Ebv17 v Minister for Immigration - [2019] FCCA 1216

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBV17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1216

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Pakistan – Authority accepting that the applicant faced a risk of harm in his home region but found that not all of Pakistan was unsafe and that the applicant could relocate – whether the Authority failed to consider an integer of a claim or erred in assessing the reasonableness of relocation or failed to comply with s.473DB of the Migration Act 1958 (Cth) considered – impact of PAM Guidelines on that issue considered – issue of a non disclosure certificate identified but not considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473DF, 473DE, 473FA, 473GA, 473GB

Cases cited:

Applicant WAEE v Minister for Immigration [2003] FCAFC 184

BBO16vMinister for Immigration [2017] FCA 212

BVD17 v Minister for immigration [2019] HCA 34

CRI028 v Republic of Nauru (2018) 356 ALR 50

DFE16 v Minister for Immigration & Anor [2017] FCCA 308

DGZ16 v Minister for Immigration [2018] FCAFC 12

Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3

Minister for Immigration v SZQRB (2013) 210 FCR 505

Minister for Immigration v SZSCA (2014) 254 CLR 317

MZYXS v Minister for Immigration [2013] FCA 614

MZZFM v Minister for Immigration (2014) 144 ALD 316

Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600

SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63

SZBGC v Minister for Immigration [2005] FCA 1168

SZMPF v Minister for Immigration [2009] FCA 908

SZVRA v Minister for Immigration [2017] FCA 121

Applicant:

EBV17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2821 of 2017

Judgment of:

Judge Driver

Hearing date:

8 May 2019

Date of Last Submission:

11 June 2019

Delivered at:

Sydney

Delivered on:

5 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr S Tully

Solicitors for the Applicant:

Ryburn Solicitors

Solicitors for the Respondents:

Ms S Given of HWL Ebsworth

ORDERS

The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 12 September 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2821 of 2017

EBV17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL 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 1 August 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.
The applicant, a male citizen of Pakistan, arrived in Australia at Christmas Island on 11 November 2012.[1] On 4 March 2016, the applicant applied for a Safe Haven Enterprise Visa (SHEV).[2]
[1] Court Book (CB) 21
[2] CB 1
By statutory declaration declared on 3 March 2016, the applicant claimed to be of Hazara ethnicity and Shia religion.[3] He claimed a fear of persecution from the Lashkar-e-Jhangvi (LeJ), Tehreek-e Taliban Pakistan (TTP) and other Sunni extremists[4] by reason of being an identifiable Hazara Shia[5] but also for his actual or imputed political opinion as an employee or civil servant of the Pakistani government.[6]
[3] CB 61-64; 61 at [4]
[4] at [6]
[5] at [18]
[6] at [6], [19]
The applicant had been employed for four years as a catering or mess supervisor at an Infantry School in Quetta, Pakistan.[7] He lodged an original military identity card[8] and a service certificate[9] with his protection visa application.[10]
[7] at [7]; see also at CB 146
[8] CB 67-68
[9] CB 69
[10] CB 120
Among other claims, he claimed to have received two death threats[11] which prompted him to leave Pakistan after the police appeared to take no action.[12]
[11] at [10]-[11]
[12] at [13]
On 6 December 2016, the delegate refused to grant the visa.[13]
[13] CB 115

Authority decision

The Authority summarised the applicant's claims at [29]. [14] Among other things, he claimed that:
[14] CB 384
a)he is a Shia Hazara from Quetta, Balochistan province, Pakistan;
b)his mother, sister, aunt, uncle and his aunt's uncle's children live together in his former home in Quetta;
c)he was employed as a catering supervisor in Quetta's Infantry School from 2008 until shortly before his departure from Pakistan in late 2012. He was responsible for ordering catering supplies from local Sunni Pashtun vendors. He was the only Shia Hazara employee;
d)six months before he left Pakistan he received a threatening phone call from a person who identified himself as a member of LeJ. The caller referred to the applicant's Shia Hazara identity and his work as an army employee. He said the applicant would be killed if he was seen around. The applicant thought this call was a prank and did not take it seriously;
e)two months before leaving Pakistan the applicant received a second phone call. The caller used abusive language to refer to the applicant's race and religion and referred to his employment. The applicant took this threat seriously and took two months leave and made arrangements to leave Pakistan;
f)the applicant previously undertook voluntary work for the "Noor Welfare Society" in Quetta. He joined the group in 2011 or 2012 and assisted with the provision of education materials to economically disadvantaged people, particularly Hazaras, in Quetta;
g)some of the applicant's friends were killed in an explosion in Quetta shortly after his departure from Pakistan;
h)the applicant fears being killed by the Taliban, LeJ and other Sunni extremist groups. These groups will target him because of his Shia Hazara identity and/or his status as an employee of the Pakistani government or army;
i)the applicant can be easily identified as Hazara and Shia due to his physical appearance, his Shia religious practices, and the Quetta address recorded on his identity documents. Hazaras are targeted throughout Pakistan so he would not be safe anywhere in Pakistan; and
j)the government cannot protect him.
The Authority accepted that:
a)the applicant is a Shia Muslim of Hazara ethnicity and a national of Pakistan;[15]
b)the applicant's claims in relation to the nature of his employment at the infantry school;[16]
c)the applicant was involved with the "Noor Welfare Society", however found that he was not of any particular adverse interest to extremist Sunni groups as a result of his association with the group at the time of his departure from Pakistan;[17]
d)there is a real chance of serious harm to the applicant in the form of possible loss of life or serious injury as a result of sectarian attacks or the security situation in Balochistan;[18]
e)the applicant would be readily identifiable as a Hazara Shia in Lahore;[19]
f)violent incidents occur in Lahore from time to time, however was not satisfied that there is a real chance of harm to the applicant in Lahore on the basis of his Hazara ethnicity and Shia faith, or as a result of the security situation there;[20]
g)if the applicant returns to Pakistan he may be questioned by the Federal Investigating Agency (FIA), however was not satisfied that any brief period of detention for questioning would amount to serious harm;[21]
h)there is a real risk that the applicant will suffer serious harm amounting to significant harm in Balochistan;[22] and
i)the applicant does not have any family or other connections in Lahore, and that he would wish to see his family in Quetta.[23]
[15] CB 385 at [30]
[16] CB 385 at [33]
[17] CB 386 at [34]
[18] CB 390 at [53]
[19] CB 392 at [63]
[20] CB 393 at [68]
[21] CB 394 at [71]
[22] CB 395 at [77]
[23] CB 395 to 397 at [80], [85] and [89]
The Authority did not accept that:
a)the applicant received two threatening phone calls prior to his departure from Pakistan, noting that the applicant did not refer to any threatening phone calls in his entry interview, or to any threats or fears related to his employment.[24] The Authority noted that, having reviewed the recording of the applicant's entry interview, when the applicant was asked about his reasons for leaving Pakistan he responded in general terms, and when the interviewing officer sought further details in a series of questions, the applicant did not mention the phone calls.[25] The Authority did not accept that the applicant did not mention the threats during the entry interview because he was "not asked", nor did it accept that he did not mention any fears and threats related to his employment by the army or government for this reason;[26]
b)having not accepted that the applicant had received any threatening phone calls or threats relating to his employment, the applicant left Pakistan because of those threats, nor that his departure was as a result of any fears related to his employment, nor that he was of any particular adverse interest, other than as a Shia Hazara, to the LeJ, any other extremist Sunni group, or any other group, at the time of his departure from Pakistan, including on the basis of his employment;[27]
c)the applicant would be of any adverse interest to extremist Sunni groups now or for the foreseeable future on the basis of his past employment, including as a Shia Hazara former catering supervisor for the Pakistani army, or on the basis of his employment history, education, ethnicity and other characteristics;[28]
d)the real chance of serious harm to the applicant on the basis of his Hazara ethnicity and Shia faith, or as a result of the security situation relates to all parts of Pakistan;[29]
e)there is a real chance of harm to the applicant now or in the foreseeable future, including from Sunni extremist groups or the Pakistani authorities, as an unsuccessful applicant for protection who would be returning after living in Australia;[30]
f)any combination of the applicant's circumstances would combine to expose the applicant to a real chance of harm in Lahore;[31]
g)the applicant would face a real risk of significant harm in Lahore, or that the level of instability or lack of safety in Lahore is such that it would be unreasonable for the applicant to move there;[32] and
h)the applicant will encounter any difficulty accessing employment in Lahore, or that his family circumstances would make it unreasonable for him to relocate there.[33]
[24] CB 385 to 386 at [33] and [36]
[25] CB 386 at [37]-[38]
[26] CB 387 at [39]
[27] CB 387 at [43]
[28] CB 391-392 at [61] and [62]
[29] CB 393 at [68]
[30] CB 934 at [72]
[31] CB 394 at [73]
[32] CB 395-397 at [79], [87] and [90]
[33] CB 396 at [83]-[84]
The Authority noted that the delegate had found that the applicant's claims were "generally plausible" and had accepted that the applicant was twice threatened by the LeJ. The Authority agreed that the claims in relation to the threats were generally plausible, however did not accept that the applicant received any threatening phone calls, or any threats relating to his employment.[34]
[34] CB 387 at [42]-[43]
The Authority further found that the applicant left Pakistan because of fears relating to his status as a Shia Hazara, but ultimately concluded that he did not satisfy either the refugee protection criterion or the complementary protection criterion.[35]
[35] CB 394 and 397 at [74] and [91]

