EOW18 v Minister for Home Affairs
[2019] FCCA 3554
•12 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EOW18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3554 |
| Catchwords: MIGRATION – Safe Haven Enterprise (Class XE) (Subclass 790) visa – decision of the Immigration Assessment Authority – whether IAA was required to put information to the applicant – whether IAA erred in its consideration of country information – whether IAA’s findings were illogical – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 36, 46A, 473CB, 473DA, 473DC, 473DD, 473DE, 473GA, 473GB, 476 |
| Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27 MZANX v Minister for Immigration & Border Protection [2017] FCA 307 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | EOW18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 471 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 20 November 2019 |
| Date of Last Submission: | 20 November 2019 |
| Delivered at: | Perth |
| Delivered on: | 12 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Draper |
| Solicitors for the Applicant: | D’Angelo Legal |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The applicant have leave to rely on the grounds as articulated in paragraphs 26 and 33 of the first respondent’s written submissions dated 15 October 2019.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 471 of 2018
| EOW18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 4 September 2018 the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 9 August 2018.
The IAA’s decision affirmed a decision of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (the “visa”).
This proceeding is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). It is uncontroversial that to be successful in this Court, the applicant must demonstrate that the IAA has fallen into jurisdictional error.
The materials before the Court include the application filed by the applicant (then unrepresented) on 4 September 2018, a Court Book numbering 192 pages (marked as Exhibit 1), an outline of submissions filed by the applicant on 7 October 2019 (now legally represented) and an outline of submissions filed by the Minister on 15 October 2019.
Background
The background to this matter can be summarised as follows.
The applicant is a citizen of Pakistan. He arrived in Australia (at Christmas Island) on 18 April 2013 as an “unlawful maritime arrival” (CB 127).
On 30 June 2016, the Minister’s department notified the applicant that the Minister had lifted the bar pursuant to s.46A of the Act. The applicant was invited to apply for the visa (CB 20-21).
On 27 March 2017 the applicant applied, with the assistance of a migration agent, for the visa (CB 22-69).
The IAA summarised the applicant’s claims as follows:
• He is a Shia Muslim of Hazara ethnicity from Quetta, in Balochistan Province.
• As a member of the ‘Sayad-ul-Shuhada Open Scout’ group, he assisted with crowd control and security arrangements at religious events, collected donations, and assisted the families of victims of terrorist attacks on a volunteer basis. He and other members of the scout group also helped the police to maintain the safety and security of the Hazara community during protests and when other incidents occurred. He sometimes supervised a team of five other scouts responsible for manning a checkpoint.
• On 16 February 2013, a bomb exploded in Hazara Town, killing at least 110 people and injuring 200 others. Security increased after this incident and people were prevented from leaving or entering Hazara Town at night.
• One night he was on duty at a checkpoint when he stopped a man on a motorbike who was trying to leave Hazara Town. The man argued with him but eventually went back into Hazara Town. He thought the man looked suspicious and followed him to a house on his motorbike. He reported the incident to the police. The police decided to investigate, so he took them to house he had seen the man enter. He took part in the police search of the house and found the man he had followed hiding in a trunk. The man was arrested by the police. Later, he realised he had dropped his scout identity card during the search. He found out later that the man who had been arrested was a member of Lashkar-e-Jhangvi (LEJ) and had been planning an attack or attacks in Hazara Town.
• A few days later, a threatening letter was left at his father’s shop. The letter informed his father that his son (the applicant) had helped the police to arrest one of their members and they intended to kill him. He believes they were able to find him because they found his scout card when he dropped it on the night of the arrest. He became scared and left Pakistan.
• In 2015, after he left Australia, his brother received a threatening letter from LeJ which threatened his brother and mentioned that they knew the applicant was in Australia.
• He fears harm from LeJ, Islamic State (IS), and other Sunni militant groups due to his Shia faith, Hazara ethnicity, and his perceived opposition to these groups.
• He cannot rely on the Pakistani Government for protection from LEJ and other Sunni militant groups who aim to kill all Shia Hazaras. The judicial system in Pakistan is inadequate and incapable of convicting those responsible for the attacks. Some government officials and / or politicians support LeJ.
• As a returnee from Australia, he will be considered by the LeJ and other Sunni militant groups to be an infidel and a spy for westerners or for Australia. As a person who has previously been threatened by LeJ, the chance of harm to him will be enhanced by his return from a western country, and in particular from Australia.
• He cannot relocate to another area of Pakistan because the risk he faces from Sunni militant groups extends throughout Pakistan. LEJ has contacts everywhere and will kill him because he helped arrest one of their members.
• It would be difficult and expensive to relocate to another part of Pakistan such as Islamabad.
• Without family or other support networks in other parts of Pakistan it would be difficult for him to find employment or accommodation, opportunities and protection. He cannot rely on support from the small Hazara communities in Islamabad and Lahore. He could not live in another part of Pakistan as he does not have a computerised national identity card (CNIC). He cannot live anywhere in Pakistan without a CNIC. He would need to return to Quetta, where it is not safe, to apply for a CNIC.
On 28 September 2017, the applicant attended an interview with a Ministerial delegate (CB 92-93). On 9 October 2017, the applicant’s representative provided post-interview submissions to the delegate (CB 111-123).
On 27 November 2017, the delegate refused to grant the visa (CB 124-143). The delegate was not satisfied that the applicant faced a real chance or risk of harm if he relocated to Islamabad, Lahore or Karachi.
On 28 November 2017, the matter was referred to the IAA (CB 144-145). On 18 December 2017, the applicant provided submissions and new information to the IAA (CB 148-160).
On 9 August 2018, the IAA affirmed the delegate’s decision (CB 164-181).
IAA’s Decision
It is not disputed that the applicant satisfies the criteria in s.5(1) of the Act for a “fast track review applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act is unusually rigid and limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
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 IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s.473DD of the Act.
The IAA’s decision is 22 pages long and spans 67 paragraphs. Four pages consist of the relevant legislative provisions. At [29]-[30] and [47]-[48], the IAA accurately summarised those provisions.
The IAA confirmed that it had before it the materials forwarded by the Secretary under s.473CB of the Act.
