FFU18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1335
•6 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FFU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1335
File number(s): MLG 3002 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 6 December 2024 Catchwords: MIGRATION – Judicial review application – review of decision of Immigration Assessment Authority affirming delegate’s decision to refuse Safe Haven Enterprise visa – citizen of Pakistan – whether failure to consider risk of harm in context of whether reasonable to relocate from Parachinar to Islamabad – whether failure to consider claim that applicant would travel back to Parachinar to collect family – whether material jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 5J, 36, 473CB, 473CC, 473DD, 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
CIT17v 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
DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 24; (2024) 302 FCR 25
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
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
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
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration & 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
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
MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2016) 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 and Another [2009] FCAFC 46; (2009) 174 FCR 415
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission/s: 3 April 2024 Date of hearing: 3 April 2024 Place: Perth Counsel for the Applicant: Mr H Glenister Solicitor for the Applicant: William Gerard Legal Counsel for the First Respondent: Ms G Ellis Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3002 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FFU18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
6 DECEMBER 2024
THE COURT ORDERS THAT:
1.The originating application filed on 5 October 2018, as amended by an amended originating application filed on 6 March 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 6 March 2024 (“Amended Judicial Review Application”) under s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”) the applicant (“FFU18”) 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 FFU18’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 170-182.
All references in these Reasons for Judgment to provisions in the Migration Act refer to the provisions as at the date of the Authority Decision.
BACKGROUND AND CLAIMS
The factual background to this matter is as follows:
(a)FFU18 was born on 30 May 1981 in Pakistan: CB 3;
(b)FFU18 arrived in Australia by boat in 2013: CB 19;
(c)on 23 May 2016 FFU18 was invited to apply for a SHE Visa: CB 23;
(d)on 31 March 2017 FFU18 made an application for a SHE Visa with a statutory declaration in support (“March 2017 Statutory Declaration”): CB 32-83. In the March 2017 Statutory Declaration FFU18 advanced a claim that he could not relocate within Pakistan safely due to sectarian violence: CB 71 at [18];
(e)in summary, FFU18’s claims were as follows:
(i)FFU18 is a Shia Muslim, a member of the Turi Tribe, ethnically Pashtun, and from Parachinar in the Kurram Agency in Pakistan;
(ii)FFU18’s father is a schoolteacher, an influential man in Parachinar due to ownership of significant land and real estate, a member of the peace committee and of a Shia religious group (“Shia Religious Group”);
(iii)FFU18 worked in Karachi from 2001 to 2006 as a security guard. FFU18 returned to Parachinar when it became too risky to live in Karachi. In Parachinar FFU18 worked as a tractor driver delivering water and on the family farm;
(iv)FFU18’s father organised for him to go to the United Arab Emirates in March 2009 as it was increasingly risky for FFU18 to continue to live in Parachinar due to the war. FFU18 worked in Abu Dhabi from March 2009 to 2012;
(v)when FFU18 returned to Parachinar he again worked delivering water and as a farmer. In December 2012 FFU18’s friend, who was also a water deliverer, was killed by the Taliban. After this, FFU18 was too scared to work; and
(vi)if FFU18 returns to Parachinar, he fears being killed by an extremist group because he is Shia and Turi. He believes he will be targeted because of his:
(A)religion;
(B)membership of the Turi tribe;
(C)father’s association with the Shia Religious Group;
(D)actual and imputed political opinion opposed to the Taliban;
(E)returning from a Western country; and
(F)work as a delivery driver which implicated him as being anti-Taliban by assisting Shia people and spying for enemies of the Taliban;
(f)on 7 April 2017 the Minister by his department (“Department”) acknowledged receipt of the SHE Visa application: CB 84;
(g)on 7 November 2017 the Department requested that FFU18 attend an interview on 21 November 2017 (“Delegate’s Interview”): CB 98;
(h)after the Delegate’s Interview FFU18’s agent provided to the Delegate a further statutory declaration signed by FFU18 (“November 2017 Statutory Declaration”): CB 102-103; a letter of support: CB 105; written submissions (“FFU18’s Delegate Submissions”): CB 107-119; photographs: CB 121-125; and police documents: CB 126-127;
