FCM18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1306
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FCM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1306
File number(s): MLG 2941 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 29 November 2024 Catchwords: MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Pakistan – whether failure to consider the risk of harm to the applicant in Islamabad in the context of whether it was reasonable for him to relocate from Parachinar to Islamabad – whether material jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 5J, 36, 473CC, 474, 476 Cases cited: APE16 v Minister for Home Affairs [2020] FCAFC 93; (2020) 277 FCR 640
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173
CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150; (2018) 265 FCR 572
CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; (2018) 260 FCR 134; (2018) 353 ALR 666
CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 156
CXO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 17
DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72; (2020) 275 FCR 517
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304
Januzi v Secretary of State for the Home Department [2006] 2 AC 426; [2006] 3 All ER 305
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526; (2018) 357 ALR 474
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 163 ALD 38; (2019) 363 ALR 599; (2019) 93 ALJR 252; (2019) 75 AAR 75
Minister for Immigration and Border Protection v SZSCA & Anor [2014] HCA 45; (2014) 254 CLR 317; (2014) 89 ALJR 47; (2014) 314 ALR 514
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2018) 161 ALD 73
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; (2012) 206 FCR 191; (2012) 133 ALD 276
MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 237 ALR 634; (2007) 97 ALD 1
SZMCD v Minister for Immigration and Citizenship and Another [2009] FCAFC 46; (2009) 174 FCR 415
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 27 March 2024 Date of hearing: 27 March 2024 Place: Perth Counsel for the Applicant: Mr H Glenister Solicitor for the Applicant: William Gerard Legal Counsel for the First Respondent: Mr A Chan Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2941 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FCM18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
29 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The originating application filed on 1 October 2018, as amended by an amended originating application filed on 28 February 2024, be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
By an amended originating application filed on 28 February 2024 (“Amended Judicial Review Application”) under s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”) the applicant (“FCM18”) seeks judicial review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) affirming the decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the now Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) to refuse to grant FCM18’s application for a Safe Haven Enterprise visa (“SHE Visa”).
At hearing the Court Book (“CB”) was marked as Exhibit 1. The Authority Decision appears in the CB at CB 145-167. All references to provisions of the Migration Act in these Reasons for Judgment are to the provisions as at the date of the Authority Decision.
BACKGROUND
The factual background of the matter is as follows:
(a)FCM18 was born in 1991 in Pakistan: CB 3;
(b)FCM18 arrived in Australia by boat as an unauthorised maritime arrival in May 2013: CB 17;
(c)on 12 August 2016 FCM18 was invited to apply for a SHE Visa: CB 26;
(d)on 7 August 2017 FCM18 made an application for a SHE Visa with a statutory declaration (“2017 Statutory Declaration”) in support: CB 30. In the 2017 Statutory Declaration FCM18 advanced a claim that he could not relocate within Pakistan safely due to sectarian violence: CB 63 at [22] and [25];
(e)in summary, FCM18’s claims were as follows:
(i)he is a Pakistani citizen, a Shia Muslim, and a Turi Alizai Pakhtun community member, who originates from Parachinar in the Kurram Agency in Pakistan;
(ii)in 2010 the Taliban attacked a convoy in which FCM18 was travelling with his brother to Islamabad. The Taliban attacked the vehicles ahead of them and there was an explosion. FCM18 and his brother were lucky to escape unharmed but many other innocent Shia Muslims were killed or injured (“2010 Incident”);
