CYE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 498
•5 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 498
File number: SYG 1940 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 5 June 2024 Catchwords: MIGRATION – Immigration Assessment Authority - Safe Haven Enterprise (subclass 790) Visa (“SHEV”) – where the Authority’s decision is a privative clause decision – whether there was an error in the Authority’s findings – no jurisdictional error established – no merit – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36(2B),474 Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3FCS17 v Minister for Home Affairs [2020] FCAFC 68
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220
Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 73 ALJR 584
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of last submission/s: 28 May 2024 Date of hearing: 28 May 2024 Place: Parramatta Counsel for the Applicant: Mr Zipser Solicitor for the Applicant: Adeel Khan Lawyers Counsel for the Respondents: Mr Johnson Solicitor for the Respondents: MinterEllison ORDERS
SYG 1940 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYE19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant is a citizen of the Islamic Republic of Pakistan (“Pakistan”). The applicant first arrived in Australia in June 2013 as an unauthorised maritime arrival.
On 30 November 2016, the applicant applied for a Safe Haven Enterprise (Subclass 790) visa (“SHEV”). The applicant claimed he feared harm upon returning to Pakistan due to his Shia Muslim Yusufzai ethnicity.
On 24 May 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his visa. The delegate accepted that while the applicant faced risk of harm in Quetta, that would not be the case if he were to return to major cities such as Lahore, Karachi or Islamabad. That is, for the purposes of s 36(2) (aa) of the Migration Act 1958 (Cth) (“the Act”), it would be reasonable for the applicant to relocate to those major cities.
The applicant’s matter was referred to the Immigration Assessment Authority (“IAA”) for merits review. On 12 July 2019, the IAA affirmed the decision to refuse the applicant his visa.
The applicant now seeks judicial review of the IAA decision in this Court. For the reasons set out below, the application should be dismissed.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
At paragraph [3] to [17], the Authority set out the material before it, firstly examining new claims before it and whether they should be considered.
The Authority received written submissions and news articles which they regarded as new information as it was not before the delegate of the Minister when the visa refusal decision was made. The Authority assessed some of the newer claims for protection raised in these submissions which relate to the applicant’s relocation to Pakistan and the relevant concerns with each claim. These claims are addressed below.
The applicant claimed he was involved in the Balochistan Shia Conference from 2010 to 2013 as a means of securing Shia areas during Muharram and other religious seasons. The applicant also alleged that he had regular participation at certain events and held ‘strong’ religious beliefs, giving an implication that these events could have been religious gatherings and shrine details however this was not fully detailed. The Authority noted at [5] that despite this new information, there was insufficient detail provided that would assist in the further evaluation of the applicant’s claim.
At [6] the Authority had regard to the claim that the applicant would be kidnapped and harmed by armed groups for ransom money as he would be classed as a returnee from the West, which is “regarded as financially strong”. Further, that Pakistani authorities would consider the applicant an ‘enemy of the state’ if they were aware of his protection visa application. The Authority noted that there was no meaningful detail in support of these claims and the country information available does not support the applicant’s contention.
To further support his argument against relocation, the applicant raised that he has distinct features, an accent associated with people from Quetta and a Persian/Hazara accent that are easily identifiable. At [7], the Authority did not find that these factors were ‘problematic’ for cities outside of Baluchistan’. The applicant claimed that he will be identified as a Yusufzai Shia, and subject to discrimination wherever he goes in Pakistan because of his appearance, accent and religious observance [7]. The Authority found that the applicant did not provide sufficient reasons to warrant a conclusion that he would be identified as Yusufzai Shia.
The applicant put forward that it would be difficult to secure accommodation and employment due to his lack of skills or qualifications. This information however is conflicting with the applicant’s earlier evidence of employment and education experiences in Pakistan or Australia.
The applicant claimed that he suffered from depression, anxiety, and regular panic attacks due to a fear of harm, however the Authority found this was not credible as there was no evidence or further detail in support of the claim.
At [10], the Authority highlighted that the applicant was on notice from the time of the visa interview that the delegate was considering relocation. The applicant was aware that if his application was refused he may not be given the chance to do so and any additional information before the delegate would be considered. The Authority stressed that the applicant did not raise any of the above-mentioned claims at this time. It was not satisfied that any exceptional circumstances existed to justify this information being considered.
