CLS16 v Minister for Immigration
[2018] FCCA 2640
•27 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLS16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2640 |
| Catchwords: MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J(1), 46A, 65, 473CB, 473DA(1), 473DB, 473DC(1), 473DD, 473GA, 473GB |
| Cases cited: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 |
| Applicant: | CLS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 406 of 2016 |
| Judgment of: | Judge Kendall |
| Hearing date: | 27 June 2018 |
| Date of Last Submission: | 27 June 2018 |
| Delivered at: | Perth |
| Delivered on: | 27 June 2018 |
REPRESENTATION
| The Applicant: | In person with the assistance of an interpreter |
| Counsel for the Respondents: | Ms E Tattersall |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 406 of 2016
| CLS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
The applicant is a citizen of Pakistan. He arrived on Christmas Island as an unauthorised maritime arrival on 14 August 2012. On 25 September 2013, the applicant made an invalid application for a Protection Visa. On 21 August 2015, the Department advised the applicant that the Minister had lifted the bar pursuant to s.46A of Migration Act 1958 (Cth) (the “Act”). The applicant was invited to apply for a Temporary Protection (Subclass 785) Visa (“SHEV”).
On 19 November 2015, the applicant applied for a SHEV, claiming to fear harm from militant group Lashkar-e-Jhangvi (LEJ) and Sipah-e-Sahabi Pakistan (SSP). The applicant’s claims were set out in a Statutory Declaration accompanying his invalid Protection Visa application and in a further Statutory Declaration provided with his SHEV application (Court Book 149–155). Those protection claims were accurately summarised by the Minister in written submissions to this Court as follows:
6.1From 2004, he began experiencing situations where his life and the lives of his family and friends were in danger.
6.2In 2009, two people in the shop behind his were targeted and killed.
6.3In August 2009, he was threatened with death if he did not close his shop and also received a threat letter. He closed his shop the day after the incident and worked in another shop.
6.4In 2010 or 2011, two motorbike riders drove past him and shot three Shi’a people in front of him.
6.5He had participated in protests against the Pakistani government.
6.6In 2012, he left Pakistan because the situation was getting worse.
On 18 April 2016 the applicant attended an interview with a delegate of the Minister (the “delegate”). On 23 June 2016, the delegate refused to grant the applicant the SHEV.
On 24 June 2016 the delegate’s decision was referred to the Immigration Assessment Authority (the “Authority”) for review under Part 7AA of the Act.
On 8 August 2016 the Authority affirmed the delegate’s decision.
By application filed on 5 September 2016 the applicant seeks the issue of constitutional writs in relation to a decision of the Authority.
The question for this Court is whether the Authority fell into jurisdictional error in the manner alleged by the applicant in his application for judicial review.
The applicant relies on two grounds of review:
1. The Assessor failed to properly consider all of my claims;
2. The Assessor failed to properly consider all of reasons (sic) why it is not reasonable for me to relocate to Islamabad.
Synopsis
For the reasons set out below, the Court finds that the Authority did not fall into jurisdictional error in the manner alleged by the applicant. Consequently, the application for judicial review is dismissed.
The Court has considerable sympathy for the situation the applicant finds himself in and understands the concerns he has raised today. This Court is bound to interpret the facts and evidence before it as it relates to what the Court has referred to as jurisdictional review. Once this Court analyses whether or not a jurisdictional error has arisen, and determines that it has not arisen, that really is all the Court can do. In the circumstances of this case the Court is unable to assist the applicant.
Evidence before this Court
The Court had before it a Court Book numbering 249 pages. The Court also had written submissions from the Minister dated 5 June 2018.
Unfortunately, as often is the case with unrepresented applicants, particularly applicants who are not in any way legally advised, and who also do not have a strong grasp of the English language, the applicant did not provide written submissions, additional evidence or further particulars in relation to his grounds of review. This is despite having been given an opportunity to do so by a Registrar of this Court. Although this is not something that this Court can address, it should be stated that an applicant of this sort would have been greatly assisted by some sort of legal advice.
Fast Track Applicant
It is important to note that this is what is referred to as a Fast Track Application.