At [4]-[5], the IAA stated:
4. I have obtained recent information about deaths of Shia Muslims as a result of sectarian violence in Pakistan. This information is more recent than similar information that was before the delegate. Having regard to the evolving nature of the security situation in Pakistan, I am satisfied that there are exceptional circumstances to justify considering this new information.
5. I have also obtained new information from the website of NADRA, the Pakistani Government authority responsible for issuing Computerised National Identity Cards (CNICs), relating to the application process for individuals applying for their first CNIC. This information is current and provides clearer and more specific information about this process than other information about this matter that was before the delegate. As guidance provided by the issuing body, it is also information from a highly authoritative source. In view of this and the relevance of this information to the assessment of the reasonableness of relocation for the applicant, I am satisfied that there are exceptional circumstances to justify considering this new information.
At [6]-[11], the IAA referred to the submissions and “new information” provided by the applicant’s representative. The IAA had regard to the documents titled ‘Submission IAA’ and ‘Cover letter for New Information’. However, the IAA did not have regard to the documents titled ‘Letter from President of the Sayad-ul-Shuhada Open Scout’ as it was not satisfied that there were “exceptional circumstances” as required by s.473DD of the Act to consider the information.
At [12], the IAA summarised the applicant’s claims as noted above.
The IAA accepted that the applicant was a Shia Hazara Pakistani from Quetta (at [13]-[14]).
At [15]-[16] the IAA set out the applicant’s claim and evidence in relation to his volunteer work and the threats from the Taliban he received because of his involvement in the arrest of a member of the LeJ.
The IAA accepted that the applicant was a member of the Sayad-ul-Shuhada Open Scout’ group and that he would sometimes assist with security arrangements (at [17]). However, the IAA had concerns regarding the applicant’s claims to have been involved in the arrest of a member of LeJ and to have subsequently been threatened by members of LeJ. The IAA outlined those concerns at [18]-[27]. It noted various inconsistencies in the applicant’s evidence, the fact that some aspects of the evidence seemed improbable and difficult to accept and that the applicant had omitted reference to this incident in his visa application despite having the assistance of a migration agent. The IAA also addressed the explanation for these inconsistencies (which was provided in the submissions) but did not find these explanations to be satisfactory.
At [28], the IAA concluded:
The fact that the applicant did not refer to his involvement in the arrest of the LeJ member or the threat he received from LeJ during the entry interview raises some doubt in my mind as to whether these events occurred. When considered alongside the other issues relating to the applicant’s evidence discussed, the entirety of the evidence leads me to conclude that the applicant was not involved in the arrest of an LeJ member and did not receive any threatening letter or other threat from the LeJ or any other Sunni militant group. I do not accept that the applicant’s departure from Pakistan was due to any fear of the LeJ or any other Sunni militant group as a result of any threat. I do not accept that the applicant was of any particular adverse interest to the LeJ, or to any other Sunni militant group, for any reason, other than as a Shia Hazara, including because of his activities as a member of the scout group, at the time he left Pakistan. Neither do I accept that the LeJ, or any other Sunni militant group, has contacted any member of the applicant’s family in relation to the applicant since his departure from Pakistan.
Having regard to country information, the IAA was satisfied that the applicant faced a real chance of serious harm as a Shia Hazara in Quetta (CB 173 at [31]-[32]).
At [33]-[38], the IAA summarised the country information, from various sources, in relation to the security situation for Shia Hazaras in Pakistan.
At [39]-[40], the IAA noted that there was a moderate risk of sectarian violence for high profile Shias. It noted, however, that the applicant had been found not to have been of any particular adverse interest to LeJ or any other Sunni militant group for any reason related to his role as a member of the scout group, or for any other reason, at the time he left Pakistan. There was also no evidence to suggest that he would be of any future adverse interest on the basis of any past activities. He did not claim to have any profile as a political, community, or religious leader. The IAA determined that, while the applicant as a Shia Hazara would be perceived to be opposed to the LeJ and other Sunni militant groups, as the applicant has not (nor would he on return) publically express any opposition to any Sunni militant group or engage in any activity that may be perceived to oppose such groups, the chance of harm to the applicant on the basis of his perceived opposition to militant Sunni groups was indistinguishable from the chance of harm to him as a Shia Hazara.
Having acknowledged the submission and claim that militant groups were active across Pakistan, at [42] the IAA found as follows:
However, the information before me concerning violent incidents in Islamabad suggests that any presence of militant groups in Islamabad, any support for these groups within the Pakistani Government, and any shortcomings in the judicial system, have not translated into recent attacks on Shia Muslims, including Hazaras, in Islamabad. Casualties as a result of violence, including sectarian violence, in Islamabad are rare, and as the capital city, Islamabad benefits from particular security arrangements. There is no credible evidence before me to suggest that the situation in Islamabad will change in the foreseeable future. The launch of Operation Raddul- Fasaad in February 2017 points to an ongoing commitment on the part of the Pakistani Government to targeting militant groups and reducing violence in Pakistan. While it is possible that the government’s commitment to reducing sectarian and other violence will change, and that sectarian militant groups will target Shias, including Hazaras, in Islamabad in future, I consider it speculative to suggest that this will occur. On the evidence before me, I am not satisfied that there is a real chance of harm to the applicant in Islamabad, now or in the foreseeable future, as a result of sectarian attacks related to his identity as a devout Shia Hazara, or due to the security situation in the city.
At [43]-[44], the IAA addressed the applicant’s claim to be a returning asylum seeker from a western country. The IAA was not satisfied, based on the lack of independent evidence to suggest any difficulties for such persons, that there was a real chance of harm for this reason.
At [45], the IAA concluded:
Having carefully considered the range of information before me, I am not satisfied that there is a real chance of harm to the applicant in Islamabad, now or in the foreseeable future, as a devout Shia Hazara who was a member of a Hazara scout group in Quetta and will be returning to Pakistan after living in and applying for protection in Australia, or as a result of the security situation in Islamabad. I am not satisfied that any combination of the applicant’s circumstances would combine to expose him to a real chance of serious harm in Islamabad.
The IAA then turned to consider the complementary protection criterion. The IAA was satisfied that there is a real, if small, risk that the applicant will suffer significant harm as a resident of Quetta (at [49]).