(iii)in approximately March 2013 FCM18 was studying in Islamabad and the Taliban attempted to abduct him in a bazaar. FCM18 was shopping with his friends one evening. As he was crossing the road a car pulled up with two men who had their faces covered. They tried to grab FCM18 and pull him into the car but he resisted. FCM18 cried out for help, his friends heard and ran to his aid, and the attackers let him go. FCM18 believes the attackers were members of the Taliban as they are known to kidnap Shia people in a similar way in Parachinar (“2013 Incident”);
(iv)one week prior to the 2013 Incident FCM18 had met a Sunni former classmate from Parachinar in Islamabad. His former classmate had asked what he was doing in Islamabad and FCM18 told him he was studying at the National Institute of Cultural Studies and he was staying in a hostel;
(v)FCM18 believes his former Sunni classmate conspired with the Taliban to abduct him because most Sunni students in Islamabad felt they could seek revenge for sectarian violence committed against Sunnis in Parachinar by targeting Shia students, particularly those who were also Turi tribe members;
(vi)after the attempted abduction FCM18’s parents told him to return to Parachinar. He did so but continued to face the same threat of harm as he did in Islamabad. He felt that he could not go out as he feared being killed by the Taliban. The Taliban accused his father of fighting against them and assisting the Pakistani government in their operations against them; and
(vii)FCM18 therefore left Pakistan because he feared he would be harmed or killed by the Taliban or other insurgent groups because of his religion, his ethnicity, his social status, and his father’s work;
(f)on 9 August 2017 the Minister acknowledged receipt of the SHE Visa application: CB 71;
(g)on 19 October 2017 the Minister requested that FCM18 attend an interview with the Delegate on 31 October 2017: CB 73;
(h)on 31 October 2017 FCM18 and his agent attended an interview with the Delegate: CB 73;
(i)on 8 November 2017 FCM18’s representative provided submissions which addressed the reasonableness of FCM18 relocating within Pakistan: CB 99 (“FCM18’s Delegate Submissions”), and referred to sectarian violence as a reason why FCM18 ought not be deemed able to relocate within Pakistan: CB 99 at [62]-[64];
(j)in FCM18’s Delegate Submissions FCM18 relevantly argued that relocation to Islamabad was not reasonable because:
(i)FCM18 had “limited ability to find work in other areas of Pakistan”: CB 99 at [67];
(ii)FCM18 did not have “any relatives or family in other parts of Pakistan and will face significant hardship in establishing himself”: CB 100 at [68];
(iii)FCM18 did not have any financial support from the Pakistani government and would not have sufficient income to maintain a reasonable standard of living: CB 100 at [68];
(iv)Islamabad was not affordable, including because of the “significant disparity in income and expenses”: CB 100 at [69];
(v)of risks of harm not amounting to a real risk of significant harm being a reason why it is not reasonable, in the sense of practicable, for FCM18 to relocate within Pakistan: CB 100 at [70];
(vi)FCM18 would need to travel to Parachinar first, before relocating with his family to a different city within Pakistan: CB 101 at [71];
(vii)it was “neither reasonable nor practical” for him to relocate to Islamabad: CB 101 at [72]; and
(viii)there was “no assurance of long-term safety, [and it] is not affordable and practical for him to consider relocation with no means to subsist”: CB 101 at [75];
(k)on 23 January 2018 the Delegate refused to grant FCM18 a SHE Visa: CB 106-124. The Delegate relevantly concluded that FCM18 would not face a real risk of suffering significant harm in Islamabad, Rawalpindi, or Lahore. The Delegate also concluded that it would be reasonable for FCM18 to relocate to any of those cities;
(l)on 30 January 2018 the Authority acknowledged the referral of FCM18’s case: CB 126; and
(m)on 20 February 2018 FCM18’s representative sent submissions to the Authority (“FCM18’s Authority Submissions”): CB 136-141. FCM18’s Authority Submissions address why it was purportedly unreasonable for FCM18 to relocate to Islamabad, including because of the lack of social support, the cost of living and the need to travel to Parachinar to renew his CNIC (a national ID card)(“ID Card”): CB 140-141.
AUTHORITY DECISION
On 6 September 2018 the Authority Decision affirmed the Delegate’s Decision: CB 145-163.
