EZJ17 v Minister for Immigration
[2019] FCCA 3519
•6 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EZJ17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3519 |
| Catchwords: MIGRATION – Application for judicial review of decision of Immigration Assessment Authority – application for protection visa – principle of internal relocation – reasonableness of relocation – assessment of personal attributes of applicant – has IAA failed to exercise jurisdiction conferred upon it – is decision irrational, illogical or unreasonable – application of section 473DD of the Migration Act 1958 – exceptional circumstances – legal unreasonableness – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AA, 5H, 5J, 36(2)(a), 36(2)(aa), 36(2B), 46A, 65, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 476 Migration Regulations 1994 (Cth), Sch.2 |
| Cases cited: BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179 BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 MZANX v Minister for Immigration & Border Protection [2017] FCA 307 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Plaintiff M 13-2011 v Minister for Immigration & Citizenship [2011] HCA 23 Plaintiff M64/2015 v Minister for Immigration & Border Protection (2015) 258 CLR 173 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 607 Randhawa v Minister for Immigration (1994) 52 FCR 437 S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 |
| Applicant: | EZJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 452 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 25 November 2019 |
| Date of Last Submission: | 25 November 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 6 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: |
| Counsel for the Respondents: | Mr Ellison |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The first respondent’s name be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.”
The amended application filed 30 April 2018 be dismissed.
The applicant pay the first respondent’s costs in the amount of five thousand dollars ($5,000.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 452 of 2017
| EZJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a determination of the Immigration Authority,[1] affirming an earlier decision of a delegate of the Minister of Immigration & Border Protection[2] not to grant him a protection visa pursuant to the provisions of the Migration Act 1958.[3]
[1] Hereinafter referred to as “the IAA” or “the Authority”
[2] As the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs was previously known
[3] Hereinafter referred to as “the Act”
The applicant was born in Quetta, Pakistan. He is Hazara by ethnicity and follows the Shia faith. He claims to be at risk of suffering serious harm, in Pakistan, at the hands of extremist Sunni groups, which currently operate in that country, because he will be readily identifiable as a Hazara Shia because of his distinctive appearance, mode of speech and his surname.
In support of his claim, the applicant has deposed that his family shop, in Quetta, was targeted and bombed by terrorists during Eid in August of 2011. The attack being motivated by a desire, on the part of extremists, to kill as many Hazaras as possible, including him and his family. As a consequence of this attack, the applicant felt unsafe in Quetta, where he claims the Pakistani authorities are unable to curb violence towards Hazaras.
In addition, the applicant claims that he is likely to be subject to adverse attention, if returned to Pakistan, because it will be known he has lived for several years in Australia. Significant to the matters raised in this case, the applicant also asserts that he will be liable for persecution throughout Pakistan, including its capital Islamabad, because of his ethnicity and religious orientation. He claims anti-Shia extremist groups operate in all of the major cities of Pakistan.
It is also the applicant’s case that he has limited employment skills and education and speaks Urdu – the official language of Pakistan – without any degree of fluency. As such, he contends that he will be unable to function outside of Quetta, where he has family support and where other Hazaras live, because he will not be able to obtain employment and so be unable to derive any viable form of income.
The applicant left Pakistan in late 2012 and arrived at Christmas Island, by boat, on 3 February 2013, after having travelled via Sri Lanka, Malaysia and Indonesia. Due to the manner of the applicant’s arrival on Australian territory, he is classified, under the Act, as an unauthorised maritime arrival into Australia [see section 5AA].
Pursuant to section 46A of the Act, this classification prevents a person so characterised from being able to apply automatically for any form of visa, including a protection visa, unless the Minister authorises it on the basis of being satisfied that it is in the public interest to do so.
Section 35A of the Act creates two classes of protection visas known respectively as Safe Haven Enterprise Visas (SHEV) and Temporary Protection Visas (TPV). On 3 March 2016, the applicant was invited to lodge an application for a protection visa, as a consequence of the Minister “lifting the bar” pursuant to section 46A. The applicant applied for a SHEV on 21 June 2016.
A consequence of the Minister allowing any applicant to make a visa application, in this way, is that the relevant applicant becomes characterised as a fast track applicant and, as such, the manner in which his/her application is to be determined and any review process arising is prescribed by Part 7AA of the Act.
Part 7AA of the Act mandates a process of review in respect of all decisions made by ministerial delegates in respect of such fast track applicants. In broad terms, if the delegate declines to grant a protection visa under the Act, the decision in question must be referred to the IAA, for review, as soon as practicable after it has been made.
