EMX17 v Minister for Immigration
[2019] FCCA 284
•15 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EMX17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 284 |
| Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – Pakistani citizen – Shia Muslim Hazara – whether error in application of real chance test – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Pt.7AA, Div.3, ss.5J, 46A, 473CA, 473CB, 473DA, 473DD, 473GA, 473GB, 474, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24 |
| Applicant: | EMX17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 544 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 8 February 2018 |
| Date of Last Submission: | 8 February 2018 |
| Delivered at: | Perth |
| Delivered on: | 15 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Mr A Cuninghame |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application filed on 6 October 2017, as amended on 10 January 2018, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 544 of 2017
| EMX17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively) made on 13 September 2017 under Pt.7AA of the Migration Act. The IAA Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant the applicant a Safe Haven Enterprise (subclass 790) visa (“Safe Haven Visa”). The IAA Decision is at Court Book (“CB”) 201-220.
Background prior to the Judicial Review Application
The background prior to the Judicial Review Application is as follows:
a)the applicant, a citizen of Pakistan, arrived in Australia on 20 April 2013 as an unauthorised maritime arrival: CB 51;
b)on 11 May 2016 the Minister, pursuant to s.46A of the Migration Act, allowed the applicant to make a Safe Haven Visa application: CB 26-27;
c)on 23 January 2017 the applicant lodged his Safe Haven Visa Application: CB 33-94, and on 8 June 2017 he attended an interview with the Delegate and raised the following claims (CB 78-81):
i)he is a Shia Hazara citizen of Pakistan from a home area in Balochistan Province (“Home Area”) and his wife, children, parents and some siblings still live in his Home Area, though he has no relatives, tribal links, or other support networks that could help him to find accommodation, establish a business, and settle in another location in Pakistan. Further, he can be easily identified as a Shia Hazara wherever he lives and Shia religious sites and events have been targeted in attacks, therefore, it is difficult and dangerous for him to take part in public religious celebrations;
ii)he was vice-president of an organisation that represented local businesses in his Home Area, including in interactions with the police and he approached the police in relation to threatening letters received by some Hazara businesses but the police took no action;
iii)in 2012, he was travelling in a taxi in his Home Area when the taxi driver and two other passengers were killed by a gunman on a motorbike with two other men, about a month after this incident one of the other surviving passengers was shot on his way home from work and the applicant noticed a man following him after this incident;
iv)in February 2013, a water tank approximately 300 metres from his shop was destroyed by a bomb, the impact of the explosion damaged his shop, he sustained a cut to his head from broken glass, witnessed traumatic scenes of death and injury in the aftermath of the explosion and experiences flashbacks;
v)he fears that he will be harmed by extremist Sunni groups if he returns to Pakistan because of his Hazara ethnicity, Shia religion, his age and his profile with militants and state authorities in his Home Area as a result of his work with the local business association;
vi)he fears “serious harm including torture, arbitrary deprivation of life and cruel and degrading treatment at the hands of members of the Sunni Pashtun community”;
vii)the Pakistani Government is not willing or able to protect him as elements of the Pakistani Government have links to Sunni extremist groups and protect them, this protection and cultivation of Sunni extremist groups by state agencies and politicians means that there is no protection against the further expansion and escalation of these groups and their activities;
viii)Sunni extremist groups, including Lashkar-e-Jhangvi (LeJ) and Islamic State (IS), continue to perpetrate sectarian attacks in Pakistan, while the Lal Masjid in Islamabad and associated cleric Abdul Aziz have close links with Sunni extremist groups, Shias from tribal areas have been targeted in sectarian attacks in Islamabad and the commitment of LeJ to taking the fight to Shia centres threatens his safety;
ix)he may be targeted as a person returning to Pakistan after living in Australia, a western country, and he would be perceived to be wealthy because he has lived in Australia and may be attacked for this reason;
x)he would not be safe anywhere in Pakistan because the risk of harm to him extends throughout Pakistan and he would be particularly vulnerable because if he relocates to another location in Pakistan, he may be perceived to be an Afghan Pashtun, or an internally displaced person, and on this basis there might be restrictions on his movement and he would be vulnerable to extortion given Pakistani citizens of Afghan heritage face official and social restrictions on their rights; and
xi)if he returns to Pakistan, he would be required to return to his Home Area to renew his Computerised National Identity Card (“CNIC”) when it expires in September 2019, but will be unable to do so because of his fear of harm in his Home Area. As a person without a valid CNIC, he would be unable to access his citizenship rights and would be at risk of harm from state authorities in other locations and he may again be assumed to be an Afghan;
d)on 28 July 2017 the Delegate refused to grant the applicant a Safe Haven Visa, and in accordance with s.473CA of the Migration Act, the Delegate’s Decision was referred to the IAA by letter dated 2 August 2017, which is said to have attached a fact sheet about the IAA and a Practice Direction: CB 186-187;
e)the applicant’s representative forwarded to the IAA a number of written submissions for consideration, in which a response to the Delegate’s Decision and referral to a number of information sources was made: CB 190-195;
f)on 13 September 2017 the IAA affirmed the Delegate’s Decision not to grant the applicant a Safe Haven Visa: CB 198; and
g)on 6 October 2017 the applicant applied to this Court for Judicial Review of the IAA Decision.