In the Authority Decision the Authority relevantly:
(a)did not accept that the 2013 Incident occurred, nor did it accept that FCM18 left Pakistan for that reason: CB 153 at [31]. Two matters informed that conclusion:
(i)FCM18 gave two contradictory reasons as to why he did not mention the 2013 Incident at either of his entry interviews, namely he claimed to have forgotten about the 2013 Incident due to his mental ill health at the time, yet he also said that he had been told not to mention the matter by other people. Separate from the inconsistency between the explanations, the Authority gave detailed reasons for why it did not accept either of them: CB 150-152 at [20]-[29]; and
(ii)the Authority considered various aspects of the 2013 Incident to be implausible: CB 152 at [30];
(b)concluded that FCM18 did not have any personal adverse profile with the Taliban or any other insurgent group because of the 2013 Incident: CB 153 at [31];
(c)accepted that the 2010 Incident occurred as claimed by FCM18 but concluded that it was a random incident and not one that was targeted at FCM18 or his family, and was not satisfied that FCM18 faced a real chance of harm arising from the 2010 Incident: CB 153 at [32];
(d)rejected FCM18’s claim that his father had been accused of fighting against the Taliban and of assisting the Pakistani government: CB 153 at [33]. The Authority was not satisfied that FCM18 had a well-founded fear of persecution by reason of his father’s profile or work or his broader family’s social status: CB 153 at [35];
(e)concluded, following a review of relevant country information in FCM18’s home area (the Kurram Agency), that there was a real chance of sectarian violence against Shias including FCM18 in the event that FCM18 returned to the Kurram Agency: CB 154-155 at [36]-[40];
(f)after reviewing relevant country information concerning the security situation in Islamabad: CB 155-158 at [43]-[59], the Authority gave detailed reasons in support of its conclusions that:
(i)FCM18 would only face a remote chance of being harmed in violent incidents in Islamabad: CB 158 at [58]; and
(ii)in the event FCM18 returned to Islamabad, it was not satisfied that he would face a real chance of harm: CB 158 at [59]:
(A)from the Taliban or any other insurgent group because of his ethnicity, religion, or because of sectarian or generalised violence;
(B)from the Pakistani authorities by reason of racial profiling or for any reason; or
(C)for being a returned asylum seeker from the West;
(g)after considering FCM18’s specific and general claims individually and cumulatively, the Authority concluded that FCM18 did not meet s 36(2)(a) of the Migration Act: CB 159 at [60];
(h)adopted its anterior factual findings in support of its conclusions that FCM18:
(i)would face a real risk of significant harm if he returned to the Kurram Agency: CB 159 at [63]); and
(ii)would not face a real risk of significant harm if he relocated to Islamabad: CB 160 at [66];
(i)summarised the internal relocation principle in s 36(2B) of the Migration Act: CB 159 at [64], and gave detailed reasons informed by relevant country information in support of its conclusion that it was reasonable for FCM18 to relocate to Islamabad: CB 162 at [78]. That conclusion was informed by these factors:
(i)FCM18’s language (Pashto) would not cause him any significant language issues in Islamabad: CB 160 at [69];
(ii)his tertiary level qualifications (including a Bachelor of Computer Science) and work experience in Australia would assist him to find work in Islamabad: CB 160-161 at [68] and [70];
(iii)he was not in a poor financial situation: CB 161 at [71]; and
(iv)the risk he would be harmed if he briefly returned to the Kurram Agency to collect his wife and children was remote, though the Authority did not accept that he would in fact return to the Kurram Agency for that purpose given the safer options available: CB 161 at [72];
(j)did not accept that the claimed issues would arise by reason of FCM18’s ID Card being blocked because it was not satisfied that the ID Card was in fact blocked: CB 161-162 at [73]-[76]), and did not accept that a blocked ID Card would prevent FCM18 from renewing his driver’s license, nor did it accept that unblocking the ID Card would require FCM18 to return to the Kurram Agency: CB 162 at [77]; and
(k)found that its conclusion concerning the reasonableness of FCM18 relocating to Islamabad led it to conclude that FCM18 did not meet s 36(2)(aa) of the Migration Act: CB 172 at [79].
AMENDED JUDICIAL REVIEW APPLICATION
Single ground
In the single ground of the Amended Judicial Review Application FCM18 asserts that the Authority “made a jurisdictional error by failing to consider the risk of harm to FCM18 in Islamabad in the context of whether it was reasonable for him to relocate to Islamabad”.