The applicant’s claims for protection are set out at paragraph [18]. They are reproduced here:
1.He is of Yusufzai ethnicity and a practising Shia Muslim from Quetta, Balochistan, Pakistan (Quetta).
2.He worked as a mechanic and then as a jewellery wholesaler. The Yusufzai tribe are known to deal in gold and many are in the jewellery trade.
3.While living in Tajik Abad, Quetta, a Sunni dominated area, Shias including Yusufzai Shia retailers known to the applicant, were targeted there and elsewhere in Quetta including an incident in about October 2011 and an incident in February 2012.
4.In April 2012 he moved from Tajik Abad to Sarinamak, Alamdar Road, Quetta, a predominantly Shia area, in search of safer conditions.
5.In about early December 2012 he received a threatening call and the caller told him many details about his jewellery business dealings.
6.Three or four weeks later, also in December 2012, he received a second threatening call and took the second call more seriously such that he informed his family.
7.For the following four months until he departed Pakistan in about May 2013, he stayed at home and performed some outstanding business collecting money owed to him more covertly during the evenings but told retailers he would no longer be bringing them jewellery due to safety concerns.
8.He will be killed by Lashkar-e-Jhangvi (LeJ), the Taliban or Sipah-e-Sahaba Pakistan (SSP) due to his religion, ethnic background, and as a Shia shopkeeper. He also fears from state agents connected to religious extremists and/or militia groups.
9.He is unable to safely or reasonably relocate to another part of Pakistan for various given reasons.
At paragraphs [19] – [33] of the decision, the Authority sets out its factual findings.
At paragraphs [19] – [21], details of the applicant’s religious and ethnic background were considered. It was accepted that the applicant is a national of Pakistan, is a practising Shia Muslim and was born and raised in Quetta. The applicant was identified as being of Pashtun Yusufzai ethnicity and his employment as a self-employed jewellery wholesaler from 2007 onwards in Quetta was also confirmed.
At paragraph [24] of the decision, the Authority noted that the applicant had faced threatening phone calls in 2013 while he resided in Quetta. During the phone call, the caller revealed details about the applicant’s business, the names and numbers of people that he was conducting business with and the times that he travelled to and from work. The Authority noted that the applicant only became serious about these phone calls upon receiving a second threat. The Authority did not find the applicant’s account of other businesses receiving threats as convincing, nor that it “explains his apparent inaction after the first call” (at [26]).
At paragraph [27] of the decision, the Authority did not find it convincing that the applicant engaging in nighttime activities and business would remove the risk the applicant claimed he faced. Rather, that it was consistent with information received that Shia shops were opening later and closing by around 5:00pm to avoid harm.
At paragraph [29], on the whole the Authority was not convinced that the applicant received any threatening phone calls, nor any of the claims that stemmed from those alleged interactions.
At paragraph [30], the Authority did not accept the applicant’s letter received from the President of the Balochistan Shia Conference Quetta claiming that the applicant was a volunteer of the Conference, and thus a target of terrorist organisations due to his involvement. This was because the applicant had not expanded on the contents of the letter and did not outline any incidents in relation to that experience.
At paragraph [31], the Authority encapsulated what is largely the theme across the fact-finding section of the decision and the crux of its findings:
… I am not satisfied the applicant engaged in any particular groups or activities or belonged to any particular Shia community beyond being Yusufzai or that any of these possibilities elevated his profile in any manner or were the cause of any threats or other risks he faced while in Pakistan …
In its refugee assessment, the Authority outlined that a person is a refugee under s 5H(1) of the Act if that person is
… outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it [33].
At paragraph [36], the Authority remained unconvinced that the applicant, as a Yusufzai, was targeted on account of their ethnicity. Therefore, the applicant did not fall into the category of persons who “faces a real chance of any harm in Pakistan on this basis”.
At paragraph [37], the Authority acknowledges the plausibility of the applicant’s fear of persecution in Quetta as a Shia, but also recognised that “the real chance of persecution” did not extend to all areas of Pakistan such as Islamabad, Lahore or Karachi. Additionally, because the Authority did not accept that the applicant was a part of any adverse interest group while in Pakistan, naturally, it could not then accept that the applicant faced a “real chance” of any harm anywhere in Pakistan.