IAA Decision
In the IAA Decision, the IAA first addressed Pt.7AA Div.3 of the Migration Act regarding the content and material before it, stating:
a)all material before the IAA had been referred by the Secretary of the Department of Immigration & Border Protection under s.473CB of the Migration Act: CB 202 at [3];
b)the submissions of the applicant’s representative containing arguments addressing the Delegate’s Decision were considered: CB 202 at [4]; and
c)there were exceptional circumstances: Migration Act s.473DD, being the fluid nature of the security situation in Pakistan, warranting the IAA to have regard to new country information which was not before the Delegate that being information compiled by the South Asian Terrorism Portal as at 13 August 2017: CB 202 at [6]-[7].
The IAA dealt with and summarised the substance of the applicant’s claims as follows:
a)referred to the relevant provisions of the Migration Act: CB 204 at [9]-[10], 217 at [66]-[67] and 221;
b)found the applicant was credible and consistent in his claims about his life as a Hazara in his Home Area and his religious practice as a Shia Muslim: CB 205 at [11];
c)noted and discussed the security situation in Pakistan by reference to a number of sources of information: CB 205-206 at [12]-[18], and accepted that in February 2013, a bomb exploded close to the applicant’s cosmetics shop and that although the applicant was not injured he witnessed traumatic scenes in the aftermath of the incident: CB 208 at [27];
d)did not accept that the applicant was prevented from raising any claim because the entry interview was conducted by phone, completed in two parts, or because of any interpreter issues, as it is not evident on the recording of the interviews any difficulties were experienced and noted the Delegate on numerous occasions asked follow up questions providing the applicant numerous opportunities to expand upon his brief statements: CB 207 at [21]-[23];
e)found that as the applicant did not raise the taxi incident at the Safe Haven Visa interview despite it having occurred in the previous 12 months, that:
i)the taxi incident did not occur;
ii)the police were not involved in the incident;
iii)he had not received any threatening note or letter in relation to the incident;
iv)he was not followed for reasons relating to the incident; and
v)he was not targeted in the incident as a result of his role in the local shop owners organisation: CB 208 at [24];
f)was willing to accept that the applicant was the vice-president of an organisation of local shop owners, and that some Hazara businesses received threatening letters from Sunni extremist groups, but was not satisfied that the applicant was of any adverse interest to the Pakistani authorities or members of Sunni extremist groups due to this role, or that the applicant received any threatening letters himself or that he would be of adverse interest to the Pakistani authorities or Sunni extremist groups upon return to Pakistan: CB 208 at [25]-[26];
g)with reference to country information, was satisfied that there was a small, but real, chance of harm to the applicant as a Shia Hazara as a result of sectarian attacks and the security situation in his Home Area: CB 209 at [29];
h)did not accept the applicant would be targeted on the basis that he would be considered to be an active combatant against Pakistani extremists or a combatant in the Syrian civil war or that he had a profile with militants and state authorities such that he would be targeted for recruitment by IS or that he would face any risk of harm due to his age: CB 210-211at [37]-[39];
i)accepted that the applicant would be easily identified as a Shia Hazara, but found that attacks on Shia events and venues were rare, and did not accept that it would be difficult or dangerous for the applicant to practise his Shia religion or participate in public religious events, further noting that anti-Shia sectarian groups may be present in Islamabad and that the Pakistani government had been criticised for failing to take adequate action against some Sunni extremists, though the information before it included information about significant measures taken by the Pakistani government to address terrorism, including sectarian attacks and it was speculative to suggest a commitment to reducing sectarian and other violence would change in the future thus concluding that it was not satisfied that there was a real chance of harm to the applicant as a result of sectarian attacks on the basis of his Shia Hazara identity, or the security situation, in Islamabad: CB 211 at [40] and 213 at [47]-[49];
