FCO18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1314
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FCO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1314
File number(s): MLG 2943 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 29 November 2024 Catchwords: MIGRATION – Judicial review application – decision of the 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
DQU16 v Minister for Immigration [2021] HCA 10; (2021) 273 CLR 1; (2021) 95 ALJR 352; (2021) 388 ALR 363
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) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38
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; (2021) 177 ALD 464
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 [2009] FCAFC 46; (2009) 174 FCR 415
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 26 March 2024 Date of hearing: 26 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 2943 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FCO18
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 (“FCO18”) seeks judicial review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) made on 4 September 2018 affirming a 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 FCO18’s application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHE Visa”).
At hearing the Court Book (“CB”) was marked as Exhibit 1. The Authority Decision appears in the CB at CB 180-199. All references to the provisions in the Migration Act in these Reasons for Judgment refer to the provisions as at the date of the Authority Decision.
BACKGROUND
The factual background of the matter is as follows:
(a)FCO18 was born on 1 January 1981 in Pakistan: CB 3;
(b)FCO18 arrived in Australia by boat in 2013: CB 64;
(c)on 22 September 2016 FCO18 was invited to apply for a SHE Visa: CB 32;
(d)on 16 March 2017 FCO18 made an application for a SHEV with a statutory declaration (“2017 Statutory Declaration”) in support: CB 43. In the 2017 Statutory Declaration FCO18 advanced a claim that he could not relocate within Pakistan safely due to sectarian violence: CB 82-83 at [1]-[7];
(a)in summary FCO18’s claims were as follows:
(i)FCO18 is a Pakistani citizen, a Shia Muslim, a member of the Turi tribe, and of Pashtun ethnicity, who originates from Parachinar in the Kurram Agency in Pakistan;
(ii)FCO18 worked in the Kurram Agency as a self-employed taxi driver between 2002 and 2013;
(iii)in August 2012 FCO18 was employed part-time as a driver for a prominent Shia cleric who was also an anti-Taliban activist and the leader of a Shia organisation (“Shia Organisation”);
(iv)in March 2013 FCO18 received two threatening phone calls from unknown members of the Pakistan Taliban. FCO18 was instructed to quit his job, otherwise he would be killed. FCO18 immediately quit his job and went into hiding, but he knew that the Pakistan Taliban would continue to target him because he had worked for the Shia cleric;
(v)if returned to Pakistan, FCO18 feared harm because of his adverse profile with the Pakistan Taliban. FCO18 would be targeted regardless of where he lived in Pakistan given the connections the Taliban have in many cities in Pakistan;
(vi)FCO18’s personal characteristics mean that he will be identifiable as a Turi Shia from Parachinar with anti-Sunni views, and his adverse profile will have increased in light of the time he has spent in Australia; and
(vii)FCO18 also feared persecution by the Pakistani authorities because of his Pashtun ethnicity;
(b)on 27 March 2017 the Minister by his Department acknowledged receipt of the SHE Visa application: CB 89;
(c)on 20 September 2017 the Department requested that FCO18 attend an interview on 3 October 2017 (“Delegate’s Interview”): CB 100;
(d)on 3 October 2017 FCO18 and his agent attended the Delegate’s Interview, at which the Delegate was given media articles concerning the security situation in Pakistan: CB 102-122;
(e)on 10 October 2017 FCO18’s agent provided a post-hearing submission to the Delegate (“Delegate Submissions”): CB 129-138, in which FCO18 relevantly argued that relocation to Islamabad was not reasonable because:
(i)FCO18 had “limited ability to find work in other areas of Pakistan”: CB 134 at [39];
(ii)FCO18 did not have “any relatives or family in other parts of Pakistan and will face significant hardship in establishing himself”: CB 134 at [39];
(iii)FCO18 did not have any financial support from the Pakistani government and would not have sufficient income to maintain a reasonable standard of living: CB 134 at [39];
(iv)Islamabad was not affordable, including because of the “significant disparity in income and expenses”: CB 134 at [40];
(v)sectarian violence was a reason why FCO18 ought not be deemed able to relocate within Pakistan: CB 135 at [41]-[59]; and
(vi)FCO18 felt it was “not safe, affordable and practical” for him to relocate to Islamabad: CB 138 at [62];
(f)on 26 March 2018 the Delegate refused to grant the applicant the SHE Visa: CB 139-161. The Delegate concluded that FCO18 would not face a real risk of suffering significant harm in Islamabad, Rawalpindi, or Lahore: CB 154. The Delegate also concluded that it would be reasonable for FCO18 to relocate to any of those cities: CB 156;
(g)on 27 March 2018 the Delegate’s Decision was referred to the Authority: CB 162;
(h)on 27 March 2018 the Authority acknowledged the referral of FCO18’s case: CB 162; and
(i)on 17 April 2018 FCO18’s representative sent submissions to the Authority (“Authority Submissions”): CB 171-175. The Authority Submissions address why it was unreasonable for FCO18 to relocate to Islamabad, including because of the lack of social support, the cost of living and the need to renew his CNIC (a national ID card) (“ID Card”): CB 174-175.
AUTHORITY DECISION
On 4 September 2018 the Authority affirmed the Delegate’s Decision: CB 180-199.
In the Authority Decision the Authority:
(a)accepted that FCO18 was a Pakistani citizen, a practising Shia Muslim of Pashtun ethnicity and a Turi tribe member: CB 184 at [13]-[14], and further accepted that FCO18 would be identifiable as having those personal characteristics: CB 184 at [16];
(b)accepted that FCO18 worked as a taxi driver in Parachinar between 2002 and 2013: CB 184 at [15];
(c)concluded, due to various inconsistencies in FCO18’s account, that FCO18 had not worked for a Shia Cleric with links to the Shia Organisation, nor had he received threats from the Pakistan Taliban: CB 184-186 at [17]-[25];
(d)reviewed relevant country information for FCO18’s home area (the Kurram Agency) which led it to conclude that FCO18 faced a real chance of serious harm as a Shia in that location: CB 186-188 at [28]-[37];
(e)after reviewing relevant country information concerning the security situation in Islamabad, concluded that, in the event FCO18 resided in that city, it was not satisfied that FCO18 would face a real chance of any harm because of:
(i)his status as a Pashtun Turi Shia Muslim from Parachinar;
(ii)his opposition to the Pakistan Taliban and other Sunni militant groups;
(iii)his time residing in Australia; or
(iv)generalised violence in Islamabad: CB 188-192 at [38]-[55];
(f)referred to country information that stated that:
(i)Shias in Pakistan faced a low risk of sectarian violence in Islamabad: CB 188 at [39] and 190-191 at [48];
(ii)there were large Shia Muslim communities (including Turi Shias) and internal migrants in Islamabad: CB 188-189 at [40]-[41];
(iii)violent attacks were rare in Islamabad: CB 190 at [45];
(iv)attacks in Islamabad (when there were any) were overwhelmingly against leading figures: CB 190 at [46];
(v)there was a strong security presence in Islamabad: CB 190 at [46]; and
(vi)ordinary Shia Muslims could engage in public worship and go to work and education without a real chance of harm: CB 191 at [49];
(g)concluded that FCO18 did not meet s 36(2)(a) of the Migration Act: CB 192 at [56];
(h)adopted its anterior factual findings in support of its conclusions that FCO18 would:
(i)face a real risk of significant harm if he returned to the Kurram Agency: CB 193 at [59]; and
(ii)not face a real risk of significant harm if he relocated to Islamabad: CB 193 at [61]-[63].