The country information available to the Authority highlighted that the Pakistani government has taken “strong measures to combat the sectarian and other violence” across the country and that there has been “ongoing improvement in security conditions” resulting in a decline of attacks on the Shia population in Islamabad and Karachi (at [38]). The downward trend in attacks on the Shia population across almost a decade, according to the Authority, are inconsistent with the applicant’s claims.
At paragraph [47], the Authority concluded that the applicant has transferrable skills and language skills which would assist in his employment if he returned to Pakistan. Along with his practice of the Dari and Urdu languages, he had improved his English language skills. Further his mechanical and business experience would place him in a position to be able to support himself. The country information was congruent with the applicant’s ability to find employment, indicating that Shias who are not Hazara or Turi, do not face discrimination based on their religious affiliation when seeking employment. Additionally, the applicant was in business in Pakistan meaning that he did have business contacts notwithstanding there was credible evidence to suggest he faced discrimination in his employment during that time period.
At paragraph [49], the Authority made its concluding remarks, including that the applicant could not be deemed to suffer a real chance of persecution upon his return to Pakistan, stating:
Given the improving security situation including declining levels of sectarian violence across Pakistan, the continued implementation of security operations that have contributed to such trends, the secure conditions for Shias in Islamabad and Karachi in recent years, considered together with the applicant’s history, profile and experiences, I am not satisfied that the applicant would, for the reasonably foreseeable future, face a real chance of any harm in Islamabad or Karachi for reasons of his ethnicity, religion, asylum attempt, occupation or due to the broader security conditions or due to the combination of any of these reasons. I am also satisfied he can safely and lawfully access Islamabad or Karachi through their international airports.
Paragraphs [53] – [60] deal with the complementary protection assessment and real risk of significant harm. Here, the nub of the matter was that in accordance with s 36(2B), even if the applicant faced a real risk of significant harm in Quetta, that danger did not extend to other cities such as Islamabad or Karachi. That major city and indeed the capital would be suitable areas of relocation, even for the continuation of his business activity.
Accordingly, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
GROUNDS OF JUDICIAL REVIEW
The two grounds of judicial review now relied upon are set out in an Amended Initiating Application filed on 10 May 2024. There was no opposition from the Minister as to these grounds being relied upon. They are as follows:
(1)That the Authority should have considered the possibility that its findings at [29] could have been incorrect and that the applicant may have received threatening phone calls in 2012. In turn, it was submitted that this would result in an error of the same kind identified in Minister for Immigration v Rajalingam (1999) 93 FCR 220.
(2)That the Authority erred in its findings at [49] and [59] by taking into account the applicant’s submissions made to the Department of Home Affairs (“the Department”) that “he would have no support to settle in another place and support his family” and that the “relocation would not be reasonable in the sense of practicable, taking into account those circumstances”.
THE APPLICANT’S SUBMISSIONS
Ground 1
The applicant submitted that he received threatening phone calls in 2012 and referred to these phone calls in his interview with the delegate in July 2013.
The Authority concluded at [29] of its decision that:
On the evidence, I am not satisfied that the applicant received any threatening phone calls or of any of his claims stemming from this. I am not satisfied that he stopped working four months prior to leaving Pakistan due to any such threats.
It was submitted that the above passage had a cascading effect in becoming the basis for the Authority’s subsequent finding at [49]:
Given the improving security situation ... considered together with the applicant’s history, profile and experiences, I am not satisfied that the applicant would, for the reasonably foreseeable future, face a real chance of any harm in Islamabad or Karachi.
The Authority relied on the reasons of Sackville J in Minister v Rajalingam (1999) 93 FCR 220 (“Rajalingam”), which stated the following:
[60] It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur ... The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
[62] In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant's claimed fear of persecution...
[67] In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued ... Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred ... If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
The applicant submitted that its core complaint vested in Rajalingam at [67] in that:
a “fair reading of the reasons as a whole shows that the [IAA] itself [did not have] “no real doubt”… that [the claimed telephone calls] had not occurred”.
