)The applicant was threatened in April 2012 by LEJ militants while leaving his place of work.
d)The applicant would be a failed asylum seeker were he returned to Pakistan.
e)The applicant believes that he was followed and watched by LEJ militants in Quetta in 2012.
f)The applicant’s sister has returned to Quetta from Islamabad following an attack on her place of residence in Islamabad.
g)The applicant is responsible for supporting his family in Quetta.
The Delegate had regard to extensive country information in relation to the applicant being a Shia Hazara in Quetta before finding that the applicant had a well-founded fear of persecution for reasons of his race and religion in Quetta.
The applicant also claimed that he would be targeted outside of Quetta owing to his being easily identifiable as a Hazara, and therefore a Shia.
Ultimately, the Delegate was satisfied that the applicant was not known personally to Sunni militant groups operating in Quetta, including LEJ or the Taliban. Therefore, the Delegate was not satisfied that those groups would seek to locate the applicant outside of Quetta.
The Delegate had regard to a country information report from the Department of Foreign Affairs and Trade (“DFAT”) and various newspaper articles in its consideration of Hazara communities outside Quetta. The Delegate found the reports indicated that Hazara populations in Lahore, Islamabad, and Rawalpindi were not insignificant and, given the latest available report, were growing.
The Delegate considered the security situation for Hazaras in Lahore and found that based on country information that Shia Hazaras have not been targeted in Lahore solely on the basis of their race or religion.
Whilst the Delegate accepted that LEJ and the Taliban were capable of carrying out attacks in Lahore, the Delegate noted that this had not translated into attacks on Shias in Lahore in recent years. Further, the Delegate noted country information suggested that the State had shown a willingness and ability to protect Shias and combat sectarian militant groups in Lahore, including LEJ.
The Delegate considered that attacks on Shias in Lahore were rare and found that Shias in Lahore did not, based on their religious identity, face a real chance of persecution.
The Delegate noted that Lahore has an international airport and that the applicant is a citizen of Pakistan with a legal right to enter and reside. The Delegate found that the real chance of persecution does not exist in all areas of Pakistan, particularly in Lahore, which the Delegate found the applicant could access legally and safely.
The Delegate addressed the number of country information reports submitted by the applicant and noted that it gave more weight to reports that were more up-to-date or better reflected the lived experience of Hazaras and Shias in Lahore.
The Delegate also considered whether the applicant would face a real chance of persecution as a failed asylum seeker and a returnee from a western country. The Delegate was not satisfied on the basis of country information before it that the applicant would face a real chance of persecution as a failed asylum seeker or a returnee form a western country.
The Delegate was not satisfied that the applicant was a refugee as defined by s.5H(1) of the Act and therefore was not satisfied the applicant was a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act.
The Delegate also considered the applicant’s claims relating to his necessary travel through Quetta to visit his parents and relatives should he relocate to another area of Pakistan. The Delegate did not accept that the applicant’s belief that he would have to travel to Quetta to visit relatives was related to the question of whether it would be reasonable for the applicant to relocate to Lahore. With regard to whether it was reasonable for the applicant to relocate to Lahore, the Delegate had regard to DFAT country information, the applicant’s claims at interview and post-hearing submissions and was satisfied that it would be reasonable for the applicant to relocate to Lahore as outlined in s.36(2B)(a) of the Act.
The Delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Pakistan, there was a real risk the applicant would suffer significant harm as outlined by s.36(2)(aa) of the Act.
On 9 November 2016, the Delegate refused the applicant’s application for a TPV on the basis that the applicant as not a person to whom Australia has protection obligations under the Convention and did not meet the alternative complementary protection criterion.
The Authority’s review and decision
On 14 November 2016, the Delegate’s decision refusing the applicant a TPV was referred to the Authority.
The applicant’s migration agent provided submissions in support of his review as well as a news article regarding the treatment of Hazaras in Pakistan and the “blocking” of Hazaras Computerised National Identity Cards (“CNIC”).
