CMP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 676
•10 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CMP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 676
File number(s): SYG 1574 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 10 May 2021 Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Pakistan – Authority generally accepting the applicant’s claims of past harm but finding that he could modify his behaviour to avoid future harm – whether the Authority acted unreasonably or constructively failed to exercise its jurisdiction in failing to get further information from the applicant considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 5AAA, 5J, 473CB, 473DB, 473DC, 473FA Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
ASB17 v Minister for Home Affairs (2019) 268 FCR 271
BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189
BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
CRP17 v Minister for Immigration & Anor [2020] FCCA 3041
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
DPI17 v Minister for Home Affairs (2019) 269 FCR 134
Dunsmuir v New Brunswick [2008] 1 SCR 190
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Number of paragraphs: 73 Date of hearing: 7 April 2021 Place: Sydney Counsel for the Applicant: Mr A Silva Solicitors for the Applicant: Bassan Lawyers and Associates Counsel for the Respondents: Mr N Swan Solicitors for the Respondents: Mills Oakley ORDERS
SYG 1574 of 2019 BETWEEN: CMP19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
10 MAY 2021
THE COURT ORDERS THAT:
1.The second amended application dated 25 February 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 29 May 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 25 March 2021.
The applicant is a citizen of Pakistan born in 1980.[1] He first arrived in Australia on 23 March 2013 as an unauthorised maritime arrival.[2] On 2 December 2016, he applied for the visa.[3]
[1] Court Book (CB) 72
[2] CB 239
[3] CB 59-96
In support of his application for the visa, the applicant raised, among other things, the following matters:[4]
(a)he worked as a teacher in a primary school in Location A[5] in Pakistan, from 2004 onwards. In 2010, threatening letters were left at his school (apparently by the Taliban) warning teachers to leave. About four months later, a blast occurred at the school. The applicant continued to teach there and also helped with polio vaccinations at the school. The Taliban continued to leave threatening letters and threatened the applicant;[6]
(b)if he returns to Pakistan, the Taliban will kill the applicant, because they are against the education of women and the giving of vaccines;[7]
(c)he also faces harm on return to Pakistan because he has sought protection in Australia and has resided in the west;[8] and
(d)he cannot relocate to any other areas in Pakistan. This is because, among other things, of the dangers from militants throughout the country, because his prospects of finding employment are remote, because his wife is sick and he cannot afford to pay for medical costs or to cover expenses for his six children, as well as the difficulty in finding housing and the high living costs in cities such as Lahore;[9]
[4] CB 90-93
[5] The location has been anonymised
[6] CB 90-91; 146-147
[7] CB 90
[8] CB 90
[9] CB 147-148
On 1 May 2019, the delegate refused to grant the applicant the visa.[10] On 6 May 2019, the delegate’s decision was referred to the Authority for review.[11] No submissions or new information was sent to the Authority. As noted above, on 29 May 2019 the Authority affirmed the delegate’s decision.[12]
[10] CB 236-256
[11] CB 258-259
[12] CB 270-290
The Authority’s decision
The Authority had regard to the material provided by the Secretary pursuant to s 473CB of the Migration Act 1958 (Cth) (Migration Act) and stated that “no further information has been obtained or received”.[13]
[13] CB 272 [3]-[4]
The Authority accepted that the applicant was a Sunni Muslim of Pashtun ethnicity, from Location A, and that he would return to this area.[14] The Authority accepted that the applicant had worked as a government primary school teacher from about 2004 to about March 2013.[15]
[14] CB 273 [6]
[15] CB 273 [8]
The Authority had concerns over the “evolving” nature of some of the applicant’s evidence which suggested that he had “embellished claims about the extent, nature and reasons for threats relating to his role as a teacher”, including embellishing the circumstances in which the Taliban first threatened the applicant and his school.[16] The Authority was not satisfied that the applicant worked at any co-educational school or that he was, in any manner, associated with implementing co-education to any school, or that any school he worked at became a majority female school.[17] However, it did accept as plausible the applicant’s claim that his school received adverse attention from the Taliban in 2010.[18] Notwithstanding some concerns about the applicant’s evidence, the Authority was prepared to accept that, in about 2010, threatening letters were left at his school by the Taliban warning teachers to quit and that, about four months later (around June 2010), there was a bomb blast at the school, which destroyed it. The Authority also accepted that the applicant continued to teach at the school in UNHCR provided tents.[19] The Authority further accepted the applicant’s claims that he was required to assist in giving polio vaccines, and that while initially unpaid, he later received remuneration for doing so.[20]
[16] CB 274 [10]
[17] CB 275 [12]; 280 [24]
[18] CB 275 [13]
[19] CB 276 [14]; 280 [24]
[20] CB 277 [15]
The Authority found that the threats made (after the bombing) by the Taliban to his school and teachers at his school were “non-specific threats” made generally and were not personal threats to the applicant specifically.[21] It did not accept that the Taliban made a personal threat against the applicant in February 2013[22] or that he was at any point “singled out or targeted”.[23] The Authority did not accept that the applicant was required to change his location to avoid harm in Pakistan or that the Taliban queried his whereabouts.[24] The Authority was satisfied that it was general threats issued to teachers and polio workers around 2013 that led to the applicant deciding to leave Pakistan in March 2013.[25] The Authority also did not accept that the Taliban had any personal interest in the applicant after he left Pakistan.[26]
[21] CB 277-278 [16]-[19]
[22] CB 278 [16]
[23] CB 278 [19]
[24] CB 278 [19]
[25] CB 279 [19]; 280 [24]
[26] CB 279 [20]; 280 [24]
The Authority found that the available country information indicated ongoing interest and continued targeting by the Taliban and other militant groups of teachers, educational facilities and polio workers across Pakistan. The Authority was satisfied that the applicant faces a real chance of serious harm should he choose to return to his role as a teacher and polio worker in Location A.[27] However, the Authority observed that the applicant had not been in his home area or worked as a teacher or in relation to polio work for six years, had not suggested any particular interest in doing so, and had not attempted to engage in similar employment in Australia. The Authority also noted that the applicant had diverse employment experience and skills obtained in both Australia and Pakistan.[28] The Authority was satisfied that the applicant would not resume his teaching or polio work on return to Pakistan.[29] The Authority found that not being employed in teaching or polio associated work would not conflict with a characteristic that was fundamental to the applicant’s identity or conscience, or require him to conceal or alter an innate or immutable characteristic, or otherwise fall within s 5J(3) of the Migration Act. The Authority was satisfied that changing employment was a reasonable step the applicant could take to modify his behaviour.[30]
[27] CB 281 [27]
[28] CB 281 [28]
[29] CB 282 [29]
[30] CB 282 [30]
The Authority was not satisfied that the applicant faces a real chance of harm, including threats to his subsistence, in relation to his ability to access employment and earn a living, including taking into account his wife’s possible medical expenses. The Authority noted that the applicant had made submissions in relation to his wife’s medical condition and treatment but had not provided any documentary evidence of his wife’s condition or other credible evidence to indicate the extent of her costs, or that he could not bear those expenses should he return to Location A.[31] The Authority was also not satisfied that the applicant would be of interest to the Taliban or anyone else on return to Pakistan, on account of any past or future activities.[32]
[31] CB 283 [31]
[32] CB 283 [32]
The Authority was not satisfied that the applicant faced a real chance of any harm due to the broader security situation in Pakistan,[33] or on account of having come to Australia and sought asylum.[34]
[33] CB 284 [33]
[34] CB 284 [34]
The Authority concluded that the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Migration Act.[35] In reliance on its earlier findings, the Authority also did not accept that the applicant faced a real risk of significant harm.[36] The Authority thus affirmed the delegate’s decision.
