CQU17 v Minister for Immigration
[2020] FCCA 3144
•15 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQU17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3144 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Pakistan – claim accepted in relation to the applicant’s home area but Authority finding the applicant would be safe in Islamabad and that it would be reasonable for the applicant to relocate there – whether the first finding involved a misapplication of the real chance test and whether the second finding involved a failure to consider evidence considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 473CA, 473FB |
| Cases cited: CID15 v Minister for Immigration [2017] FCA 780 DGZ16 v Minister for Immigration [2018] FCAFC 12 Hossain v Minister for Immigration (2018) 264 CLR 123 SZVJE v Minister for Immigration & Anor [2016] FCCA 594 |
| Applicant: | CQU17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1884 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 November 2020 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended on 8 May 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1884 of 2017
| CQU17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 23 May 2017. 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 parties.
On 28 March 2013 the applicant arrived in Australia by boat and was deemed to be an Unauthorised Maritime Arrival. On 11 April 2016 he was invited to apply for a Safe Haven Enterprise Visa (SHEV).[1]
[1] Court Book (CB) 26
The applicant is a citizen of Pakistan. He claimed to fear harm if returned to Pakistan because of his Shia religion, his Pashtun Turi ethnicity, his tribal identity, the perception that he had worked against the Taliban and because he would be a returnee from a western country. In particular, he claimed that Shia were targeted by groups such as the Taliban and Lashkar-e-Jhangvi in Parachhinar in Upper Kurram Agency, near where he lived in Pakistan. He claimed that in 2008 his brother disappeared while travelling from Peshawar to Parachinar on business, and the applicant thought he was kidnapped by the Taliban. The applicant also claimed that his mother received a phone call from the Taliban in October 2012 warning her that if the applicant did not stop working in his uncle’s grocery shop the Taliban would kidnap and kill him. The applicant claimed to have been involved in meetings with NGOs in Upper Kurram Agency which put him at risk of being killed by the Taliban.
On 7 November 2016 the delegate refused to grant the applicant a visa.[2] The applicant’s matter was referred to the Authority for review under s.473CA of the Migration Act 1958 (Cth) (Migration Act). On 29 November 2016 the applicant sent to the Authority a submission and new information in support of his claims.[3] On 1 May 2017 the Authority sought further information from the applicant.[4] On 16 May 2017 the applicant provided additional material.[5]
[2] CB 131
[3] CB 156
[4] CB 165
[5] CB 169
On 23 May 2017 the Authority affirmed the decision under review.[6] The Authority expressed concerns at [19]-[34] with the applicant’s claims and documentation regarding his identity, family background and employment history. The Authority considered at [38] that the applicant’s claims that the Taliban had threatened him or his mother, were exaggerated. The Authority did not accept at [39] that the applicant in helping his uncle with his clothing shop would have been of any particular adverse interest to the Taliban, and did not accept that the Taliban had threatened him or his mother.
[6] CB 181
However, by reference to country information, the Authority was satisfied at [43]-[56] that there was a real chance of the applicant suffering serious harm as a result of sectarian violence in Upper Kurram Agency. The Authority considered whether the applicant could relocate to a place in Pakistan where he would not face such a risk of harm (noting that s.5J(1)(c) of the Migration Act requires that for a person to have a well-founded fear of persecution for the purposes of the application of that Act, the real chance of persecution must relate to all areas of a receiving country). The Authority concluded at [60]-[69] by reference to country information that the applicant could safely return to Islamabad. The Authority also concluded at [82]-[86] that the applicant did not come within the terms of s.36(2)(aa), and in that respect it expressly considered whether the applicant could reasonably relocate to Islamabad (noting the requirements under s.36(2B)(a)), and it found that he could so relocate.
The current proceedings
These proceedings began with a show cause application filed on 16 June 2017. The matter was initially docketed to Judge Barnes but on 14 March 2019 her Honour transferred the matter to my docket. On 7 May 2020, I gave the applicant the opportunity to file and serve an amended application and additional evidence.
The applicant now relies upon an amended application filed on 8 May 2020. The grounds in that application as amended are:
1. The Authority denied procedural fairness to the Applicant.
Particulars
The existence of Practice Direction 1 dated May 2016 made by the President of the Administrative Appeals Tribunal under s473FB limited the submissions that the Applicant could make to the Authority to no more than five pages, with longer submissions to be returned. The making of the Direction in so far as it purports to limit submissions in this way is beyond the power given in s473FB to make Directions.