However, relying on its anterior findings in relation to the refugee assessment, the IAA concluded that the applicant would not face a real risk of significant harm in Islamabad (CB 177 at [50]).
At [51]-[65], the IAA addressed the applicant’s submissions as to why it was not reasonable for him to relocate to Islamabad. The IAA noted the country information on various matters (such as employment prospects and the ability to obtain a Computerised National Identity Card (“CNIC”)) suggested that it was reasonable for the applicant to relocate.
At [66], the IAA found that, having regard to the applicant’s individual circumstances and to the situation in Islamabad (including the security situation), it was satisfied that it was reasonable for the applicant to relocate to Islamabad where he would face no real risk of significant harm.
The IAA’s decision was to affirm the delegate’s decision.
Proceedings in this Court
The application for judicial review filed in this Court on 4 September 2018 contained six grounds of review, as follows:
1. The decision of the Secretary of IAA to affirm the decision not to grant the applicant protection visa and dated 9 AUG 2018 is affected by jurisdictional error because the Department Of Home Affairs carried out the assessment in circumstances where the Secretary had not considered all of the material under the Migration Act 1958 (Cth)(Migration Act)
2. The decision of the Department of Home Affairs to affirm the decision not to grant the applicant visa is affected by jurisdictional error because contrary to s 473DB (1) of the Migration Act 1958 the DHA did not consider all of the material given to it by the applicant post interview.
3. The secretary of DHA who conducted the interview has exhibited bias and callous approach in conducting the interview process. The interpreter did not understand many words.
4. The secretary due to his lack of knowledge has not considered and understood the circumstances in which the documents have been obtained by the applicant.
5. The secretary has not provided convincing evidence to state that the applicant is not a refugee
6. The Secretary has not considered the lack of education of the applicant and also the interpreter's confession that he does not understand some of the things the applicant was trying to explain in the interview.
In orders made by a Registrar of this Court on 24 October 2018, the applicant was given an opportunity to file and serve any amended application or additional affidavit evidence by 14 December 2018. The applicant filed no materials.
On 26 June 2019, the applicant obtained legal representation. However, no amended application was filed.
On 7 October 2019, the applicant’s representative filed written submissions.
Oddly, these written submissions did not, in any way, relate to the grounds articulated in the original judicial review application. Rather, they seemed to raise two completely new grounds of review and addressed issues that were in no way adverted to in the judicial review application.
Further, the written submissions filed by the applicant’s legal representative failed to actually articulate what grounds of review were being addressed. The applicant’s legal representative seemed to assume that both the Court and the Minister’s legal representative would simply identify what grounds of review were being argued from his written submissions – written submissions which failed to identify any grounds of review and which arguably abandoned the grounds of review in the original application for judicial review.
At hearing, the Court asked Mr Draper, Counsel for the applicant, whether he was prepared to address the Court on the original grounds in the substantive application. He responded that he had not actually seen the judicial review application and, as such, was not prepared to address those grounds of review.
Mr Draper was the asked if he wished to abandon the grounds in the judicial review application. He responded that this was the case.
This then left the Court (and the Minister) with the somewhat challenging task of determining (from the written submissions) what grounds of review were actually being pressed.
When asked by the Court, Mr Draper confirmed that the Minister’s submission at [26] and [33] accurately identified, and characterised, the arguments the applicant was now seeking to advance.
The two matters that appear to arise from the applicant’s submissions (and which the Minister did address in written submissions) are as follows:
a)the IAA failed to put new information to the applicant under s.473DE(1) of the Act; and
b)the IAA unreasonably concluded, or addressed the wrong question in concluding, that the applicant does not have a well-founded fear of persecution or will suffer significant harm.
The Court advised the parties that it would proceed on the basis that an application to amend (which the Minister opposed) and the final hearing (if leave to amend were granted) would be heard together.
Both parties agreed that the Court should proceed on this basis.
Application to Amend
Applicant’s Submissions
Notably absent from the applicant’s written submissions was any acknowledgement that the applicant required leave to press the “grounds” articulated in his submissions. It goes without saying, therefore, that there was no explanation for the delay and no reason provided as to why a proposed amended judicial review application with articulated grounds had not been formulated and filed.
At hearing, the Court asked Mr Draper, for the applicant, to address why leave should be granted. Mr Draper was frank and admitted that he was not aware when preparing his written submissions that leave was necessary. He indicated that he did not actually recall seeing the grounds of review in the judicial review application.
As an aside, the Court is somewhat perplexed as to how Mr Draper formulated his submissions without any knowledge of the grounds of review in the application for judicial review.
Mr Draper apologised to the Court and to the Minister and suggested that there had been a misunderstanding or miscommunication through his office.
Minister’s Submissions
The Minister opposed leave being granted to amend the application on the following bases:
a)pursuant to the orders of the Registrar dated 24 October 2018 (made by consent), the applicant was to file and serve any amended application by 14 December 2018. Any amended application would therefore be in breach of the Court’s orders by over 10 months;
b)the applicant has provided no explanation for the delay in belatedly raising the new grounds, especially in circumstances where he has been represented by the same representatives since 26 June 2019;
c)the lateness of any amendment and the lack of a satisfactory explanation for the delay suggest leave ought to be refused; and
d)the proposed grounds lack merit and do not establish any jurisdictional error.
Consideration – Leave to Amend
When considering whether leave to amend should be granted, the following principles are generally considered:
a)the reason for the delay in seeking the amendment and the explanation for the need to amend the application;
b)any prejudice suffered by the opposing party;
c)case management principles (such as the stage in which the proceedings are at and whether any delay will be caused if the amendment were allowed); and
d)the merit of the proposed grounds.
See: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44].
Delay and Explanation
Here, not only was there no explanation for the delay in seeking the amendment, there was no formal request for an amendment. Instead, the Court had before it written submissions which seemed to suggest that the applicant would rely on new grounds of review that arise from the written submissions.