[35] CB 284 [35]
[36] CB 285-286 [37]-[42]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 26 June 2019. There were seven particularised grounds in that application:
(1)The IAA made jurisdictional error in that having accepted that the applicant would be persecuted should he chose to return to his role as a teacher/polio worker in …, found unreasonably that he would not return to his previous role
Particulars
(a) At [27] the IAA found that:
Given also the past threats and attack I accept were received to the applicant's school, mosque and those known to him including a teacher who was subsequently killed when the applicant arrived to Australia, I am satisfied that the applicant faces a real chance of serious harm including through threats to his life or attempts at his life, should he choose to return to his role as a teacher/polio worker in ….
(b)The applicant was not asked if he intends to return to the role he performed.
(c) Although at [28] the IAA stated:
At the PV interview, the delegate put to the applicant many times that it did not seem that the applicant was ever in a position of any power or influence, that he was not a principal or a leader and that he appeared to be of low influence. Although these concerns related to whether the applicant held a profile of interest to the Taliban in relation to being a teacher, I am satisfied that the applicant had an opportunity to discuss his beliefs on education and polio work
(d) At [29] the IAA held that:
The overall evidence including that outlined above satisfies me that the applicant would not resume his teaching/polio work role on return to Pakistan in the reasonably foreseeable future and that this is for a number of reasons.
(e) At [5] dot point 3 – The Applicant continued teaching at UNCHR-provided tents at the school premises. This shows that he was committed to work as a teacher.
(f) At [6] & [23] the IAA accepted that it is … where the applicant will return if he goes back to Pakistan.
(2)The IAA made jurisdictional error in that it misapprehended and misapplied s5J(3) of the Migration Act
Particulars
(a) The IAA held at [30] that:
… …taking steps to become employed in non-teaching/polio associated work in Pakistan and no longer working in those fields, would conflict with a characteristic that is fundamental to the applicant's identity or conscience, or require him to conceal or alter a religious or political belief, his nationality, country of origin or ethnicity, or an innate or immutable characteristic, or fall within one of the other modifications prohibited by s.5J(3).
(b) Teaching is, an immutable characteristic of the applicant having worked as a teacher 2004 to March 2013 until he left. Thus, it would be contrary to suggest that the applicant should not work as a teacher.
(3)The IAA made jurisdictional error in that it failed to consider the impact of his mental health problems while assessing the credibility issues associated with the Delegate's interview
Particulars
(a) At [7] the IAA accepted that he had some mental health related issues.
(b)At [7] the IAA stated that it listened to the Delegate's interview and the applicant was able to put forth his claims.
(c)However, the IAA did not ask if the mental health problems impeded the applicant from responding to the alleged inconsistencies, which is the most important consideration required by the IAA.
(d) At [23] the IAA held that:
I accept that he is suffering from insomnia, stress and is medicated I am not satisfied he has raised any claims regarding his mental health or that any such claims arise on the evidence and am therefore not satisfied he faces a real chance of any harm in Pakistan on this basis.
(e) At [7] the IAA held that the applicant has not made any protection claims regarding his mental health. His mental health issue is not a claim but part of the evidence explaining difficulties he had with giving evidence on various matters.
(4) The IAA made jurisdictional error in that it was unreasonable for the IAA to draw any adverse conclusion from the arrival interview where only very limited opportunity is given to state the applicant’s claims
Particulars
(a)At [9] the IAA referred to a pattern of evolving evidence linking with the arrival interview.
(b) At [9] the IAA stated that:
I have also had regard to the conduct, nature and brevity of the arrival interview and that its purpose is to collect a range of information including that which is not relevant to the applicant's protection claims.
(c) At [9] the IAA stated that:
The arrival interview evidence is not determinative of the applicant's credibility.
(d)After acknowledging the problems associated with the Arrival Interview it is unreasonable to from adverse credibility finding even partly based on that.
(5)The IAA made jurisdictional error in that it was not open to make the finding that (i) R School was not co-educational and (ii) the applicant was not associated with implementing co-education
Particulars
(a) At [12] the IAA found that:
For all these reasons, I am not satisfied he worked at any co-education school or that he was, in any manner, associated with implementing co-education to any school or that any school he worked at became a majority female school.
(b)Country information supports the fact that the government was focusing on assisting girls in their education. The applicant would have been involved in assisting that objective being a teacher in a school with co-education.
(6)The IAA made jurisdictional error in that it was not open and /or it was unreasonable for the IAA to find the applicant was not personally threatened by the Taliban
Particulars
(a)At [19] the IAA found that it was not satisfied that the applicant was at any point personally singled out or targeted or personally threatened. See also [20] to similar effect.
(b)Having accepted that the applicant was involved in polio vaccination and that Taliban do target individuals, it would have been reasonable that the Taliban target the applicant.