2. The Authority erred in the application of the "real chance" and "real risk" tests in considering whether Australia owed protection obligations to the Applicant.
Particulars
The Authority found that the Applicant faced a real chance (at [56]), and a real risk (at [80]) of serious harm from sectarian violence in the Upper Kurram Agency of Pakistan. However, the Authority found that the Applicant was not owed protection obligations because it found that he could safely return to Islamabad (at [69] and [81]).
In concluding that the Applicant could safely return to Islamabad the Authority adopted a relative rather than an objective approach to the assessment of the risk the Applicant would face in Islamabad, contrary to the correct test of a real chance or risk.
3. The Authority failed to take into account all of the evidence before it in finding that it would be reasonable for the Applicant to relocate to Islamabad (at [86]).
Particulars
The Authority (at [64]) doubted that the Applicant could be identified as a Shia Turi by his accent and name because the Applicant had not provided any evidence of that. The Authority had before it materials that clearly suggested that such identification was possible.
In addition to the court book filed on 18 October 2017 I have before me as evidence the affidavit of the applicant’s solicitor, Michael Jones, annexing a copy of the DFAT Thematic Report: Shias in Pakistan dated 15 January 2016 (DFAT Report). It is common ground that this report was referred to by the Authority in its decision.
Both the applicant and the Minister filed pre hearing written submissions and made oral submissions through their representatives at the trial on 18 November 2020.
Consideration
Ground 1
The applicant contends that Practice Direction 1 issued by the President of the Administrative Appeals Tribunal (Tribunal) under s.473FB of the Migration Act was beyond power. The applicant concedes that the ground must fail in light of binding Full Federal Court Authority.[7] The applicant formally submits that that case was wrongly decided.
Ground 2
[7] DGZ16 v Minister for Immigration [2018] FCAFC 12
Applicant’s contentions
The Authority found that the applicant faced a real chance,[8] and a real risk[9] of serious harm from sectarian violence in the Upper Kurram Agency of Pakistan. However, it found that the applicant was not owed protection obligations because he could safely return to Islamabad.[10]
[8] at [56], CB 195
[9] at [80], CB 200
[10] at [69], CB 198 and [81], CB 200
At [57][11] the Authority referred to DFAT reports to the effect that “sectarian violence occurs in all parts of Pakistan, however the type and intensity of sectarian violence varies between and within provinces”, and at [58] that “levels of generalised and sectarian violence are lower in Punjab province than other parts of Pakistan”.
[11] CB 195
At [60], the Authority compared the risk in Rawalpindi and Islamabad, and referred to information suggesting that Islamabad experienced “lower levels of sectarian and other forms of violence” than Rawalpindi.
At [65][12] the Authority again referred to DFAT reports that Islamabad “remains relatively safe for migrant Shia communities”.
[12] CB 197
In CID15 v Minister for Immigration,[13] Moshinksy J considered a factually similar case in which the sole ground of review was that the Authority had adopted a relative rather than objective approach in applying the real chance test in the context of relocation. His Honour stated at [10]:[14]
[…]In my view, on the true construction of the reasons, the Tribunal was comparing the safety of different areas within Pakistan. Putting the matter simply, the Tribunal’s finding was to the effect that certain urban areas were safer than Kurram Agency, rather than that they were safe. Considering the Tribunal’s reasons as a whole, the Tribunal adopted a relative rather than an objective approach in applying the ‘real chance’ test in the context of the relocation issue. This amounted to a jurisdictional error.