The current proceedings

These proceedings began with a show cause application filed on 12 September 2017. There are four grounds in that application:
The decision of the Immigration Assessment Authority (IAA) is affected by jurisdictional error because:
1.The IAA failed to address a claim or an integer of a claim made by the applicant.
Particulars
a.The applicant claimed that he will be persecuted by reason of being an unsuccessful asylum seeker returning from a western country.
b.At [71] of its reason for decision, the IAA:
i.      accepted that the applicant would be questioned by Pakistani authorities upon his return, and
ii.      was not satisfied that any brie period of detention for questioning would amount to serious harm.
c. The IAA failed to consider whether there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm arising from a brief period of detention for questioning by the authorities upon his return to Pakistan.
2. The IAA erred when assessing the reasonableness of relocation, or alternatively failed to consider a claim arising on the facts as found by it.
Particulars
a.     In its reasons for decision, the IAA
i.      was satisfied that it was reasonable for the applicant to relocate to Lahore (at [90]),
ii.      accepted that the applicant’s relatives would remain in Quetta (at [29] bp2, [84]-[85]) and
iii.     accepted that the applicant would wish to see his family in Quetta if he relocated to Lahore (at [85]).
b. The IAA failed to address a question that was necessary to the enquiry of whether it was reasonable to expect the applicant to relocate to Lahore, being the requirement of travel to Quetta: Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at [31]-[32].
c. Alternatively, the IAA failed to consider whether there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm by reason of his need to travel by road from Lahore to Quetta.
3.The IAA failed to comply with 473DD(a) of the Migration Act 1958 (Cth) (the Act).
Particulars
a.In its reasons for decision, the IAA was not satisfied that exceptional circumstances existed to justify considering certain new information submitted to it.
b.In reaching this state of satisfaction, the IAA had regard to other information before it, the content of the submitted information and previous opportunities available to the applicant to provide that information (at [9], [13], [16] and [23]).
c.The IAA's approach reflected an inappropriately narrow understanding of "exceptional circumstances": BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [46]-[47].
4.     The IAA failed to comply with s 473DB of the Act.
Particulars
a.In its reasons for decision (at [37]-[43]), the IAA indicated that it had reviewed a recording of the entry interview conducted by the applicant soon after his arrival in Australia.
b.By doing so the IAA erred because s 473DB required it to review decisions "on the papers".
Ground 3 in the application was not pressed. The applicant continues to rely upon the remaining grounds.
The only evidence I had before me at the trial was the court book filed on 13 February 2018. I provided the applicant with an opportunity to tender the PAM Guidelines referred to in the applicant’s submissions in relation to Ground 4 and to make further submissions on it. I gave the Minister the opportunity to reply to those submissions if made. Both opportunities were taken up. I also noted the evidence of a non disclosure certificate in this case and deferred a decision in this matter until the judgment of the High Court in BVD17 v Minister for immigration[36] became available. I gave the parties further time following that decision to make further submissions. Nothing further was filed. In accordance with Order 3 made by me on 4 June 2019, judgment was reserved 21 days after the decision of the High Court.

Consideration

[36] [2019] HCA 34

Ground 1 – did the Authority fail to consider a claim?