As previously indicated, the ministerial delegate declined to grant the applicant a SHEV on 24 January 2017. The applicant had earlier provided a statutory declaration in support of his claim.[4] He also took part in an interview, with the delegate, on 15 November 2016. In addition, his advisor provided a written submission in support of his claim.[5]
[4] See Case Book at 85-88
[5] Ibid at 111-125
As mandated by the Act, the delegate’s decision was referred to the IAA on 30 January 2017. In the context of this review, on 20 February 2017, the applicant’s advisor made a further written submission to the IAA.[6]
[6] Ibid at 177-181
The delegate’s decision was premised on the following findings:
·Country information indicated that Islamabad had been highly safe from sectarian violence in 2016;
·In these circumstances, the prospect of the applicant being exposed to anti-Shia sectarian violence in Islamabad could be best described as remote for the foreseeable future;
·As the applicant had left Pakistan lawfully, it was not likely that he would be subject to any form of punishment, from the authorities there, if returned to that country;
·It was unlikely that any level of stigma would attach to the applicant in Pakistan, on the basis of him having returned from a western country, because of the size, diversity and anonymity likely to be available to the applicant, particularly in a large urban centre;
·Country information indicated that there was a potential support network, for internal migrants, including Hazara Shias in Islamabad; and
·Significantly, the applicant himself had shown a significant aptitude for relocation as evidenced by his ability to support himself, in Australia, where he had not previously had any contacts and where he had been able to obtain employment.
In these circumstances, the delegate found as follows:
“The factors which suggest that it would not be reasonable for the applicant to relocate to Islamabad include that he has never lived in Islamabad; that he has no family there; and that the cost of living is likely to be high. As noted in DFAT country information above, these barriers to relocation may be offset by the higher wages available in large urban centres such as Islamabad; and by the presence of migrant communities (including Hazara Shia communities) that can assist with settlement, accommodation and employment.”[7]
[7] Ibid at 154
The delegate also found that the applicant had a valid national identity card, issued by the Pakistani authorities, which would enable him to gain employment or start a business in Islamabad. In this context, it was noted that the applicant had skills as a welder, which he could utilise to find work in Islamabad.
The new information proffered by the applicant’s advisor, on 20 February 2017, raised issues regarding the reasonableness of the applicant having to relocate to Islamabad. In the context of the grounds of review relied upon by the applicant, two particular aspects of this submission are relevant.
Firstly, the advisor made oblique reference to an earlier decision of the IAA, made on 30 August 2016, in the sense that the relevant decision was alluded to in a footnote. This decision was cited in order to support the following proposition:
“In addition to the uncertainty concerning future security for Shia Muslims across Pakistan, it would be unreasonable for our client to relocate to either Islamabad or Rawalpindi. We submit that the Australian law applicable to our client’s assessment establishes the need to assess the reasonableness of relocation.”[8]
[8] Ibid at 180
The decision in question[9] also concerned a Hazara Shia, from Quetta, and raised issues relating to the prospect of the individual concerned relocating to a larger centre within Pakistan, given it was accepted that he was subject to a real risk of suffering significant harm if returned to Quetta.
[9] Described in the materials as IAA16/00416
In this context, the IAA examined the subjective reasonableness of the applicant concerned relocating to Islamabad and concluded that given his idiosyncratic circumstances, particularly his lack of familial support in that location and the fact that his experiences in Quetta had had a profound psychological effect on him, it was not reasonable for him to relocate.[10]
[10] See IAA 16/00416 at [36]–[39]
It is the applicant’s position, in the current proceedings, that this decision is analogous to his own situation and should have been influential before the IAA. However, the particular case was not before the ministerial delegate and was only raised at the Part 7AA review stage.
Secondly, on the basis that the delegate had accepted the present applicant’s claim that he would not be secure in Quetta, the advisor also submitted the applicant would nonetheless be compelled to return to that city in order to renew his national identity card.
Given the centrality of the applicant being able to utilise a national identity card to obtain employment in Islamabad it was submitted that it was unreasonable for the delegate to conclude that the applicant could relocate to that city, whilst accepting he would not be safe in Quetta.
The jurisdiction of the Federal Circuit Court in Migration matters
Pursuant to section 476 of the Act, the Federal Circuit Court has the same original jurisdiction to review what are characterised as migration decisions as that conferred on the High Court. The relevant decision of the IAA is such a migration decision.
Pursuant to section 474, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[11]
[11] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
In general terms, an administrative decision-maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[12]
[12] See Craig v South Australia (1995) 184 CLR 163
In addition, in certain circumstances, a review body may fail to discharge the jurisdiction conferred upon it, if it is established that it has acted in a manner which is legally unreasonable. Legal unreasonableness is a broad concept but usually is confined to two major categories.
Firstly, it can be characterised by a level of illogicality or intelligibility, which attaches to the process of reasoning, adopted by the decision-maker in question, leading to the relevant decision being able to be characterised as nugatory.
Secondly, it can also consist of some species of procedural unfairness, which renders the decision unreasonable in some way, as it can be characterised as being arbitrary or capricious, in some way, which is contrary to considerations of fairness. The court has a supervisory jurisdiction in respect of both such issues and so the authority to intervene in respect of the original decision.