(i)in the November 2017 Statutory Declaration FFU18 repeated his claim that he could not relocate within Pakistan safely due to sectarian violence: CB 102 at [5], and also made a claim that he could not relocate due to not having a support network to assist him in establishing himself with young family members: CB 103 at [9];
(j)FFU18’s Delegate Submissions addressed the reasonableness of FFU18 relocating within Pakistan: CB 107-119. They referred to sectarian violence as a reason why FFU18 ought not be deemed able to relocate within Pakistan: CB 116 at [64]-[66], and included references to Federal Court judgments concerning relocation: CB 117-118 at [72];
(k)on 3 April 2018 the Delegate’s Decision was to refuse to grant FFU18 a SHE Visa: CB 133-148. The Delegate relevantly concluded that FFU18 would not face a real risk of suffering significant harm in Islamabad, Karachi, or Lahore: CB 141. The Delegate recorded that it discussed FFU18’s relocation to Islamabad, Karachi, or Lahore with FFU18 at the Delegate’s Interview: CB 138-141. The Delegate also concluded that it would be reasonable for FFU18 to relocate to any of those cities: CB 144-145;
(l)on 10 April 2018 the Delegate’s Decision was referred to the Authority: CB 149-151;
(m)on 11 April 2018 the Authority acknowledged the referral of the case: CB 150; and
(n)on 25 April 2018 FFU18’s appointed agent: CB 161, provided submissions to the Authority: CB 162-166 (“FFU18’s Authority Submission”).
AUTHORITY DECISION
On 19 September 2018 the Authority affirmed the Delegate’s Decision: CB 170-182.
In the Authority Decision the Authority:
(a)had regard to the material referred to it by the Secretary under s 473CB of the Migration Act: CB 171 at [3];
(b)obtained more recent country information from the South Asia Terrorism Portal under s 473DD of the Migration Act: CB 171 at [4];
(c)noted FFU18’s Authority Submission with arguments addressing the Delegate’s Decision, and found that they invited the Authority to consider more recent country information but did not provide any new information: CB 171 at [5];
(d)accepted FFU18 was from Parachinar, that his family remained in Parachinar, that this was his home area and an area to which he would return, and that he was a member of the Turi tribe: CB 172 at [9] and [11];
(e)based on country information, was satisfied that there was a real chance of FFU18 suffering serious harm by reason of his Shia religion in his home area of Parachinar: CB 173 at [12];
(f)considered whether FFU18’s chance of harm extended to all areas of Pakistan: CB 173 at [13];
(g)cited country information that violence against Shias in Islamabad was rare: CB 173 at [14];
(h)accepted FFU18’s name, identification and accent would identify his place of origin and religion, but based on country information, found that as a Shia from Parachinar he would not face a real chance of harm in Islamabad: CB 173 at [15];
(i)found FFU18’s chance of harm in Islamabad because of his religion, political opinion or membership of his tribal group was too remote to amount to a real chance: CB 173 at [15], and was not satisfied FFU18 would face a real chance of harm in Islamabad because of his ethnicity: CB 174 at [16];
(j)accepted FFU18’s father was a member of the Shia Religious Group and was influential, but found there was no evidence that FFU18 or any family members had been targeted because of FFU18’s father’s role: CB 174 at [17];
(k)accepted FFU18’s father was attacked in Islamabad, however, found there was no information that any further attack had occurred, and did not accept this one-off attack led to a conclusion that any member of the family would not be safe anywhere in Pakistan, and did not accept FFU18 would face a real chance of harm in Islamabad merely because his father was the victim of an attack there: CB 174 at [19];
(l)accepted FFU18’s friend was killed by the Taliban while driving in Kurram Agency, and he may have been targeted because of his work, but found there was no claim FFU18 would return to this type of work, and found it too far-fetched that the Taliban or any other group would remember FFU18 had briefly done this work and track him to Islamabad to harm him. It found FFU18 would not face a real chance of harm in Islamabad for having worked as a driver in Kurram Agency six years previously: CB 174 at [20];
(m)based on country information and FFU18’s profile, found FFU18 would not face a real chance of harm because of his time in the West or as a failed asylum seeker: CB 174-175 at [21];
(n)found the chance of FFU18 facing any harm in Islamabad by reason of his religion, ethnicity, tribe, family, work, political opinion, time in the West, or at all, was too remote to amount to a real chance, and was satisfied the chance of serious harm did not extend to all areas of Pakistan: CB 175 at [22], and therefore found FFU18 did not meet s 36(2)(a) of the Migration Act: CB 175 at [23]; and
(o)based on its anterior findings found FFU18 as a Turi Shia would face a real risk of significant harm in his home area of Parachinar: CB 175 at [26].