(c) At [24] the IAA held that:
I accept the applicant's claims that the Taliban issued threats in the mosque and towards schools in his area including R School and including pamphlets and similar warnings. I also accept that the last threat he personally knew of was at his local mosque. I am not satisfied that the applicant was at any point personally singled out or targeted or personally threatened.
(7)The IAA made jurisdictional error in that it was unreasonable in making a finding that it was not convinced that the February 2013 incident occurred
Particulars
(a)At [16] the IAA first stated that it found it highly doubtful the claimed February 2013 personal threat to his life was truthful. It then stated at the end that it was not convinced that the incident occurred
(b)However, the IAA accepted that the Taliban issued threats at the mosque. If that was the case it would be surprising that ta personal threat was not issued to someone who goes to the mosque.
(c)The Taliban is notorious for issuing threats to not only all the teachers in a school but also target individual teachers and students. It would have been unbelievable that a teacher who assisted polio vaccination was not personally threatened and that the Taliban was just content issuing threats to the whole school.
(errors in original)
An amended application was filed on 5 November 2019. In that application, the number of grounds was reduced to five:
(1)The IAA made jurisdictional error in that having accepted that the applicant would be persecuted should he chose to return to his role as a teacher/polio worker in …, it found unreasonably that he would not return to his previous role
Particulars
(a)At CB272[5] dot point 3 - The applicant continued teaching at UNCHR-provided tents at the school premises after the school building was bombed. This shows that he was committed to work as a teacher.
(b)At CB273[6] & CB280[23] the IAA accepted that it is … where the applicant will return if he goes back to Pakistan.
(c) At CB281 [27] the IAA found that:
Given also the past threats and attack I accept were received to the applicant's school, mosque and those known to him including a teacher who was subsequently killed when the applicant arrived to Australia, I am satisfied that the applicant faces a real chance of serious harm including through threats to his life or attempts at his life, should he choose to return to his role as a teacher/polio worker in ….
(d)The applicant was not asked if he intends to return to the role he performed.
(e) Although at CB281 [28] the IAA stated:
At the PV interview, the delegate put to the applicant many times that it did not seem that the applicant was ever in a position of any power or influence, that he was not a principal or a leader and that he appeared to be of low influence. Although these concerns related to whether the applicant held a profile of interest to the Taliban in relation to being a teacher, I am satisfied that the applicant had an opportunity to discuss his beliefs on education and polio work
(f) At CB282[29] the IAA held that:
The overall evidence including that outlined above satisfies me that the applicant would not resume his teaching/polio work role on return to Pakistan in the reasonably foreseeable future and that this is for a number of reasons.
(2)The IAA made jurisdictional error in that it misapprehended and misapplied s5J(3) of the Migration Act
Particulars
(a) The IAA held at CB282[30] that:
... ... taking steps to become employed in non-teaching/polio associated work in Pakistan and no longer working in those fields, would conflict with a characteristic that is fundamental to the applicant's identity or conscience, or require him to conceal or alter a religious or political belief, his nationality, country of origin or ethnicity, or an innate or immutable characteristic, or fall within one of the other modifications prohibited by s.5J(3).
(b) Teaching is, an immutable characteristic of the applicant having worked as a teacher 2004 to march 2013 until he left. Thus, it would be contrary to suggest that the applicant should not work as a teacher.
(3)The IAA made jurisdictional error in that it was not open to make the finding that (i) R School was not co-educational and (ii) the applicant was not associated with implementing co-education
Particulars
(a) At CB275[12] the IAA found that:
For all these reasons, I am not satisfied he worked at any co-education school or that he was, in any manner, associated with implementing co-education to any school or that any school he worked at became a majority female school.
(b)Country information supports the fact that the government was focusing on assisting girls in their education. The applicant would have been involved in assisting that objective being a teacher in a school with co-education.
(4)The IAA made jurisdictional error in that it was not open and /or it was unreasonable for the IAA to find the applicant was not personally threatened by the Taliban
Particulars
(a)At CB278[19] the IAA found that it was not satisfied that the applicant was at any point personally singled out or targeted or personally threatened. See also CB279[20] to similar effect.
(b)Having accepted that the applicant was involved in polio vaccination and that Taliban do target individuals, it would have been unthinkable that the Taliban would not target the applicant.
(c) At CB280[24] the IAA held that:
I accept the applicant's claims that the Taliban issued threats in the mosque and towards schools in his area including R School and including pamphlets and similar warnings. I also accept that the last threat he personally knew of was at his local mosque. I am not satisfied that the applicant was at any point personally singled out or targeted or personally threatened.
(5)The IAA made jurisdictional error in that it was unreasonable in making a finding that it was not convinced that the February 2013 incident occurred
Particulars
(a)At CB277[16] the IAA first stated that it found it highly doubtful the claimed February 2013 personal threat to his life was truthful. It then stated at the end that it was not convinced that the incident occurred
(b) However, the IAA accepted that the Taliban issued threats at the mosque. If that was the case it would be surprising that a personal threat was not issued to someone who goes to the mosque.
(c) The Taliban is notorious for issuing threats to not only all the teachers in a school but also target individual teachers and students. It would have been unbelievable that a teacher who assisted polio vaccination was not personally threatened and that the Taliban was just content issuing threats to the whole school.
(errors in original)
At the trial of this matter on 7 April 2021, the applicant relied without objection upon an unfiled second amended application dated 25 February 2021, with a single ground of review:
1.The Authority made jurisdictional error in that it acted unreasonably in the exercise of its discretion, or alternatively, constructively failed to exercise its jurisdiction, in failing to exercise or failing to consider whether to exercise its discretion under s473DC to get information from the applicant or his representative.
Particulars
(i) The jurisdictional error arose because of the Authority’s finding at CB283[31] that the applicant would be able to support himself and his family in [Location A] without engaging in teaching, through alternative employment.
(ii) The information the Authority should have asked for or considered whether to ask for from the applicant is the following:
(a) The medical expenses for his wife;
(b) The costs of living for his big family of 8 people;
(c)The kind of employment (if any) he would be able to get on return to [Location A] and the chances of him getting such employment;
(d) Income (if any) that he could derive from such employment; and
(e) Whether he could subsist in [Location A] without undertaking teaching.