Essentially, in conducting this supervisory jurisdiction, over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all, as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
In order to be successful in his application for review, it will be necessary for the applicant to demonstrate such an error of jurisdiction arising in the decision of the IAA. This court is not able to substitute its own decision for that of the Authority. Nor is it the responsibility of this court to mount any challenge to the decision, on behalf of the applicant, which does not arise from his application.
The grounds of review
The applicant has acted on his own behalf in the proceedings before this court, although it is apparent that he has had some assistance in the case. His simple formal ground of review is as follows:
“The IAA made a jurisdictional error in my case.”
On 30 April 2018, the applicant filed an amended application, which provided two further grounds for review as follows:
“(1) That the decision maker failed to reasonably consider the decision of August 2016 by the IAA which found that it was unreasonable for the applicant to relocate to Islamabad without family or tribal support and networks.
(2) That the decision maker failed to acknowledge that Hazara Shias are a minority of the general Shia population and are more easily recognisable.”
In support of these grounds, a person describing herself as the “solicitor for the applicant” filed some submissions, to which were attached the earlier decision of the IAA in respect of the person whose situation was characterised as being analogous to the applicant in this matter.
At hearing, the applicant, who was unrepresented, raised the further issue regarding his ability to renew his Pakistani identity card because of the alleged necessity to travel to Quetta to do so. However, the main thrust of his submissions was that that decision was not a fair one because his life would not be safe anywhere in Pakistan on account of his distinctive appearance as a Hazara and the fact that his family remained living in Quetta. He also indicated that his family relied on his financial support to survive and he would not be able to provide such support from Islamabad.
Legal considerations relevant to the grant of protection visas
Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
In respect of each such protection visa, the criteria required to be satisfied are set out in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·be subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
These sections reflect the definition appearing in the Refugees Convention,[13] to which Australia is a signatory and which provides that a refugee is a person who:
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
[13] Hereinafter referred to as “the Convention”
The High Court has established that this definition has both subjective and objective elements; the question to be asked by the relevant decision-maker being does the applicant subjectively fear persecution and is that fear objectively well-founded.
In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned if he or she is returned to the country. Necessarily these matters are predictive in nature. They are often encapsulated under the rubric of the real chance test.[14]
[14] See S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 478–479 [72]–[73]
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering significant harm if returned to a particular country.
Subsection (2A) defines significant harm. It includes the relevant applicant for protection suffering all or any of the following circumstances:
·being arbitrarily deprived of his or her life;
·being subject to the death penalty;
·being subject to torture;
·being subjected to cruel or inhumane treatment or punishment; or
·being subject to degrading treatment or punishment.
Section 36(2B) is germane to the grounds of review advanced in the case. It provides that it is taken not to be a real risk a person will suffer significant harm in a particular country if satisfaction is reached in respect of the following considerations:
·it would be reasonable for the applicant in question to relocate to another area of the country concerned, where there was no real risk of he or she suffering significant harm; or
·the applicant could obtain protection from relevant state authorities to avoid suffering such significant harm; or
·the real risk was one faced by the whole population of the country concerned not the particular applicant personally.
The provision encapsulates a principle which is commonly referred to by lawyers as the principle of internal relocation. The principle of internal relocation is predicated on the basis that it is not reasonable, for the nation signatories to the Refugees Convention, to be required to offer protection to the sufferers of persecution, as defined by the Convention, if safety is available to them, within their country of origin, through the agency of their own state.
In Randhawa v Minister for Immigration[15] Black CJ discussed the principle and indicated that the question, which a decision maker, in respect of refugee status, should ask, was whether the applicant’s “fear [of persecution] was well founded in relation to his country of nationality, not simply the region in which he lived.”
[15] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 442–443
However, given the humanitarian objects of the Refugee Convention, this question was not to be approached in a “narrow way”. Accordingly, a person’s fear of persecution would remain well founded in respect to the country as a whole, if, as a matter of practicality, the part of the country in which protection was available was not reasonably accessible to the person claiming asylum.
In this context, Black CJ expressed the consideration as follows:
“If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded.”[16]
[16] See Randhawa (supra) at 443
In SZATV v Minister for Immigration & Citizenship[17] the High Court considered that a decision-maker, in respect of refugee status, must consider whether it was reasonable, in the sense of being practicable, for an asylum seeker to relocate to a region, where objectively there was no appreciable risk of the feared persecution occurring.
[17] SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18
It was considered that such a formulation did not turn upon any hypothetical assumption regarding possible safe areas within the country concerned nor did it prevent “account being taken of the presence of a subjective fear of persecution …” on the part of the applicant seeking asylum status.[18]
[18] SZATV (supra) at 26
Accordingly, considerations germane to what is subjectively practicable for an applicant for refugee status to do, are relevant to whether it is reasonable, in overall terms, for that person to move to another region, within his country of origin, where in objective terms, there is no likelihood of persecution for the individual concerned in that region.