In this regard, the Minister referred to BMY16 v Minister for Immigration [2017] FCCA 2445, wherein it was explained:
6. There appears to be an attitude amongst legal practitioners who act for applicants in migration proceedings that neither the rules of Court nor Court orders, even those made by consent, apply to them. Perhaps that attitude has been encouraged by years of judicial lassitude, combined with the cost-consciousness of practitioners appearing for the Minister, or their adherence to the perceived breadth of the obligations of the model litigant. Whatever be the cause of this attitude, it must change.
7. The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings. No doubt, the merits of any grounds sought to be raised by an amendment are ordinarily relevant to the exercise of that power. However, in circumstances where an opportunity to amend has already been given, but eschewed, and there is no explanation for a very late and prejudicial application for amendment, the merits are not necessarily decisive.
The Court notes that Mr Draper’s legal firm has been on the record since 26 June 2019. That means Mr Draper had 5 months within which to formulate new grounds of review and request leave to amend. He did not do so.
Mr Draper has offered no explanation as to why there has been no reformulated application during this lengthy period. Simply put, there was no explanation because Mr Draper was unaware of the need for one. This is unsatisfactory.
In all of the circumstances, the Court finds that the delay and the lack of explanation for the late amendment weigh against leave to amend being granted.
Prejudice
The Minister did not contend that any prejudice would be suffered.
The Minister was somehow able to prepare written submissions in response to what appeared to be articulated grounds in Mr Draper’s written submissions.
The Court accepts that an applicant should not be prejudiced by the actions of his representative, particularly in circumstances where the applicant is applying for protection and does not speak English. He is entitled to assume that his lawyers will act in his best interests.
All of the above weighs in favour of leave being granted.
Case Management Principles
The applicant has not sought an adjournment. Nor has the Minister. The Court will not be required to relist the matter as a result of any amendment being granted. The Court’s resources have not been, and will not be, wasted as a result of any amendment.
This weighs in favour of leave being granted.
Merits of the Substantive Application
The merits of any proposed grounds must be considered. Leave to amend should not be granted if the grounds are unarguable, obviously futile or have no reasonable prospect of success: SZSRR v Minister for Immigration & Border Protection [2017] FCA 328.
Here, Counsel for the applicant expressly abandoned the grounds of review in the originating application. If leave were not granted there would, in effect, be no grounds of review before the Court.
On a reasonably impressionistic view, the new grounds arising from the applicant’s submissions are arguable. They were prepared by a legal practitioner who, the Court assumes, reviewed the IAA’s decision when formulating his written submissions.
The Court is of the view that the proposed grounds have sufficient merit to weigh in favour of leave being granted.
Conclusion
The delay and lack of explanation in this case are entirely unsatisfactory. However, in the specific circumstances of this case, the Court does not believe that the applicant should be prejudiced by his lawyer’s conduct. The Minister faces no prejudice if leave is granted and the case, as now put, is at least arguable.
Leave to rely on the new grounds of review is granted. An order will be made to that effect.
Consideration – substantive application with new grounds of review
The Court will now consider the merits of the two grounds of review the applicant now advances and which arise from Mr Draper’s written submissions.
Ground 1
Ground one appears to be an assertion that the IAA denied the applicant procedural fairness as it failed to put to him “new information” that it relied on to affirm the decision under review.
In effect, the applicant appears to allege that there has been a breach of s.473DE of the Act, which provides:
Certain new information must be given to referred applicant
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non-disclosable information; or
(c)is prescribed by regulation for the purposes of this paragraph.
Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Applicant’s Submissions
The applicant submitted as follows in relation to the newly advanced ground 1:
a)at [4], the IAA found that there were exceptional circumstances for considering the information obtained in the South Asia Terrorism Portal (SATP), “Shias killed in Pakistan since 2001 to 22 April 2018”, 22 April 2018 (the “SATP Report”);
b)at [5], the IAA found that there were exceptional circumstances for considering information contained from the website of NADRA) (the “NADRA Information”). NADRA is the Pakistani Government authority responsible for issuing CNICs;
c)the SATP Report was considered by the IAA at [31] at footnote 5, [35] at footnote 12 and [36] at footnote 17 and the NADRA Information was considered by the IAA at [65] footnote 32;
d)section 473DE compels the IAA, where the new information has been considered and was part of the reason for affirming the delegate’s decision (as it was at footnotes 5, 12, 17 and 32), to explain to the applicant why that new information was relevant and invite the applicant to comment on the new information; and
e)the IAA failed or refused to explain why the new information was relevant or invite the applicant to comment on the new information.
Minister’s Submissions
The Minister submits:
a)the IAA was not required to put the SATP Report or the NADRA Information to the applicant as s.473DE(3)(a) applied;
b)the SATP Report and the NADRA Information which the IAA considered at [4]-[5] was not specifically about the applicant, but about Shia Muslims in Pakistan and Pakistani citizens more generally; and
c)accordingly, there was no statutory obligation to put that information to the applicant under s.473DE(1) and no error is revealed.
Consideration
The Minister’s submissions are accepted.
The SATP Report and the NADRA Information are clearly “new information” which falls into the exception of s.473DE(3)(a) of the Act as it was about “a class of persons of which the referred applicant is a member”.
In relation to the SATP Report, the IAA described it as “recent information about deaths of Shia Muslims”. The applicant claimed to be, and was accepted as being, a Shia Muslim. The information is clearly about a class of persons to which the applicant identified as a member and not “specifically about the applicant”.
In relation to the NADRA Information, the same reasoning applies. The IAA described the information as “relating to the application process for individuals applying for their first CNIC”. The information was not “specifically about the referred applicant”. Rather, it was information about a process that the applicant would be required to go through as a member of a particular group of persons (i.e., those applying for their first CNIC).
Ground 1, accordingly, is dismissed.
Ground 2
Ground 2 seems to suggest that the conclusions reached by the IAA were unreasonable or illogical.
Applicant’s Submissions
With respect, the submissions filed on behalf of the applicant are not entirely clear. They tend to comingle disparate arguments, lack structure and are often disconnected from what appears to be the ground of review.