In relation to the reasonableness of relocation the Authority:
(a)considered whether it would be reasonable for FFU18 to relocate to Islamabad, where there would not be a real risk he would suffer significant harm: CB 176 at [28]-[29];
(b)considered FFU18’s claims as to why it was not reasonable for him to relocate to Islamabad: CB 176 at [30];
(c)did not accept FFU18 lacked the connections or resources to relocate: CB 176 at [31];
(d)found that given the variety of employment FFU18 had held before and his demonstrated ability to adapt to new cities, he could reasonably settle and find work in Islamabad: CB 176 at [32];
(e)found FFU18 held a valid Computerised National Identity Card (“ID Card”): CB 177 at [34];
(f)did not accept that a drivers’ licence would be an essential requirement for all types of works, such as working in security, but also did not accept that FFU18 could not obtain one in Islamabad: CB 177 at [34];
(g)was not satisfied, given no evidence was provided, that FFU18 suffered from any mental health condition that would impact on the reasonableness of him relocating: CB 177 at [35];
(h)found FFU18’s wife and children remained in Parachinar: CB 177 at [36];
(i)found FFU18 had shown a willingness to work away from his family, and he could do this in Islamabad: CB 177 at [36];
(j)acknowledged the difficulty for FFU18 in remaining separated from his family and not being able to visit them as frequently as he may wish, however, found his family could join or visit him in Islamabad: CB 177 at [36];
(k)found that, given the security situation in Islamabad and FFU18’s personal circumstances, it would be reasonable for him to relocate to Islamabad where he would not face a real risk of significant harm: CB 177 at [37]; and
(l)found FFU18 did not meet s 36(2)(aa) of the Migration Act: CB 177 at [38].
THE AMENDED JUDICIAL REVIEW APPLICATION
Grounds
In the Amended Judicial Review Application FFU18 abandons two previously raised grounds and asserts the following amended grounds, numbered 3 and 4:
3.The Second Respondent (Authority) made a jurisdictional error by failing to consider the risk of harm to the Applicant in Islamabad in the context of whether it was reasonable for him to relocate to Islamabad.
4.The Authority made a jurisdictional error by failing to consider the Applicant’s claim that he would travel back to Parachinar to collect his family.
FFU18’s Submissions
FFU18 made some general preliminary submissions, as follows:
(a)the Authority is required to review a referred decision: Migration Act, s 473CC(1). 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 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 [68] per Black CJ, French and Selway JJ; EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304 (“EVA17”) 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 of a visa applicant, that the applicant face that risk: MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2016) 161 ALD 73 (“MZACX”) at [48] per Kenny J; and
(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].
FFU18’s submissions in relation to ground 3 were as follows:
(a)the dispositive issue for this ground is whether the Authority failed to consider lower risks of harm faced by FFU18 in Islamabad in determining whether it was reasonable for him to relocate to Islamabad. The Authority accepted that FFU18 faced a remote risk of sectarian violence in Islamabad: CB 175 at [22]. FFU18 made an express claim that such a risk formed a reason why it was not reasonable for him to relocate to Islamabad: CB 117-118 at [72];
(b)the Authority began its assessment of the reasonableness of relocation at [30] of the Authority Decision: CB 176. From then onwards it does not mention the remote risk of sectarian violence faced by FFU18 in Islamabad. It reaches its conclusion on the reasonableness of FFU18 relocating to Islamabad “given the security situation”: CB 177 at [37], but without any reasoning as to why it was reasonable for him to face the risk of sectarian violence present in Islamabad;
(c)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
(d)had the Authority considered the question of the reasonableness of FFU18 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.