The High Court (Gummow, Hayne and Crennan JJ) said as follows:
“What is ‘reasonable’, in the sense of ‘practicable’, must depend on the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”[19]
[19] SZATV (supra) at 27
Accordingly, an essential component of the decision-making process as to whether it is reasonable for an applicant for refugee status to relocate to another part of his/her country of origin is a consideration of his/her “particular circumstances”. A failure to do so will constitute a jurisdictional error and vitiate any resulting decision.[20]
[20] See Plaintiff M 13-2011 v Minister for Immigration & Citizenship [2011] HCA 23 per Hayne J at [22]
In MZANX v Minister for Immigration & Border Protection[21] Mortimer J warned of the danger of such an assessment becoming formulaic and removed from any real factual basis relevant to the individual concerned. In terms of what was involved in an applicant prospectively moving to a particular location in his/her country of origin, it was necessary for a decision-maker to “attempt to assess what, in a real and practical sense, will happen to that individual and her or his family in those circumstances.”
[21] MZANX v Minister for Immigration & Border Protection [2017] FCA 307 at [56]
Mortimer J held that there must be a “sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location,”[22] and what the applicant’s anticipated life would be like in that location.[23]
[22] MZANX v Minister for Immigration and Border Protection (supra) at [51]
[23] MZANX (supra) at [65]
In this context, Her Honour considered that it was incumbent on the relevant decision-maker to undertake a detailed consideration of the circumstances on the ground for the applicant concerned, particularly what were the practical and realistic abilities of an individual to re-start his or her life in a new place, without undue hardship.[24]
[24] MZANX (supra) at [55]
Essentially what the task involves is a hypothetical examination of what life will be like for the applicant concerned in the proposed location. This is likely to entail an assessment of the standard of health, housing, education, employment, liberty and freedom available to the applicant concerned, upon the commencement of such a new life.
The procedure provided by Part 7AA
The procedure to be followed by the IAA does not entail a fresh re-hearing of the application before the ministerial delegate. Rather the material to be reviewed by the IAA is mandated by various provisions within Part 7AA.
Section 473CB sets out the material, which the Secretary of the Department[25] must provide to the IAA. It includes the reasons of the delegate; any material provided by the applicant concerned to the original decision-maker; and any other material considered to be relevant.
[25] Hereinafter referred to as “the Secretary”
Section 473CC provides as follows:
“(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.”
The procedure of the IAA and how it is to conduct its fast track review function is delineated in section 473DA, particularly what application the rules of natural justice have to fast track matters, including any requirement to refer documents to an applicant for comment. The section reads as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 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 Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB indicates that a fast track review is to be conducted only in respect of the material referred to the IAA by the Secretary without accepting or requesting any new information or interviewing the applicant concerned. In the jargon of administrative review, the review arising under Part 7AA is to be “on the papers” alone.
In this context, the IAA’s authority to access additional review material, to that provided to it by the Secretary, is limited and delineated exhaustively in Subdivision C of Part 7AA.
Section 473DC grants the IAA a discretion to obtain new information not previously before the Minister at time of decision if it might be relevant. Section 473DC(3) provides the IAA with a further discretion to invite an applicant to provide further information either in writing or through the medium of an interview.
However, the IAA is under no obligation or duty to obtain such information regardless of whether it is requested to do so by the applicant whose case has been referred to it or any other person [see section 473DC(2)].
The exercise of the discretion provided by section 473DC is subject to the satisfaction of two cumulative but overlapping considerations,[26] provided by section 473DD. The IAA is prohibited from considering new information unless two overlapping considerations are satisfied, namely:
·The IAA is satisfied that there are exceptional circumstances sufficient to justify it considering such material; and
·The applicant concerned satisfies the IAA the new information:
·either could not have been provided to the Minister at time of decision; or
·is credible personal information not previously known and had it been known, may have affected the consideration of the claims made.
[26] See BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 at [9] per White J
As a consequence of the Full Court decision in BMB16 v Minister for Immigration & Border Protection[27] it is clear that the function of the IAA is to evaluate, for itself, the review material provided under section 473CB together with any new information it obtains and then to either affirm the delegate’s decision or remit the decision for reconsideration, in accordance with such directions or recommendations as are permitted under the Regulations. Accordingly, it is open to the IAA to reach a different conclusion to the delegate in respect of matters arising in the review in question.