[13] [2017] FCA 780
[14] emphasis in original
The Authority's use of comparative terms such as “lower” and “relatively safe” as a basis for its finding in this case that the Applicant could return to Islamabad is said to reveal the same jurisdictional error as was found in CID15.[15]
[15] See also SZVJE v Minister for Immigration & Anor [2016] FCCA 594
Minister’s contentions
The applicant asserts by reference to a number of selected passages from the Authority’s reasons that it applied a “relative” rather than an “objective” test in assessing whether the applicant had a real chance of suffering serious harm in Islamabad. The Minister submits that the argument relies on reading certain findings of the Authority divorced from their context. It is said to be clear from the Authority’s detailed assessment of the conditions in Islamabad that the Authority did not misapprehend the nature of the test it had to apply under s.5J. The Authority commenced its reasons by referring to s.5J at [42]. At [69], in expressing its conclusions, the Authority stated that it was not satisfied there was a real chance of serious harm to the applicant on the basis of his ethnicity and religion if he were to return to Islamabad. The Minister submits that the invocation of the appropriate language of the statute by the Authority points to it applying the correct test. A closer analysis of the Authority’s reasons for its conclusion is said to confirm the Authority did not misunderstand or misapply the test.
For instance, the Authority referred at [61] to objective information concerning the number of Shia Muslims killed in Islamabad as a result of sectarian violence. It referred at [62] to the reporting concerning the targeting of high profile Shias, but took into account the applicant’s lack of profile with the Taliban. At [63] it referred to the large Shia community in Islamabad as providing some protection for the applicant on the basis of his religion. It also referred at [65]-[66] to the absence of evidence to indicate that Shia Turis in Islamabad as having been targeted in attacks, including by the Pakistani Government. At [68] the Authority referred to information concerning the limited number of terrorist incidents in Islamabad. These findings are said to demonstrate the objective assessment by the Authority of the situation in Islamabad, and the risk the applicant, noting his profile, and ethnic and religious profile, might face if he were returned there. The Authority was not satisfied there was a real chance of serious harm to the applicant in Islamabad.
In relation to the Authority’s reference to statistics of violence in the Punjab province as being lower than in other parts of Pakistan at [58], and to information reporting that Islamabad had remained “relatively safe” for migrant Shia communities, these findings are said to be references to the information in the respective DFAT reports. The Minister submits that, in citing those sources directly, the Authority did not deviate from its task that its other findings, and its ultimate conclusion, demonstrate the Authority adhered to. The Minister submits that, properly read, the decision shows the Authority formed the view, for the reasons it gave, that Islamabad was an objectively “safe” place for the applicant to return to. It did not conclude that Islamabad was merely “safer” than other parts of Pakistan. To that end, this matter is said to be distinguishable from CID15.
Resolution
The essential question to resolve in relation to this ground is whether the present case can be distinguished from CID15. I accept the applicant’s submission that the decision of the Tribunal in CID15 bears some similarities with the decision of the Authority in this case. Nevertheless, it is important to view each decision in its context and not take particular passages out of context. The reasons why Moshinsky J found that the Tribunal had fallen into error in CID15 are succinctly stated in his Honour’s reasons from [41]-[48]:
First, the Tribunal's reasons at [49]-[51] need to be read in the context of what the Tribunal said at [42]. This was where the Tribunal introduced the DFAT information concerning Islamabad and Rawalpindi. It is clear that, when the Tribunal referred to "DFAT's assessment" (in [48]) and "DFAT's advice" (in [50]), it was referring to the DFAT information that had been introduced at [42]. The DFAT advice or information described in [42] was in relative terms. In particular:
· in the opening lines of [42], the Tribunal (relying on the DFAT advice set out in the footnote) said that Islamabad and Rawalpindi "reportedly experience lower levels of violence relative to other parts of Pakistan";
· in the second bullet point in [42], the Tribunal (relying on information from DFAT) said that there were options available for members of most ethnic and religious minorities, including Shias, to be able to relocate to "areas of relative safety elsewhere in Pakistan"; and
· in the third bullet point in [42], the Tribunal (relying on information from DFAT) said that many urban centres such as Islamabad offer "a greater degree of state protection".
While the first bullet point in [42], which states that Pakistan is a diverse country and the security situation "varies greatly from place to place", does not necessarily indicate the adoption of a relative approach, the opening lines of [42] and the second and third bullet points in [42] are expressed in relative terms. That is, they involve a comparison between the level of violence, safety or state protection in one place and another.
Secondly, the terms in which the Tribunal expressed its findings in [48] and [49] indicate that it was comparing one area with another:
· In [48], the Tribunal noted DFAT's assessment that the security situation in Islamabad (and Lahore) was "relatively free from politically-motivated, terrorist and sectarian violence". On its face, this finding is expressed in relative terms. This reading is confirmed when regard is had to the opening lines of [42] which state (on the basis of the same DFAT information) that Islamabad reportedly experienced "lower levels of violence relative to other parts of Pakistan".