FFU18’s submissions in relation to ground 4 were as follows:
(a)FFU18 claimed that he would live with his family if he had to relocate: CB 103 at [9]. He also claimed that he would “be required to return to Parachinar to take his family with him and relocate to another area”: CB 118 at [73];
(b)at no point did the Authority consider whether FFU18 would face a real chance/risk of serious/significant harm should he return to Parachinar to collect his family. The closest it comes is at CB 177 at [36] in the context of assessing the reasonableness of FFU18’s relocating to Islamabad; and
(c)FFU18 has made a clearly articulated claim about what he would do on his return to Pakistan which has not been considered by the Authority. Had the Authority accepted that FFU18 would return to Parachinar to collect his family, given its findings about the risk of harm he would face there: CB 173 at [12] and CB 175 at [26], it could have concluded that FFU18 was owed protection obligations for this reason alone. The Authority’s failure to consider FFU18’s claim that he would return to Parachinar to collect his family may have affected the outcome of the review and was, therefore, a jurisdictional error.
Minister’s submissions
The Minister Submissions in relation to ground 3 were as follows:
(a)in determining whether the Authority committed the error asserted by FFU18, the Court must determine:
(i)whether FFU18 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 FFU18 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)FFU18 did not squarely 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 FFU18 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 FFU18 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 the question at [12(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 the Federal Court 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.0F
To the extent that 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 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 [124] per Tracey and Foster JJ;
(e)FFU18’s submissions and materials 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, FFU18’s lack of education, his limited ability with the Urdu and Punjabi languages, and difficulties he would face in securing employment;
(f)out of FFU18’s 2-page November 2017 Statutory Declaration to the Delegate, the 13-page Delegate Submission, and the 5-page Authority Submission, so far as the Minister can discern, the only reference to FFU18’s risk of harm being relevant to the reasonableness of relocation was in the following, entirely non-specific, reference to case law in FFU18’s Delegate Submissions: CB 117-118 at [72] (footnotes omitted, otherwise reproduced unamended):
72.Reasonableness of relocation in sense of practical, was addressed in recent case law;
•In MZACX v Minister for Immigration (12 October 2016) at [35], Kenny J considered the principles relating to relocation thus:
•In considering the possibility of relocation within a visa applicant’s country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk, then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is “reasonable”, in the sense of “practicable”, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case.
•Her Honour’s reference to the relevance of “lower levels of harm” draws from the judgments of Dodds-Streeton J in MZYQU v Minister for Immigration, especially at [61]-[62], and Davies J in MZZJY v Minister for Immigration at [21]. The principle established in those cases was expressed by Davies J in MZZJY at [21] in this way:
The fact that the risk of harm may be remote does not necessarily answer the question whether it is reasonable, having regard to the personal circumstances of the applicant, to expect the applicant to face that risk. The Tribunal was obliged to consider the practical realities for the applicant in determining whether it is reasonable to expect him to relocate.
(g)this is the only part of FFU18’s materials that addresses the relevance of a risk of harm to the reasonableness of relocation. FFU18’s submissions at [11] that “The Applicant made an express claim that such a risk formed a reason why it was not reasonable for him to relocate to Islamabad” by the above extracted paragraph, is wrong because no such express claim was raised. The extracted paragraph made no reference whatsoever to FFU18, Islamabad, nor the risk faced by FFU18 therein. It was simply a bland extraction of case law on the reasonableness of relocation;
(h)importantly, in the immediately following paragraphs in FFU18’s Delegate Submissions: CB 118, at [73]-[74], FFU18 did not mention any claim about a risk of harm in Islamabad making it not reasonable for him to relocate there. Instead, FFU18 listed “two reasons” why it was “not practical for applicant to relocate to another area of Pakistan”. The first was that he claimed he would be required to return to Parachinar to take his family with him and relocate to another area. The second was that he would be required to go back to Parachinar in order to unblock his ID Card and renew his driving licence. FFU18 then concluded by submitting that it was “neither reasonable nor practical for applicant to relocate to Islamabad or any other major city in Pakistan to establish himself and his family without undue hardship to subsist. We therefore request that reasonableness and practicality of relocation be given significant importance in your decision making”; and
(i)the Minister submits that the above extracted paragraph did not amount to a claim squarely being made that even a low risk of harm (such as sectarian violence, now relied upon by FFU18) in Islamabad made it such that it was unreasonable for FFU18 to relocate to there.