The Court’s preference is to summarise submissions before the Court. That has proven difficult here. As such, the Court extracts the applicant’s written submissions in full, as follows:
2. The Immigration Assessment Authority (IAA) found, on the basis of the country information, that:
a. There were three reported terrorist attacks in the Islamabad Capital Territory in 2016, the same number of attacks reported in 2015 (CB 174 [36]);
b. A further three fatalities as a result of violence in the first quarter of 2017 were reported (CB 174 [36]);
c. DFAT assesses that Hazaras face a higher risk of sectarian violence than other Shia Muslims due to their distinct appearance (CB 174 [38]).
d. Despite disruptions to their activities, militant groups, including LeJ, are said to continue to operate across Pakistan and to perpetrate attacks, particularly on government and sectarian targets. Islamic State is also reported to be active in Pakistan (CB 175 [41]).
e. DFAT advises that CNICs are the most common form of identification in Pakistan and are required to obtain a passport or drivers’ licence, engage in formal employment, register as a voter, access services such as bank accounts, and to gain entry to a college or university (CB 180 [63]).
3The IAA concluded on the basis of the information at 2 above:
a. On the evidence before (the IAA), I am not satisfied that there is a real chance of harm to the applicant in Islamabad, now or in the foreseeable future, as a result of sectarian attacks related to his identity as a devout Shia Hazara, or due to the security situation in the city (CB 175 [42]).
b. The Applicant will be able to obtain a CNIC and subsist in Islamabad despite the Applicant not having a CNIC and the requirement to return to Quetta in order to obtain a CNIC (CB 181 [65]).
3. The following principles emerge from Minister for Immigration and Citizenship v Li:
a. Every statutory discretion, however broad, is constrained by law;
b. Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred;
c. Every discretion has to be exercised according to “the rules of reason”;
d. Decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purpose of the Act;
e. This requires a “certain continuity and consistency in making decisions”;
f. The rationality required by “the rules of reason” is an essential element of lawfulness in decision making;
g. After all the requirements of administrative justice have been met, in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom i.e. the requirement for rational action are “in
h. the nature of threshold constraints above which there remains room for official judgement and choice”.
5. However, a decision is beyond jurisdiction if it exhibits serious irrationality or illogicality. It need not be “wholly bizarre” or satisfy the Wednesbury standard in that “no reasonable person could have reached the same conclusion”.
6. A fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted. ‘A real chance’ conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.
7.A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’: … clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
8. In the same case Dawson J stated: “... a fear can be well-founded without any certainty, or even probability, that it will be realized. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent”. Toohey J stated: “A ‘real chance’ ... does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial”.
9. Similarly, according to McHugh J: [A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted. Obviously, a far-fetched possibility of persecution must be excluded.
10. Thus, as the High Court confirmed in MIEA v Guo, Chan establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
11. The IAA did not direct itself in such way as to arrive at a rational conclusion as to what country information may establish a well-founded fear, or real chance, of persecution.
12. The IAA, instead, based its conclusion upon an irrational selection of information to come to a conclusion that the Applicant would be able to subsist in Islamabad despite having no Computerised National Identity Card (CNIC), support network or real prospects of employment.
13. Again, the IAA did not direct itself in such way as to arrive at a rational conclusion as to what country information may establish a well-founded fear, or real chance, of persecution in that the Applicant would be able to subsist if returned to Islamabad.
14. The IAA, instead, based its conclusion upon an irrational selection of country and other information, for example, that large urban areas have greater employment opportunities, the Applicant is of working age and in good health and has work experience and skills that lead to the inevitable conclusion that the Applicant does not have a well-founded fear, or that that there is not a ‘real chance’, that he could not subsist, when and despite there being unemployment in Pakistan.
15. It is illogical to conclude, as the IAA did, that because a person is capable of working and has workplace skills that they will work where there is unemployment. On the basis of this logic all abled bodied, skilled persons would necessarily be employed.
Difficulties of Relocation
16. In order for the Applicant to be able to potentially find employment in Islamabad, he would need to be issued a Computerised National Identity Card (CNIC). The delegate accepts that in the past, he has not been issues a CNIC (CB 180 [63]).
17. There is conflicting information as to the process of obtaining a CNIC. “DFAT reported in September 2017 that to obtain a CNIC… Applicants are required to attend a NADRA (the Pakistani Government authority responsible for issuing CNICs) registration centre in their place of origin” (CB 180 [64]). Therefore, the Applicant would be required to travel back to Quetta, his place of origin, to obtain a CNIC before he would be able to find any employment or opportunities in Islamabad.
18. The Delegate previously concluded that “there is a real, if small, chance of serious harm to the applicant as a Shia Hazara resident of Quetta, in the form of possible death or serious injury as a result of sectarian attacks” (CB 173 [32]). We submit the Applicant would be unable to obtain a CNIC as it would be too dangerous for him to return to Quetta in order to do so. As set out above at paragraph 7, a ‘real chance’ of persecution, is well- founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. So even if the Applicant only needs to return to Quetta for a short period of time, there is still a real chance of persecution.
19. New information which was considered by the Delegate (and never provided to us thus breaching section 473DE of the Migration Act) was from a Pakistani website which stated that ‘applicants from FATA/PATA are eligible to process from anywhere in Pakistan’. The Delegate notes that the applicant is from Quetta, rather than from the PATA in Balochistan (CB 181 [65]). However, the Delegate then concludes at CB 181 [65] “I am satisfied that he will be able to access the CNIC of one of his parents, secure the attestation of his application form by one of his parents, and secure any other original documents he may require from Quetta, by using mail or other delivery services to send and receive documents from his family in Quetta”
20.In CRI026 v The Republic of Nauru, the dictum of the Court stated –
Before a decision maker may properly reject a claim for complementary protection… the decision maker needs reliable information as to the safety and suitability of the place of relocation (emphasis added).
21. This passage means that the Court must undertake an evaluation as to the accuracy and reliability of the information considered by the Authority.
22. Where there was information that was contradictory and inconsistent with the information relied upon by the Authority, the latter information was unreliable and so the Authority’s reliance upon it was unreasonable.
23. Any administrative decision must be based on ‘reliable’ information in the sense that the information must provide a logical basis for the decision maker to be satisfied of the likelihood of the existence of the fact in issue.