The Authority’s review and decision is accurately summarised in the submissions of the first respondent, as follows:
“21. The IAA had regard to the IAA submission (CB511-512 at [4]), as well as to the further IAA submission (CB512 at [5]). The IAA also had regard to the requirements of section 473DD of the Act in considering any new information (CB513 at [6]). Relevantly, the IAA observed that the January 2017 article post-dated the delegate's decision (CB512 at [7]). The IAA also considered the applicant's claims regarding the difficulties the applicant would face in accessing a CNIC, as discussed in the January 2017 article (CB513 at [8]). However, the IAA noted that the applicant has a current CNIC card valid until November 2019, and that he had not claimed that either he or his family had ever experienced difficulties in the past in accessing identity documents (CB513 at [8]). The IAA therefore was not satisfied that there were exceptional circumstances to justify considering this new claim and information (CB513 at [8]; and cf. paragraph 473DD(a)).
22. The IAA found the applicant to be a 'generally credible witness' and accepted his claims about his education, employment and family life (CB515 at [14]). The IAA accepted the applicant's claim that two Hazara shop owners were killed near where he worked and that he was targeted as a Hazara Shia after that incident (CB517 at [21], [23]). The IAA also accepted that the applicant's sister and her husband returned to Quetta after experiencing an incident in Islamabad (CB518 at [29]).
23. The IAA did not accept that the applicant would be targeted on account of his status as a well-educated Hazara who held a good job as a banker (CB518-519 at [31]).
24. Having regard to country information, the IAA accepted that the applicant would face a real chance of serious harm as a Hazara Shia in his home area of Balochistan (CB517 at [25]). However, the IAA found that the applicant could relocate to Lahore and concluded that the real chance of persecution did not apply to all areas of the receiving country (CB520 at [38]): paragraph 5J(1)(c) of the Act. The IAA noted that the applicant did not provide any evidence to support his claim to fear harm as a failed asylum seeker and, having regard to country information, the IAA did not accept he would face harm for this reason (CB520-521 at [39], [43]).
25. For these reasons, the IAA rejected the applicant's claims and found he did not meet the requirements of the definition of refugee in subsection 5H(1) of the Act, and thus did not satisfy the refugee criterion in paragraph 36(2)(a) of the Act (CB521 at [44]-[45]). For the same reasons, the IAA found that the applicant would not face a real risk of significant harm in Lahore (CB522 at [50]).
26. The IAA considered, in the context of the complementary protection criterion in paragraph 36(2)(aa) of the Act, whether it would be reasonable for the applicant to relocate to Lahore: paragraph 36(2B)(a) of the Act. Having regard to country information, the applicant's personal circumstances, and his particular objections to relocation (CB522 at [51]), the IAA concluded that it was reasonable for the applicant to relocate to Lahore (CB524 at [59]). Accordingly, the IAA found that the applicant did not satisfy the complementary protection criterion (CB524 at [60]).”
Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Authority affirmed the decision under review.
The proceeding before this Court
The applicant was represented before this Court by Mr Angel Aleksov, of counsel.
Mr Aleksov confirmed that he relied on an Amended Application filed on 26 April 2018 as follows:
“1. The IAA conflated the questions under ss 473DD(b)(i) and 473DD(a), and in the result determined the request for it to consider new information upon a legally erroneous footing (see Reasons [10]).
2. The IAA failed to evaluate a submission of substance made to it, being that the applicant’s circumstances were relevantly analogous with a Chartered Accountant who had been killed.
3. The IAA failed to evaluate a submissions of substance, being the applicant’s objection to relocation on the grounds that he would need to travel by road to Quetta to visit his family if returned to Pakistan (see Reasons [55]).
4. The IAA made a finding that is affected by illogicality, irrationality, legal unreasonableness, or an undisclosed error, in that the analysis in paragraph 55 of the Reasons simply does not intelligibly resolve the basis on which the IAA rejected this reason as not rendering relocation unreasonable.
5. The IAA presumed that the applicant should act in a certain way (not travel by road to Quetta) rather than evaluating the legal consequences of the applicant’s likely conduct.
6. The IAA failed to consider whether it would be reasonable for the applicant to remain in Lahore.
7. The IAA failed to consider whether it would be reasonable for the applicant not to travel on the roads between Lahore and Quetta to visit his family.
8. The IAA failed to consider a claim that arose on the materials, being that the applicant would travel on the roads between Lahore and Quetta and be exposed to harm.”
Further, counsel for the applicant sought to rely on a ground identified in his written submissions as follows:
“9. IAA failed lawfully to consider the applicant’s request to admit new information”.
The solicitor for the first respondent did not object to the applicant having leave to rely on Ground 9 and, accordingly, that leave was granted.