Ground 1 alleges that the Authority failed to address a claim or an integer of a claim made by the applicant, and is particularised by alleging that the Authority failed to consider whether there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm arising from a brief period of detention for questioning by the authorities upon his return to Pakistan.
The applicant first contends that the Authority failed to address a claim or an integer of a claim made by him. The applicant claimed that he will be persecuted by reason of being an unsuccessful asylum seeker returning from a western country. The delegate found that there was not a real risk that the applicant would suffer serious harm in Pakistan owing to him being a failed asylum seeker or returnee from a western country.[37] Before the Authority, the applicant articulated a fear of persecution from LeJ, TPP and other extremist groups by reason of an imputed political opinion and/or as part of a group of failed returned asylum seekers from Western nations or people having foreign connections in a Western nation.[38]
[37] CB 130
[38] CB 345 at [3]-[4]
In its reasons for decision, the Authority identified the applicant’s claim to fear persecution as an unsuccessful asylum seeker returning from a western country.[39] Relevantly, there was no evidence to suggest that the applicant had committed illegal emigration or any other crime.[40] The Authority nevertheless accepted that the applicant may be questioned by Pakistani authorities to check whether he had committed any crimes but was not satisfied that any brief period of detention for questioning of this type would amount to serious harm.[41]
[39] at [69]-[72]
[40] at [70]
[41] at [71]
It may be accepted that the real chance test equates to that for a real risk. The forms of significant harm are defined in s.36(2A) of the Migration Act 1958 (Cth) (Migration Act). The applicant contends that nowhere in the context of its complementary protection assessment[42] or elsewhere in its reasons for decision did the Authority expressly or impliedly consider whether the brief period of detention and questioning by Pakistani authorities amounted to significant harm. It is uncontroversial that a failure by a decision-maker to consider a substantial, clearly articulated claim can occasion jurisdictional error. The applicant says that the Authority failed to consider whether there were substantial grounds for believing that there was a real risk that he would suffer significant harm arising from a brief period of detention and questioning by the authorities upon his return to Pakistan. Nor in the applicant’s submission can it be concluded that the applicant’s claim had been addressed in any broader findings of generality made by the Authority.
[42] at [75]-[91]
I reject those contentions.
A failure to consider a claim or contention may amount to jurisdictional error where that contention, if made good, would justify concluding that the applicant had made out a criterion he was required to satisfy for the grant of the visa.[43]
[43] Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [45]-[48]
Contrary to Ground 1 and the applicant's submissions, the Authority considered whether there was a real risk that the applicant would suffer significant harm as a person who will be returning to Pakistan having unsuccessfully sought asylum and lived in Australia (among other circumstances) at [79][44] of its reasons, with reference to its earlier findings at [71]-[72].[45] At [71]-[72] the Authority found that any brief period of detention for questioning arising from being an unsuccessful asylum seeker would not amount to serious harm. The Authority notes at [79][46] that “[a]s ‘real risk’ and ‘real chance’ involve the application of the same standard, [it was] also satisfied that the applicant would not face a real risk of significant harm in Lahore for [those] reasons”.[47]
[44] CB 395
[45] CB 394
[46] CB 395
[47] Minister for Immigration v SZQRB (2013) 210 FCR 505. See also MZYXS v Minister for Immigration [2013] FCA 614

At [71],[48] the Authority notes that the Department of Foreign Affairs and Trade (DFAT) reported that “although there is no evidence that unsuccessful asylum seekers returning to Pakistan are punished on return, returnees may come to the attention of Pakistani authorities at airports, and may be questioned by the [FIA] or other authorities to check whether they are wanted for committing crimes in Pakistan”. The Authority states that there was no evidence before it to suggest that the applicant has committed, or would be suspected of having committed any crime, and on that basis accepted that while he may be questioned by the FIA on return to Pakistan, it was not satisfied that any brief period of detention for questioning of this type would amount to serious harm.[49]

Ground 2 – did the Authority fall into error in dealing with the question of relocation in the context of complementary protection?

[48] CB 394

[49] CB 394 at [71]