(iii) The Authority did not have the necessary information to make that finding.
(iv) This was an issue which the applicant was not aware of and could not have been aware of, and thus he did not have an opportunity to provide any information or to make any submission.
It is important to bear in mind that the earlier grounds of review have been abandoned in favour of the single ground of review which was pursued at the trial.
The solicitor for the applicant had provided a different version of the second amended application by e-mail to my associate on 6 April 2021 but that was withdrawn later that day.
In addition to the court book filed on 24 September 2019, I have before me as evidence an affidavit by the applicant made on 4 November 2019, to which is annexed a transcript of the interview with the delegate on 18 April 2019.
CONSIDERATION
Applicant’s contentions
The applicant’s case is that the Authority made a jurisdictional error in that it acted unreasonably in the exercise of its discretion, or alternatively, constructively failed to exercise its jurisdiction, in failing to exercise or failing to consider whether to exercise its discretion under s 473DC to get information from the applicant or his representative.
The information the Authority should have asked for, or considered whether to ask for, from the applicant is the following:
(a)the medical expenses for his wife;
(b)the costs of living for his big family of eight people;
(c)the kind of employment (if any) he would be able to get on return to Location A and the chances of him getting such employment;
(d)income (if any) that he could derive from such employment; and
(e)whether he could subsist in Location A without undertaking teaching.
The error on the part of the Authority is said to have arisen because of its finding at [31][37] that the applicant would be able to support himself and his family in Location A without engaging in teaching, through alternative employment. This is said to be because, first, the Authority did not have the necessary information to make that finding and secondly, this was an issue which the applicant was not aware of and could not have been aware of, and thus he did not have an opportunity to provide information or to make any submission.
[37] CB 283
At [27][38] the Authority found that the applicant would be persecuted should he choose to return to his role as a teacher in Location A. At [29] it found that he would not resume this role as a teacher on his return to Pakistan and part of the reason for that would be his fear of harm from Taliban.
[38] CB 281
Flowing from the above finding of the applicant’s fear of harm, the Authority at [30] found that it was satisfied that due to a combination of the factors, changing his employment is a reasonable step the applicant could take to modify his behaviour to avoid a real chance of harm and that it was satisfied that this would not amount to an impermissible modification of behaviour.
Although the Authority did not specifically refer to s 5J(5)(d) or (f) of the Migration Act which refer to “capacity to subsist”, it referred at [28]-[31][39] to some of the factors affecting his “capacity to subsist” and made a finding at [31] that it was not satisfied that he faces a real chance of any harm, including threats to his subsistence in relation to his ability to access employment or earn a living, even taking into account his wife’s possible medical expenses, and having modified his employment in Pakistan.
[39] CB 281-283
In making the finding the Authority referred at [31] to the following matters:
(a)the applicant has referred to his wife being seriously ill and under medical treatment for the past few months;
(b)the high costs of hospitalisation and medical treatment in Pakistan (against the context of relocation submissions); and
(c)he has not provided any documentary evidence of his wife’s current medical condition or requisite treatment or any other credible evidence to indicate the extent of her medical costs or that he would be unable to bear the requisite expenses should he return to Location A (rather than relocate).
Thus, the applicant submits that it is apparent that part of the reason that the Authority was not satisfied there was threat to his subsistence if he modified his employment was because the Authority did not have all the relevant information that was necessary for its consideration.
The applicant submits that the decision of the delegate was made on a different basis than the Authority. The delegate considered whether as a former teacher the applicant will be persecuted.[40] The delegate did not consider what will happen to the applicant if he returns to Pakistan and engages in teaching, which was the main issue that the Authority considered. As a consequence of how the delegate approached the applicant’s case, the delegate did not intentionally do anything at the SHEV[41] interview to alert the applicant to the issue of whether he could financially survive in Location A without engaging in teaching. A consideration of the interview transcript would show that even unintentionally the applicant could not have been alerted to this issue by the delegate which would have assisted the Authority in its consideration of the applicant’s case.
[40] CB 250
[41] Safe Haven Enterprise Visa
The applicant submits that this can be demonstrated by highlighting the transcript beginning at page 42, line 36, where the delegate put to the applicant some issues related to his future employment, but only in the context of relocation. The critical parts are set out as follows:
(a)page 42, lines 41-44:
OFFICER JAMES: ……..Furthermore, based on your education and work history and proven ability to find accommodation and employment in new and unfamiliar locations, it seems reasonable that you could relocate to another part of Pakistan. Also, your language skills. Would you like to make a comment?
(b)page 43, lines 1-4:
INTERPRETER: Financially, I would not be able to support myself there to build up my life, and also about finding jobs, it's not easy. It will be very, very difficult because my job cannot be transferred to anywhere in Pakistan.
(c)page 43, lines 19-26:
OFFICER JAMES: Okay. It seems to me that you could easily transfer your skills to another - your teaching skills, anyway, to another school or related institution in another part of Pakistan. But I am also conscious of the fact that you have worked in other industries and that if you didn't decide to pursue a career in education that you could pursue a career in an industry which you have had prior experience. Okay, so I'm going to give you 10 minutes now to speak to … whilst I'm out of the room. Take this time to make sure we've covered everything you wish to talk about.
(d)page 45, lines 11-16
INTERPRETER: If you are just thinking about my relocation to another part of Pakistan, financially it will be very difficult for me to relocate myself there. It will be so hard to find accommodation and to find a job, and also there is a difference between skills and job transfer, or skill transfer. I might be able to transfer my skill but would be not able to find a job. Job finding is so difficult, unfamiliar with the area and with the people.
There was some reference to an alternative career but not in terms of financial survival in Location A and therefore it could not be said to have alerted the applicant to the relevant issue, because the focus was on relocation.
The applicant submits that the written decision of the delegate does not refer at all to anything in relation to the applicant being able to subsist in Location A if he leaves his career as a teacher and seek alternative employment. Therefore, the applicant would not know that such an issue could be decisive in the decision by the Authority. It would have come as a surprise to the applicant who therefore could not do anything about it.