FCM18’s submissions
FCM18 made the following submissions:
(a)by s 473CC(1) of the Migration Act the Authority is required to review a referred decision. This review is not concerned with the correction of error on the part of the Minister or Delegate but is a de novo consideration of the merits of the decision that has been referred to the Authority, and the task of the Authority under s 473CC(1) of the Migration Act is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of a protection visa have been met: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 at [17] per Gageler, Keane and Nettle JJ;
(b)properly understood, a failure by the Authority to consider a claim, representation, contention or submission is a failure by the Authority to complete the task required of it under s 473CC(1) of the Migration Act: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [55] and [63] per Black CJ, French and Selway JJ; EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304 at [36] per Perry, Derrington and Wheelahan JJ. That failure will constitute jurisdictional error if it is material to the outcome of the review: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 163 ALD 38; (2019) 363 ALR 599; (2019) 93 ALJR 252; (2019) 75 AAR 75 (“SZMTA”) at [45] per Bell, Gageler and Keane JJ; DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72; (2020) 275 FCR 517 at [60] per McKerracher, Mortimer and White JJ;
(c)whether the Authority failed to consider a claim is a question of fact which must be decided by the drawing of inferences. Where there has been a failure to expressly deal with an issue in reasons for decision, an inference may be drawn that there has been a failure to consider that issue. This inference is strengthened where an issue raised by contentions made by an applicant, if resolved one way, would be dispositive of the review of a delegate’s decision: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“Applicant WAEE”) at [47] per French, Sackville and Hely JJ;
(d)if a decision-maker determines that there is no real risk of significant harm, different or lower risks of harm faced by an applicant may be relevant to the evaluation of the reasonableness of relocation: CXO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 17 (“CXO16”) at [49] per Wheelahan J. The fact that a risk of serious harm is low does not answer the question whether it is reasonable, having regard to all the circumstances, that an applicant face that risk: MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2018) 161 ALD 73 (“MZACX”) at [48] per Kenny J;
(e)the Full Court of the Federal Court in CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 156 at [10] per Jagot, Charlesworth and Snaden JJ stated with respect to this kind of error:
In other words, the question whether it is necessary to consider whether the non-citizen is exposed to a risk of harm other than significant harm in the place of relocation depends on the facts and, in particular, how the non-citizen framed their claims for protection. The question whether the decision-maker (in this case the IAA) did in fact consider whether the non-citizen was exposed to a risk of harm other than significant harm in the place of relocation depends on the inference that should be drawn from the decision-maker's reasons as a whole, read fairly, and in the context of the claims as made. The primary judge was not satisfied that an inference of a failure of consideration should be drawn as the applicant's claims had drawn no distinction between the claimed risk of harm he would face in Kabul and the claim that it would be unreasonable for him to relocate there and that, as the IAA found there was no real risk of significant harm in Kabul, there was no need for the IAA separately to express a conclusion that it would be safe for the applicant to relocate to Kabul: CSZ16 v Minister for Immigration & Anor [2020] FCCA 772 at [50].
(f)the dispositive issue in this application is whether the Authority failed to consider lower risks of harm faced by FCM18 in Islamabad in determining whether it was reasonable for him to relocate to Islamabad. The Authority accepted that FCM18 faced a low or remote risk of sectarian violence in Islamabad: CB 156 at [44] and 158 at [58]. FCM18 made an express claim that such risks formed a reason why it was not reasonable for him to relocate to Islamabad: CB 100-101 at [70];
(g)the Authority began its assessment of the reasonableness of relocation in the Authority Decision at CB 160 at [67]. From then onwards it does not mention the low or remote risk of sectarian violence faced by FCM18 in Islamabad. It reaches its conclusion on the reasonableness of FCM18 relocating to Islamabad “[h]aving regard to all of the above”: CB 162 at [78], which necessarily excludes consideration of the sectarian violence faced by FCM18 in Islamabad;
(h)the Authority failed to consider the security situation in Islamabad for the purposes of the reasonableness of relocation. It, therefore, failed to complete its statutory task or failed to appreciate the dual nature of s 36(2B)(a) of the Migration Act: CXO16 at [51] per Wheelahan J; and
(i)had the Authority considered the question of the reasonableness of FCM18 relocating to Islamabad having regard to the low or remote risk of sectarian violence he faced there, there was a realistic possibility of a different outcome on review, and therefore the error was material and jurisdictional: CXO16 at [52] per Wheelahan J, citing SZMTA at [45] per Bell, Gageler and Keane JJ.