Ground 2 alleges that the Authority erred when assessing the reasonableness of relocation, or alternatively failed to consider a claim arising on the facts.
The applicant’s contentions in relation to this ground are certainly arguable.
There is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Authority is satisfied that it would be reasonable for that non-citizen to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm. Although the Authority refers to s.36(2B)(a) of the Migration Act in its reasons for decision,[50] the applicant nevertheless contends that the Authority in effect misapplied or misconstrued that provision. Relocation must be reasonable in the sense of practical, having regard to the particular circumstances of the applicant and the impact of relocation on him. The practical realities must be carefully considered and may include the person’s family situation.[51]
[50] at [78]
[51] CRI028 v Republic of Nauru (2018) 356 ALR 50 at [25]-[26] per Gordon and Edelman JJ
The applicant asserts that the Authority erred when assessing the reasonableness of relocation, or alternatively failed to consider a claim arising on the facts as found by it. The Authority had been satisfied that it was reasonable for the applicant to relocate to Lahore and accepted that his relatives would remain in Quetta and that the applicant would wish to see his family in Quetta if he relocated to Lahore. However, upon a careful consideration of the Authority’s reasons for its decision, the Authority is said to have failed to consider whether there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm by reason of his need to travel by road from Lahore to Quetta.
The applicant had claimed that he was unable to relocate anywhere in Pakistan.[52] Before the Minister’s Department, his then representative claimed that it was not safe for Shia Muslims anywhere in Pakistan.[53] The applicant asserted that road travel around Quetta for Hazara Shias was dangerous.[54] He claimed that he risked his life travelling on roads in buses in various locations including Quetta.[55] His representative provided country information to the Authority to that effect.[56] In its reasons for decision, the Authority acknowledged that the LeJ among other militant groups perpetrated violence against Hazara Shias in Quetta.[57] The available country information indicated that Quetta as a whole was not safe from sectarian or terrorist attacks.[58]
[52] CB 64 at [21]
[53] CB 271
[54] CB 348 at [17]-[18]
[55] CB 353 at [51]
[56] eg CB 363 at [25]
[57] at [47], [50]
[58] see further delegate’s decision record at CB 123-125
More particularly, the applicant had claimed that his mother, sister, aunty and his aunty’s three children were living in Quetta.[59] The Authority identifies the claim that these and other relatives lived together in the applicant’s former home in Quetta.[60] The applicant claimed that he was expected to be responsible for providing support to them and did not have any relatives in any other part of Pakistan.[61] He was not supporting them at the time of his departmental interview because he had not found employment in Australia.[62] The Authority noted this claim but concluded that, even if his initial employment did not enable him to support his family, his family circumstances were not such as to make it unreasonable for him to relocate to Lahore.[63]
[59] CB 61 at [4]
[60] reasons for decision at [29] at bullet point 2
[61] CB 123; CB 131
[62] CB 131
[63] at [84]
The Authority noted the applicant’s claim that “his family would remain in Quetta and relocation to another location would oblige him to return to Quetta to see his mother, sister, aunt, uncle and nieces and nephews”[64] (the compulsion claim). The Authority noted that he would need to travel by road to visit relatives in Quetta.[65] It accepted that he would wish to see his family if returned to Lahore but then rejected the applicant’s claim for what are said to be two irrelevant reasons: the applicant’s willingness to live apart from his family for an extended period and to continue to do so if he were granted a protection visa. Neither of these reasons are said to squarely address the compulsion claim, or support an assessment whether or not the applicant would be at risk of harm if he was required to travel to Quetta by road to see his family. Indeed, the Authority had found that the applicant had demonstrated a degree of resourcefulness and adaptability through travel[66] suggesting by inference that the prospect of him travelling to Quetta in future was therefore not unrealistic or unforeseeable.
[64] at [80]
[65] at [85]
[66] at [88]
The applicant contends that the Authority failed to address what was necessary to an enquiry of whether it was reasonable to expect the applicant to remain in Lahore and not travel outside it.[67] The applicant submits that the Authority ought to have directed attention to the applicant’s “ability to earn an income from other sources and to his needs and those of his family”.[68]
[67] cf Minister for Immigration v SZSCA (2014) 254 CLR 317 at [31]-[32] per French CJ, Hayne, Kiefel and Keane JJ
[68] Ibid at [31]
Furthermore, the applicant submits that it would be unreasonable to expect an applicant to refrain from attempts to see the family for whom he was responsible for supporting. Quetta was his place of birth and place of residence and employment before he departed Pakistan. He has only ever lived in Quetta and has no support from friends or family outside Quetta.[69] The Authority had accepted that Quetta was the applicant’s “city of origin”.[70]
[69] CB 278-9; CB 354 at [57]
[70] reasons for decision at [50]
The available county information indicated that Hazara Shias can relocate provided they enjoy support from family or communal networks.[71] The applicant’s then-representative submitted to the Minister’s Department that the viability of internal flight for religious minorities fearing persecution in Pakistan depended on such factors as the availability of traditional support mechanisms from relatives and friends.[72] Relocation is difficult without family and tribal networks.
[71] see delegate’s decision record at CB 130
[72] CB 278-9
In its reasons for decision, the Authority noted the applicant’s claim to lack family and support networks outside Quetta.[73] The Authority accepted that the applicant did not have any family or other connections in Lahore.[74] The Authority considered employment and accommodation opportunities in Lahore, the applicant’s skills and the possibility of social isolation in Lahore.[75] The applicant submits that, while these factors may suggest that the applicant could establish himself in Lahore, they say nothing about his claim to be required to travel to Quetta in future.
[73] at [80]
[74] at [81], [89]
[75] at [82]-[83], [89]
In the applicant’s submission, of special significance to the applicant’s circumstances are the forms of identification which the applicant would be presumed to possess on return to Pakistan. He had submitted an original Pakistani national identity card with his protection visa application which identified him as originating from Quetta.[76] The identification card is reproduced at CB 68. Before the Authority, the applicant and his representative submitted that the card identified the applicant’s place of residence and would identify him as a Hazara Shia from Quetta.[77] That aspect had implications for the applicant should he be relocated elsewhere in Pakistan. In its reasons for decision, the Authority identified this particular integer of the applicant’s claims.[78] However, it did not consider that aspect when assessing the applicant’s claimed need to travel to Quetta.
[76] CB 120
[77] CB 337-8 at [11]; CB 351 at [40]; CB 364 at [28]
[78] [29] at bullet point 9
So too would the applicant will be returning to Pakistan possessing a national military identity card. The available country information indicated that government employees, particularly those employed by the military, are one of the main targets by the non-State armed groups such as the LeJ.[79] Before the Minister’s Department, the applicant’s representative claimed that the applicant had a profile as an army employee and the militants knew him as someone who worked for the Pakistani army.[80] Before the Authority, the applicant claimed that he would be identifiable and exposed as a Shia Hazara employee of the Pakistani army regardless of his place of residence.[81] One of his claimed grounds was a fear of harm by reason of having held a position of considerable responsibility within the civil service working for the Pakistani army.[82]
[79] see delegate’s decision record at CB 128
[80] CB 267
[81] CB 351 at [38]
[82] CB 355 at [60]
In its reasons for decision, the Authority had referred to country information to the effect that military personnel and civilian employees have been targeted in terrorist attacks.[83] There was no evidence of attacks on former civilian employees of the Pakistani army.[84] The Authority was not satisfied that the applicant would be of any adverse interest to extremist groups on return to Pakistan by reason of his past employment as a catering supervisor for the Pakistan army.[85] However, that conclusion was based only on the passage of time, the absence of any prior threats, the nature of his role[86] and his profile.[87] The applicant complains that the Authority did not consider whether the applicant will be at risk by reason of his possession of a national military identity card should he be required to return to Quetta.
[83] at [60]
[84] at [60]
[85] at [61]
[86] at [61]
[87] at [62]
In addition, the applicant had consistently claimed that he was readily identifiable as a Hazara Shia by reason of his distinctive facial features, Hazaragi mother tongue or language and accent.[88] His representatives made submissions to that effect both to the Minister’s Department[89] and before the Authority.[90] The applicant’s distinctive appearance was supported by the available country information.[91]
[88] CB 61 at [6]; CB 64 at [21]; CB 337 at [10]; CB 351 at [39]; CB 354 at [55]; CB 364 at [27]
[89] CB 278-9, 281
[90] CB 337 at [10]; 343
[91] see delegate’s decision record at CB 124
The Authority considered this aspect as articulated in the applicant’s most recent statutory declaration in its reasons for decision as additional new information but decided not to receive it.[92] The Authority’s rejection of that information did not thereby dispose of the claim because it also noted his claim to be readily identifiable as a Hazara Shia wherever he went.[93] The Authority accepted this claim[94] as well his ability to communicate in Hazaragi and Urdu.[95] However, the applicant contends that the Authority’s rejection of the applicant’s claims regarding his “heightened visibility” are only considered with respect to Lahore[96] and not with respect to any return to Quetta required of him.
[92] at [25] bullet points 2 and [28]
[93] at [29] bullet points 8 and 9; [80]
[94] at [63]
[95] at [83]
[96] at [86]
I prefer the Minister’s submissions in respect of this ground.