This is relevant because it affects what the Authority can and cannot do and determines, for the judicial review proceedings before this Court, what is and what is not jurisdictional error for the purposes of a review of a decision by the Authority.
Pursuant to s.473DB of the Act, the Authority is required to review a fast track reviewable decision without accepting or requesting new information and without interviewing the referred applicant. However, s.473DC(1) of the Act permits the Authority to access any documents or information that were not before the Minister when the Minister made the decision under s.65 of the Act if the Authority considers they may be relevant. However, the Authority cannot consider this new information unless there are exceptional circumstances to justify considering the new information: s.473DD of the Act.
These provisions provide as follows:
Section 473DC(1)
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
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.
Division 3, Part 7AA of the Act deals with the conduct of reviews by the Authority. Section 473DA(1) of the Act stipulates that this division, together with s.473GA and s.473GB, is taken to be an exhaustive statement of the requirements of natural justice in relation to reviews conducted by that Authority.
The Court highlights s.473DA(1) of the Act, which stipulates that that Division, together with s.473GA and s.473GB, is taken to be an exhaustive statement of the requirements of natural justice in relation to reviews conducted by the Authority. These sections significantly alter the type of natural justice principles that might apply before a body like, for example, the Administrative Appeals Tribunal. It strictly limits what documents will be examined and even more importantly the right to appear.
The Authority’s Decision
The Authority’s decision appears at pages 235 – 248 in the Court Book.
At paragraph 3 in its written decision the Authority indicated that it had had regard to the material referred by the Secretary under s.473CB of the Act and indicated that no further information had been obtained or received. Relevantly, it does not appear that country information other than that reviewed by the Ministerial Delegate was reviewed by the Authority.
At paragraph 4 in its Written Decision the Authority outlined the applicant’s claims as contained in the information referred to it. The Authority summarised these as follows:
·The applicant’s parents fled Afghanistan to Pakistan. The applicant was born In Quetta and is a Pakistani citizen. He does not have Afghan nationality.
·In 2004, the LeJ launched an attacked on Hazara Shias during Muharram. The applicant believes the Pakistani government was involved because the attacks did not stop. From that point onwards, the applicant began experiencing situations where his life and those of his family and friends were in danger. It became dangerous to lead a normal life, attacks started to become a regular occurrence. Hazara people protested the attacks but they kept occurring. The applicant has friends who were killed and others who were present during attacks.
·In August 2009 the leader of the LeJ, Mullana Sher Ali Haldari, was killed. He had issued a fatwa stating that Shias were not Muslims. His supporters blamed Hazaras and carried out a series of revenge attacks the day after the killing.
·At that time, the applicant had a graphic design shop. Two people in the shop behind the applicant’s were killed, as was the owner of a cosmetics shop in the next street. A group of Sher Ali Haidari’s supporters came to the applicant’s shop and threatened to kill him if he did not close it. He received a letter threatening he would be responsible for taking his own life if he opened the shop again. He was also verbally threatened by Sher Ali Haidari’s supporters. The applicant closed his shop and worked for another graphic design shop run by Pashtuns.
·Attacks on Shias continued. On one occasion the applicant witnessed a shooting of three Shia people while travelling from work. There was a bomb blast in a mosque close to the applicant’s house. The applicant’s family in Pakistan are confined to the area where they live and fear for their lives every day.
·The applicant fears harm including physical assault and murder at the hands of the LeJ because of his ethnic origin and religious beliefs. He can be identified as a Hazara by his facial structure and identification documents. He also fears harm in Afghanistan at the hands of the Taliban.
·The Pakistani government is either unwilling or able to prevent the attacks. The applicant has personally protested about the violence, including by participating in rallies and protests with other Hazaras. Attacks continue to occur. Nothing has been done to stop the violence and the applicant believes the Pakistani government is somehow involved in the attacks by supporting the extremist groups.
·The applicant is unable to relocate to another area of Pakistan because the risk of harm extends throughout the whole country. Quetta is predominantly Shia and the government cannot protect the applicant there so could not protect him if he lived elsewhere. The applicant would not be able to take his family to live in Afghanistan as he does not have a right to live there, has no family or support, and the Taliban are active.