[Oral submissions?]
Minister’s submissions
The Minister submitted as follows:
(a)in determining whether the Authority committed the error asserted by FCM18 the Court must determine:
(i)whether FCM18 claimed that it was not reasonable to relocate to Islamabad even if the claimed risk of harm was low;
(ii)if so, whether the Authority considered that claimed risk of harm in concluding that it was reasonable for FCM18 to relocate to Islamabad; and
(iii)if not, was the error material, in the sense that it could have realistically affected the outcome of the Authority Decision;
(b)for the reasons set out below, the Minister contends that:
(i)FCM18 did not claim that even a low risk of harm in Islamabad was such that it was unreasonable for him to relocate there;
(ii)even if he did, the Authority considered the risk of harm to FCM18 in Islamabad in concluding that it was reasonable for him to relocate there; and
(iii)despite the above, even if the Authority erred, the error was immaterial, as it could not have realistically affected the outcome of the Authority Decision;
(c)as to whether FCM18 claimed that it was unreasonable for him to relocate to Islamabad because of the risk of harm there it is important for the Court to answer this first question because a decision-maker is not always required to consider whether a low risk of harm in a location means it is unreasonable for a person to relocate to that place. For that reason, in MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; (2012) 206 FCR 191; (2012) 133 ALD 276 (“MZYQU”) at [55] per Dodds-Streeton J it was held that (emphasis added):
Consistently with SZATV, factors such as “other and different risks in the propounded place of internal relocation” ... may be relevant, albeit not mandatory, considerations when determining the reasonableness of a proposed relocation.
and to the extent MZYQU stands for the proposition that consideration must always be given to the risk of generalised violence when assessing the reasonableness of relocation, the Minister formally submits that it was wrongly decided;
(d)the well-settled principle is that it is the Authority’s role is to address an applicant’s claims: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) at [78] per Kirby J. Put another way, the answer to the question of whether it is reasonable for an applicant to relocate “depends upon the framework set by the particular objections raised to relocation”: SZMCD v Minister for Immigration and Citizenship and Another [2009] FCAFC 46; (2009) 174 FCR 415 at [123] per Tracey and Foster JJ;
(e)with the above principles in mind, the Minister emphasises that FCM18’s submissions on the reasonableness of relocation to Islamabad focused overwhelmingly on more pragmatic considerations, such as the cost of living and the inability to secure employment. Out of the 13-page FCM18’s Delegate Submission and the 6-page FCM18’s Authority Submission, so far as the Minister can discern, the only references to the safety of Islamabad being relevant to the reasonableness of relocation were in the following references in FCM18’s Delegate Submission:
(i)“We stress that the report makes the admission of relative safety but does not assert that Islamabad, Lahore or Rawalpindi are free of terrorism. We submit that in all three of these cities, violence has occurred both before and after the dates of reports. We submit that DIBP should deem it imperative that ongoing violence must not exist in a region in order to deem it safe for relocation. The safety threshold must remain of a high standard for any ample relocation assessment”: CB 99 at [64]; and
(ii)there was no “assurance of long term safety” in Islamabad: CB 101 at [75];
(f)aside from the above two references, FCM18’s submissions on the reasonableness of relocation (especially FCM18’s Authority Submission) were largely about Islamabad being unaffordable: see for example CB 140-141;
(g)the above submissions do not amount to a claim ever being made that even a low risk of harm (such as sectarian violence, now relied upon by FCM18) made it such that it was unreasonable for FCM18 to relocate to Islamabad. Rather, the claim that was actually put was that there must be no “terrorism” or “violence” for Islamabad to be deemed “safe”. It was, in other words, about how the generally unsafe security situation in Islamabad made it unreasonable to relocate to;