Reasonableness of relocation

For protection visa applications lodged on or after 16 December 2014, a "refugee" is defined not under the UN Convention relating to the Status of Refugees 1951 (Refugees Convention), but in s.5H(1) of the Migration Act. Section 5H(1), as qualified by s.5J(1)(c), requires that the real chance of persecution relates to all areas of the receiving country. Unlike the relocation principle as developed under the Refugees Convention, there is no scope to consider the reasonableness of requiring a person to move to an area that is free from the chance of persecution.[97]
[97] DFE16 v Minister for Immigration & Anor [2017] FCCA 308 at [26]
Having been satisfied that there is a real chance of serious harm to the applicant in the form of possible loss of life or serious injury as a result of sectarian attacks or the security situation in Balochistan province,[98] the Authority subsequently noted that pursuant to s.5J(1)(c) of the Migration Act, 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.[99] The Authority found at [68][100] that having considered the information before it, including the applicant's profile as a Shia Hazara who previously worked as a civilian catering supervisor for the Pakistani Army, and accepting that violent incidents occur in Lahore "from time to time", it was not satisfied that there is a real chance of harm to the applicant in Lahore on the basis of his Hazara ethnicity and Shia faith, or as a result of the security situation there. The Authority stated that it was therefore not satisfied that the real chance of serious harm to the applicant on this basis related to all parts of Pakistan.
[98] CB 390 at [53]
[99] CB 390 at [54]
[100] CB 393
As noted above, as the applicant's visa application was lodged after December 2014 (being lodged in March 2016), there is no scope to consider the reasonableness of requiring the applicant to move to an area that is free from the chance of persecution. It is clear from the Authority's reasons at [68],[101] with reference to s.5J(1)(c) of the Migration Act, that it considered that the applicant could move to Lahore, an area it found to be free from the chance of persecution.
[101] CB 393
The Authority did, however, consider whether it was reasonable for the applicant to relocate, as it was required to consider the reasonableness of relocation when it came to consider questions of complementary protection pursuant s.36(2B)(a) of the Migration Act. That provision makes it an express requirement that the decision-maker be satisfied that “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”. There is thus no need to distil any extraneous “relocation principle” or any related notion of reasonableness.[102]
[102] per Robertson J in BBO16vMinister for Immigration [2017] FCA 212 at [70] to [77]
At [80]-[90][103] the Authority specifically considered the applicant's claims that it would not be reasonable for him to relocate to another place in Pakistan because:
a)he has no family or support networks outside of Quetta to help him find accommodation and employment;
b)employers in other cities may be afraid to employ Hazaras out of fear their workplace may be targeted in attacks;
c)he has no skills or experience that would equip him to find employment;
d)he would be readily identified and targeted as a Hazara Shia wherever he went;
e)his experience working for the army would attract the attention of militants in any location;
f)the security in Lahore and Islamabad is not sufficiently stable or safe; and
g)his family would remain in Quetta and relocation would oblige him to return to Quetta to see his family.
[103] CB 395-397
At [81]-[90],[104] the Authority addressed each of these claims:
a)while the Authority accepted that the applicant does not have any family or other connections in Lahore, it noted that there is a small Hazara community and there are large Shia communities in Lahore, that the higher costs of living would be offset by the higher wages typically received in larger cities, that the cost of living in Lahore is lower than other large cities in Pakistan, that there are a range of accommodation options there and no evidence to indicate accommodation shortages, the Authority acknowledged that the United Nations High Commissioner for Refugees (UNHCR) suggests that the availability of traditional support networks is a factor to be taken into account when assessing whether relocation to a new city in Pakistan would be unreasonable and was ultimately satisfied that the applicant would not be socially isolated in Lahore and would be able to find employment and access suitable accommodation;
b)the Authority noted that the applicant did not advance any independent evidence in support of his claims, further noting that large urban centres such as Lahore offer better opportunities for employment and that evidence indicated that attacks on Hazaras in Lahore have been rare;
c)the Authority found that the applicant has marketable skills including speaking multiple languages, he has a university or college level education, he has widely applicable experience in managing staff, purchasing, contracts and catering and has also worked as a casual salesperson and grocery deliverer, and while accepting that public sector positions are allocated preferentially to local candidates, the applicant's skills appeared to be equally relevant to the private sector;
d)the Authority found that evidence suggested that other Shias in Lahore are "sympathetic to Hazara Shias living in Lahore", country information showed that Sunni and Shia communities are generally more integrated in cities like Lahore, and large urban centres such as Lahore offer a greater degree of anonymity;
e)the Authority found that Lahore would offer a greater degree of anonymity than rural or smaller urban areas and the applicant does not face a real risk of harm for any reason associated with his past employment;
f)the Authority found that large urban centres such as Lahore offer better access to state protection than rural or smaller urban areas, there is no real risk of harm to the applicant on the basis of his Hazara ethnicity and Shia faith in Lahore, and was not satisfied that the level of instability or lack of safety in Lahore is such that it would be unreasonable for the applicant to move there; and
g)the applicant's family own their own home in Quetta and have been supported by his uncle since the applicant's departure and the applicant has shown he has been willing to live apart from his family for an extended period in order to seek protection in Australia.
[104] CB 395-397
At [90][105] the Authority concluded that it would be reasonable for the applicant to relocate to Lahore, "having regard to all the applicant's circumstances and to the situation in Lahore", having found that he would face no real risk of significant harm there.
[105] CB 397
The question of reasonableness is one that requires a factual inquiry to be undertaken and an evaluative judgment to be made.[106] While the practical realities facing an applicant will be relevant (and in any event were considered by the Authority in this case), s.36(2B)(a) does not specify any mandatory relevant considerations. Having addressed all of the applicant's claims as to why relocation would not be reasonable, I accept that the Authority did not err as alleged. In particular, the Authority did not accept the compulsion claim.
[106] SZBGC v Minister for Immigration [2005] FCA 1168 at [25] per Emmett J

Failure to address a question necessary to the enquiry of whether relocation was reasonable