(i)summarised the internal relocation principle in s 36(2B) of the Migration Act: CB 193 at [60], and gave detailed reasons, based in part upon relevant country information, in support of its conclusion that it was reasonable for FCO18 to relocate to Islamabad: CB 195 at [73]. That conclusion was informed by these matters:
(i)FCO18’s time in Australia demonstrated that he would be able to live apart from his family (who continued to reside in the Kurram Agency) until FCO18 decided to have them come to Islamabad to live with him: CB 193-194 at [65] and [68];
(ii)there was access to infrastructure and services in Islamabad: CB 193 at [66]-[67];
(iii)many people in Islamabad spoke the same language as FCO18: CB 194-195 at [69];
(iv)FCO18 would be able to find employment and earn enough money to pay for accommodation and other living expenses in Islamabad: CB 194-195 at [68] and [72]. The evidence did not indicate that a person could not find employment or accommodation in Islamabad without having personal connections: CB 194-195 at [69]; and
(v)FCO18 could renew his ID Card and his driver’s license in Islamabad without returning to the Kurram Agency: CB 195 at [70]-[71]; and
(j)found that its conclusion concerning the reasonableness of FCO18 relocating to Islamabad led it to conclude that FCO18 did not meet s 36(2)(aa) of the Migration Act: CB 195 at [74].
AMENDED JUDICIAL REVIEW APPLICATION
Single ground
In the single ground of the Amended Judicial Review Application FCO18 asserts that the Authority “made a jurisdictional error by failing to consider the risk of harm to … [FCO18] in Islamabad in the context of whether it was reasonable for him to relocate to Islamabad.”
FCO18’s submissions
FCO18’s submissions were as follows:
(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 Authority 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 the grant of a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the 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) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 (“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 recently 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 FCO18 in Islamabad in determining whether it was reasonable for him to relocate to Islamabad. The Authority accepted that FCO18 faced a low or remote risk of sectarian violence in Islamabad: CB 188 at [39] and CB 190 at [48]. FCO18 made an express claim that such risks formed a reason why it was not reasonable for him to relocate to Islamabad: CB 138 at [62];
(g)the Authority began its assessment of the reasonableness of relocation at CB 193 at [61] of its reasons. From then onwards it does not mention the low or remote risk of sectarian violence faced by FCO18 in Islamabad in the context of deciding whether it was reasonable for him to relocate there;
(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 FCO18 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, citing SZMTA at [45] per Bell, Gageler and Keane JJ.
Minister’s submissions
The Minister submitted that:
(a)in determining whether the Authority committed the error asserted by FCO18 the Court must determine:
(i)whether FCO18 claimed that it was not reasonable for him 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 FCO18 to relocate to Islamabad; and
(iii)if not, whether the error was 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)FCO18 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 FCO18 did make the claim, the Authority considered the risk of harm to FCO18 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 FCO18 claimed that it was unreasonable for FCO18 to relocate to Islamabad because of the risk of harm there it is important for the Court to first answer the question at [8(a)(i)] above 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 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 to relocation”: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”) at [124] per Tracey and Foster JJ;
(e)with the above principles in mind, the Minister emphasises that FCO18’s submissions to the Delegate and to the Authority on the reasonableness of relocation to Islamabad focused overwhelmingly on more pragmatic considerations, such as the cost of living, the lack of social supports and the inability to secure employment. Out of the 10-page Delegate Submission and the 5-page 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 the Delegate Submissions:
(i)CB 133-134 at [36]:
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”.
(ii)CB 138 at [62]:
We submit that it is unreasonable to expect the applicant to relocate to Islamabad, given it is not safe, affordable and practical for him to consider relocation with no means to subsist.