As to whether the Authority considered the “safety” or security situation in Islamabad in concluding that it was reasonable for FFU18 to relocate, the Minister submitted that:
(a)with the above background in mind about how FFU18’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 & 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 FFU18 to relocate there;
(b)the Authority had earlier found that the risk of sectarian violence in Islamabad was remote: CB 175 at [22]. Specifically, the Authority found:
22.I find the country information before me indicates sectarian violence targeting Shias in Islamabad is rare. I have taken into account his personal circumstances, but I find the chance of him facing any harm in Islamabad for reason of his religion, ethnicity, tribe, family, work, political opinion, time in the West, or at all, is too remote to amount to a real chance. I am satisfied the chance of serious harm does not extend to all areas of Pakistan.
(c)the Authority drew upon this earlier finding and reasoning when turning to the reasonableness of relocation to Islamabad. It found that FFU18 did not face a real risk of significant harm in Islamabad “[f]or the same reasons given above”: CB 176 at [29];
(d)then, after considering FFU18’s claims in detail about whether it would be reasonable, in the sense of practicable, for him to relocate: CB 176-177 at [30]-[36], the Authority concluded that (emphasis added) “given the security situation in Islamabad and the applicant’s personal circumstances, it is reasonable for him to relocate to Islamabad, where I find he would not face a real risk of significant harm”: CB 177 at [37]. This plainly shows that the Authority did consider the general safety or security situation in concluding that it was reasonable for FFU18 to relocate there. What else could its reference to “the security situation in Islamabad” in this sentence mean?;
(e)FFU18 argues that the Authority did not provide any reasoning for this conclusion, but this ignores the fact that the Authority had earlier set out country information on Islamabad: CB 173 at [14]-[15], and FFU18’s lack of any adverse profile there: CB 174-175 at [19]-[22], before expressly noting: CB 176 at [29] that:
29.I have found above there is not a real chance of harm in Islamabad. ‘Real chance’ and ‘real risk’ has been found to equate to the same threshold. For the same reasons given above, I find the applicant does not face a real risk of harm in Islamabad.
(f)this plainly fed into the Authority’s conclusion: CB 177 at [37] that (emphasis again added) “given the security situation in Islamabad and the applicant’s personal circumstances, it is reasonable for him to relocate to Islamabad, where I find he would not face a real risk of significant harm”;
(g)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;
(h)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.
(i)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 FFU18 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 the applicant to relocate there: DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 24; (2024) 302 FCR 25 (“DKY22”) at [36] per Derrington, Goodman and Raper JJ.
Even if the Authority erred, as to whether the error was material, the Minister submitted that:
(a)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;
(b)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
(c)in the present case, the tenor of the Authority Decision was clear: FFU18 would not face a real chance or risk of harm in Islamabad. The Authority considered in detail the practicalities of FFU18 relocating to Islamabad, including his capacity to find work and subsist. FFU18 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 by the applicant on relocation, in CXO16 summarised at [5]-[14] per Wheelahan J. In those circumstances, there is no realistic possibility of the Authority having made a different decision.
The Minister’s submissions in relation to ground 4 were as follows:
(a)the Authority expressly mentioned the claim at CB 176 at [30] (emphasis added):
30.The applicant claims it is not reasonable for him to relocate for a number of reasons. He states his level of education would limit his ability to find work, and to live somewhere like Islamabad requires tertiary qualifications to earn enough income to subsist. He claims he has no relatives in other parts of Pakistan, and without familial networks he could not establish himself elsewhere. He claims he will also have to return to Parachinar to unblock his NIC, renew his driving licence, and collect his family, and it will be too dangerous for him to make these trips.
(b)the Authority then found as follows with respect to the claim at CB 177 at [36]:
36.The applicant’s wife and children remain in Parachinar. They remained in Parachinar when he worked in the UAE. The applicant has shown a willingness to work away from his family, and I find he could do this in Islamabad. The applicant has not indicated whether on return to Pakistan he would continue to work away while his family remained in Parachinar as their primary residence, as has been his previous preference. I acknowledge that when he worked in the UAE he occasionally returned home, and that the risks in travelling from Islamabad to Parachinar may prevent him from doing so. I acknowledge the difficulty for him in remaining separated from his family and not being able to visit them as frequently as he may wish. However, I consider his family could join him or visit him in Islamabad when it is safe for them to travel, and that there are options to fly rather than travel by road.
(c)accordingly, it can be seen that the Authority found that FFU18 would work in Islamabad, which may be away from his family, but that he had previously shown a willingness to work away from them, and that he may not return to visit them if they remained due to the risks in travelling from Islamabad to Parachinar, however, his family could join him or visit him in Islamabad when it was safe for them to travel.