More specifically, it was submitted that:
·At [25], the Authority accepted that there was a “possibility of threats of the nature described by the applicant during that period”;
·The words “significant doubts that the applicant personally ever faced any such threats” (at [25]) were indicative of the Authority’s lack of certainty about the issue. They were not completely rigid phrasings; and
·There remains a difference in “degree of satisfaction” between a decision-maker finding that an event did not occur as contrasted to the decision-maker not merely being “persuaded” or “convinced” that an event occurred.
It was submitted that where a decision-maker was not “persuaded” or “convinced”, they were not sufficiently persuaded that the event did not occur. That is, there was still a real doubt in the decision-maker’s mind that the event may have occurred. Consequently, if the Court were to agree that the Authority should have considered the possibility of its findings being incorrect, then the Authority would have failed to “undertake the required speculation”, which the applicant submitted would constitute a jurisdictional error.
Had the Authority not made such an error, it could have found that there was a real chance that the applicant faced risk of harm from the phone calls, thereby making the Authority’s error material; (see: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12).
Ground 2
The applicant’s second ground pertained to an alleged error in the Authority’s findings with respect to relocation.
The applicant’s claim was that if he were to be relocated, “he would have no support to settle in another place and support his family”, therefore, relocation would be unreasonable. While the Authority considered the applicant’s ability to financial support himself, that consideration did not extend to his family, whereby the applicant is responsible for supporting his wife and two children.
It was submitted that where an applicant is responsible for supporting their family and where they are unable to do so is a “serious form of harm” with respect to s 5J(5)(f) of the Act. The applicant claimed that in overlooking this issue, the Authority committed a jurisdictional error.
On the complementary protection assessment, the applicant submitted that the Authority erred by not addressing whether the applicant would be able to financially support himself and his immediate family.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground 1
On the first ground, the first respondent submitted that Sackville J’s remarks at [63] in Rajalingham should be understood as “an aspect of the obligation to apply correctly principles for determining whether an applicant has a well-founded fear of persecution”. That is, the analysis must be understood in light of the interpretation of well-founded fear in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 73 ALJR 584. Accordingly, Sackville J’s remarks in Rajalingham related to a case where the decision-maker is:
[9] “uncertain as to whether an alleged event occurred, it may be necessary to take into account the possibility” and that “If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.” [Emphasis added.]
With reference to this statement, it was submitted that the Authority, in its reasons at [24] – [29], did not express any uncertainty or hesitation in its conclusions on the applicant’s claims about receiving threatening phone calls.
The Authority’s statement – “I am not satisfied” – should not be interpreted so as to mean that the phone calls did occur. The Authority’s remarks at [29] should be understood to mean that it rejected the applicant’s claims on the phone calls in its entirety. The language which signifies complete rejection here incudes “significant doubts”, “not at all convincing” and “similarly questionable”, which were all statements weaved throughout the Authority’s decision. Therefore, the Authority’s reasons at [29] are unambiguous and there is no error with regard to Rajalingham.
Ground 2
On the second ground, the first respondent submitted that the Authority was not required to consider the matters in ss 5J and 36(2)(a) of the Act because those were elements only to be addressed in reference to complementary protection. This is because s 36(2B) of the Act provides the following:
(2B) However, there is taken not to be a real risk that a non - citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non - citizen to relocate to an area of the country where there would not be a real risk that the non - citizen will suffer significant harm; or
(b) the non - citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non - citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non - citizen personally [18]
(emphasis in original)
The first respondent therefore submitted that the applicant’s submission with regard to relocation should not be accepted because the question related to the practicability of relocation, which was a factor that did not arise in relation to the s 36(2)(a) assessment. That is, the applicant “never claimed that he feared harm on return to any part of Pakistan on the basis that he would be unable to subsist.” Additionally, if the relocation submission was a claim by the applicant that he would be unable to support his family if he was forced to relocate, a claim relating to inability to support one’s family is not an assertion of a claim which constitutes a “serious risk” as per the definition provided in s 5J(5)(f) of the Act.
It was submitted that the applicant’s submissions on complementary protection should be rejected because the Authority clearly referred to the relocation submission at [58] of its reasons.