24. The Authority, in exercising its choice as to the information it accepts, has an obligation to make that choice on a reasonable basis. Where there is conflicting information, the Authority had an obligation to consider whether there was a reasonable basis for concluding that it could rely on one piece of information over the other.
25. We submit there was not a reasonable basis for the delegate to rely on information accessed from the Pakistani website which was not about citizen from Quetta, over information provided by a DFAT country report.
26. We submit that CRI026 extends the Court’s jurisdiction to review for jurisdictional error in that the Court must undertake an evaluation as to the accuracy and reliability of the country information considered by the Authority.
27. The Full Court explained in Minister for Immigration and Border Protection v Singh that the process of review of legal reasonableness “will inevitably be fact dependent” and the role of the supervising Court only involves a scrutiny of the factual circumstances in which the power comes to be exercised.
28. We further submit that CRI026 read in the context of Singh requires the Court to scrutinise the factual circumstances upon which the Minister exercises his/her power to test those facts and circumstances for reliability. To put it simply: a decision to return an Applicant can only be reasonably made if that decision is made with regard to reliable information – consideration of unreliable information is unreasonable.
29. The Authority concludes that there is not a real risk of significant harm without having due regard to those factors detailed at paragraph 18 above that suggest, and with respect, can only suggest to the reasonable decision maker having due regard to those facts, that there is a real risk of him suffering significant harm.
At hearing, Counsel for the applicant submitted as follows:
a)the reasons the IAA provided (with regard to country information that the IAA said indicated that the applicant would be able to subsist in Islamabad) fails to take into consideration the fact that he does not have the necessary CNIC, which the country information tells us he is required to obtain before he can engage in formal employment;
b)there is an assumption that the applicant will be able to obtain a CNIC and that, if he does manage to obtain the CNIC, then he will be able to find employment or be employed; however, there is nothing referenced that indicates that the applicant will obtain the CNIC;
c)even if the applicant can obtain a CNIC in Quetta, he cannot go to Quetta because there is a real risk that he is going to suffer harm. It is unreasonable to rely on a mere possibility that he can return to Quetta to get the CNIC;
d)the IAA acknowledges country information that tells us there are violent attacks and there is sectarian violence where civilians are being killed. The reasonable person would not conclude that there is little risk or insufficient risk of harm in being returned to Islamabad in light of the information regarding the security situation; and
e)in relation to the IAA’s finding that the applicant could obtain a CNIC, the IAA refers to a website that states that Pakistani citizens over 18 years of age, who are applying for their first CNIC, must present the original CNIC from their parents. That finding is unreasonable because the IAA does not know whether or not this is the applicant’s first application for a CNIC or whether it is eve possible to obtain the parent’s original CNIC. It is unreasonable to assume that the parents are alive or even that they have an original CNIC.
Minister’s Submissions
The Minister’s submissions can be summarised as follows:
a)proposed ground 2 appears to cavil with four aspects of the IAA’s decision:
i)the IAA’s purported “irrational selection of country information”;
ii)the IAA’s relocation findings;
iii)the IAA’s assessment of the applicant’s risk of harm; and
iv)the IAA’s ultimate conclusions as to the applicant not meeting the requirements of s.36(2)(a) and (aa).
b)in relation to the IAA’s choice of country information, it is well-settled that the choice and selection of country information are factual matters for decision-makers;
c)to the extent that the applicant seeks to rely on CRI026 v The Republic of Nauru [2018] HCA 19 (“CRI026”) as authority for the proposition that the Court is required to undertake an evaluation as to the accuracy and reliability of the country information considered by the IAA, it is submitted that CRI026 does not stand for such;
d)the argument advanced in CRI026 arose in a different context and the Court in CRI026 did not engage in an assessment of what constituted “reliable information” or otherwise endorse the Court undertaking its own assessment of the information before the decision-maker;
e)with respect to relocation, the IAA appropriately considered whether it was reasonable, in the sense of practicable, for the applicant to relocate and did so consistent with the prevailing case authorities;
f)in particular, the IAA considered the applicant’s claims including those that relate to his lack of family support, his ability to find employment and accommodation and the difficulty of obtaining relevant identification. It also specifically considered a wide range of factors, including the applicant’s personal circumstances such as separation from his immediate family, lack of established social networks, availability of employment in Pakistan, his skills and employment history and his ability to obtain a CNIC. In those circumstances, no error is revealed;
g)with respect to the IAA’s assessment of the applicant’s risk of harm, the applicant has not identified with any degree of specificity how the IAA’s decision could be said to be unreasonable, illogical or irrational;
h)the applicant appears to assert that the IAA erroneously equated a well-founded fear of persecution as requiring a chance of persecution exceeding 50 per cent. Notably, the applicant has not referred to any paragraph in the IAA’s decision to substantiate this assertion;
i)on a fair reading of the IAA’s decision, it has correctly cited and applied the test for well-founded fear of persecution;
j)with respect to the balance of the applicant’s complaints relating to unreasonableness or illogicality, none of them establish that the IAA’s decision was at the level required by the authorities; and
k)the applicant’s submissions on unreasonableness and illogicality are, with respect, no more than an expression of his emphatic disagreement with the IAA’s decision.
At hearing, the Minister submitted as follows:
a)in relation to the CNIC, the IAA’s finding was not that the applicant would be required to return to Quetta to obtain that card. The IAA’s finding, instead, was that the CNIC could be applied for at any office in Pakistan;
b)the applicant speaks of the IAA referring at [65] to some information on the NADRA website that specifically relates to applicants from “FATA or PATA” and says that this suggests that only people from those areas would be able to apply at any office. This submission is a misunderstanding and ignores the remainder of the paragraph;
c)the IAA specifically confirmed that the NADRA Information was current, provided clearer and more specific information and, in the IAA’s consideration, was from a highly authoritative source. The applicant put on no evidence to counter those considerations by the IAA; and
d)the portions of the IAA’s decision that are accounted at paragraph 2 of the applicant’s submissions are not findings. Rather, they are summaries of the information that was before the IAA. The IAA had regard to a wide range of information when reaching the conclusion that the applicant did not face a real chance of harm in Islamabad. No error occurs in this regard.
Consideration – Irrational Selection of Country Information
The applicant’s argument appears to be that there was an inconsistency in the country information about how the applicant could obtain a CNIC.