· In the second sentence of [49], the Tribunal (reflecting the second bullet point in [42]) stated that there were options available for members of most ethnic and religious minorities, including Shias, to be able to relocate to "areas of relative safety elsewhere in Pakistan".
· In the last sentence of [49], the Tribunal (reflecting the third bullet point in [42]) stated that large urban centres such as Islamabad offered "a higher level of state protection".
Thirdly, that the Tribunal was comparing the safety of urban centres with the safety of Kurram Agency is reinforced by the language used in [52]. In the last sentence of this paragraph, the Tribunal again noted DFAT's advice that, "in respect of internal relocation, in many cases there are options for members of most ethnic and religious minorities to relocate to areas of relative safety elsewhere in Pakistan" and that large urban centres such as Lahore and Islamabad offered "a higher level of state protection".
Fourthly, it is important to have regard to the earlier finding of the Tribunal, at [23], that "[c]ountry information shows that Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni groups including the Taliban". This finding was made in relation to Pakistan generally, not just Kurram Agency. In light of this finding, it is improbable that the Tribunal's findings at [48]-[49] were to the effect that the urban areas were safe; it is much more likely that the Tribunal merely found that they were safer than other areas.
Fifthly, to read the Tribunal's reasons at [42], [48], [49] and [52] in this way is consistent with the principles described by the High Court in Wu Shan Liang. This is not a matter of looseness of language or unhappy phrasing. The Tribunal's use of relative words throughout [42], [48], [49] and [52] indicates, as a matter of substance, the nature of the findings that it made.
Sixthly, it is not to the point that [50] of the Tribunal's reasons is not expressed in relative terms. The conclusions in [50] depend on the findings in [48] and [49]. This is made clear by the references in [50] to DFAT's advice, being the same advice relied upon in [48] and [49]. Thus, if the reasoning in [48] and [49] is flawed, so too are the conclusions in [50]. I note for completeness that, at the end of [50], the Tribunal stated that relocation to a large urban centre "may" offer a safe haven. The conditional way in which that conclusion was expressed is consistent with the adoption of a relative rather than an objective approach.
In light of the above matters, I do not accept that the Tribunal was using phrasing such as "relatively" in the sense of 'relatively safe' as opposed to 'absolutely safe' (as concluded by the primary judge) or as meaning 'mostly, albeit not absolutely' (as submitted by the Minister). To the contrary, the matters set out above demonstrate that the Tribunal used words such as "relatively" in [42], [48], [49] and [52] to signify a comparative assessment of the level of violence, the level of safety or the degree of state protection in one place as compared with another.
In the present case, the Authority’s relevant reasoning was as follows at [57]-[69]:[16]
[16] CB 195-198
Pursuant to s.5J(1)(c), in order for the applicant to be found to have a well-founded fear of persecution, the real chance of harm must relate to all areas of Pakistan. DFAT reports that sectarian violence occurs in all parts of Pakistan, however the type and intensity of sectarian violence varies between and within provinces. Notwithstanding this variation, the downward trend of violence since 2013, particularly following the commencement of operation Zarb-eAzb in 2014, is reported to be evident across all provinces.[17]
[17] DFAT, “DFAT Thematic Report – Shias in Pakistan January 2016”, 15 January 2016 CIS38A801265.
DFAT reports that levels of generalised and sectarian violence are lower in Punjab province than other parts of Pakistan. In 2014, 18 sectarian attacks were reported across Punjab province and in the Islamabad Capital Territory, resulting in 21 deaths. According to SATP, a total of 16 Shias died in three attacks across Punjab and the Islamabad Capital Territory in 2015.[18]
[18] Ibid.
Shia Muslims are reported to be dispersed throughout Punjab province.[19] Within the province, militant attacks and sectarian tensions in are reported to be higher in areas where madrassa and militant networks are strongest, and the levels of segregation between Shia and Sunni communities are greater. These areas are reported to include Jhang, Multan and Rahim Yar Khan in southern Punjab, as well as Gujranwala and parts of Rawalpindi in northern Punjab. Sunnis and Shia communities are reported to be generally more integrated in the larger cities.[20]
[19] Ibid.