The particulars of Ground 2 further allege that the Authority "failed to address a question that was necessary to the enquiry of whether it was reasonable to expect the applicant to relocate to Lahore, being the requirement of travel to Quetta", noting the decision of SZSCA at [31]-[32].
SZSCA concerned a truck driver in Afghanistan who the Tribunal found could avoid persecution by remaining in Kabul and not driving trucks outside it. It was held that the Tribunal's failure to address whether it was reasonable to expect the respondent to remain in Kabul and not drive trucks outside it constituted an error of law. The High Court found so, having noted that the Tribunal should have considered the impact on the respondent, such as his ability to earn an income from other sources and his needs and those of his family.
The paragraphs of the decision referred to by the applicant are as follows:[107]
In the present case it is not just the living conditions for the respondent in Kabul – and whether he would face a real chance of persecution if he stayed there – which should have been considered by the Tribunal. Rather, it was necessary for the Tribunal to consider the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business. Addressing this question properly may have raised various issues for the Tribunal’s consideration. At the least, the question clearly directs attention to the respondent’s ability to earn an income from other sources and to his needs and those of his family.
The Tribunal did not address this question. It did not address what was necessary to an inquiry whether it was reasonable to expect the respondent to remain in Kabul and not drive trucks outside it. It made one assumption – that the respondent would be able to work as a jewellery maker in Kabul, as he had formerly done in Jaghori. This assumption does not appear to have been put to the respondent for his comment. The respondent had raised concerns about his ability to earn a living if he were to return to Afghanistan, but the Tribunal did not explore this subject with him.
[107] [31]-[32]
The case of MZZFM v Minister for Immigration[108] was distinguished from SZSCA on the basis that the Tribunal had addressed the issue of whether the appellant could work solely in Kabul and there was an evidentiary foundation for the finding that he could.[109]
[108] (2014) 144 ALD 316
[109] at [36]
The Minister submits, and I accept, that SZSCA is distinguishable from the present case. The applicant's claims that it was unreasonable for him to relocate to Lahore were focused upon movement from Lahore to Quetta and not on movement to or around Lahore. The claim can only be interpreted as relating to his claimed fear of harm in his home region, and not as one directed to whether it was reasonable, in the sense of practicable, for him to relocate to another area.[110] Further, given the applicant's employment history and skills as considered by the Authority, it is unlikely that the applicant would be required to travel outside of Lahore to earn an income.
[110] see SZVRA v Minister for Immigration [2017] FCA 121 at [33]
In considering the needs of the applicant's family, the Authority noted at [85] that while it accepted that the applicant would wish to see his family in Quetta if he returned to Lahore, "he has shown that he is willing to live apart from his family for an extended period in order to seek protection in Australia, and to continue to live apart from his family in Australia if he was successful in obtaining a Safe Haven Enterprise Visa". The Authority ultimately concluded that it was reasonable for the applicant to relocate to Lahore.
It is clear from the Authority's reasoning that it did, in fact, address the issue of travel between Lahore and Quetta. Given the circumstances of the present matter, there was no failure on the part of the Authority to address a question that was necessary to the enquiry of whether it was reasonable to expect the applicant to relocate to Lahore, as alleged. The Authority's conclusion as to the reasonableness of relocation was open to it on the facts and in light of the applicant's circumstances overall.

Failure to consider a claim arising on the facts

The particulars of Ground 2 further allege, in the alternative, that the Authority failed to consider whether there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm by reason of his need to travel by road from Lahore to Quetta.
As noted above, the Authority considered the applicant's claim that he would need to travel by road to visit his family in Quetta, and accepted at [85][111] of its reasons that he would wish to see his family in Quetta If he returned to Lahore. However, again as noted above, the Authority found that the applicant was willing to live apart from his family for an extended period in order to seek protection in Australia and to continue to live apart from his family in Australia if he were successful in obtaining a SHEV. This formed part of the Authority's overall conclusion on relocation that it would be reasonable for the applicant to relocate to Lahore.
[111] CB 396
In Applicant WAEE the Court held at [47]:[112]
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contentions rests which has been rejected…
[112] See also SZMPF v Minister for Immigration [2009] FCA 908 at [9]
As the Authority did not accept the applicant's claim that he would need to travel by road to visit his family in Quetta, it follows that it was not necessary to go on to consider whether there were grounds for believing that there was a real risk that he would suffer significant harm in doing so.

Ground 4 – did the Authority fail to comply with s.473DB of the Migration Act?

Ground 4 alleges that the Authority failed to comply with s.473DB of the Migration Act by having reviewed a recording of the applicant's entry interview, as s.473DB required it to review decisions "on the papers".
In my opinion, the applicant’s contentions in relation to this ground are based upon a strained interpretation of the phrase “on the papers”.
In submissions made to the Minister’s Department,[113] the applicant’s then representative contended that an entry interview is informal and applicants do not have legal representation. Departmental policy indicated that the entry interview is used to establish an individual’s identity, why they left their country and how they travelled to Australia. Importantly, “[t]he Department’s policy specifically points out that the entry interview is not to be used for assessment of the merits of a protection claim”.[114] There is likely to be miscommunication or omissions provided at the official entry interview and individuals may also mistrust Australian officials.[115] The applicant’s representative claimed that the applicant had a reasonable explanation for not disclosing the full account of his protection claims during his entry interview.[116]
[113] CB 263
[114] CB 263, footnotes omitted
[115] CB 264
[116] CB 264
Before the Authority, the applicant’s representative queried the extent to which the applicant’s employment history had been properly canvassed at interview, was unable to access that recording and submitted that any omissions had to be rectified during the course of the Authority’s review.[117] There is no evidence in the court book on whether the applicant’s representative had been able to review the entry interview before the Authority made its decision.
[117] CB 339, 343
In its reasons for decision, the Authority indicated that it had had regard to the material referred by the Secretary of the Minister’s Department under s.473CB of the Migration Act. The Authority then referred to the representative’s concerns with respect to information given at the entry interview.[118] It stated that it reviewed a recording of the entry interview conducted by the applicant soon after his arrival in Australia.[119] It described what the recording of the SHEV interview indicated, what questions were asked of the applicant and what the delegate explained and invited comment on (namely relocation).[120] Elsewhere in its reasons for decision it also referred to other questions asked of the applicant, his responses and the opportunities afforded to him.[121] The Authority concluded that the omission of any reference in the applicant’s entry interview to the threatening phone calls was one reason why it did not accept that the applicant had received any death threats or any threats relating to his employment.[122] “Significant inconsistencies” between the evidence provided at the entry interview and later evidence was found to be relevant to assessing the applicant’s claims.[123]
[118] at [19]
[119] at [37]
[120] at [20]
[121] eg at [36], [38]-[39], [41], [43]
[122] at [41], [43]
[123] at [40]
The applicant contends that the Authority’s use of the entry interview recording had a significant impact on its assessment of his claims. However, he contends that it is not apparent that the Authority can permissibly have regard to that recording given the particular nature of its review function. The applicant contends that, by having regard to the entry interview, the Authority erred because s.473DB required it to review the fact track decision referred to it “on the papers”.
The Authority conducts a limited merits review with respect to fast track reviewable decisions referred to it. It does not hold hearings and is required to review decisions “on the papers”. Only in exceptional circumstances may the Authority consider new material and invite referred applicants to provide, or comment on, new information at an interview or in writing.
Section 473DB is headed “Immigration Assessment Authority to review decisions on the papers”. Subsection (1) states that the Authority must review a decision by considering the review material provided to it under s.473CB without accepting or requesting new information and without interviewing a referred applicant. Section 473DB emphasises the conduct of a review “on the papers”. A review “on the papers” is also emphasized in the note to s.473FA(1).
The Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 which accompanied the introduction of s.473DB does not suggest the meaning of the expression “on the papers”. However, the Statement of Compatibility with Human Rights found at Attachment A to that Memorandum at pages 23-24 states as follows:
New section 473DB of the Bill provides that subject to this Part, the IAA must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
·without accepting or requesting new information; and
·without interviewing the referred applicant.
The purpose of this provision is to stipulate that the default function of the IAA is to conduct a limited form of review, referred to as an “on the papers” review, by only considering the review material provided to the Authority by the Secretary of the Department, which is the material that is available to the primary decision-maker. The IAA is not required to accept or request new information or interview the referred applicant.
The effect of section 473DB is to clarify that an ‘on the papers’ review will require the IAA to undertake a reconsideration of the review material to determine if a more preferable interpretation should be taken on the previous information.
In my view, the applicant’s contention is untenable, as the plain meaning of the phrase “on the papers” is that matters are dealt with on review by the Authority without an oral hearing.
Neither do I agree with the applicant’s interpretation of the word “material”.
Subsection 473DB(1) compels the Authority, subject to Part 7AA, to review a fast track reviewable decision referred to it under s.473CA by considering the review material provided to it under s.473CB without accepting or requesting new information and without interviewing the referred applicant.
Section 473BB provides that in Part 7AA of the Migration Act, "review material" has the meaning given by s.473CB.
Section 473CB(1) relevantly states:
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
…
(c)any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
The entry interview recording clearly falls within the meaning of "review material" for the purposes of s.473CB of the Migration Act, particularly in light of its having been considered by the delegate in his decision and having been provided to the Authority by the Secretary. There is simply no warrant for reading down the word "material" in the manner proposed by the applicant in his submissions. To the contrary, the Authority is "engaged in a de novo consideration of the merits of the decision that has been referred to it".[124] The construction the applicant advances would have the consequence of excluding from the Authority’s consideration material relevant to the merits of the decision which it is has a statutory duty to review.
[124] Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600, [17]