(f)aside from the above two references FCO18’s submissions on the reasonableness of relocation (and especially in the Authority Submissions) were about access to employment, social support and FCO18’s ability to adapt in a new environment without his family: CB 174-175; and
(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 FCO18) made it such that it was unreasonable for FCO18 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 general unsafe security situation in Islamabad made it unreasonable to relocate to;
(h)with the above background in mind about how FCO18’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 and social support. In any event, the Minister contends that when the Authority Decision is read fairly and as a whole, the Authority did consider the general safety or security situation in Islamabad in concluding that it was reasonable for FCO18 to relocate to Islamabad;
(i)the Authority had earlier found that the risk of sectarian violence for Shia Muslims in Islamabad was low: CB 190-191 at [48]. It had also found that terrorist attacks and kidnapping in Islamabad were rare: CB 190-191 at [48], and that Shia Muslims could “go about their day-to-day activities in Islamabad … without facing a real chance of harm for that reason”: CB 191 at [49]. The Authority was not satisfied that FCO18 faced a real chance of harm: CB 192 at [53];
(j)the Authority drew upon its earlier findings and reasoning when turning to the reasonableness of relocation to Islamabad: CB 193 at [61]-[62]. It even accepted that FCO18 “may experience some challenges in establishing himself in Islamabad”: CB 193 at [62];
(k)having made the above findings, the Authority indicated that “having regard to the applicant’s overall circumstances I am satisfied that it would be reasonable for the applicant to relocate to Islamabad”: CB 195 at [73];
(l)having earlier set out country information on Islamabad in detail, and FCO18’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 “the applicant’s overall circumstances” that it was reasonable for FCO18 to relocate to Islamabad;
(m)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 DZUI16, after distinguishing cases like MZYQU, MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 and MZACX, the Full Court held at [137] and [139] per Robertson, Murphy and Kerr JJ that the Authority did not err;
(n)in DZU16, paragraph [61] of the Authority Decision, 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.
(o)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 FCO18 facing any harm in Islamabad. The Authority cannot sensibly be inferred to have forgotten its earlier analysis about the risk of harm in Islamabad in concluding that, having regard to the “applicant’s overall circumstances” it was reasonable for him to relocate: see also 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;
(p)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; (2021) 177 ALD 464 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ;
(q)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 [38] per Kiefel CJ, Gageler, Keane and Gleeson JJ; and
(r)in the present case, the tenor of the Authority’s conclusions was clear: FCO18 would not face a real chance or risk of harm in Islamabad. The Authority considered in detail the practicalities of FCO18 relocating to Islamabad. FCO18 did not make any detailed claim or put forward any substantive submission on why the safety situation in Islamabad made it unreasonable for him to relocate there: see in comparison, the detailed submissions made by the applicant on relocation in CXO16 [5]-[14] per Wheelahan J. In those circumstances, there is no realistic possibility of the Authority having 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: 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”). 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 of the Authority 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; ApplicantWAEE 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 FCO18 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 FCO18 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 at [84]-[85] per Collier, Markovic and Lee JJ.
In this case the Authority determined that FCO18 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 188 at [35]-[37].
In the Delegate Submissions FCO18 took issue with the reasonableness of his relocating to Islamabad by reason of:
(a)a specific submission that violence has occurred in Islamabad, a focus on violence and safety concerns in Islamabad, and a catch-all claim that for a region to be deemed safe for relocation ongoing violence must not exist: CB 133-134 at [34]-[36];
(b)a claim that people from Parachinar continuously face threats, risk of harm and violent attacks throughout Pakistan: CB 135 at [42];
(c)a claim that the threat to FCO18 is nationwide and ongoing: CB 135 at [45];
(d)a claim that the security situation in Islamabad is insecure and unsafe, and that there had been a significant increase in terrorist attacks reported in Islamabad: CB 135 at [47] and 135-136 at [49];
(e)a claim that there is no specific, impartial and independent country information to support a finding that FCO18 will be safe in either Islamabad or the Punjab province: CB 137 at [59]; and
(f)the claim made at CB 138 at [62] that:
… it is unreasonable to expect the applicant to relocate to Islamabad, given it is not safe, affordable and practical for him to consider relocation with no means to subsist.
In the Authority Submission the above matters were specifically drawn to the Authority’s attention by FCO18’s then representative who observed that “relocation and reasonableness of relocation were addressed at length” in the Delegate Submissions: CB 175.