As to how the Authority dealt with any related issue in its decision, the following passages are said to be critical:[42]
(a)at [28]:
He has not suggested he has attempted to engage in teaching or similar employment while in Australia. Moreover, he has diverse employment experience and skills obtained in both Australia (including in baking/as a process worker, food packing, at a chicken factory, as a Uber Eats driver, and having obtained a forklift licence and a security license), and Pakistan (including as the owner of a convenience store and as a sales person). I am satisfied he has acquired diverse transferable employment skills based on these experiences. … From December 2007 until March 2013, the applicant was engaged in a part-time sales role with a Chinese/Indonesian health and cosmetics company, which he undertook simultaneously with his teaching employment. At the PV interview, asked why he undertook this role in addition to teaching, the applicant referred to the commercial aspect of the business and the benefits of gaining more business.
(b)at [29]:
He has diverse employment experience and skills arising since his time in Pakistan including in Australia and this, along with the evidence on the nature of his past employment and the evidence that he has not solely relied on teaching/polio work for subsistence previously therefore indicates that the applicant would be able to support himself and his family through alternative employment. Such work has not been and is not currently central to his survival nor does the evidence indicate it would be on his return to Pakistan.
(c)at [30]:
…that he has not solely relied on teaching/polio work previously in Pakistan for his subsistence or committed to the role as his sole career path, that the applicant has diverse employment experience and skills which he could rely on to attain alternate employment that would enable him to subsist in Pakistan
(d)at [31]:
In addition to his diverse employment experience and skills, the applicant has completed higher education and demonstrated his ability to access employment including through his village union as claimed (to gain teaching employment in [Location A]) and through using different employment agencies while in Australia.
[42] CB 281-283
In relation to what the Authority stated at [28] about his work with the cosmetics company, the applicant did not give evidence that he was engaged in this from December 2007 to March 2013 and that there was no indication that the income from this work was in any way significant, as the following discussion would demonstrate:[43]
INTERPRETER: Yes, it was not, like, a wide range of activities, it was just maybe some people who need it would used to come, yes.
OFFICER JAMES: How would you get involved in this business in this industry?
INTERPRETER: Yes, it was a person, his brother was an animal doctor. Through him I just, like, got this information and I got involved.
OFFICER JAMES: Okay. Why did you get involved in this industry? Why did you do this job on top of your teaching?
INTERPRETER: It was kind of, like, commercial, just attracting people who - if you just recruit more people, you will get more business, or something like that. So I was entrusted to get this involvement.
[43] Transcript, page 17, lines 1-16
Further, the Authority had referred to another four issues adversely to the applicant at [28]-[31] in addition to the ones discussed above. First, that he has not attempted to engage in teaching in Australia. The applicant submits, however, that the qualification requirement for teachers in Australia is reasonably high and further his lack of language skills required for teaching, the costs of getting teaching qualifications or any required qualifications (university fees at the international rate) would have made it beyond his reach. He had to support a large family of his own, already having paid a people smuggler US$9,000 from his father for his travel[44] which normally would have created an obligation to pay that back to his father or from whoever his father may have borrowed that money from. Secondly, the diverse employment experience the Authority referred adversely to the applicant also highlights the fact in favour of the applicant in that it was not easy for him to get a proper job in any one particular industry in Australia.
[44] CB 15
Thirdly, the applicant submits that the statement by the Authority that he has not solely relied on teaching in the past does not consider to what extent he relied on those sales which, based on the oral evidence, appears to be minimal. Fourthly, even with the higher education (degree) that he had completed, the applicant previously acquired the teaching role through a favour through the village union[45] and it shows that entering into a profession was not that easy.
[45] see CB 828 [29]
Further, the applicant, through his representative, made submissions to the delegate, both at the end of the hearing and then in written submissions, on the financial and other implications of relocation. The representative stated:[46]
In addition to that, major cities in Pakistan, they're very expensive. They're expensive to live in. Since my client does not know anyone in those particular areas - even I was advised and I was instructed by some of my clients that even to rent a house you need references from two people - and since my client does not know anyone he will find it difficult, extremely difficult, even to find himself a shelter let alone finding employment.
In terms of having six children, feeding those in a family, or having a sick wife, you know, access to hospital and all that, and not having suitable employment to find, it would be really unreasonable for my client to relocate in addition to being in danger from the side of the Taliban.
[46] Transcript, page 47, lines 16-26
Thus, the applicant submits that his representative had alerted the Authority broadly about the financial issues facing him in relation to relocation, but it is also relevant for the consideration of his subsistence in Location A if he were not to return to teaching, but it was at a broader level and not in detail as necessary as the Authority ultimately found.
At the SHEV interview the applicant’s representative made the delegate aware of the applicant’s wife’s medical condition and there was an involved discussion about that,[47] but there was no question from the delegate about the scale of the medical costs involved in the treatment of the applicant’s wife.
[47] Transcript, page 3, line 33 to page 5, line 14
The applicant notes that, as stated above, at [31] the Authority had stated that “even taking into account his wife’s possible expenses” it was not satisfied of threats to his subsistence, but it did not state in its decision as to how it took into account the medical expenses while it had no detailed information from the applicant about that. Further, it did not specifically consider his large family of six children,[48] him and his wife and their possible living expenses.
[48] CB 7-9
The applicant submits that, if the Authority did use whatever information it already had to make some estimate of the likely medical costs, likely living costs for the family and likely employment for him and likely income he could earn, then it would have been apparent in its decision, but that was not the case.
Authorities on s 473DC of the Migration Act
The applicant concedes that at the outset, it needs to be stated that most (if not all) of the authorities until now deal with s 473DC in relation to failure of the Authority to invite the applicant for an interview because the delegate relied on the demeanour of the applicant at the SHEV interview to make credibility findings, whereas the Authority made different credibility findings without having the opportunity to observe the applicant give evidence.
In the current case the challenge to the decision of the Authority is not based on its credibility findings. It is essentially based on the failure to consider asking for “vital information” which the Authority deemed relevant but did not have, and which the applicant could have easily provided through a written submission attaching published reports.
The applicant submits however that, as demonstrated below, legal principles have been expressed broadly enough by the courts for them to be applied to the current factual circumstances.
In BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[49] which was decided on 9 November 2020, the appellant complained that, having reached (or perhaps even contemplated reaching) a conclusion that was at odds with what the delegate had concluded, namely, that the appellant had not taught at a school that had received threatening letters and that his claim to that end was untruthful, it was relevantly irrational or illogical for the Authority not to have invited him to give evidence before it decided his application.