Counsel for the applicant referred to an affidavit of the applicant’s solicitor filed 28 January 2020 but informed the Court that it was not in fact relevant to the applicant’s grounds before this Court. Accordingly, the affidavit was not read.
Counsel for the applicant withdrew reliance on Grounds 1 and 2.
Grounds 3 to 8
Counsel for the applicant submitted that Grounds 3 to 8 all related to the Authority’s finding that it was reasonable for the applicant to relocate to Lahore. In particular, counsel for the applicant referred to the following paragraph in the Authority’s decision record:
“55. The applicant claims that he would need to travel by road to visit his family in Quetta. I accept that the applicant would wish to see his family if he returned to Lahore, however, he has shown that he is willing to live apart from his family for an extended period in order to seek protection in Australia, and to continue to live apart from his family in Australia if he was successful in obtaining a temporary protection visa.”
Counsel for the applicant submitted that the Authority purported to respond to the applicant’s objection to relocation to Lahore based on the factual premise that his family would remain living in Quetta, which the Authority accepted is a place where the applicant is exposed to a well-founded fear of persecution. The Authority noted that the applicant would wish to see his family and observed that the applicant has lived apart from them while in Australia, the implication being that he was able to live apart from them and therefore it was reasonable for him to relocate to Lahore despite not being able to see his family because of his fear of travelling by road to Quetta.
Counsel for the applicant submitted that those findings were affected by illogicality, irrationality, legal unreasonableness and do not disclose an intelligible basis for the Authority’s findings.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [28] per French CJ), or where a decision has been made that lacks an “evident and intelligible justification” (see Li at [76]; Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at [234]). The test for unreasonableness is “stringent” and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision-maker (see Li at [30], [113]).
The Authority appeared to find that because the applicant has lived apart from his family for an extended period in Australia and would continue to live apart from his family in Australia if successful in obtaining a protection visa, that it was reasonable for the applicant not to visit his family in Quetta despite acknowledging that he and his family would wish to do so.
The solicitor for the first respondent conceded that the Authority did not make an express finding as to whether the applicant would travel to Quetta to visit his family as claimed. Implicitly, the Authority concluded that the applicant would continue to live apart from his family in Lahore whilst his family remained in Quetta. The solicitor for the first respondent submitted that such a finding was to the effect that the applicant would not travel to Quetta to visit his family. The first respondent submitted that that finding is logical and rational and cannot be said to be a finding that no rational or logical decision-maker could arrive at on the same evidence (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ) and has an evident and intelligible justification and cannot be said to be legally unreasonable (Li at [76] per Hayne, Kiefel and Bell JJ).
The Authority’s finding accepts implicitly that the applicant would not visit his family in Quetta, a situation brought about because of a well-founded fear of persecution in Quetta, and a fear of harm if he travelled by road to Quetta.
Counsel for the applicant submitted that in considering whether relocation to Quetta was reasonable for the applicant, in the sense of practicable, the Authority did not assess whether the applicant would in fact be at risk of harm if he was to travel by road to visit his family in Quetta, even for a short time; or, whether the applicant would face a real risk of significant harm in Quetta, even on a short return in Quetta; and, whether he should be expected to avoid returning to Quetta.
I do not accept that submission. The Authority accepted that the applicant was at risk of persecution in Quetta. It accepted by implication that the applicant may be at risk of harm if travelling by road to Quetta.
Fairly read, the Authority then considered if being deprived of being with his family made it impractical, and therefore unreasonable, for the applicant to relocate to Lahore. The Authority found that it was reasonable for the applicant to live apart from his family because he has shown a willingness to do so by seeking protection in Australia, thereby depriving him of being with his family for a considerable period of time, and, at least, since 2012.
In considering whether it was reasonable in the sense of practicable for the applicant to relocate to Lahore, the respondent’s solicitor referred to the following findings by the Authority:
“57. The applicant is a relatively sophisticated man who has now lived in Australia for around four years. He speaks multiple languages, has a record of continuous employment over a number of years in a large Pakistani bank, and has marketable skills acquired in the course of his work in the bank. I have accepted that that the applicant does not have any family or tribal connections in Lahore. I acknowledge that UNHCR suggests that the availability of traditional support mechanisms is a factor to be taken into account when assessing whether, in an individual's particular circumstances, relocation to a new city in Pakistan would be reasonable. Having considered the applicant's circumstances, I am not satisfied that the lack of these connections would prevent him from establishing himself in Lahore. As discussed, I am satisfied that he will be able to find employment at a similar level to his former role in the bank, that he will be able to access suitable accommodation and that he will not be socially isolated in Lahore.”