At [64], the IAA refers to the DFAT Report which states that a person is required to return to his place of origin (here, Quetta) to obtain a CNIC. However, at [65], referencing the NADRA Information, the IAA concludes that the applicant will not have to return to Quetta.
The applicant suggests that in circumstances where the information before the IAA is contradictory or inconsistent, the IAA has an obligation to consider whether there was a reasonable basis for concluding that it could rely on one piece of information over the other.
The choice and assessment of country information, and also the accuracy (and thus reliability) of country information is a matter for the IAA: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[14].
To the extent that the applicant says that the information from the NADRA website that was relied upon by the IAA related to individuals from PATA/FATA, the Court accepts the Minister’s submissions that the applicant has misread [65] of the IAA’s decision. The IAA expressly states that the information suggests that “all Pakistani citizens applying for their first CNIC can apply at any NADRA office in Pakistan”. The information is not, therefore, unrelated to the applicant.
To the extent that the applicant suggests that CRI026 requires the Court to undertake its own evaluation as to the accuracy and reliability of the country information considered by the IAA, for the reasons discussed in DQA17 v Minister for Immigration [2018] FCCA 2418 at [53]-[57] and EAT17 v Minister for Immigration & Anor [2018] FCCA 3036 at [62]-[63] (“EAT17”), the Court does not accept that CRI026 stands for that proposition.
As this Court concluded in EAT17:
62.As in DQA17, the Court here is unable to ascertain any legal principle that requires (or, indeed, even permits) the Court to scrutinise the Authority’s use of country information in detail. This is not surprising as to do so would, in effect, require the Court to override firmly entrenched principles (clearly articulated in NAHI) and engage in an impermissible merits review of the Authority’s decision.
63.CRI026 does not suggest that the country information relied on by the Authority must be consistent with all of the other information before the Authority before any decision about relocation can be seen to be “reasonable”. Rather, in so far as CRI026 does clarify the role of the Authority in relation to its use of country information, the Court agrees with Judge Smith’s statement in DQA17 that CRI026 simply confirms the basic principle that any administrative decision must be based on “reliable” information in the sense that the information must provide a logical basis for the decision-maker to be satisfied of the likelihood of the existence of a fact in issue.
That aside, the central flaw in the applicant’s argument here is that the IAA did, in fact, outline why it found the information it ultimately relied upon to be “reliable”. At [5], the IAA states:
I have also obtained new information from the website of NADRA, the Pakistani Government authority responsible for issuing Computerised National Identity Cards (CNICs), relating to the application process for individuals applying for their first CNIC. This information is current and provides clearer and more specific information about this process than other information about this matter that was before the delegate. As guidance provided by the issuing body, it is also information from a highly authoritative source. In view of this and the relevance of this information to the assessment of the reasonableness of relocation for the applicant, I am satisfied that there are exceptional circumstances to justify considering this new information.
Here, if it can be said that there is an obligation for the Court to consider whether there was a reasonable basis for the IAA to rely on the NADRA Information as opposed to DFAT, it is plain from [5] that there was a reasonable basis. The IAA explained why the information was relevant and specifically referenced the reliability of the information.
If the applicant is suggesting (and, again, it is unclear) that there was no reasonable basis for the IAA to rely on the NADRA Information over information provided by DFAT, the Court disagrees. The IAA determined that the NADRA Information was “clearer and more specific”, was “highly authoritative” and “of relevance to the assessment” for “the applicant”. Having made that assessment, unless the Court was satisfied that it was illogical for the IAA to have done so (an argument which the Court rejects) the applicant is simply seeking to cavil with the selection and use of country information – something which is ultimately a matter for the IAA.
There was no error in the IAA’s use of country information.
Consideration – Reasonableness of Relocation
The applicant’s next argument appears to be that the IAA’s findings as to the reasonableness of relocation are unreasonable or that the IAA misapplied the test relevant to determining if the applicant faced a real chance or risk of harm in Islamabad.
The IAA summarised (at [52]) the applicant’s claims as to why he considered it unreasonable to require him to relocate. The IAA then addressed each claim in turn (at [53]-[65]).
The IAA’s consideration addressed the applicant’s particular circumstances (such as his lack of family support, his being easily identified as a Shia Hazara, his ability to find employment in circumstances where he has no family or connections in Islamabad and his ability to obtain a CNIC in circumstances where he had not obtained one previously). In this context, it can be concluded that the IAA clearly considered each of the “particular circumstances” the applicant put forward as to the reasonableness of relocation: SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 19 at [24].
Further, the IAA did not confine itself to the matters the applicant expressly raised. It also specifically considered other factors that arose from the material before it: MZANX v Minister for Immigration & Border Protection [2017] FCA 307 at [58] (“MZANX”). This included the applicant’s separation from his immediate family (including his wife), the lack of established social networks, the availability of employment in Pakistan and the cost and availability of accommodation.
Further (and contrary to the applicant’s submissions), there is nothing to suggest that the IAA’s conclusions in relation to the applicant’s ability to obtain employment are illogical or irrational. The IAA did not operate on the assumption that the applicant would obtain a CNIC. Rather, the IAA expressly found that the applicant could obtain a CNIC and explained how he would do so. That finding was open to it.
In relation to submissions about the prospects of employment, the IAA referred to country information that employment opportunities are greater in Islamabad than in many other areas of Pakistan and noted that the applicant had particular attributes (such as his ability to speak, read and write in in different languages, the fact that he was “fairly well educated”, that he had worked as a bricklayer and that he had tiling and carpentry skills) (CB 178 at [54] and [56]).
It is not the case that the IAA made a general statement that the applicant would be able to secure employment (because there was a better opportunity to do so in Islamabad than in other parts of Pakistan). Rather, the IAA assessed a detailed array of information about the applicant’s personal circumstances and the prospects of employment in Islamabad in light of the applicant’s particular circumstances: MZANX at [51] and [55].
The Court is satisfied that the IAA did not err in assessing the reasonableness of relocation. Nor does the Court accept that the IAA erred in applying the legal principles relevant to the issue of relocation.