[20] Ibid.
Islamabad was reported to be a city of almost two million in 2011.[21] DFAT reported in 2016 that Islamabad remained relatively safe for migrant Shia communities.[22] A number of sectarian attacks were reported in Rawalpindi, a city that closely neighbours Islamabad, in 2015.[23] While Rawalpindi is very close to Islamabad, the information before me suggests that the security situations in the two cities are different, with Islamabad experiencing lower levels of sectarian and other forms of violence.[24] DFAT reports that there are numerous police checkpoints along highways leading into Islamabad, and at major intersections and prominent buildings within Islamabad, providing a strong deterrent to militant groups planning attacks in the city. Paramilitary Rangers also continue to patrol streets throughout Islamabad, having been deployed throughout the city in April 2014.[25]
According to SATP, no Shia Muslims were killed as a result of sectarian violence in Islamabad in 2015 or in 2016 to 28 August 2016. In 2014, a Shia man who was a cleric and political leader was shot in Islamabad.[26] DFAT reported that an attempted suicide bomb attack on a Shia imambargah in Islamabad in 2015 was stymied and several of the would-be perpetrators were prosecuted.[27]
DFAT reports that 'high-profile' Shias, including high-profile professionals and political and religious leaders, have been targeted in fatal attacks by Sunni extremist groups.[28] I have not accepted that the applicant was threatened in the past by the Taliban, or that he is of any particular adverse interest to the Taliban or any Sunni extremist group on the basis of his former work in a clothing shop in Parachinar or his limited past association with nongovernment organisations.
The applicant claims that he would be identified in Islamabad by his religious practice and that he would not be able to practice his religion in Islamabad. I accept that the applicant's attendance of Shia mosques or imambargahs and his way of praying may identify him as a Shia Muslim in Islamabad. However, as discussed, sectarian attacks on Shia Muslims in Islamabad are rare. DFAT reports that there is a large Shia community in Islamabad. Pakistan's Constitution provides that every citizen has the right to practice his or her religion, and establishes Islam as the state religion, it does not differentiate between Sunni and Shia Islam. Shia mosques and imambargahs can be found throughout Pakistan, including in Islamabad. I do not accept that there is a real chance of harm to the applicant in Islamabad as a result of his practice of his Shia faith now or for the foreseeable future, or that he would be prevented from practising his Shia faith in Islamabad.
The applicant also claims that he would be easily identified and targeted as a Shia Turi from Parachinar in Islamabad because of his accent, his name, and his place of birth, which will be recorded on his identity card, when he obtains a new card. The applicant speaks Urdu and English, the two national languages of Pakistan, as well as Pashto. Other than the applicant's claims, there is no evidence before me regarding the extent to which different accents in Pakistan may suggest a person's origins. I have some doubts regarding the claim that the applicant's accent would identify him as a Shia Turi in the context of a large city like Islamabad which is reported to be home to mixed religious and ethnic minorities and to offer a degree of anonymity to residents.[29] I have similar reservations regarding the applicant's claim that he may be identified on the basis of his name. The applicant has not provided any evidence in support of the claim that his names are identifiably Turi or Shia. There is no other evidence before me to suggest that either of his names are identifiably Turi or Shia and I note that his names do not appear to refer explicitly to his Turi ethnicity or to exclusively Shia religious figures. I do not accept that his names indicate that he is Turi or Shia.
Even if I accept that the applicant could be identified as a Shia Turi from Kurram Agency on the basis of his accent or his place of birth as recorded on an identity card, there is little evidence before me to suggest that Shia Turis in Islamabad have been targeted in attacks in Islamabad. DFAT reports that Islamabad remains relatively safe for migrant Shia communities and that the Turi community in Islamabad has reported only one attack on Turi migrants in Islamabad in the past four years, an attempted suicide IED attack on a Shia imambargah on 10 August 2013.[30] The would-be suicide bomber in that incident was killed, while the other four perpetrators from Sadda, Kurram Agency were prosecuted. Some Turi migrants in Islamabad have reportedly received unspecified threats from sectarian elements. DFAT reports that kidnappers have historically targeted Ahmadis and, to a lesser extent, wealthy migrants from tribal areas, however, according to Islamabad-based think tanks, there is a declining incidence of kidnapping for ransom incidents in lslamabad.[31] As noted, SATP reported no deaths of Shias as a result of sectarian violence in Islamabad in 2015 or in 2016 to 28 August 2016.