Ultimately, the Authority’s decision does not suffer from a jurisdictional error and constitutes a privative clause decision pursuant to s 474(1) of the Act.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
In LPDT at [2] – [7], the High Court said the following in relation to jurisdictional error and materiality (citations omitted):
2. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact,] it is "in law ... no decision at all" and is in that sense "void".
3. Because an express or implied condition of a statutory conferral of decision‑making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
4. A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition.] Only by construing the statute so as to understand the limits of the statutory conferral of decision‑making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision‑making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force).
5. Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors.] There are no bright lines to be drawn – "[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute".
6. In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.
7. In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision‑making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non‑compliance.
Ground one is an allegation that the Authority should have considered the possibility it was wrong in its conclusion that the applicant had not received threatening phone calls. In so doing the applicant relies upon the dicta of Sackville J in Rajalingham at [60] – [67]. The Court agrees with the respondent’s submission that what Sackville J opined in Rajalingham was that if the decision maker” is uncertain as to whether an alleged event occurred, it may be necessary to take into account the possibility” that the event did occur.
In this case, a fair reading of the Authority’s decision from [25] to [29] indicates that although at [25] initially ‘not discounting the possibility’ of the phone calls being made, it nonetheless had ‘significant doubts the applicant personally ever faced any such threats or that he ceased employment dur to such threats’.
The Authority then goes on to consider the totality of the evidence before it, noting at [25] that the applicant continued in business after receiving the first alleged call, but moved when he received a less direct and less personal threat. At [26], the Authority found that the applicant’s explanation was not ‘convincing or that it explains his apparent inaction after the first call’. This is expanded upon in [27] with the Authority noting that ‘I am not convinced that engaging in even limited activities at night would remove the claimed risk’. At [28], the Authority finds that “I am not convinced that is he were of any real adverse interest to militant groups or anybody at any time that he would not be located, threatened or harmed during those four months” that the applicant spent in Balochistan.
At [29], the Authority found that it was ‘not satisfied the applicant received any threatening calls or any of his claims stemming from this’. This is a definitive conclusion and does not leave room for doubt. In the Court’s view, the Authority indicated at [25] its initial position, and then went on to consider the evidence. Its conclusion at [29], after considering the evidence, was that the applicant did not receive any threatening calls. In these circumstances no doubt existed in the Authority’s mind such that the alternative position needed to be considered. Ground one has no merit.
Ground two is a complaint that the Authority failed to have regard to his submission that if he were to relocate within Pakistan he would ‘have no support to settle in another place and support his family’. The respondent acknowledges the Authority made no reference to this submission for the purposes of ss 5J and s 36(2)(a) of the Act, however, submits this is not required by reference to ss 5J and s 36(2)(a) of the Act. The Court accept this submission.
The respondent concedes that the Authority was required to consider the reasonableness of relocation pursuant to the complimentary protection provisions in s 36(2B) of the Act, specifically s 36(2B)(a) of the Act which provided that a non-citizen will not be taken to be at real risk of harm if:
(a) It would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm
The Court accepts the respondent’s submission that s 5J(1)(c) of the Act does not require a consideration of the reasonableness of any proposed relocation; (see: FCS17 v Minister for Home Affairs [2020] FCAFC 68 at [78]).
Reasonableness only arises under the complimentary protection provisions. Further, consideration of the issue of reasonableness only arises in relation to the applicant. The applicant’s claim was that he would have no support to settle in another location. and would not be able to support his family. The Court is satisfied that the Authority were not required to consider any issue in relation to the applicant’s capacity to support his family. The reasonableness criteria only relate to the applicant not his family.
A fair reading of [58] – [59] indicates that the Authority did consider the applicant’s submission on relocation. It found he had managed to undertake the difficult journey to Australia, establish himself here and complete further education and new employment. He had transferrable employment skills and had the ability to acquire new employment in Islamabad or Karachi. Further, those cities have support networks to assist with higher living costs, particularly for those with foreign language skills like the applicant.
The Court is satisfied that the Authority’s conclusion at [59] that it would be reasonable for the applicant to relocate, did in fact take account of the applicant’s submission. No jurisdictional error arises. Ground two has no merit.
CONCLUSION
As neither of the two grounds have merit, the matter must be dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 5 June 2024
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