An additional issue – an irrelevant consideration?

At the hearing on 8 May 2019, counsel for the applicant raised issues in respect of procedural fairness and [36]-[37][125] of the Authority's decision. The Court indicated that it was necessary to know whether, for the purposes of analysing those paragraphs, the Authority:
a)had only the paper record of the entry interview or also the audio; and
b)what guidance the PAM Guidelines provided.
[125] CB 386
In the course of oral argument concerning Ground 4, I raised with counsel for the applicant whether he wished to argue that the alleged prohibition in the PAM Guidelines on the use of a record of an entry interview in considering protection claims rendered such a record of interview (or inconsistencies between what is said at that interview and a subsequent hearing) an irrelevant consideration. As noted above, I gave the parties the opportunity to make post hearing submissions on that issue with the benefit of the relevant text from the PAM Guidelines.
The relevant parts of the protection visa processing guidelines are found in the PAM Guidelines Refugee and Humanitarian for the 27/07/2017 - 17/08/2017 period. The relevant parts are found in two sections as follows. First:
4.49.2. Inconsistencies, contradictions or omissions
Contradictions, inconsistencies and omissions might appear in the information presented by an applicant. For example, irregularities might appear within an applicant’s account of events or between their claims and independent evidence, such as travel movement records, documentary evidence of identity, nationality or citizenship and third party statements. Decision makers should determine whether such contradictions or inconsistencies are so serious that they give rise to doubts about the credibility of the applicant’s claims.
An inability to give a precisely accurate or consistent account of past events should not lead to an automatic non-acceptance of a particular claim. An applicant may forget specific dates, locations, distances, events and personal experiences due to a range of factors such as trauma or a substantial lapse of time. Discrepancies in an applicant’s claims would have to be quite serious for decision makers to find that the claims are not credible. Care should also be taken not to join a series of minor inconsistencies together to not accept an applicant’s claims.
Discrepancies may arise between claims provided at port of entry interviews and PV interviews. As entry interviews usually occur soon after arrival, applicants may be in a state of shock or anxiety and, as such, may not understand the significance of providing information relevant to their protection claims. Decision makers should also be aware that it is unusual for persons to recall the same event in the same way on each occasion.
Furthermore, primary consideration should be given to claims provided in the PV application and interview as entry interviews are not for the purpose of obtaining details of protection claims or investigating those claims. If significant discrepancies give rise to credibility concerns, the applicant should be given an opportunity to further explain or comment.
Particular consideration should be given to inconsistencies regarding an applicant’s identity or if there are concerns as to the authenticity of passports or other documentary evidence of identity, nationality or citizenship such as birth certificates or police reports, that are relevant to their claims.
Issues for consideration:
Does the identified inconsistency, contradiction or omission concern information that is material to the application?
Are there any mitigating circumstances that could explain the presence of the inconsistency, contradiction or omission?
Is the identified inconsistency, contradiction or omission sufficiently serious so as to bring into question the full body of evidence supporting the applicant’s claims?
Has the decision maker provided an opportunity for the applicant to respond to inconsistencies, contradictions or omissions that raise issues concerning credibility?
Has the decision maker provided sufficient reasoning to explain why they do not accept some or all aspects of the applicant’s claims?
(applicant’s emphasis retained)
Secondly:
4.119.1. Purpose of the interview
An interview by an Immigration Inspector or an officer authorised by the Department occurs in instances where either:
an unlawful non-citizen is detected at an airport or seaport
a person has their visa cancelled in immigration clearance
The interview is conducted (and recorded) to ascertain the person’s identity, reasons for leaving their country of origin and reasons for travelling to Australia.
If the person raises protection related claims, the interviewing officer should interview the person for a second time and explore the protection claims. After completing the interview, the officer should then forward this information to the Entry Screening Operations mailbox for assessment by a screening officer (refer to section 4.120.1 - Who undertakes the screening assessment).
Persons who have been entry interviewed must not be removed from Australia unless a screening officer has considered their information against Australia’s protection obligations and this officer considers that removal of the person is consistent with Australia’s non-refoulement obligations:
If the person makes a prima facie protection claim that is not considered to be ‘far-fetched and fanciful’, they are considered to be a person who potentially engages Australia’s non-refoulement obligations, and further consideration of their circumstances is required as removal is not appropriate at the time. The person will be screened in to the PV process and permitted to enter Australia.
Where a person does not make a prima facie protection claim, or they only make a claim for protection that is ‘far-fetched and fanciful’, it is considered that removal of the person is consistent with Australia’s non-refoulement obligations. The person will usually be refused immigration clearance and removed.
(applicant’s emphasis retained)