j)was not satisfied that the applicant would be perceived as wealthy as a result of his time spent in Australia, or that a combination of his Shia faith, Hazara ethnicity and status as a returnee from the West would expose him to any greater risk than any other returnee from the West: CB 212 at [42], while it also noted that while it was possible that some people in Islamabad may make comments about the applicant’s “Asiatic appearance”, the chance of harm to him on that basis was remote, as was there being a real chance of harm to the applicant as a result of societal hostility toward, or discriminatory treatment of, Shia Muslims or Shia Hazaras in Islamabad: CB 214 at [52];
k)found the applicant would not be perceived to be a Pashtun or a member of, or associated with, Sunni militant groups, or that he would experience any mistreatment or harassment on this basis, nor would the applicant be perceived to be Afghan or harmed on that basis and any chance of harm to the applicant in Islamabad as a result of any hostility toward individuals from other areas of Pakistan, including Shia Hazaras was not accepted: CB 215 at [56]-[59];
l)concluded that there was no real chance of any other type of harm to the applicant in Islamabad now or in the reasonably foreseeable future: CB 216-217 at [63], nor was it satisfied that any combination of the applicant’s circumstances would expose the applicant to a real chance of serious harm in Islamabad; and
m)in reliance on the earlier findings, found that while the applicant faced a real risk of significant harm in his Home Area he would not face a real risk of significant harm in Islamabad: CB 217- 218 at [70]-[73], and it was reasonable for the applicant to relocate to Islamabad: CB 220 at [83], and, therefore, the applicant also did not satisfy the complementary protection criteria.
Grounds of the Judicial Review Application
On 22 November 2017 a Registrar of the Court made orders allowing the applicant to file an amended Judicial Review Application giving complete particulars of each ground of review upon which the applicant intends to rely, and any affidavit containing any additional evidence upon which the applicant proposes to rely, relevant only to the grounds of review. On 10 January 2018 the applicant filed an amended Judicial Review Application (“Amended Judicial Review Application”) setting out the following ground of review:
1.The Immigration Assessment Authority erred by failing to apply the ‘real chance’ test when it concluded that there was no real chance that the Applicant would face serious harm in Islamabad.
Submissions
Applicant’s submissions
The applicant submitted:
a)the IAA accepted at CB 209 at [29] that the applicant faced a real risk of harm in his Home Area due to his Hazara Shia identity and because of the sectarian violence there;
b)the IAA went on to find this risk did not apply to all of Pakistan, and specifically noted at CB 210-211 at [37] that there was “no evidence … that Hazara Shias have in fact been targeted in attacks in Islamabad or anywhere else in Pakistan,” in tension with its finding at CB 209 at [29] that there was still a “moderate level of sectarian violence in … [the applicant’s Home Area]”;
c)the IAA required the applicant to demonstrate not that there was a “real chance” of persecution, but instead, that there “will” be persecution;
d)contrary findings are found throughout the IAA Decision, particularly at CB 210-213 at [37] and [44]-[49];
e)the IAA recited various country information that might be said to be suggestive of Islamabad being “safe” and said that there was a lack of evidence of “actual” attacks, however accepted facts which point to the contrary conclusion;
f)since Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 (“Chan”), it has been clear that to demonstrate a “real chance” does not require proof of any matter on the balance of probabilities, let alone that something “will” occur, and that the correct question that “real chance” requires the decision-maker to consider is whether the chance is remote and the IAA’s use of the “may” standard, contrasted with the “will” standard, and together with the explicit findings of fact about the presence, motivations and activities of anti-Shia actors in and around Islamabad, shows that the IAA did not correctly apply the law;
g)the IAA side-stepped the consequence of its own reasoning by dismissing the applicant’s case on the basis that it was “speculative” to suggest that this harm “will” occur, exposing its incorrect application of the law, and furthermore, the IAA did not point to other evidence as a basis for overtaking the facts it accepted; and
h)the IAA’s use of the “will” standard at CB 213 at [49] cannot be simply dismissed as infelicitous language.