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 at [160]; 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 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.
Ground 3 - consideration
Ground 3 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) of the Migration Act which 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 (among other cases) 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 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 at [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 FFU18 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 FFU18 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].
To similar effect is CIT17v Minister for Immigration and Border Protection [2018] FCAFC 150; (2018) 265 FCR 572 at [84]-[85] per Collier, Markovic and Lee JJ.
In relation to the way in which the Authority Decision might be read the Court notes that in DKY22 at [36] per Derrington, Goodman and Raper JJ the Full Court of the Federal Court observed that:
36.Relatedly, it does not follow from the absence of an express reference to a particular matter within a particular section of the reasons that such a matter was not taken into account by the decision-maker. The individual sections of an administrative decision-maker’s reasons are not to be treated as self-contained or exhaustive of the topics they address. As the High Court of Australia (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ) recently explained in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196 at [50]:
... A decision-maker’s written reasons for a decision are often structured in sequence. The sequential structure of reasons, so that each topic is dealt with under a separate heading, is not generally a sufficient reason to infer that in dealing with one matter the decision-maker has forgotten the substance of the preceding parts of the reasons or is unaware of the substance of the subsequent parts of the reasons. Nor would it be readily inferred from mere sequential structuring and dealing with each topic under its own heading that a decision-maker had quarantined the assessment of each topic from every other topic. As previously noted, in the present case, moreover, the concluding section of the delegate’s reasons discloses an overall weighing of all considerations against each other. In so doing, the delegate expressly weighed the plaintiff’s personal circumstances against, amongst other things, the expectations of the Australian community.
In this case the Authority determined that FFU18 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 173 at [12].
In FFU18’s Delegate Submissions FFU18 took issue with the reasonableness of his relocating to Islamabad at some length from CB 116-118 at [64]-[74], and did so by reason of:
(a)citing the United Nations High Commissioner for Refugees Guidelines (being the Guidelines on International protection No 4: ‘Internal Flight or Relocation Alternative’ Within the context of 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees, United Nations High Commissioner for Refugees, 23rd July 2003: see CB 117 at fn 48) (“UNHCR Guidelines”) as to the threshold for safety and security for any relocation assessment as being the ability to find durable safety and security free from danger and the risk of injury: CB 116 at [65];
(b)a specific submission that violence has occurred in Islamabad, that it is not free from terrorism, and a catch-all claim that ongoing violence must not exist for a region to be deemed safe for relocation: CB 116 at [66];
(c)citing the test for reasonableness of relocation set out in SZATV, summarised as being dependent upon the particular circumstances of an applicant and the impact upon an applicant of relocating within their country: CB 116 at [67], and suggesting that the UNHCR Guidelines suggest a similar test: CB 117 at [68];
(d)asserting it was unreasonable for FFU18 to relocate to other areas of Pakistan because of factors related to his “limited ability” to find work and his lack of education: CB 117 at [69];
(e)FFU18 lacking familial support in other areas of Pakistan and having insufficient income to support a reasonable standard of living in other major cities in Pakistan: CB 117 at [70], and that “life in Islamabad is not affordable” for FFU18: CB 117 at [71];
(f)referring to various Federal Court judgments concerning relocation principles: CB 117-118 at [72];
(g)asserting it was not practical for FFU18 to relocate to another area of Pakistan because of the need to return to Parachinar:
(i)to collect his family; and
(ii)to unlock his ID Card and to renew his driving licence,
and the danger to FFU18 of a trip to Parachinar: CB 118 at [73];
(h)asserting it was neither reasonable nor practical for FFU18 to relocate to Islamabad “to establish himself and his family without undue hardship to subsist”: CB 118 at [74]; and
(i)a specific request that the “reasonableness and practicality of relocation be given significant importance” in the Delegate’s decision-making: CB 118 at [74].
FFU18’s Delegate Submission with respect to the reasonableness of relocation was specifically drawn to the Authority’s attention in FFU18’s Authority Submission by FFU18’s then representative who observed that “relocation and reasonableness of relocation were addressed at length” in FFU18’s Delegate Submissions: CB 166.