This is an accurate overview of the applicant’s claims – referencing the applicant’s Entry Interview (CB 9–29); Statutory Declaration (CB 59) and Statement (CB 149).
As summarised by the Minister in his written submissions at paragraph 7, the Authority accepted the applicant’s factual claims.
… [The Authority] accepted that he was of Hazara ethnicity and Shia religion (CB 237, [5]), that there had been violence against Shias in Quetta, Balochistan (CB 237, [7]) and that the applicant had witnessed incidents of violence targeting Shias (CB 238, [8]). The IAA further accepted that the applicant had his own shop, received threats in the aftermath of the killing of Sher Ali Haidari that were related to his ethnicity and religion and thereafter closed the shop. The IAA also accepted and that (sic) the applicant had attended protests and rallies against the violence experienced by the Hazara Shia community (CB 238, [8]).
At paragraph 11 the Authority indicated that the applicant claimed to fear harm including physical assault and murder at the hands of the LeJ, SSP or other groups on the basis of ethnicity and religion:
11.The applicant claims to fear harm including physical assault and murder at the hands of the LeJ, SSP or other groups on the basis of his ethnicity and religion. Following the threats against him and closure of his shop, the applicant remained in Quetta and while I accept that, as the applicant said at the SHEV interview, he is well-known because he worked in the same area in Quetta for a long time, I am not satisfied that the persons who previously threatened him have any ongoing interest in him, given the lack of any further threats or violence directed at him. I am not satisfied that there is a real chance that he would face harm in connection to those past threats.
Despite the above, the Authority found (at paragraph 12) that there was nonetheless a real chance of the applicant suffering harm in the sectarian violence in Quetta in the reasonably foreseeable future:
12.However, I am satisfied that there is nonetheless a real chance of the applicant suffering harm in the sectarian violence in Quetta in the reasonably foreseeable future. The security situation for Hazara Shias in Quetta is such that Hazaras tend to stay within two enclaves, where they enjoy a greater degree of security, and security forces escort Hazaras travelling to and from their workplaces in Quetta. The US Department of State reports that in 2015, Hazara Shias in Quetta continued to face discrimination and threats of violence and were unable to move freely outside of Quetta’s two Hazara-populated enclaves.’ Notwithstanding the reported decline in violence, DFAT has assessed a moderate level of sectarian violence in Balochlstan, and says that despite a decline in the number of attacks, Hazara Shias remain segregated and are a key target of militant groups. Other sources report numerous attacks on Hazara Shias in public areas in Quetta in 2015.
At paragraph 13 the Authority analysed the country information it had before it from DFAT in relation to sectarian violence in Pakistan. At paragraph 14 the Authority found that on the basis of that country information it accepted that if the applicant returned to Quetta there would be a real chance that the applicant would suffer serious harm in Quetta on account of his race and religion.
At paragraph 15, the Authority indicated that the applicant claimed that he could not rely on the Pakistani government for protection and that he believed that the government was somehow involved in the attacks on Hazaras by supporting the extremist group. The Authority did not accept that claim in its entirety, finding as follows:
15.The applicant has claimed that he cannot rely on the Pakistani government for protection, and believes that the government is somehow involved in the attacks on Hazaras by supporting the extremist groups. I do not accept that the government is complicit in the attacks, in light of information from DFAT that the Pakistani authorities have scrutinised the activities of LeJ and SSP, among other groups, since they were designated as terrorist organisations, and that there have been arrests of prominent militant leaders and activists. DFAT states it is not aware of credible reports of state-based or sponsored violence against the Shia community. However, DFAT does assess that although the authorities are broadly willing to protect Shia communities and instigate various security measures, capacity constraints limit the governments’ abilities to protect the community and the effectiveness of prosecutions. Similarly, the US Department of State reports that police often failed to protect members of religious minorities, including Shias, although there had been improvements. The US Commission on International Religious Freedom also assesses that despite government efforts and positive rulings by the Supreme Court, the government failed to provide adequate protection to targeted groups or to prosecute perpetrators or those calling for violence. As such, I accept that the authorities are unable to provide protection in Quetta, and that there remains a real chance of serious harm.