[49] [2020] FCAFC 189
The Full Federal Court in BJO18 summed up the legal position on s 473DC relevant to the current case at [175]-[176] with two key points. First, the fast-track statutory regime of Part 7AA does not require the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. Secondly, “there will, of course, be cases where the [Authority] does have to at least consider whether it should exercise the discretion to get new information for which s 473DC of the Act provides; and where its failure to do so might vitiate its review for reasons of legal unreasonableness”. DPI17 v Minister for Home Affairs[50] is said to be a good example; but “such a requirement does not arise merely because the Authority is minded to form a view about an issue that diverges from what the delegate decided”.
[50] (2019) 269 FCR 134
What was decisive in DPI17 was that the delegate has relied on the demeanour of the applicant while giving evidence at the SHEV interview about his sexual assault which resulted in his account being believed, whereas the Authority did not have the opportunity hear that evidence before taking a contrary view of the credibility.
The appellant in BJO18 was not successful. The Court held at [84], that unlike in DPI17 and more recently ABT17 v Minister for Immigration and Border Protection”[51]
…this was not a case in which the delegate’s assessment of the credibility of the appellant’s account was based to a significant extent on the delegate’s perception of the appellant’s demeanour during the visa interview. Nor was the Authority’s adverse assessment of the appellant’s credibility based in a reconsideration of his presentation or demeanour in that interview; it was substantially based in asserted factual inconsistencies in his account.
[51] [2020] HCA 34
In ABT17 the High Court, based on the factual circumstances there, held that the Authority acted unreasonably in not inviting the applicant for an interview. However the Court also set out general principles relevant to the current case.
The High Court stated at [20] that:
Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an "intelligible justification"[52] but also that the Authority comes to that decision through an intelligible decision-making process[53]. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant[54]. (applicant’s emphasis retained)
[52] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 [76]
[53] Li at 375 [105], quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47]
[54] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 236 [49], 249 [97]
In CRP17 v Minister for Immigration & Anor[55] this Court dealt with a similar complaint, that the Authority made a contrary credibility finding without inviting the applicant for an interview. At [42]-[43] I stated that, although the applicant asserted that the Authority fell into error in failing to invite the applicant to an interview, resulting in a conclusion that the Authority did not conduct the review within the bounds of reasonableness, ultimately what the applicant relied upon in the oral argument was whether the Authority acted unreasonably in failing to obtain or invite new information from the applicant (which might have been obtained orally or in writing).
[55] [2020] FCCA 3041
I ultimately held that the Authority acted unreasonably. At [45]-[49] I pointed to several factual matters in favour of the applicant that persuaded me to find for the applicant.
In the current case, the applicant’s argument is not that the applicant should succeed because the applicant in CRP17 succeeded. This is because the Full Federal Court in DPI17 cautioned against that approach when dealing with unreasonableness.
Griffiths and Steward JJ in DPI17 observed at 148 [37] that:
First, legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [47] per Allsop CJ, Robertson and Mortimer JJ and see also SZVFW at [84] per Nettle and Gordon JJ). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases (Singh at [48] and Haq at [32]). It may well be that, for this reason, the appellant made clear that, on the appeal, he did not rely on DFW16. As Thawley J pointed out in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” (DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ). Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error. (applicant’s emphasis retained)
As the High Court held in ABT17, at [20] a question is whether the Authority comes to the decision through an intelligible (able to be understood or comprehensible) decision-making process. The applicant submits that in the current case it was not possible to comprehend how the Authority came to the conclusion that he could subsist in Location A without engaging in teaching, while there was a significant information gap about his financial circumstances.
The applicant submits that in the current case the following circumstances in combination are capable of demonstrating unreasonableness on the part of the Authority:
(a)the applicant did not know that the issue of subsistence in Location A without the applicant resorting to teaching was an issue;
(b)the delegate was not conscious of that issue either during the interview or in his decision;
(c)the Authority stated that it took the medical expenses of the applicant’s wife into consideration while at the same time saying that it did not have any information on that;
(d)the Authority did not refer to the applicant’s big family and show any consciousness of their expenses; and
(e)the only significant employment that the applicant had in Pakistan was teaching over a significant period and that was the applicant’s focus all throughout the SHEV interview and the presentation of his case.
Minister’s contentions
The applicant alleges that the Authority fell into jurisdictional error by failing to exercise, or failing to consider whether to exercise, its discretion under s 473DC to get information from the applicant or his representative. This failure to get, or consider getting, new information is alleged to arise from [31] of the Authority’s reasons, and relates to the applicant’s wife’s medical expenses, the cost of living for his family, the kinds of employment he could obtain and the income from such employment, and whether the applicant could subsist without teaching.[56]
[56] see Particular (ii)
The Minister submits that there is no basis for the Court to infer that the Authority failed to consider exercising its discretion under s 473DC to obtain further information from the applicant. The applicant does not identify any specific evidence upon which he relies to support such an inference. Moreover, at [4], the Authority stated that “no further information has been obtained or received”. The Full Federal Court has held that such a statement suggests that the Authority did turn its mind to whether or not to exercise the power in s 473DC.[57] See also at [28],[58] where the Authority refers to being satisfied that the applicant had the opportunity to discuss his beliefs on education and polio work, which is indicative of the Authority turning its mind to whether the applicant had addressed matters with the delegate and whether or not further information should be obtained. The Minister submits that the applicant thus cannot discharge his onus of establishing that the Authority failed to consider exercising the discretion in s 473DC of the Migration Act, and this aspect of the ground must fail.
[57] ASB17 v Minister for Home Affairs (2019) 268 FCR 271 at [48]-[49]
[58] CB 281
It follows that the applicant must establish that it was legally unreasonable for the Authority not to have obtained further information from the applicant. As Kiefel CJ has said, the test for legal unreasonableness is “necessarily stringent”.[59] The issue for determination is not whether another Authority could or might have exercised its discretion under s 473DC to obtain new information, or whether this Court would have done so. Rather, the question is whether a reasonable Authority could have decided not to seek new information from the applicant. As Allsop CJ stated in Minister for Immigration and Border Protection v Stretton,[60] the question is “whether a decision-maker could reasonably come to the conclusion” reached.[61] If a reasonable decision-maker could have so decided (as the Minister submits the Authority did in this case), there is no legal unreasonableness.