In determining if the Authority undertook a consideration of the reasonableness of FFU18’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 expressly considered whether there was a real risk of harm to FFU18 if he were to relocate to Islamabad and, adopting its earlier findings as to a real chance of harm: 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, found that FFU18 did not face a real risk of harm in Islamabad: CB 176 at [29]. In its earlier findings the Authority had referred to:
(a)relevant country information, primarily the DFAT Country information Report Pakistan 1 September 2017, concerning conditions in Pakistan, and in particular for Turi Pashtun Shias from Parachinar: CB 172-175 at [11]-[21];
(b)country information concerning Islamabad and relocation to Islamabad by Shias from other parts of Pakistan, including Parachinar and the Kurram Agency: CB 172 at [11] and 173 at [13]-[15];
(c)country information concerning the treatment of Pashtuns in Islamabad: CB 173-174 at [16]; and
(d)FFU18’s “personal circumstances”: CB 175 at [22], including:
(i)consideration of a 2018 assault on FFU18’s father in Islamabad: CB 174 at [17]-[19], which it concluded was a one-off incident which did not give rise to a real chance of harm for FFU18: CB 174 at [19];
(ii)whether FFU18 would be targeted because he had briefly worked delivering water in the Kurram Agency several years before: CB 174 at [20]; and
(iii)whether FFU18 would face harm as a returnee from a Western country: CB 174-175 at [21],
before concluding at CB 175 at [22] that:
I find the country information before me indicates sectarian violence targeting Shias in Islamabad is rare. I have taken into account his personal circumstances, but I find the chance of him facing any harm in Islamabad for reason of his religion, ethnicity, tribe, family, work, political opinion, time in the West, or at all, is too remote to amount to a real chance. I am satisfied the chance of serious harm does not extend to all areas of Pakistan.
The Authority had already acknowledged that FFU18 had provided a submission to the Authority “with arguments addressing the delegate’s decision, particularly the reasonableness of relocation”: CB 171 at [5]. In this regard the Authority set out the claims made by FFU18 at CB 176 at [30] (set out at [15(a)] above), which included reference to returning to Parachinar to “collect his family”.
At CB 176-177 at [31]-[34] and [36]-[37] the Authority dealt with the various claims made by FFU18 that it was unreasonable and impractical for him to relocate to Islamabad as follows:
31.The representative described the applicant as lacking skills, family networks or the finances to survive outside of Parachinar. I do accept this is an accurate description of the applicant's circumstances. The applicant has described his father as an influential man, with significant assets. Travel undertaken by the applicant and his father indicates they are more capable of travelling and relocating in Pakistan, even temporarily, that the submissions suggest. The applicant provided a police report from his father, in which his father is described as residing in Islamabad and having a house there. Whether he owned or rented that house, it appears his father is a person of means and has access to accommodation in Islamabad. At his entry interview the applicant also mentioned a cousin who was said to live sometimes in Karachi and Islamabad. 1 acknowledge at the SHEV interview the applicant denied having said this or indicated that cousin no longer lived outside of Parachinar. However I find the applicant's residence in Karachi from 2001 to 2006 is an example of his family’s connections and ability to live outside of Parachinar. Similarly, I find his time in the UAE and his travel to Australia are examples of his adaptability and his family's resources to pay for travel elsewhere. 1 therefore do not accept the applicant lacks the connections or resources to relocate.
32.The applicant claims his lack of education and lack of fluency in Urdu will prevent him from obtaining work and earning a suitable wage in Islamabad. The applicant has however shown himself to be much more resourceful and employable than this claim indicates. He previously worked as a security guard in Karachi for 5 years. He worked in the UAE as a driver for 2 years, and when that work finished he survived another 20 months in the UAE working for people he lived with. He claimed in his written application to speak, read and write Pashto and Urdu, but stated at the SHEV interview this was incorrect and he could not speak Urdu. 1 find however his level of Urdu or other languages has not held him back from finding employment before. I also find his father could assist him, both practically and financially, to settle in Islamabad until he finds work. I find that given the variety of employment he has held before and his demonstrated ability to adapt to new cities, the applicant could reasonably settle and find work in Islamabad.
33.The representative submits the cost of living in the Punjab is unaffordable for a person without skills, such as the applicant. I find the applicant's ability to survive and find work in Karachi and the UAE demonstrate he does have sufficient skills to earn a wage he can subsist on. As noted above, 1 consider his family, in particular his father, could reasonably assist him until he is earning sufficient salary to subsist.