Those findings, together with the applicant’s fear of travel to Quetta, involved a consideration of the particular circumstances of the applicant, including the applicant’s objections, and were open to the Authority on the evidence and material before it, and for the reasons it gave (see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [19]-[22]; SZMCD v Minister for Immigration and Citizenship (2009) FCR 415 at [124]; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437).
In my view, the applicant’s willingness to live apart from his family for an extended period in order to seek protection in Australia is a finding that provides an intelligible foundation for the Authority’s finding that it would be reasonable for the applicant to relocate to Lahore.
Accordingly, I find Grounds 3, 4, 5, 6, 7, and 8 are not made out given they essentially make the same complaint in different ways.
Ground 9
Ground 9 asserts that the Authority failed to consider important evidence relevant to the question of whether it should admit new information about national identity cards (“NIC”), or otherwise referred to as computerised national identity cards (CNIC), in its review in accordance with s.473DD of the Act.
Ground 9 arises from the following paragraphs in the Authority’s decision record:
“7. Of the new information submitted, the January 2017 article regarding difficulties accessing national identity cards and the new claim that the applicant would experience persecution as a result, and the December 2016 article on the provisional outcome of a 2016 by-election for a seat for Jhang District in the Punjab Provincial Assembly post-date the delegate's November 2016 decision.
8. The applicant's representative submits that the applicant will face difficulties accessing employment and education and travelling within in Pakistan as a result of the difficulties accessing a national identity card discussed in the ‘Friday Times’ news item. He also suggests that the applicant's children may face difficulties enrolling in school. I note that the applicant possesses a current national identity card that is valid until November 2019. I also note that the applicant speaks Urdu and held a Pakistani passport that expired in 2015. He has not referred to any past difficulty faced by him or members of his family in accessing identity documents. It is not therefore apparent how this new information relates to the applicant's circumstances. In view of this, I am not satisfied that exceptional circumstances exist to justify the consideration of this new claim and information.”
Counsel for the applicant put his submissions as follows:
“At IAA Reasons [7]-[8], the IAA misunderstood the import of the country information and submission made to it as to why it should be considered in the review even though it is new information. The IAA understood the information (at CB 499-504) as being about the difficulties in “accessing” a National Identity Card, and that this was not an issue for the applicant as his NIC was valid until November 2019 (the IAA decision was made on 20 April 2017). But, the information and the argument in support of it (CB 498) was broader and referred to NICs being “blocked” (ie, current NICs not being accepted or honoured). The information also applied equally to obtaining a new NIC and renewing an NIC – and on the IAA’s findings, the applicant was going to have to renew his NIC in 2019 (plainly within the reasonably foreseeable future).”
Counsel for the applicant submits that the Authority was wrong to assert that “it is therefore not apparent how this new information relates to the applicant’s circumstances” and must have failed to consider important evidence relevant to the request to admit new information in the review.
Counsel for the applicant referred to the applicant’s representative’s submission to the Authority in relation to the new information contained in a submission to the Authority, dated 3 February 2017, as follows:
“Recent country information [full report attached to this email] indicates that Hazaras in Pakistan are being subjected to systematic persecution by the Pakistani government as their CNICs are blocked. It has been reported that Hazaras cannot be issued a passport because this CNIC has been marked 'suspected' or 'blocked'. The number of Hazaras are rapidly vanished in the federal and provincial offices. Hazara officials have been either killed or harassed in order to force them to leave their jobs. Merchants, traders and businessmen have been harassed over selling their properties at throwaway prices.
Hazaras are reported not to be able to enrol in schools or continue with their studies because they are told that they do not have valid CNIC. The report specifically refers to the issues faced by Hazaras in Lahore. For those Hazaras without a CNIC, their movement has also become curtailed.
For the above reason, it is submitted that, as a Shia and Hazara from Pakistan, he would be subjected to systematic persecution by the Pakistani government such that his CNIC might be blocked or cancelled, and as a result, he won't be able to find employment, enrol himself or his children at school and/or universities, and that his movement would become curtailed in Quetta, and more importantly is he is to relocate to other parts of Pakistan including Lahore and Islamabad.”