[27] BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179
It is also clear, from what was said by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection,[28] that the various powers conferred upon the IAA, including that contained in section 473DD, must be exercised within the bounds of legal reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li.[29]
[28] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 607 at [21]
[29] Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
If the IAA fails to exercise any power conferred upon it reasonably it can render invalid its jurisdiction to conduct a review of any ministerial decision referred to it pursuant to section 473CC. Essentially legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision-making, including by the IAA, and must also inform the processes of each such decision-maker, including in respect of any decision to accept new information.
In Plaintiff M174, the High Court indicated that the expression new information should be read in a consistent fashion, when used in sections 473DC, 473DD and 473DE and was
“…limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.”[30]
[30] See Plaintiff 174 (supra) at 608 [24] per Gageler, Keane and Nettle JJ
The plurality in Plaintiff M174 considered that the structure of section 473DD imposed restrictions on when the IAA could consider new information. In particular, the first precondition set out in 473DD(a) must always be met. Whatever was the source of the new information, the IAA needs always to be satisfied that there are exceptional circumstances to justify considering it.
In this context, the Court said as follows:
“Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word ‘exceptional’, in such a context, is not a term of art but ‘an ordinary, familiar English adjective’: ‘[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered’.”[31]
[31] Plaintiff M174 (supra) at 609 [30]
Thereafter the Court confirmed the alternative limbs contained in section 473DD(b)(i) and (ii) were cumulative on the existence of exceptional circumstances. Thus the IAA had to be satisfied either:
·The new information was not and could not have been provided to the delegate; or
·Is credible personal information which was not previously known and had it been known, may have affected the claim concerned.
It was up to the IAA to determine, for itself, whether it had reached a state of satisfaction, regarding whether the new information should or should not be accepted on the basis of the criteria contained in section 473DD. In determining whether it was or was not legally unreasonable for the IAA to reach the decision which it did, this court in conducting its review function is obliged to read the entirety of the IAA’s reasons fairly and as whole.[32]
[32] See Plaintiff M64/2015 v Minister for Immigration & Border Protection (2015) 258 CLR 173 at [60]
The decision of the IAA
The IAA accepted that the applicant’s family shop, in Quetta, had been bombed as a consequence of it being located close to a Shia mosque, where Shia Muslims were celebrating Eid. However, in this context, it doubted whether the applicant or members of his family personally had been the subject of the attack.
In these circumstances, it was found that the applicant faced a small but nonetheless real chance of suffering harm from anti-Shia militant groups in Quetta. However, it did not find that this level of risk, for the applicant, extended to all areas of Pakistan, particularly Islamabad, where country information indicated that the level of security was higher and extremist attacks less frequent.
In this context, the IAA examined the applicant’s claim that as a semi-skilled labourer, without relatives and family in Islamabad, he would struggle to establish himself there. In this context, the IAA found as follows:
“The applicant has claimed that he would be unable to relocate because he would be unable and unwilling to move around in Islamabad owing to fear of being targeted as a Shia Hazara. However, and while I accept that the bomb which destroyed the applicant’s family’s place of business when he was not there in 2011 raised his fear of harm, it was also the case that the applicant remained able to travel from Quetta to Iran and back again on two occasions following this for the purpose of undertake work abroad and pilgrimage, notwithstanding the fact that during this period Shia Hazaras making this journey were occasionally being targeted en route by groups like LeJ. Given the favourable security situation in Islamabad I am not persuaded that the applicant would be affected by a subjective fear of harm to the extent that he would restrict his movements or be unable to go about his business in a normal way within the capital. The applicant is a 23 year old able bodied man who is unmarried and without any dependents. In Australia the applicant has worked as a fruit and vegetable picker and packer, and when living in Pakistan he worked as a welder for his family business and he travelled to Iran to be employed as welder having had this employment there arranged for him by friends. It is true that the only employment he has found without assistance from family or friends is the employment he has obtained in Australia and that in Pakistan networks of patronage and nepotism play a greater role in finding employment than in Australia. Even so, and as has been noted above, the evidence does not indicate that the absence of such networks would prevent a person from obtaining employment in Pakistan and the significance of the applicant’s demonstrating the capacity to find employment for himself in an entirely different country to his own remains significant evidence of his capacity to establish himself in a new location. The applicant has practical skills in the profession of welding and I am satisfied that the applicant would be able to find employment in this, or some other kind, in Islamabad sufficient to pay for his accommodation and other livelihood needs.”[33]
[33] See Case Book at 199 [34]
The IAA also considered the applicant’s submission that he would be readily identifiable, as a Hazara, throughout Pakistan and this heightened the level of risk to which he was subject both throughout the country generally and in Islamabad. In this context, the IAA accepted that:
·The applicant would be immediately identified as a Shia by reason of his obvious Hazara ethnicity;
·However country information provided by DFAT indicated that Hazaras faced a moderate degree of sectarian violence in Pakistan and in Islamabad the degree of risk to low profile Shias was low;
·Islamabad was a harmonious and well-integrated city with strong state security and as a consequence there was very little sectarian violence; and
·This was in contrast to Quetta which was characterised by Shia enclaves.[34]
[34] Ibid at 195 [21]
In these circumstances, the IAA found that the applicant did not meet the definition of refugee provided by section 5H(1) of the Act or that Australia owed him any duty to provide complementary protection because he could relocate to Islamabad.