Minister’s submissions
In response the Minister submits:
a)the applicant’s characterisation of the IAA’s findings at CB 213 at [49] is deficient as when read fairly and as a whole it is obvious that the IAA was referring to the government’s commitment to reducing sectarian and other violence when finding that it was speculative to suggest that this would occur, thus there was no need for the IAA to apply the “real chance” test against this possibility;
b)the IAA then properly applied the “real chance” test when considering whether the applicant faced a real chance of harm as a result of sectarian attacks on the basis of his Shia Hazara identity or security situation in Islamabad;
c)the IAA undertook an analysis of country information before it in support of its conclusions at CB 213 at [49], and also found that information before it included information about significant measures taken by the Pakistani government to address terrorism, including sectarian attacks and that the evidence concerning anti-Shia sectarian activities in Islamabad in Pakistan had not translated into sectarian attacks on Shia Muslims in Islamabad apart from an incident in 2014: CB 213 at [48];
d)it is trite that the selection and weight of country information is a matter for IAA and the IAA’s findings in this regard at CB 213 at [48]-[49] were open to it on the evidence before it; and
e)no jurisdictional error is demonstrated by the ground of review, or is otherwise apparent in the IAA’s comprehensive relocation finding, or the IAA Decision generally.
Consideration
Jurisdictional error required
The IAA Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. An error may constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the IAA’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In circumstances where the IAA is the administrative decision-maker, the requirements of procedural fairness are expressly stipulated in the Migration Act: Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB. The authority or power to review a Delegate’s Decision given to the IAA under the Migration Act is, subject to the provisions of Pt.7AA of the Migration Act, limited to the papers.
Ground of Review
The IAA found the applicant, if returned to his Home Area, would suffer “a small, but nevertheless real, chance of harm” on account of his being a Shia Hazara and as a result of sectarian attacks and the security situation in the area, such a finding also being made by the Delegate: CB 176 and CB 209 at [29]. It was upon this finding the IAA proceeded to consider if the real chance of harm extended to the entire country of Pakistan: Migration Act, s.5J. The IAA Decision must be read fairly and as a whole and it is trite that this Court should adopt a reasonably liberal and benevolent approach to the wording of the IAA Decision: Minister for Immigration & Multicultural Affairs v N989/01 [2002] FCAFC 237 per Heerey, Carr and Mansfield JJ at [17]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46]-[47] per French, Sackville and Hely JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
When taking this benevolent approach, it is clear the IAA has comprehensively discussed and actively engaged with the applicant’s claims in applying the real chance test. The applicant suggests there is some illogical and inconsistent reasoning in the IAA Decision by reference to the favourable findings referred to in the applicant’s submissions. In Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367 at [135] per Crennan and Bell JJ it was stated:
135. … a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision to which the decision-maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The Court does not find the IAA Decision to be illogical or irrational. Furthermore, the IAA did not make a “contradictory finding”, rather it made two distinct findings on different claims and considerations: CB 209 at [29] and 210-211 at [37]. The submission of the applicant referring to the allegedly contradictory and competing findings of fact made by the IAA at CB 209 at [29] and 210-211 at [37] is misconceived for the following reasons:
a)the findings at CB 209 at [29] are limited to the risk of harm in the applicant’s Home Area, and the IAA referred to information which supported the finding that Shia Hazara’s suffering harm for this reason, while small and reducing, was nevertheless present: CB 209 at [29];
b)having made this conclusion, the IAA then correctly proceeded to determine if this harm on the basis of identifying as a Shia Hazara extended across Pakistan such that the applicant could not relocate: CB 209 at [30];
c)the IAA extensively discussed the prevalence of sectarian violence against Shia Muslims in Islamabad and surrounding cities and noted in the preceding eight years only one death had been recorded as a sectarian attack on a Shia Muslim, and that the target was a political leader: CB 209 at [34];
d)when read as a whole the findings at CB 210-211 at [37] refer to there being a risk of attack or target on the basis the applicant may be targeted by Sunni extremist groups in response to Pakistani Shia and Hazara participation in the Syrian conflict;
e)the IAA found there was no evidence before it to suggest Shias and Hazaras had been targeted, in Islamabad or Pakistan entirely, for reasons of retaliation for their involvement in the Syrian conflict; and
f)the finding at CB 209 at [29] was that sectarian violence on the basis of being Shia Hazaras in the applicant’s Home Area was accepted as true and evident on the information before the IAA, while the finding at CB 210-211 at [37] of no violence “for this reason” being evident in Islamabad or Pakistan generally was in reference to the claim made by the applicant’s representative that Shia Hazaras in Pakistan might be targeted by Sunni extremist groups in response to Hazara participation in the Syrian conflict.