It is common ground that the new information that was contained in the ‘Friday Times’ supports those submissions.
However, the first respondent submits that the circumstances in which the CNIC’s are likely to be blocked or renewed are not the applicant’s circumstances. The solicitor for the first respondent referred to part of the content in the Friday Times article which identified whether a person seeking a CNIC can speak Urdu or not, and that Hazara people cannot speak Urdu fluently. The solicitor for the first respondent also submitted that at the time the Authority made its decision in April 2017, the applicant’s national identity card was valid until November 2019 and that he speaks Urdu. In addition, the solicitor for the first respondent referred to the Authority’s finding that the applicant does not refer to any past difficulty faced by him or members of his family in accessing identity documents. The solicitor for the first respondent submitted as follows:
“39. This ground contends the IAA misunderstood the ‘new information’ provided by the applicant relating to accessing difficulties that he may face obtaining or renewing his CNIC, or having his CNIC blocked. The IAA found that it was ‘not apparent how this new information relates to the applicant's circumstances’ noting the following points (CB513 at [8]):
(a) he already possessed a CNIC which was current and valid until November 2019 (which was a period of more than two years, noting that its decision was dated 20 April 2017);
(b) he speaks Urdu (noting that the January 2017 article identified that an inability to speak Urdu was an impediment in applying for a CNIC);
(c) he held a Pakistani-issued passport which expired in 2015 (noting that the January 2017 article identified difficulties in documentation as an impediment in applying for a CNIC); and
(d) he has not referred to any past difficulty (either personally or involving his family) in accessing identity documents.
40. These factors represent a cogent exploration of the matters raised in the January 2017 article by the IAA, and demonstrate that the IAA turned its mind to whether the factors set out in the January 2017 article were relevant to the applicant. In particular, it was open to the IAA to conclude that the applicant had not been refused a CNIC or had his CNIC cancelled, and had not faced the kind of issues (whether relating to language or documentation) in obtaining or maintaining a CNIC to which the January 2017 article referred.
41. The IAA's reasons provide a logical and rational foundation for its conclusion that the applicant did not face the risks alleged, and as such the Minister submits that it was open to the IAA to conclude that there were not exceptional circumstances to justify considering the new information as required by paragraph 473DD(a) of the Act.”
However, the first respondent’s submissions ignore the fact that the article suggests not just that identity cards may not be renewed, they may also be blocked. The Authority found that part of its reasons for finding that these circumstances were not particular to the applicant was because the applicant had current identity cards until November 2019, being some two and half years from the decision of the Authority. That finding, however, ignores entirely the assertion in the country information provided by the applicant that the identity cards may be blocked. The Authority also does not deal with part of the country information that says that in order to obtain an ID card, a Hazara must pass an oral interview before a NADRA official. That passage is as follows:
“Unlike with the usual procedure of obtaining an ID card, a Hazara has to pass an oral interview before a NADRA official, which sometimes includes questions about Pakistan's history and geography, in order to have their application processed. Otherwise there is a cumbersome process of verification, which takes months and repeated visits to government offices, MPAs and MNAs for the attestation of documents. Often, petty officials demand bribes to attest the documents.”
The first respondent also referred to the following paragraph in the new information as not being relevant to the applicant’s circumstances as the applicant had a passport (albeit one that expired in 2015):
“If any member of your family has been careless about documenting a child’s birthday properly or even if a mistake was entered into the system by NADRA itself previously, the newly updated NADRA software picks up on them. And if a discrepancy is found, the applicant's CNIC is automatically blocked. This, of course, means that as a result the entire family's data is blocked or flagged as ‘suspected’, says the government official.”
I accept the submission of counsel for the applicant that the applicant was going to have to renew his identity card in 2019 and that need was within the reasonably foreseeable future at the time the Authority made its decision.
In the circumstances, I am not satisfied that the Authority turned its mind with sufficient particularity as to whether the factors set out in the new information were relevant to the applicant. In failing to do so, the Authority failed to consider important evidence relevant to the request to admit new information on the review.
Accordingly, the Authority’s finding that exceptional circumstances did not exist to admit that new information is therefore affected by jurisdictional error because it failed lawfully to consider relevant evidence in support of the applicant’s request to admit new information.
The Authority’s decision should be set aside and the matter remitted to the Authority for determination according to law.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 26 February 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Natural Justice
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