In assessing whether the Authority undertook a consideration of the reasonableness of FCO18’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 acknowledged submissions made by FCO18 (including those made to the Delegate at the Delegate’s Interview) as to why it was unreasonable for FCO18 to relocate to Islamabad: CB 188 at [38] and 189 at [43]-[44]. The Authority expressly considered whether there was a real chance of harm to FCO18 if he were to relocate to Islamabad. In so doing the Authority referred:
(a)extensively to relevant country information generally: CB 186-187 at [28]-[33];
(b)to country information specifically concerning Islamabad: CB 188-191 at [38]-[48];
(c)to country information concerning Islamabad and relocation to Islamabad by Shias from other parts of Pakistan, including Parachinar and the Kurram Agency: CB 194-195 at [67]-[72]; and
(d)to FCO18’s “overall circumstances”: CB 195 at [73] (as to FCO18’s personal circumstances relevant to his claims see CB 184 at [13]-[16], 189 at [42] 189-190 at [44], CB 193-194 at [64]-[65], 194-195 at [69] and 195 at [71]).
The Authority made various findings from the material that it referred to, including, relevantly, that:
(a)the risk of sectarian violence for Shia Muslims in Islamabad was low: CB 190 at [48];
(b)terrorist attacks and kidnapping in Islamabad were rare: CB 190-191 at [48];
(c)Shia Muslims could “go about their day-to-day activities in Islamabad … without facing a real chance of harm for that reason”: CB 191 at [49];
(d)it was not satisfied that FCO18 faced a real chance of harm: CB 192 at [53]; and
(e)specifically found: CB 192 at [55], albeit as part of its refugee assessment, that it was not satisfied that FCO18 would face a real chance of serious harm in Islamabad.
In relation to the reasonableness of FCO18 relocating to Islamabad the Authority drew upon its earlier findings, as it was entitled to do: DQU16 v Minister for Immigration [2021] HCA 10; (2021) 273 CLR 1; (2021) 95 ALJR 352; (2021) 388 ALR 363 at [27] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ, specifically finding at CB 193 at [61] that:
For the following reasons I am satisfied that it would be reasonable for the applicant to relocate to an area of the country where there is not a real risk of significant harm. I have found above that the applicant does not face a real chance of harm in Islamabad as a Pashtun Turi Shia Muslim from Kurram Agency, his opposition to Sunni militant groups such as the TTP, his having spent time in a Western country, or as a consequence of more generalised violence. For the same reasons I am not satisfied that he faces a real risk of significant harm for those reasons in Islamabad.
The Authority also set out at CB 193 at [64] some of FCO18’s specific contentions as to why relocation to Islamabad was unreasonable, and dealt with those contentions at CB 193-195 at [65]-[73], including indicating that “having regard to the applicant’s overall circumstances I am satisfied that it would be reasonable for the applicant to relocate to Islamabad”: CB 195 at [73].
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 required 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 188 at [35] in the Authority Decision. The use of the words “[h]aving regard to the applicant’s overall circumstances” immediately prior to the Authority’s expression of satisfaction as to the reasonableness of FCO18 relocating to Islamabad: CB 195 at [73] 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 the applicant’s overall circumstances” in the manner suggested by FCO18 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 FCO18’s relocation to Islamabad, and in so doing had particular regard to the matters referred to above, which included assessments of the risk of harm to FCO18 in Islamabad, see, for example, CB 192 at [55] and 193 at [61]. Having had regard to those matters and the relevant level of risk in relation to them the Authority found that it was reasonable for FCO18 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 FCO18 in Islamabad and concluded that it was reasonable in all the circumstances for FCO18 to relocate to Islamabad: CB 195 at [73].
The Court has concluded that the Authority Decision had proper regard for, and considered fairly, the reasonableness of the relocation of FCO18 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 the parties as to costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 29 November 2024
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