Overall, the Authority accepted that the Pakistani authorities are unable to provide protection in Quetta and that there remains a real chance of serious harm for the applicant should he return to Quetta.
The Authority then found that, despite the above, for the applicant to have a well-founded fear of persecution within the meaning of s.5J(1) of the Act, the real chance of persecution must relate to all areas of the country – in this case Pakistan. This is an accurate analysis of the jurisprudence.
The Authority indicated that it considered whether the applicant would face a real chance of harm in an area outside of Quetta, specifically Islamabad. The Authority found overall that the applicant was able to return to Islamabad without facing future harm:
17.Islamabad is home to mixed ethnic and religious communities, including a large Shia community and a Hazara community. Numerous police checkpoints along highways leading to Islamabad and within the city provide a strong deterrent to militant groups planning attacks and the streets of the city are patrolled by paramilitary rangers. DFAT assesses that Islamabad is relatively safe for migrant Shia communities. In 2014, there were a total of 21 deaths from sectarian attacks in Punjab and the Islamabad Capital Territory, followed by 16 deaths in 2015, which appear to have taken place in Rawalpindi rather than Islamabad city. The Turi community in Islamabad (another ethnic group of Shia religion) report only one attempted attack in four years, in which one perpetrator was killed and others prosecuted. In the first quarter of 2016, the only major incident of violence in Islamabad was a hand grenade attack on a TV channel office, which injured one. There were otherwise no deaths or injuries from sectarian or other violence.
18.As I have found above, I am not satisfied that the persons who previously threatened the applicant have any ongoing interest in him and am therefore not satisfied that there is a real chance that they would seek to locate him outside Quetta, whether in Islamabad or elsewhere. Considering the above information regarding the situation in Islamabad, while I have taken into account that the applicant would be easily identifiable as a Hazara Shia, I am not satisfied that there is a real chance that he would suffer harm in Islamabad on the basis of his ethnicity or religion.
19.I have accepted that the applicant has protested over the attacks on Hazaras. He does not claim to have suffered any repercussions as a result of his involvement in protests. While I accept that the applicant may again protest, I find the prospect of the applicant being harmed in relation to what would be occasional involvement in protests activities to be remote and am not satisfied that there is a real chance of this occurring. Even considering this political activity together with the applicant’s profile as a Hazara Shia, I am not satisfied that there is a real chance of the applicant being harmed in Islamabad. Nor am I satisfied that the situation in Islamabad is such that the applicant otherwise has a real chance of suffering harm.
At paragraph 20, the Authority indicated that the applicant claims that the risk of harm extends throughout the whole country, stating that as Quetta is predominantly Shia and the government is unable to protect him from persecution in that jurisdiction, it is unlikely that it would be able to protect him elsewhere.
The Authority rejected this assertion, finding that, as it was not satisfied that there is in fact a real chance of harm to the applicant in Islamabad, the question of protection does not arise. This, again, is an accurate analysis of the provisions of the Act.
Overall, the Authority found at paragraph 21 that there is not a real chance that the applicant will suffer persecution in Islamabad.
Relying on its previous findings as noted above, the Authority was satisfied that there was a real risk that the applicant would suffer significant harm in Quetta (paragraph 25). The Authority found, however, that the applicant would not face a real risk of harm in Islamabad (paragraph 27) and that it was reasonable for the applicant to relocate to Islamabad and there was not a real risk he would suffer significant harm should he do so (paragraph 30).
The meaning of jurisdictional error
The relief claimed by the applicant in relation to this matter can only be granted if the Tribunal’s decision is affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth (2003) 2011 CLR 476 at 506.
The onus is on the applicant to establish jurisdictional error.
The Court notes that the applicant was not legally represented and did not have a clear appreciation of what it was this Court could and could not do. The applicant appeared with the assistance of an interpreter. The Court thanks the interpreter for his considerable assistance.