(h)with the above background in mind about how FCM18’s claims were actually put to the Authority, it is entirely unsurprising why the Authority chose to focus on factors such as access to employment. In any event, the Minister contends that when the Authority Decision is read fairly and as a whole: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, the Authority did consider the general safety or security situation in Islamabad in concluding that it was reasonable for FCM18 to relocate there;
(i)the Authority had earlier found that the risk of sectarian violence in Islamabad was remote: CB 158 at [58]. This was based on its assessment of country information and its earlier findings that FCM18 did not have an adverse profile;
(j)the Authority drew upon its earlier finding and reasoning when turning to the reasonableness of relocation to Islamabad: CB 160 at [66]. It found that FCM18 did not face a real risk of significant harm for any reason, or a combination of any reasons, advanced by FCM18: CB 160 at [66]. After considering whether it was reasonable, in the sense of practicable, for FCM18 to relocate, it concluded that “having regard to all of the above”, it was satisfied that it was reasonable for FCM18 to relocate: CB 162 at [78];
(k)having earlier set out country information on Islamabad in detail, and FCM18’s lack of any adverse profile, the Minister contends that the Authority must have taken into account everything preceding its concluding sentencing when it said that, having regard to “all of the above”, that it was reasonable for FCM18 to relocate to Islamabad;
(l)a similar situation was considered by the Full Court of the Federal Court in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526; (2018) 357 ALR 474 (“DZU16”). In DZU16, after distinguishing cases like MZYQU, MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 and MZACX, the Full Court of the Federal Court held at [137] and [139] per Robertson, Murphy and Kerr JJ that the Authority did not err;
(m)in DZU16, [61] of the Authority decision (set out in DZU16 at [43] per Robertson, Murphy and Kerr JJ), which assumed central importance was as follows:
Considering all the circumstances, I am satisfied it would be reasonable for the applicant to relocate to an area of the country such as Mazar-e-Sharif where there would not be a real risk that the applicant will suffer significant harm. As I am satisfied that the applicant could relocate to Kabul [sic, Mazar-e-Sharif], there is not a real risk that the applicant will suffer significant harm in Afghanistan.
(n)applying DZU16 this Court should find that the Authority’s conclusion on the reasonableness of relocation must have incorporated its earlier analysis that there was not a real chance or risk of FCM18 facing any harm in Islamabad. The Authority cannot sensibly be inferred to have forgotten its earlier analysis about the risk of harm in Islamabad being remote in concluding that it was reasonable for FCM18 to relocate there;
(o)the Minister does not concede that the Authority committed any error. However, even if the Court finds that the Authority’s consideration of the relocation issue involved any error, the Minister submits that any error was immaterial in the sense that there is no realistic possibility of a different outcome: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [38] per Kiefel CJ, Gageler, Keane and Gleeson JJ;
(p)determining whether there was such a realistic possibility requires the Court to determine “the basal factual question of how the decision that was in fact made was in fact made”: MZAPC at [38] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In short, the Court is to make reasonable inferences on the balance of probabilities, having regard to what the Authority’s other reasons and findings were, and the material before it: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; and
(q)the tenor of the Authority’s conclusions was clear: FCM18 would not face a real chance or risk of harm in Islamabad. The Authority considered in detail the practicalities of FCM18 relocating to Islamabad, including his capacity to subsist, and whether he needed to travel back to the Kurram Agency for any reason. FCM18 did not make any detailed claim or put forward any substantive submission on why safety in Islamabad made it unreasonable for him to relocate there: see in comparison, the detailed submissions made on relocation in CXO16 at [5]-[14] per Wheelahan J. In those circumstances, there is no realistic possibility that the Authority would have made a different decision.
CONSIDERATION
Material jurisdictional error required
For present purposes it suffices to observe that this Court may set aside the Authority Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.