For the above reasons the Court does not accept the alleged contradictory findings are sufficient to warrant a finding that they are illogical or irrational, nor do they demonstrate the IAA failed in the “obligation to undertake an un-distracted, focussed and deliberative assessment of only those facts and circumstances referrable to the case of the Appellant … [which is] an essential element of the discharge of the review function”: SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63; (2007) 238 ALR 611 at [44] per Greenwood J. The findings made by the IAA, and in particular the findings made at CB 209 at [29], 210-211 at [37], and 212-213 at [44]-[49], were findings open to be made by a reasonable administrative decision-maker.
The applicant also takes particular issue with the IAA Decision at CB 213 at [49] which is as follows (emphasis added):
49. The applicant's representative suggests that the recent absence of attacks on Shia Muslims in Islamabad should not be taken as a reliable indicator of the future chance of harm to the applicant given that the fluid nature of the security situation in Pakistan. However, there is very limited evidence of past attacks on Shias of any ethnicity in Islamabad over an extended period of time, and no credible evidence before me to suggest that the situation in Islamabad will change in the foreseeable future. The evidence indicates that although there are some troubling and inconsistent aspects to the Pakistani Government's approach, the initiatives taken by the government reflect a sustained commitment to reducing terrorist and sectarian violence in Pakistan. While it is possible that the government's commitment to reducing sectarian and other violence may change, and that sectarian groups may target Shias in Islamabad in future, I consider it speculative to suggest that this will occur, and that violence against Shias in Islamabad will increase in future for this or another reason. I am not satisfied that there is a real chance of harm to the applicant as a result of sectarian attacks on the basis of his Shia Hazara identity, or the security situation, in Islamabad.
The real chance test was correctly identified by the applicant as having been stated in Chan, the often cited principle being that “[a] real chance is one that is not remote, regardless of whether it is less or more than 50 per cent”: Chan, CLR at 398 per Dawson J. Further guidance can be taken from Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743, (1997) 144 ALR 567; (1997) 48 ALD 481, CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where the High Court said:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events… Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reasons if he were to return to the PRC.
In MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 at [94] per Keane CJ, Perram and Yates JJ, the Full Court also noted that the real chance test “requires a decision-maker to engage in a degree of speculation about future events.” The degree of speculation can be described as being that the IAA must not exclude reasonable speculation about the chances of a hypothetical future event occurring: Minister for Immigration & Multicultural Affairs v Rajalingam & Ors [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43 at [32] per Sackville J, such being the Pakistani Government commitment to reducing terrorism and sectarian violence.
The IAA accepted the government policy on sectarian violence may change, though stated it considered it “speculative” to consider whether it will change: CB 213 at [49]. That line of reasoning was open to the IAA: it considered whether the government policy and approach to sectarian violence may change, and formed a view that the prospect of change was “speculative”, and that was all the IAA was required to do. On the face of the IAA Decision, the Court considers the IAA’s reasoning involved the correct application of the real chance test. In SZATE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 532 (“SZATE”) at [25] per Barnes FM the Federal Magistrates Court observed that:
25. The distinction between an uncertain past and an uncertain future means that the “What if I am wrong?” test is not transposed readily to the context of speculation about future events. This is apparent from the qualification suggested by Sackville J in Rajalingam at [67] to the effect that if a fair reading of the reasons as a whole shows that the Tribunal had “no real doubt” (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559) that claimed events had not occurred “there is no warrant for holding that it should have considered the possibility that its findings were wrong”.
On a fair reading of the IAA Decision no doubt is evident as to the findings made, and there was, therefore, no need for the IAA to consider the “What if I am wrong test?”
In the present case the Court considers the issue as to relocation was raised by the Delegate, and that the Delegate “put” to the applicant the information and findings that the security situation in Islamabad was “relatively safe for migrant Shia communities”, and that a high level of stability and security in Rawalpindi had been maintained since early 2015, and that there had been a reduction in violence across both cities: CB 177. It was open to the IAA to find under the Refugees Convention that the applicant did not face a real chance of harm upon relocation to Islamabad. The applicant’s representative referred to conflicting sources of information which the IAA had regard to, considered and weighed against other material it had before it: CB 191-195, CB 210-211 at [35]-[37] and 210-213 at [39]-[46] and [48]-[49]. The weight the IAA gives country information is a matter for the IAA, not this Court: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ. In those circumstances it cannot be said that the IAA Decision is affected by jurisdictional error, and the Court so finds.
Conclusion and orders
The Court has concluded that the IAA Decision is not affected by jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application, as amended.
The Court will hear the parties as to costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 15 February 2019
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