During the TPV interview, the applicant claimed to fear harm from the Pakistani Government, who he said had committed a lot of atrocities against them in the past. From the context of this claim, I understand it to mean that the Pakistani Government has perpetrated atrocities against either Shia Pakistanis or Shia Turis in the past. The applicant did not provide any details of the claimed atrocities during the TPV interview, or mention this claim in his entry interview, TPV application, or the amended claims provided by the applicant's representative after the lodgement of the TPV application. There is no independent evidence before me indicating that the Pakistani Government has targeted Shia Muslims or Shia Turis in violent attacks. There is evidence that the government has made significant efforts to prevent terrorist attacks, including sectarian attacks.[32] On the limited evidence before me, I am not satisfied that there is any chance of harm to the applicant on this basis.
The applicant claims that he faces danger from the Sunni extremist group Islamic State (IS), which he claims has committed a string of beheadings and kidnappings of Shia Muslims. He did not provide any information about these incidents. He does not claim that he or any person he knows has had any contact with IS in the past. DFAT reports that despite occasional media reports of minor militant groups claiming allegiance to IS and arrests of alleged IS members, there is no credible evidence of an active or organised IS presence in Pakistan.[33] DFAT assesses such claims to be rhetorical or aspirational in nature. There is no evidence before me of any attacks perpetrated by IS in Islamabad. I am not satisfied that there is a real chance of harm to the applicant now and for the foreseeable future on this basis in Islamabad.
In terms of the general security situation in Islamabad, the Pakistani Institute for Peace Studies reported three terrorist incidents, resulting in four deaths, in Islamabad in 2015, all of which were said to be sectarian in nature.[34] The Center for Research and Security Studies reported that there were no deaths from any form of sectarian violence in Islamabad in 2015 or 2016, although ten deaths as a result of other violence in lslamab.id were reported in 2015.[35] Islamabad was reported to have remained safe from any major incident of violence in the first quarter of 2016.[36]
Having considered all of the information before me I am not satisfied that there is a real chance of harm to the applicant on the basis of his Turi ethnicity and Shia faith in Islamabad, or as a result of the security situation in Islamabad. I am therefore not satisfied that the real chance of serious harm to the applicant on this basis relates to all parts of Pakistan. I am satisfied that the applicant could safely return to Islamabad.
[21] DFAT, “DFAT Pakistan Country Information Report January 2016”, 15 January 2016, CIS38A801264.
[22] Ibid.
[23] SATP, "Shias killed in Pakistan since 2001", 28 August 2016, CX5A26A6E8837; DFAT, "DFAT Thematic Report - Shias in Pakistan January 2016", 15 January 2016, CIS38A801265.
[24] SATP, "Shias killed in Pakistan since 2001", 28 August 2016, CX5A26A6E8837; DFAT, "DFAT Thematic Report - Shias in Pakistan January 2016", 15 January 2016, CIS38A801265.
[25] DFAT, “DFAT Pakistan Country Information Report January 2016”, 15 January 2016, CIS38A801264.
[26] SATP, "Shias killed in Pakistan since 2001", 28 August 2016.
[27] DFAT, "DFAT Thematic Report - Shias in Pakistan January 2016", 15 January 2016, CIS38A801265.
[28] Ibid.
[29] DFAT, “DFAT Pakistan Country Information Report January 2016”, 15 January 2016, CIS38A801264.
[30] DFAT, "DFAT Thematic Report - Shias in Pakistan January 2016", 15 January 2016, CIS38A801265.
[31] Ibid.
[32] Ibid.
[33] DFAT, “DFAT Pakistan Country Information Report January 2016”, 15 January 2016, CIS38A801264.
[34] EASO, “EASO Country of Origin Information Report: Pakistan Security Situation”, 1 July 2016, CIS38A80121710.
[35] Center for Research and Security Studies (CRSS), "CRSS Quarterly Security Report - Q1, 2015", 2 May 2015, CIS38A8012772; EASO, "EASO Country of Origin Information Report: Pakistan Security Situation", 1 July 2016, CIS38A80121710.