[59] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11]
[60] (2016) 237 FCR 1 at [21]
[61] see also Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] and BJO18 at [173]
Also, the question of legal unreasonableness under Part 7AA must be approached “through the lens of the specific statutory scheme and not through the lens of the principles of natural justice”.[62] Part 7AA is a scheme of “limited review” that is “efficient, quick [and] free of bias” (s 473FA(1)). The “default position” in a Part 7AA review is that it is completed “on the papers”, without accepting or requesting new information.[63] Further, s 473DC(2) provides that the Authority “does not have a duty to get, request or accept, any new information”, whether requested to do so or in any other circumstance.[64]
[62] CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [45]; APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [54]-[55], [60]
[63] see CCQ17 at [48] and s 473DB(1)
[64] CCQ17 at [46]
With these principles in mind, there is said to be nothing legally unreasonable about the Authority not obtaining the “new information” identified by the applicant at Particular (ii). A reasonable and rational Authority could, especially given the nature of a Part 7AA review, have decided not to obtain such information.
At [31],[65] the Authority was not satisfied that the applicant faces a real chance of harm, including threats to his subsistence in relation to his ability to access employment or earn a living, even taking into account his wife’s possible medical expenses and his undertaking different employment in Pakistan (ie not teaching or polio work). In reaching that finding, the Authority referred to the applicant’s diverse employment experience and skills, his completion of higher education and his demonstrated ability to access employment in Pakistan and Australia. In relation to his wife’s medical expenses, it noted that no documentary evidence had been provided of those conditions, or required treatment, or the extent of her medical costs.
[65] CB 283, the paragraph impugned by the applicant
The applicant alleges that the Authority had insufficient information to proceed on the basis that he would be able to obtain alternate employment, sufficient to support him and his family. The Minister contends that that is not so. As the Authority explained at [28]-[30],[66] there was a range of evidence before the delegate and the Authority, provided by the applicant himself, as to his past employment and skillset, both in Pakistan and Australia. Moreover, as the applicant himself identifies, the delegate and the applicant’s representative referred to this topic during the interview with the delegate. For instance, the delegate made the point that the applicant “could pursue a career in an industry which you have had prior experience [in]”.[67] That this might have been raised in the context of a relocation discussion does not change the fact that the substance of the issue was raised with the applicant by the delegate. There is said to have been ample evidence before the Authority to form its view about the applicant’s prospects of employment in another field and there is no basis to conclude that the applicant had not said anything about the matter. Similarly, it is apparent that, as the Authority was satisfied that the applicant could obtain alternate employment, it was satisfied that the applicant would be able to meet basic living expenses, given its finding that he would not face a threat to his subsistence. The Minister submits that it was not legally unreasonable for the Authority not to have sought new information from the applicant upon these issues. As the Full Federal Court explained in DGZ16 v Minister for Immigration and Border Protection,[68] Part 7AA contemplates that the Authority will evaluate the material considered by the delegate for itself. It is not required to notify the applicant that it is considering taking a different view of that material, to notify of specific reservations or difficulties with the applicant’s case, or to provide an opportunity to respond to them.[69]
[66] CB 281-282
[67] Transcript, page 43, lines 23-24
[68] (2018) 258 FCR 551
[69] at [72]-[76]
The applicant also criticises the Authority’s failure to obtain further information about his wife’s medical conditions and the lack of evidence as to the medical costs involved with those. However, as the Authority observed at [31], the applicant did not provide any documentary evidence of his wife’s current medical condition, or required treatment, or credible evidence of the medical costs, or that he could not meet those costs.[70] It is for the applicant to advance sufficiently detailed claims, and supporting evidence, to satisfy the Authority of his case.[71] The Minister submits that this is a case where the applicant simply failed to give sufficient evidence to satisfy the Authority of his claims. That does not mean that the Authority was legally required to seek out further evidence from the applicant, especially given the limited nature of the Part 7AA review. The Authority’s task is to evaluate the material that was before the delegate.[72]
[70] CB 148; see, for example, where the applicant’s agent refers to medical costs, but does not attempt to quantify them or provide any supporting materials; see also the transcript where again the issue is referred to in a general way, but no elaboration or detail is given
[71] see s 5AAA and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]
[72] cf. DGZ16 at [72]
The Minister further submits that, insofar as the applicant alleges that he was not “alerted” to the “issue” discussed by the Authority, this approaches s 473DC through a procedural fairness lens, rather than one of legal unreasonableness. The Full Federal Court has shown that this is the wrong approach.[73]
[73] see DGZ16 at [73]; BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at [34]
The Minister submits that the applicant has not demonstrated that it was legally unreasonable for the Authority not to obtain “new information” from the applicant in relation to the matters discussed at [31] of its reasons.
Resolution
I prefer the Minister’s submissions in relation to the ground of review. This is not a case where the Authority decided the review on an entirely different basis to the delegate, which the applicant could not have anticipated. Neither is it a case where the relevant conclusions reached by the Authority were not open to it on the material before it.
The Authority’s relevant reasoning is that set out from [27]-[31] of its decision record:[74]
The country information including that outlined earlier indicates ongoing interest and continued targeting by the Taliban and other extremist militant groups against teachers, educational facilities and polio workers across Pakistan but particularly in the [Location A] region. The applicant's evidence, and the country information, also indicates the large scale of polio eradication campaigns and this suggests such campaigns would naturally attract public attention. Given also the past threats and attack I accept were received to the applicant's school, mosque and those known to him including a teacher who was subsequently killed when the applicant arrived to Australia, I am satisfied that the applicant faces a real chance of serious harm including through threats to his life or attempts at his life, should he choose to return to his role as a teacher/polio worker in [Location A].