As previously indicated, the grounds of review turn on the new information which the applicant’s advisor proffered to the Authority on 20 February 2018, which the IAA rejected as a consequence of its application of section 473DD of the Act.
Firstly, the earlier determination of the IAA, which was referenced in the submission made on 30 August 2016 obviously pre-dated the ministerial delegate’s decision of 24 January 2017 and so, in purely theoretical terms, could have been made available to the delegate. In addition, as the decision relates to another individual, albeit one with some similarities to the applicant, it cannot be said to be credible information, which was personal to the applicant.
In respect of the new information, represented by the August 2016 decision, the IAA found the applicant had provided no reason as to why the decision had not been provided to the delegate. It further found that the information was not personal.
Further it was found that the country information referenced in the August 2016 decision was similar to the country information before the delegate in the current matter. In these circumstances, the IAA found that no exceptional circumstances existed to justify the admission of the decision.[35]
[35] Ibid at 188 [3]
The IAA summarised the new information provided by the applicant’s advisor in the submission of 20 February 2017 as follows:
·His computerised national identity card, issued by the Government of Pakistan would expire in late 2019;
·The possession of such a card was essential to subsistence in Pakistan;
·Renewing such a card away from the birthplace of the person concerned was impossible despite the apparent availability of a new electronic lodgement system; and
·Reliance, in this regard, was placed on another decision of the Administrative Appeals Tribunal, made on 3 February 2016, which has not been made available to this court.
The IAA characterised the submission regarding the inability to obtain such an identity card other than personal attendance at a location proximate to one’s place of birth as being new information for the purposes of section 473DD as was the decision of the AAT which purported to support it.
In respect of the issue of the applicant’s then soon to expire and now allegedly expired national identity card, the IAA noted as follows:
·No reason had been provided as to why the applicant had not raised the issue, regarding the inability to renew the identity card other than personally in Quetta, with the delegate, although the soon to expire card had been provided;
·No reason had been provided as to why the relevant AAT decision had not been provided or why this decision could be considered credible personal information relevant to the applicant himself, given it pertained to a different individual;
·In addition, the IAA did not consider the submission that the card could only be renewed in Quetta to be credible; and
·In this context, it was noted that the applicant had not expressed specific concerns about the issue to the delegate.
In these circumstances, the IAA determined as follows:
“…given that the applicant expressed no concerns of this kind to the delegate before the date of the delegate’s decision, I have my doubts about whether the applicant genuinely holds the view that he would have to return to Quetta in order to renew his CNIC and, given this, the applicant has not satisfied me that he really does hold a fear of this kind. As he has not satisfied me that this new claim is credible personal information he has not satisfied me that s.473DD(b)(ii) is met. For the same reasons, and given that the applicant’s CNIC will not require renewal until 1 December 2019, a date over two years away during which electronic CNIC renewal procedures and the conditions in the place of the applicant’s birth may change considerably, I am not satisfied that there are exceptional circumstances to justify considering any of this new information.”[36]
Consideration
[36] Ibid at 189 [4]
Ground One
I can see no jurisdictional error, particularly in the form of legal unreasonableness, surrounding the IAA’s decision not to consider the earlier determination of the IAA said to be broadly analogous to the situation of the current applicant. In my view, it cannot be said that there were any exceptional circumstances surrounding the new information to justify its consideration.
More significantly, the new information pertained to a different person, who necessarily had different attributes regarding his personal capacity to relocate within Pakistan. An analysis of the two different decisions indicates that the personal circumstances of the two applicants concerned were significantly different.
In any event, the jurisdictional obligation of the IAA is to review the case presented before it, not to compare it to another one. In addition, within the ambit of the jurisdiction conferred by section 473CC, the IAA has freedom to place weight, as it sees fit, on the various factual matters coming before it, including country information, as it sees fit.
The fact that two different individuals may reach different conclusions about matters of fact and weight is not, of itself, indicative of jurisdictional error. As the Full Court observed in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs:[37]
“Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”
[37] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin & Lander JJ
In all the circumstances, in my view, the IAA could not have reasonably concluded other than as it did, that the information contained in the decision was not credible personal information and that no explanation had been provided as to its late provision. More particularly, there were no exceptional circumstances which justified its consideration.
In my view, the real weight of this ground of review is that it is contended, on the applicant’s behalf, that the IAA’s finding that it was reasonable for him to relocate to another part of Pakistan must be considered legally unreasonable to such an extent that the Authority has failed to exercise the jurisdiction to review delegated ministerial decisions referred to it under Part 7AA.