Not merits review
The Court’s role is not to review the merits of the Authority Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The “line between judicial review and merits review…must be maintained”: LPDT at [15] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, and the reasons in the Authority Decision are not to be over-zealously scrutinised in a search for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Applicant WAEE at [46] per French, Sackville and Hely JJ.
Single ground of review
The single ground of review (set out at [6] above) raises the question as to whether the Authority correctly applied s 5J(1) of the Migration Act, which provides as follows (emphasis in original):
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
Also relevant is s 36(2B)(a) of the Migration Act which relevantly provides as follows:
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm;
Section 36(2B)(a) of the Migration Act is informed by, and gives effect to, a principle akin to the principle of internal relocation, which is well known in the refugee context: APE16 v Minister for Home Affairs [2020] FCAFC 93; (2020) 277 FCR 640 at [48] per Kenny, Wheelahan and Anastassiou JJ. In that context, a common description of the principle is that “a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate” (emphasis added): Januzi v Secretary of State for the Home Department [2006] 2 AC 426; [2006] 3 All ER 305, AC at 440 per Lord Bingham, cited in SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 237 ALR 634; (2007) 97 ALD 1 (“SZATV”) at [19] per Gummow, Hayne and Crennan JJ; see also Minister for Immigration and Border Protection v SZSCA & Anor [2014] HCA 45; (2014) 254 CLR 317; (2014) 89 ALJR 47; (2014) 314 ALR 514 (“SZSCA”) at [23] per French CJ, Hayne, Kiefel and Keane JJ. Other descriptions of the relocation principle refer to an “area” or “region” of a country where a person is expected to return: see SZSCA at [25] per French CJ, Hayne, Kiefel and Keane JJ, and [40] per Gageler J (dissenting in the result); CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; (2018) 260 FCR 134; (2018) 353 ALR 666 at [30] per Tracey, Mortimer and Moshinsky JJ.
In assessing whether it was reasonable for FCM18 to relocate to Islamabad the question for the Authority under s 36(2B)(a) of the Migration Act was whether it was reasonable, in the sense of practicable, for FCM18 to relocate to Islamabad: SZATV at [11] and [24] per Gummow, Hayne and Crennan JJ.
In DZU16 the Full Court of the Federal Court at [137] and [139] per Robertson, Murphy and Kerr JJ observed that:
[137]In our opinion, a fair reading of the entirety of the Authority’s reasons, including the reasons in relation to s 5J(1)(c), leads to the conclusion that in the present appeal the Authority did not err in its application of the criterion whether it would be reasonable for the respondent to relocate to an area of the country where there would not be a real risk that he will suffer significant harm. In effect, the Authority found that there was no specific or generalised risk and also considered the practical realities for the respondent relocating to Mazar-e-Sharif.
…
[139]In our opinion, although the Authority in the present appeal used the word “remote” in relation to the risk of the respondent being harmed in generalised violence, the word is not a technical term and the Authority immediately went on to consider part of the statutory question being the question of real risk of the respondent facing significant harm. As we have said, in effect, the Authority found that there was no specific or generalised risk and also considered the practical realities for the respondent relocating to Mazar-e-Sharif. Its conclusions at [61] included what it had said earlier, especially at [24], [46] and [48]-[49].
See, to similar effect, CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150; (2018) 265 FCR 572 (“CIT17”) at [84]-[85] per Collier, Markovic and Lee JJ.
In this case the Authority determined that FCM18 would face a real chance of harm for reasons of his religion and ethnicity in Parachinar and the wider Kurram Agency and had therefore satisfied s 5J(1)(a) and (b) of the Migration Act: CB 155 at [40].
The Court is satisfied that FCM18 did take issue with the reasonableness of his relocating to Islamabad by reason of:
(a)the 2017 Statutory Declaration in which FCM18 made a claim that he would not be able to relocate to other parts of Pakistan because of a fear he would be killed by Sunnis, the Taliban or terrorists because he was a Shia and pro-Western: CB 63 at [25]; and
(b)FCM18’s Delegate Submissions in which FCM18 made a claim that ongoing violence must not exist, at all, in three cities, including Islamabad, before it could be deemed safe for relocation: CB 99 at [64], which constituted a claim as to ongoing violence making it unreasonable for FCM18 to relocate to Islamabad.