To assist the applicant, the Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. For migration decisions, they most commonly include the following categories:
a)Where the decision maker identifies the wrong issue or asks the wrong question (see Craig v State of South Australia (1995) 39 ALD 193 (Craig) at [198]).
b)Where the decision maker ignores relevant material (see Craig at [198]).
c)Where the decision maker relies on irrelevant material (see Craig at [198]).
d)Where the decision maker fails to follow mandatory procedures (see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 at [207]-[208]).
e)Where the decision maker fails to consider the entirely of an applicant’s claims (or “integers” of the claims) as made (see Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41 at [111]; Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22]).
f)Where the decision maker shows actual or apprehended bias (see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]-[17]).
g)Where the decision is illogical, irrational or unreasonable (see Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] – [28]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44]).
Unrepresented applicants rarely understand language of the sort used above. The applicant was, accordingly, asked to explain what, in his opinion, he felt the Authority “did wrong”. In this context the Court explained that the Court could not undertake “merits review” – meaning that the Court cannot simply look at the evidence before the Authority, come to a different conclusion and give the applicant the visa he seeks. The applicant’s answers are noted below.
Did the Tribunal fall into jurisdictional error?
As explained above, in his application for review the applicant seeks review of the Authority’s decision on the following two grounds:
1. The Assessor failed to properly consider all of my claims;
2. The Assessor failed to properly consider all of reasons (sic) why it is not reasonable for me to relocate to Islamabad.
Each of the applicant’s two grounds of review are analysed in turn below.
Ground 1
The Assessor failed to properly consider all of my claims
In relation to Ground 1 the Minister contended as follows in his written submissions:
13.With respect to ground one, the applicant has not particularised, and the first respondent has not identified, any claims made by the applicant that were not considered by the IAA. The decision record shows that the IAA set out the applicant’s claims (CB 236, [4]) and the relevant legal framework under the Act for assessing those claims (see CB 238, [9]-[10]]; CB 241, [23]-[24]). The first respondent submits that with reference to relevant country information (see CB 329, [12]-[13]; CB 239-240, [15]; CB 240, [17]; CB 242, [28]-[29]) the IAA then gave “genuine” consideration to the applicant’s claims and made findings that were open to it, for the reasons it gave. For these reasons, the first respondent submits that ground one should be dismissed.
The Court asked the applicant to explain what he means by Ground 1. His response did not indicate a concern with the claims per se but with the conclusion drawn by the Authority and the way it used the evidence before it. He said, in effect, that the Authority did not look at relevant evidence and, in particular, country reports that show that he would be harmed if returned anywhere in Pakistan.
The Court agrees with the Minister’s submission that there is no evidence that the Authority did not assess all of the applicant’s claims. It did so diligently and in detail.
Nor can it be said that the Authority failed to look at relevant information. To the extent that the applicant is concerned with the use of country information, I note the summary of Judge Wilson in DV117 v Minister for Immigration & Border Protection & Anor [2018] FCCA 241 at paragraph 39 as follows:
a) the accuracy of country information is a matter for the Tribunal, not a court, because a court would be engaging in an impermissible merits review if it made its own assessment of country information, a proposition made good by the Full Court of the Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, and see also my observations in AUV15 v Minister for Immigration and Border Protection [2017] FCCA 1951;
b) the choice and interpretation of country information is a factual matter for the Tribunal alone, as was held by Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545 and in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419;
c) the court cannot review the merits of the Tribunal’s decision in that regard, as was held in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259;
d) there is no error of law in the Tribunal making a wrong finding of fact, as was held in Abebe v Commonwealth of Australia (1999) 197 CLR 510 and in SZIJG v Minister for Immigration and Citizenship [2007] FCA 1652.
The applicant noted, in particular, his easily identifiable features and the cost of living in Islamabad. Having reviewed the Authority’s decision it is noted that the Authority did assess the risk of harm in Islamabad on the basis of ethnicity (CB 240 at [18]) and the likelihood that the applicant would be able to work and survive financially in Islamabad (CB 242 at [29]). It did so within the context of the country information before it and its conclusions were entirely open to it having assessed that country information.