Additionally relevant is that:
a)the Authority’s Practice Direction[126] does not appear to assist in resolving the issue; and
b)an Authority factsheet issued to applicants[127] indicates that the Minister’s Department will provide the Authority with all “documents” the Minister’s Department considers relevant and that the Authority will generally conduct a review of the Minister’s Department’s decision solely on the basis of the “information” provided by the Minister’s Department.[128]
[126] CB 314-17
[127] CB 308-10
[128] CB 309
The applicant contends that a common law obligation of procedural fairness is owed to a referred applicant in the circumstance where significant discrepancies arising from the entry interview have given rise to credibility concerns. Policy is said to suggest that the applicant should be given an opportunity to further explain or comment. This may be achieved through the exercise by the Authority of its discretionary powers, either under s.473DC of the Migration Act to get new information, to give certain new information to a referred applicant under s.473DE or under s.473DF to issue an invitation to give new information or comments in writing or at interview.[129]
[129] cf Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3 at [29] per Bell, Gageler and Keane JJ
Inconsistencies or omissions per se may not be “information” for the purposes of Part 7AA of the Migration Act. However, in this case the Authority had regard to the underlying information provided at the departmental entry interview to which the applicant’s representative had sought access with a view to giving comments or making submissions. The Authority also had regard to information which the applicant submits policy suggests ought not be used for investigating or assessing the merits of a protection visa applicant’s claims.
Upon deliberation over this issue, I prefer the Minister’s submissions.
It was conceded for the applicant that the Authority did have the audio recording of the entry interview.
The question then remains what, if any, obligation the Authority had to invite the applicant to provide further information or comment on discrepancies from the entry interview giving rise to credibility concerns.[130]
[130] applicant's supplementary submissions at [6]
I do not accept the global propositions advanced by the applicant's supplementary submissions.
I do accept the statement of principles advanced on behalf of the Minister. By s.473DA, Division 3 of Part 7AA with ss.473GA and 473GB “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule”. A consequence of this is that there is no procedural fairness obligation to put dispositive matters to an applicant or to alert an applicant that a matter might be decided on a different basis from how the matter was determined by the delegate and “the principles in SZBEL v Minister for Immigration[131] do not apply to reviews under Pt 7AA of the Migration Act”, as the Full Federal Court has explained in DGZ16 v Minister for Immigration[132] at [48]-[69].
[131] (2006) 228 CLR 152; [2006] HCA 63
[132] [2018] FCAFC 12
Further, s.473DB provides that the Authority must review a fast track decision referred to it “on the papers”, by considering the review material[133] and “without accepting or requesting new information and without interviewing the referred applicant”. By s.473DC(2), the Authority does not have a duty to “get, request or accept any new information whether [or not] the Authority is requested to do so by a referred applicant …”. Moreover, the Authority is prohibited from considering new information other than in exceptional circumstances,[134] and if the additional criteria in either s.473DD(b)(i) or (ii) are met.
[133] see s.473CB
[134] s.473DD(a)
Accordingly, there was, in my view, no obligation on the Authority, within the constraints of Part 7AA, to put dispositive matters to the applicant or to alert the applicant that it was considering taking a different view of the material considered by the delegate and to provide the applicant with an opportunity to respond.
Moreover, the portions of the PAM Guidelines to which the applicant referred, and in fact emphasised, have no real application to [36] and [37] to the Authority's decision. That is because:
a)while not accepting the applicant's claim to have received threatening phone calls, the Authority did not make adverse credibility findings about the applicant;
b)in fact, the only reference to the applicant's evidence in terms of credibility is at [30] where the Authority made a positive reference to the applicant's evidence about his life in Quetta;
c)the Authority had regard to the nature and context in which the omissions from the entry interview appeared;
d)the Authority also had regard to the fact that the omissions were put to the applicant for comment during the SHEV interview;[135]
e)the Authority had regard to the applicant's demeanour during the entry interview from the audio recording;[136] and
f)the Authority also reflected aspects of the PAM Guidelines (in particular 4.49.2) at [40] of its decision.
[135] at [36]
[136] at [37]
The statement in 4.49.2 of the PAM Guidelines[137] that “If significant discrepancies give rise to credibility concerns, the applicant should be given an opportunity to further explain or comment” does not give rise to a common law (or any other) obligation on the Authority to provide the applicant with a hearing opportunity. In any event, the applicant was given an opportunity to comment during his SHEV interview, as is recorded by the Authority at [36], and the Authority had regard to the applicant's response.
[137] reproduced above
I accept that the reference in 4.119.1 of PAM3[138] to a suggested second interview “If the person raises protection related claims”, is a reference to there being a second entry interview (as is clear from the reference to such information being forwarded to the "Entry Screening Operations mailbox") and does not give rise to a common law (or any other) obligation on the Authority to provide the applicant with a hearing opportunity.
[138] also reproduced above

The non-disclosure certificate

On 6 December 2016 the Minister’s Department notified the Authority as follows:[139]
NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION COVERED BY SECTION 473GB OF THE MIGRATION ACT 1958
I notify the Immigration Assessment Authority that section 473GB of the Migration Act 1958 applies to a document or information in the document titled CLD2016/11327989 JAG089 - IMAPS Applicant Integrity Form - contained in PDF Portfolio
In my view, this document or information should not be disclosed to the referred applicant or the referred applicant’s representative because:
the document, or any matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
The Immigration Assessment Authority’s use and disclosure of a document or information covered by this certificate is subject to subsections 473GB(3) and 473GB(4) of the Migration Act 1958.
This certificate is made pursuant to subsection 473GB(5) of the Migration Act 1958.
[139] CB 305
The Notice was not raised by the applicant as an issue on judicial review. Neither did the Minister make any submissions about it. The decision of the Authority is silent concerning the Notice. The parties have had the opportunity to address the Notice in the light of the decision of the High Court in BVD17 but they have chosen not to do so. In the circumstances it is in my view neither necessary nor appropriate for the Court to deal with it.

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 ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 5 December 2019