[36] CRSS, “CRSS Quarterly Security Report – Q1, 2016”, 2 May 2016, CIS38A801264.
I accept that the Authority in the present case, like the Tribunal in CID15, referred quite extensively to the DFAT assessments of the relative risk of harm in various places in Pakistan. That DFAT assessment could not be used by the Authority to determine the issue of a risk of harm based simply on that relativistic assessment. It was necessary for the Authority to move beyond the DFAT assessment of relative risk in various places to the Authority’s own objective assessment of a real risk.
In my view, the Authority decision has the following features in it which distinguish it from the decision in CID15. First, at [57] the Authority correctly stated the statutory test which it had to apply. Secondly, although in that paragraph the Authority referred to a national risk of sectarian violence, it noted a downward trend in violence generally since 2013.
Thirdly, although relative assessments appear at [60] and [65], the Authority’s discussion at [59] and [61]-[63] all bear upon an objective assessment of the existence or non existence of a real risk. Importantly, at [63] the Authority stated that sectarian attacks on Shia Muslims in Islamabad are “rare”.
I find that the present case can be distinguished from CID15. Not only did the legislation governing the Authority assessment (s.5J(1)(c) of the Migration Act) require a survey of all parts of Pakistan, the Authority approached that survey not only by reference to the assessments of relative risk derived from the DFAT Report but also based on an objective assessment of the existence of any real risk by reference to other information. It follows, in my view, that while the second ground is strongly arguable, it has not been made out.
Ground 3
At question 96 in his application[37] the applicant stated: "Due to Shia Muslim religious practaces [sic], language, identity card names, tribes names, Pashtun ethnicity we can be identified and targeted easily". Similar claims were made during the course of the case.
[37] CB 61
The Authority[38] doubted that the applicant could be identified as a Shia Turi by his accent and name because the applicant had not provided any evidence of that claim.
[38] at [64], CB 196-197
As already noted, the Authority had before it the DFAT Report.[39] That report states at 3.6[40] that some sources had told DFAT that Turi accents are "easy to distinguish from other Pashtun groups", and at 4.41[41] that Shias are identifiable by their Shia names on their Computerised National Identity Cards.
[39] CB 192, footnote 3
[40] page 6
[41] page 13
The applicant contends that the Authority failed to take into account the evidence that was before it to corroborate the applicant's claim that he could be identified as a Shia Turi in Islamabad and be at greater risk because of that.
I prefer and adopt the submissions of the Minister in relation to the third ground.
The applicant points to two sentences in the DFAT Report that was before the Authority as being evidence that supported the applicant’s claim that he would be identifiable as a Turi Shia by reference to his accent and his name. The Authority doubted whether the applicant would be identified in this way, at [64].
That country information indicated from one source that Turi accents are “easy to distinguish from other Pashtun groups” does not necessarily conflict with the Authority’s doubt of the claim. The Authority was doubtful of this claim specifically with respect to whether the applicant would be identifiable in Islamabad (a large city which the Authority noted was reported to be home to mixed religious and ethnic minorities and to offer a degree of anonymity to residents). The Authority’s reasons were open to it.
In relation to the Authority’s findings concerning the applicant being able to be identified by reference to his name, the Authority observed at [64] that the applicant’s name did not appear to refer explicitly to his Turi ethnicity or to exclusively Shia religious figures. That is, even to the extent that there was information that suggested that a Shia might be identified by their Shia name, the question remains (and it was the question the Authority asked itself), does the applicant have a Shia name? The Authority considered and answered this question.
In any event, even if the Authority overlooked critical evidence concerning the level of risk the applicant might face if returned to Islamabad concerning his identification as a Turi Shia through his accent or his name, the Authority nevertheless rejected the applicant’s claim at [65] that he would be at risk in Islamabad as “there is little evidence before me to suggest that Shia Turis in Islamabad have been targeted in attacks in Islamabad”. The Authority also found at [66] that there was no independent information before it to indicate that the Pakistani Government had targeted Shia Muslims or Shia Turis in violent attacks, but rather there was evidence that the government had made significant efforts to prevent terrorist attacks, including sectarian attacks.
In other words, any error as alleged in the ground cannot have been a material error going to jurisdiction.[42]
[42] Hossain v Minister for Immigration (2018) 264 CLR 123
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 thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 15 December 2020
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