In assessing whether the Authority undertook a consideration of the reasonableness of FCM18’s possible relocation to Islamabad it is necessary to consider the Authority Decision as a whole: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Applicant WAEE at [47] per French, Sackville and Hely JJ. The Authority also expressly acknowledged the submissions that FCM18 made as to why it was unreasonable for FCM18 to relocate to Islamabad: CB 155 at [41]. The Authority expressly considered whether there was a real chance of harm to FCM18 if he were to relocate to Islamabad. The Authority referred to relevant country information and FCM18’s personal circumstances in concluding that:
(a)FCM18 did not face a real chance of harm because of violence by reason of his ethnicity or religion in Islamabad: CB 155-156 at [44], or in Pakistan as a whole: CB 155 at [42];
(b)FCM18 did not have a profile as a Shia Muslim that would bring him to the adverse attention of either the Pakistani Government or any other groups in Islamabad: CB 156 at [46];
(c)FCM18 would not face discrimination on the basis of his ethnicity as a Turi Alizai Pashtun in Islamabad: CB 156-158 at [48]-[54];
(d)FCM18 would not face harm in Islamabad as an asylum seeker returning from a Western country: CB 158 at [55]-[59], in particular because the risk of harm in Islamabad was “remote” and therefore not a real chance of harm: CB 158 a [58];
(e)FCM18 would be able to find work and subsist in Islamabad: CB 160-161 at [67]-[70]; and
(f)it was not satisfied that FCM18 was in a poor financial position: CB 161 at [71].
Reading the Authority Decision as a whole it is apparent that the Authority’s conclusions in relation to the reasonableness of relocation considered the practical realities of relocation (as it was entitled to do: SZATV at [11] and [24] per Gummow, Hayne and Crennan JJ; DZU16 at [139] per Robertson, Murphy and Kerr JJ) and in so doing incorporated its anterior findings at least as far back as CB 155 at [42] in the Authority Decision. The use of the words “[h]aving regard to all of the above” immediately prior to the Authority’s expression of satisfaction as to the reasonableness of FCM18 relocating to Islamabad: CB 162 at [78], makes this apparent, in a manner similar to that found in DZU16 at [139] per Robertson, Murphy and Kerr JJ and CIT17 at [84]-[85] per Collier, Markovic and Lee JJ. To limit the words “[h]aving regard to all of the above” in the manner suggested by FCM18 is to both read them out of context and to disregard the reasons in the Authority Decision as a whole. The Authority therefore undertook consideration of the reasonableness of FCM18’s relocation to Islamabad, and in so doing had particular regard to the matters set out at [18] above, which included an assessment of the risk of harm to FCM18 in Islamabad, see, for example, CB 158 at [58]. Having had regard to those matters and the relevant level of risk in relation to them the Authority found that it was reasonable for FCM18 to relocate to Islamabad upon his return to Pakistan. In the circumstances that conclusion was one that was open to the Authority on the facts as the Authority found them: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [131] and [135] per Crennan and Bell JJ; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [43]-[46] per Griffiths, White and Bromwich JJ. The Authority therefore properly considered the risk of harm to FCM18 in Islamabad and concluded that it was reasonable in all the circumstances for FCM18 to relocate to Islamabad: CB 162 at [78].
The Court has concluded that the Authority Decision had proper regard for, and considered fairly, the reasonableness of the relocation of FCM18 to Islamabad, and in this respect the Authority Decision does not exhibit any error, let alone jurisdictional error.
In all the circumstances, the single ground of review does not establish jurisdictional error in the Authority Decision.
CONCLUSION AND ORDERS
The Court has concluded that the Authority Decision is not affected by jurisdictional error. It follows that the Amended Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear parties as to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 29 November 2024
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