Reference has already been made to the manner in which a decision can be characterised as being legally unreasonable. In particular, in Li,[38] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[38] Li (supra) at [75]–[76]
Following on from Li, in Minister for Immigration & Border Protection v Singh, the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. This refers to the process of reasoning, utilised by the relevant decision-maker concerned, in reaching a decision. It is focussed on process, including the application of any relevant statutory criteria to such a decision.
Secondly, the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question. This second area is outcome focussed.[39]
[39] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44]
Essentially, in conducting its supervisory jurisdiction over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme”, not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[40] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[40] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
In Singh the Full Court indicated that the resolution of any controversy regarding legal unreasonableness would inevitably be fact dependent. However, supervision and the search for intelligible justification, although involving a degree of scrutiny of factual issues, could not involve the substitution of the reviewer’s own judgment for that of the decision-maker. [41]
[41] See Singh (supra) at [48]
In Minister for Immigration & Border Protection v SZVFW[42] Kiefel CJ said as follows of the considerations applicable to legal unreasonableness:
“…it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”
[42] Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 at [11]
Accordingly, the test of whether a decision is legally unreasonable is one which is to be applied strictly. In addition, it is one which is invariably driven by an analysis of the applicable facts and the identification of justification for the conclusions reached. Again in SZVFW Gageler J said as follows:
“…legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.”[43]
[43] Minister for Immigration & Border Protection v SZVFW (supra) at [84]
In my view, a fair reading of the reasons of the IAA indicate that it did provide an intelligible process of reasoning as to why it considered that it was reasonable for the applicant to relocate to Islamabad. In this context, it considered the size of Islamabad and the country information which described it as a well-integrated city, which had accommodated a large number of internal migrants from other areas of the country.
More significantly, in my view, the IAA also considered the idiosyncratic features of the applicant himself and so carried out the detailed level of consideration of the various factors arising for the applicant on the ground, including him having to re-start his life in Islamabad, as stipulated by Mortimer J in MZANX.
This entailed a balancing and weighing of factors both favourable and unfavourable to the relocation. In this context, it was noted the applicant had no family connections in Islamabad and it was not improbable that the applicant would face some forms of discrimination and nepotism in that city. However, it was also noted that there was a small but significant community of Hazara Shias in Islamabad and there was no evidence of institutionalised or systemic discrimination against Hazaras per se in Islamabad.
The IAA also noted factors which militated towards the applicant being able to relocate to Islamabad. These included the fact that he had been able to work in Iran on two occasions and had some skills as a welder. He was young and healthy and had no dependents. He had been able to obtain work, without any family connections, in Australia, albeit of an unskilled nature. In addition, Islamabad was a large urban conglomerate, which was likely to offer many employment and accommodation opportunities for the applicant.
These are all findings of fact. In my view, they cannot be characterised as being capricious in nature or lacking a degree of logic, given the evidence available to the IAA, including country information. In all these circumstances, I do not consider that ground one is made out. I appreciate that the applicant personally disagrees with the applicable findings. However, that, of itself, is not sufficient to constitute jurisdictional error.
Ground Two
The IAA accepted that the applicant’s physiognomy rendered him readily identifiable as a Hazara and therefore a minority Shia. It said as much in the relevant reasons. It also concluded that Hazara Shias faced a somewhat higher risk of sectarian violence than other Shias within Pakistan.[44]
[44] See Case Book at 191 [11]; [13] at 192 [14]; and 194 [21]
More significantly, the IAA considered the import of this finding in respect of Hazara Shias living in Quetta and Islamabad. In this context, it was accepted that the risk of suffering harm, for the applicant, in Quetta and the North East Provinces of Pakistan was greater than in Islamabad because Hazara Shias living in these locations were geographically segregated.
In my view, a reading of the IAA decision indicates that this aspect of the applicant’s claim did receive an active level of intellectual consideration. The IAA clearly engaged with the substance of the applicant’s submission regarding the issues likely to arise for him as a Shia Hazara in both Quetta and Islamabad. In my view, it cannot be said that the Authority jumped to any unwarranted assumptions.[45]
[45] See BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94 at [36]
In these circumstances, I accept the submission of counsel for the Minister that it cannot be said that the IAA failed to consider that Hazaras are a minority of the general Shia population and the implications of this for the applicant’s claim for protection. In these circumstances, ground two is not made out.
Ground Three
This ground was not specifically articulated in the amened grounds of review but was raised by the unrepresented applicant in his submissions to the court. It raises issues relating to his alleged difficulties in obtaining an identity card, if he is returned to Pakistan.
Again this is an issue which was raised by the applicant’s advisor following the delegate’s decision but which the IAA declined to consider on the basis that it did not comply with the provisions of section 473DD.