However, the applicant has not been in his area or worked as a teacher or in relation to polio since approximately March 2013, a period of over six years. He has not suggested he has any particular or compelling interest to return to such work. He has not suggested he has attempted to engage in teaching or similar employment while in Australia. Moreover, he has diverse employment experience and skills obtained in both Australia (including in baking/as a process worker, food packing, at a chicken factory, as a Uber Eats driver, and having obtained a forklift licence and a security license), and Pakistan (including as the owner of a convenience store and as a sales person). I am satisfied he has acquired diverse transferable employment skills based on these experiences. He consistently indicated that his participation in the polio vaccinations was forced upon him and that he and other teachers opposed doing this in addition to their teaching role. The applicant only undertook the polio role on four occasions. At the PV interview, the delegate put to the applicant many times that it did not seem that the applicant was ever in a position of any power or influence, that he was not a principal or a leader and that he appeared to be of low influence. Although these concerns related to whether the applicant held a profile of interest to the Taliban in relation to being a teacher, I am satisfied that the applicant had an opportunity to discuss his beliefs on education and polio work. However, apart from his evidence on founding co-education which I have not accepted (and which in any case, lacked in any depth and did not expressly detail any particular beliefs held associated with co-education despite reference to an 'opinion'), he has not claimed any such held beliefs. I have not accepted he was in any way involved in founding co-education or otherwise supporting it or affiliated with it. He has not claimed that he holds any particular beliefs towards being an educator more broadly or polio worker. Nor does a reading of his overall evidence suggest he holds any such beliefs. From December 2007 until March 2013, the applicant was engaged in a part-time sales role with a Chinese/Indonesian health and cosmetics company, which he undertook simultaneously with his teaching employment. At the PV interview, asked why he undertook this role in addition to teaching, the applicant referred to the commercial aspect of the business and the benefits of gaining more business. He stopped his role as a teacher/polio worker by around March 2013 due to a fear of harm and has not continued in related work since then.
In the context of considering the applicant's employment experience, the delegate considered whether the applicant's role as a teacher or in polio work was an immutable characteristic, which is relevant to the assessment of s.5J(3). The overall evidence including that outlined above satisfies me that the applicant would not resume his teaching/polio work role on return to Pakistan in the reasonably foreseeable future and that this is for a number of reasons. Given the continued targeting of teachers/polio workers which the applicant indicated his awareness of and the applicant's decision to stop this employment while in Pakistan due to his fear of harm at that time, I accept that part of the reason he would not resume this role on return to Pakistan would be due to his fear of harm. Moreover, the applicant has not indicated his wish to continue such work or similar work currently in Australia or any attempt to do so while in Australia. Nor does the evidence indicate that he has attempted to acquire further studies or skills while in Australia for six years that would support his return to teaching/polio work or advance his skillset in those roles. The outlined evidence indicates he does not have any particularly strong commitment to being an educator or polio worker. He has diverse employment experience and skills arising since his time in Pakistan including in Australia and this, along with the evidence on the nature of his past employment and the evidence that he has not solely relied on teaching/polio work for subsistence previously therefore indicates that the applicant would be able to support himself and his family through alternative employment. Such work has not been and is not currently central to his survival nor does the evidence indicate it would be on his return to Pakistan. The applicant ceased the role over six years ago and his evidence was that he previously acquired the teaching role through a favour through the village union. His obligation to perform the polio role in the past was premised on his role as a teacher. The evidence does not indicate that the applicant continues to hold any teaching role or that one would become available to him in the reasonably foreseeable future. Considering all of these factors, I find that the applicant would not resume teaching or associated polio work in Pakistan.
For the same above reasons including the lack of any credible claims or evidence that teaching/polio work are fundamental to the applicant, that he has not sought to engage in any similar work or related study in Australia, that he has not solely relied on teaching/polio work previously in Pakistan for his subsistence or committed to the role as his sole career path, that the applicant has diverse employment experience and skills which he could rely on to attain alternate employment that would enable him to subsist in Pakistan and because in any event the evidence does not suggest the role would currently be vacant to him or become available to him in Pakistan in the reasonably foreseeable future, it not apparent that taking steps to become employed in non-teaching/polio associated work in Pakistan and no longer working in those fields, would conflict with a characteristic that is fundamental to the applicant's identity or conscience, or require him to conceal or alter a religious or political belief, his nationality, country of origin or ethnicity, or an innate or immutable characteristic, or fall within one of the other modifications prohibited by s.5J(3). I am satisfied that due to the combination of the factors raised above, changing his employment is a reasonable step the applicant could take to modify his behaviour so as to avoid a real chance of harm and I am also satisfied that this would not amount to an impermissible modification of behaviour under s. 5J(3) of the Act.
In addition to his diverse employment experience and skills, the applicant has completed higher education and demonstrated his ability to access employment including through his village union as claimed (to gain teaching employment in [Location A]) and through using different employment agencies while in Australia. He has referred to his wife being seriously ill and under medical treatment for the past few months, as well as the high costs of hospitalisation and medical treatment in Pakistan (against the context of relocation submissions). He has not provided any documentary evidence of his wife's current medical condition or requisite treatment or any other credible evidence to indicate the extent of her medical costs or that he would be unable to bear the requisite expenses should he return to [Location A] in Pakistan (rather than relocate). For all these reasons, I am also not satisfied that he faces a real chance of any harm including threats to his subsistence in relation to his ability to access employment or earn a living, even taking into account his wife's possible medical expenses, and having modified his employment in Pakistan.
[74] CB 281-283
While the applicant directs his attacks at [31] of the Authority’s reasoning, that needs to be read in the context of the preceding paragraphs. Further, the essential issue was the applicant’s capacity to subsist.
The applicant was on notice from the decision of the delegate,[75] as well as the interview with the delegate, that his work experience in various roles outside of teaching in a variety of industries (shopkeeping, wholesale trading, logistics and distribution and food delivery) in Pakistan and Australia over a period of some 11 years, was an issue of significance. It is true that for the delegate, that experience bore on the delegate’s conclusions concerning the capacity of the applicant to seek alternative employment elsewhere in Pakistan. The Authority deployed the same information to reach a conclusion on the capacity of the applicant to sustain himself and his family while seeking alternative employment in Location A.
[75] CB 250
The applicant was invited to make a submission to the Authority about the delegate’s decision. He provided nothing. In my view, the applicant, having failed to provide detailed information about the burdens of supporting his family, despite having an opportunity to do so, cannot now complain that it was unreasonable for the Authority not to seek further details from him before making its decision.
I conclude that the ground in the second amended application has not been established.
CONCLUSION
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 10 May 2021
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