Consideration – the application of the well-founded fear test
What the applicant appears to be referencing in relation to this argument is a statement by the IAA at [32] that:
…there is a real, if small, chance of serious harm to the applicant as a Shia Hazara resident of Quetta, in the form of possible death or serious injury as a result of sectarian attacks.
The applicant says that once that finding was made, it cannot then be said that he can at any point return to Quetta. The Court accepts that submission.
The applicant then says that the IAA overlooks the fact that he would be required to return to Quetta to obtain a CNIC – which would enable him to subsist in Islamabad – and, as such, he would be exposed to a real chance of harm.
The Court does not accept this submission.
The applicant overlooks the IAA’s finding that he will not be required to return to Quetta to obtain his CNIC (at [65]). Relevantly, the IAA found:
65. … I am satisfied that the applicant can apply for and obtain a CNIC in Islamabad, and that his current lack of a CNIC will not act as a barrier to his relocation to Islamabad.
The IAA was not satisfied that the applicant was required to return to Quetta to obtain a CNIC; hence, the “real, if small, chance of serious harm” did not arise. That the applicant now argues differently (i.e., that he will be required to return to Quetta to obtain a CNIC) represents no more than disagreement with the IAA’s findings and the country information the IAA relied on. It does not amount to jurisdictional error and does not indicate that the IAA misapplied the real chance test.
There is nothing otherwise on the face of the IAA’s decision to suggest that the IAA misunderstood or misapplied the well-founded fear test. The IAA correctly cited the test for determining whether the applicant has a well-founded fear of persecution. In particular the Court notes [32] of the IAA’s decision, as follows:
The number of casualties as a result of these attacks is relatively small and they have not occurred frequently. Nevertheless, they are not rare, and as noted, have tended to target ordinary Hazara Shias in Hazara areas in Quetta. While I consider the chance of harm to the applicant as the result of such an attack to be small, I cannot rule out the possibility that he would be seriously harmed in a sectarian attack targeting Shia Hazaras were he to return to live in Quetta. I am satisfied that there is a real, if small, chance of serious harm to the applicant as a Shia Hazara resident of Quetta, in the form of possible death or serious injury as a result of sectarian attacks.
It is clear that the IAA understood what constituted a “real chance” and did not adopt an incorrect approach to that test. The IAA appreciated that a “real chance” is one that exists even if it is “small”.
Consideration – Illogicality and unreasonableness
At [2] of the applicant’s written submissions, the applicant makes various references to country information. He says that, on the basis of these “findings”, the IAA could not have reasonably concluded that it was safe to relocate to Islamabad.
In relation to these matters, the Court notes:
a)the applicant refers to the IAA’s finding at [36] that there were three reported terrorist attacks in Islamabad in 2016 (the same number of attacks reported in 2015) and there were three fatalities in the first part of 2017. He does not mention that the balance of that paragraph refers to country information that suggest the risk in Islamabad is “low” and that Islamabad is one of the “safest parts of Pakistan for Shia Muslims”;
b)the applicant refers to the IAA’s statement that DFAT assess that Hazaras face a higher risk of sectarian violence than other Shia Muslims due to their distinct appearance (at [38]). He overlooks the fact that the IAA then states (with particular reference to Islamabad) that attacks on Shia Muslims, including Shia Hazaras, are rare and there is little evidence of past attacks;
c)at [41], the IAA states that “despite disruptions to their activities, militant groups, including LeJ, are said to continue to operate across Pakistan and to perpetrate attacks, particularly on government and sectarian targets. Islamic State is also reported to be active in Pakistan”. At [42], the then IAA refers to information specific to Islamabad that indicates that the presence of militant groups and support of those groups has not translated to the city and that attacks are rare; and
d)the IAA did find that CNIC’s are required for access to various services (at [63]). The IAA then specifically, and in detail, addressed the applicant’s ability to obtain a CNIC and was satisfied that the would be able to.
To the extent that the applicant is saying that the matters he refers to at [2] of his submissions indicate that it is unreasonable to relocate, or that (on the basis of that information) no reasonable decision maker could have found it was safe for the applicant to relocate, the Court rejects this argument.
With respect, Mr Draper, for the applicant, is cherry-picking parts of the IAA’s decision. The particular matters he refers to are not “findings”. They are, as the Minister submits, a summary or a discussion of the information before the IAA.
The IAA evaluated that country information to come to a conclusion that there was not a real chance or risk of the applicant being harmed in Islamabad and that it would be reasonable for him to relocate. When considered as a whole, the IAA’s findings were reasonably made and soundly based.
At hearing, the applicant submitted that the IAA had made a number of “assumptions”. The assumptions can be identified and addressed as follows:
a)the assertion that “IAA certainly does not know whether or not this is a first application of a CNIC by the applicant” must be rejected. The applicant’s own evidence was that he had never been issued with a CNIC (CB 108 at [5] and 179-180 at [61]-[63]);
b)if what the applicant is stating is that the IAA overlooked the fact that the applicant may have previously applied for and not been issued a CNIC and assumed that he could obtain one in any event, the IAA specifically addressed this at [61]-[62] and found that there would be no bar to the applicant applying for and being issued a CNIC;
c)the assertion that the IAA “importantly does not know whether or not it is possible to present an original CNIC from the applicant’s parents” must also be rejected. The IAA had before it information that the applicant’s parents were registered and had a CNIC (CB 71 and 180-181 at [65]); hence, it was open for the IAA to assume that the applicant could access his parents’ CNIC;
d)in relation to the alleged assumption that the applicant’s parent were alive, there is nothing to indicate to the contrary. In the absence of evidence to the contrary (noting there was nothing to suggest anything other than that the applicant’s parents were alive (see, CB 5-7, 40, 130 and 179 at [57])) it cannot be said it was illogical or unreasonable for the IAA to proceed as it did in assuming the applicant’s parents were alive.
The Court has otherwise assessed the IAA’s decision and is satisfied that it is logical and reasonable. The conclusions drawn are soundly based on the evidence and information before the IAA.
Conclusion
The grounds of the amended application, as articulated in written submissions dated 15 October 2019 do not identify jurisdictional error in the IAA’s decision.
The application is dismissed.
I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 12 December 2019
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