Essentially, the applicant reiterated the submissions of his advisor, made on 20 February 2017, that he would be unable to renew his national identity card without going to Quetta because of inadequacies in the computerised renewal system.
The advisor further asserted that another decision-maker had accepted that it was impossible to renew identity cards through the new electronic system.[46] As previously indicated this decision was not made available to the IAA.
[46] See Case Book at 181
The IAA characterised as new information, which was not before the delegate, the following matters:
·The applicant’s identity card was to expire in late 2019;
·The possession of such a card was imperative to survive in Pakistan;
·It was not possible to renew such cards other than at the location of the holder’s birthplace, notwithstanding the existence of a new electronic lodgement system; and
·An earlier decision of the AAT supported these assertions.
The applicant’s Pakistan National Identity Card was made available to the ministerial delegate. It bears the date of expiry of 1 December 2019.[47] The card was instrumental in the delegate accepting the applicant’s account of his identity, including where he was born and had lived up to that stage.
[47] Ibid at 92
Prior to the time of the delegate’s decision, the applicant was aware that his possible relocation to another area of Pakistan, other than Quetta, was a relevant consideration, in respect of the grant of a protection visa to him. The issue was addressed in his statutory declaration in support of his application.[48] At this stage, he did not allude to any difficulties likely to pertain to him in respect of the expiration of his identity card, which was some years into the future at that stage.
[48] Ibid at 87-88
In this context, the IAA determined that the issue of the reasonableness of the applicant relocating to Islamabad had been squarely raised with him prior to the date of the delegate’s decision. The IAA also considered that the earlier AAT decision, regarding the difficulties said to exist in respect of the renewal of identity cards, in Pakistan, without returning to the location where such cards were issued, was a matter which also pre-dated the delegate’s decision and therefore could have been provided at this earlier stage.
In this context, the IAA determined that no explanation had been given as to why the new information regarding the alleged difficulties regarding renewal of the identity card and the decision said to be in support of this proposition had not been provided earlier to the delegate.
In addition the IAA doubted that the AAT decision could be considered personal information germane to the applicant, given that the case pertained to another individual, albeit one who shared some of the characteristics of the applicant in that he had held a Pakistani identity card.
The IAA also expressed some doubt about the credibility of the applicant’s more recent claim that he could only renew the identity card if he went personally to Quetta, given that this had not been raised earlier and there was apparently some form of electronic renewal system.
In BVZ16 v Minister for Immigration & Border Protection[49] White J described the procedure to be followed by the IAA, pursuant to section 473DD, in determining whether to consider new information in the following terms:
“As can be seen, s 473DD provides that the IAA “must not consider” new information unless both of two conditions are satisfied. The first is that the IAA be satisfied that there are “exceptional circumstances to justify” considering the new information. The second (which contains alternatives) is that the IAA be satisfied that the new information was not, and could not have been, provided to the Minister before the Minister made the decision, or that it be previously unknown “credible personal information” which, had it been known, may have affected consideration of the appellant’s claim.
The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.”
[49] BVZ16 v Minister for Immigration & Border Protection (supra) at [9]–[10]
In my view, the IAA followed this process. What is exceptional, in any given case, is to be determined by the entirety of the considerations in subparagraphs (a) and (b), which are cumulative and overlapping. As has been previously indicated, what amounts to exceptional circumstances, in the context of the section, is not capable of exhaustive definition. The situation must be noteworthy or unusual to some degree. However, it is also to be informed by the alternative matters contained in subparagraph (b).
In this context, the IAA found that there was no explanation as to why the information had not been provided earlier, particularly given the prospect of relocation and the practicalities entailed in it had long been a live issue in the case. The IAA also found that the applicant’s recently proffered claim that he could not access the electronic renewal system was not credible and the AAT decision relied on was not personal to the applicant. These cumulative findings informed the IAA’s decision that there were no exceptional circumstances which overcame the section’s specific directive not to consider this new information.
In all these circumstances, I do not consider that the applicant has established any failure of jurisdiction in the manner in which the IAA approached the new information relating to the renewal of the applicant’s Pakistani National Identity Card.
In my view, the Authority was entitled to consider that no exceptional circumstances pertained to the new information, on the basis that it was not credible in nature and no adequate explanation had been provided as to why it had not been provided earlier to the delegate.
For these reasons, the application must be dismissed. The Minister seeks costs in an amount of $5,000.00, which is less than the scale amount allowable by reference to the applicable schedule to the court’s rules. This reflects the fact that the Minister’s counsel was not required to prepare the matter to a high degree, due to the fact the applicant had not prepared extensive grounds of review.
In the circumstances, costs should follow the event and, in my assessment, the level of costs sought is an appropriate one. I will make orders amending the name of the first respondent to reflect current nomenclature; dismiss the amended application filed 30 April 2018; and order the applicant pay the first respondent’s cost in an amount of $5,000.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 6 December 2019
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