There is no evidence here that the Authority failed to look at relevant information or consider all of the applicant‘s claims within the context of the information and evidence before it. The applicant has not identified any information that was not assessed but which should have been or evidence that was assessed but which should not have been.
Ground 1, accordingly, fails
Ground 2
The Assessor failed to properly consider all of reasons (sic) why it is not reasonable for me to relocate to Islamabad.
In relation to Ground 2 the Minister contended as follows at paragraphs 14–17 in his submissions:
14.With respect to ground two, the applicant has again failed to particularise, any reasons put forward in relation to the reasonableness of relocation that were not considered by the IAA. The applicant claimed that he could not relocate within Pakistan as his risk of harm extended throughout the whole country (CB 154, [45]). The applicant claimed there were only two areas in Quetta where Hazaras were relatively safe and if they went outside those areas they would be killed (CB 207, [67]). The IAA considered the applicant’s claim that no place in Pakistan was safe in considering the reasonableness of relocation (CB 242, [27]) and made findings open to it on the available evidence.
15.The first respondent otherwise submits that no error is identified from the IAA’s consideration of the reasonableness of relocation.
16.The question of the “reasonableness” of the proposed relocation does not arise in the context of refugee claims given the codified definition of “well-founded fear of persecution” in s 5J of the Act: see DFE16 v Minister for Immigration and Border Protection [2017] FCCA 308 at [26]; EDA16 v Minister for Immigration and Border Protection [2017] FCCA 768 at [42]; cf BZN16 v Minister for Immigration and Border Protection [2018] FCA 54 at [15]. It is accepted, however, that the issue does arise in the context of the applicant’s claim for complementary protection.
17.Furthermore, in finding that it was reasonable for the applicant to relocate to Islamabad, the IAA had regard to the applicant’s particular circumstances and the specific objections raised (CB 242, [27]-[29]): SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415; MZANX v Minister for Immigration & Border Protection [2017] FCA 307 at [55]; [60]–[61]; [70]. The IAA’s relocation findings were open to it, and that being so, no jurisdictional error arises. Ultimately, the applicant’s complaints rise no higher than emphatic disagreement with the IAA’s conclusions.
In relation to Ground 2 the applicant indicated that his use of the word “unreasonable” here refers to the reasonableness of the Authority’s decision and the conclusions drawn by the Authority.
On one level it appears that what the applicant seeks here is merits review. In effect he would like the Court to review the evidence before the Authority, come to a different conclusion and give him the visa he seeks. This would be, as rightly pointed out by the Minister, an impermissible merits review and is not something that the Court can undertake: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
It is also arguable that what the applicant is saying is that if you look at the real situation on the ground in Pakistan there is simply no way anyone could conclude that he is able to return to Pakistan – Islamabad in particular. The applicant noted the continuing violence throughout Pakistan, how easily he can be identified ethnically and also the cost of living in Pakistan.
What the applicant is arguing here is that the Tribunal’s decision is illogical, arbitrary or irrational because the evidence to before it does not support its ultimate conclusions.
In this regard, the Court is guided by the decision in SZMDS.
In SZMDS, Crennan and Bell JJ set out the test for irrationality or illogicality at [131] as follows:
the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
SZMDS sets a very high threshold for findings of irrationality or illogically (and see also Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [34]-[36]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 1 at [30]).
Crennan and Bell JJ added in SZMDS at [135] that:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
Here, it cannot be said that only one conclusion was open to the Authority, namely to accept the applicant’s claims. Nor can it be said that the impugned finding was not open to the decision maker.
Here, the Authority’s decision was open to it. It was not arbitrary or irrational. It correctly identified the applicant’s claims, was guided by the law relevant to determinations of this sort and forensically addressed all of the evidence before it within the context of the applicant’s claims, the relevant country information and the relevant sections of the Act that apply in relation to a fast track applicant. The finding that the applicant could reside in Islamabad without harm was, on the basis of the evidence before it, open to the Authority.
For the reasons outlined above the applicant’s application for judicial review is dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 18 September 2018
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