34.The applicant claims his Computerised National Identity Card (CNIC) may be blocked, or has expired, and he will have to return to his home area to have it renewed. The CNIC is valid until 2021, but the representative stated at the SHEV interview that he would provide country information to show a CNIC is blocked after someone has been out of Pakistan for 5 years. No such country information was provided post interview, and I infer from this that it does not exist. I find the applicant holds a valid CNIC and there is no evidence it has been blocked. There is no need for him to return to Parachinar to have it renewed, but in any event, a CNIC can be renewed from outside a persons’ home area. The applicant also claimed he would need to return to Parachinar to renew his drivers’ licence, as he could not work in Islamabad without one. I do not accept a drivers’ licence would be an essential requirement for all types of work, such as working in security, but I also do not accept he could not obtain one in Islamabad. The CNIC is an essential document for the applicant to obtain a driver’s licence and I find he has a current CNIC.
…
36.The applicant’s wife and children remain in Parachinar. They remained in Parachinar when he worked in the UAE. The applicant has shown a willingness to work away from his family, and I find he could do this in Islamabad. The applicant has not indicated whether on return to Pakistan he would continue to work away while his family remained in Parachinar as their primary residence, as has been his previous preference. 1 acknowledge that when he worked in the UAE he occasionally returned home, and that the risks in travelling from Islamabad to Parachinar may prevent him from doing so. 1 acknowledge the difficulty for him in remaining separated from his family and not being able to visit them as frequently as he may wish. However, 1 consider his family could join him or visit him in Islamabad when it is safe for them to travel, and that there are options to fly rather than travel by road.
37.I find that given the security situation in Islamabad and the applicant’s personal circumstances, it is reasonable for him to relocate to Islamabad, where I find he would not face a real risk of significant harm.
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). The Authority plainly undertook consideration of the reasonableness of FFU18’s relocation to Islamabad, including the security situation in Islamabad: CB 177 at [37], and in so doing had particular regard to the matters claimed by FFU18 to make relocation to Islamabad unreasonable and impractical: see CB 176-177 at [30]-[37], referred to at [30]-[31] above. In so doing it cannot be inferred that the Authority had forgotten about or disregarded other earlier relevant findings in relation to the risk to FFU18 of relocating to Islamabad set out at [29] above: DKY22 at [36] per Derrington, Goodman and Raper JJ. Having had regard to those various matters and the relevant level of risk in relation to them the Authority found that it was reasonable for FFU18 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 Court has concluded that the Authority Decision had proper regard for, and considered fairly, the reasonableness of the relocation of FFU18 to Islamabad, and in this respect the Authority Decision does not exhibit any error, let alone jurisdictional error. In all the circumstances, ground 3 does not establish jurisdictional error in the Authority Decision.
Ground 4 – consideration
The error alleged in ground 4 is that there was a failure to consider a claim made by FFU18 that he would travel back to Parachinar to collect his family.
It is well established that failure to consider an integer of an applicant’s claim may constitute jurisdictional error where that claim relates to a mandatorily relevant criterion under the Migration Act: Dranichnikov at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [47]-[50] per Judge Lucev. In Htun at [42] per Allsop J, it was said that “[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”.
In EVA17 at [36] per Perry, Derrington and Wheelahan JJ the Full Court of the Federal Court observed as follows:
Undoubtedly, a failure to consider a relevant component integer of a claim may, in appropriate circumstances, constitute a jurisdictional error: BZAFB v Minister for Immigration and Border Protection [2018] FCA 995 at [9] per Flick J. Necessarily the decision-maker is also required to consider the claims and the integers thereof which are not expressly articulated but which necessarily arise on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61]. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47] French, Sackville and Hely JJ held:
[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]-[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
There is no doubt that the claim encompassed by ground 4 was made, and that it was expressly set out by the Authority in the Authority Decision: CB 176 at [30]. Specifically, the Tribunal mentioned the claim that FFU18 would “have to return to Parachinar to … collect his family”: CB 176 at [30]. Again, it is necessary to read the Authority Decision as a whole. When the Authority’s reasons at CB 176 at [30] and 177 at [36] are read, without an overzealous search for error, it is apparent from CB 176 at [36] that the Authority was considering, and determining, the claim made by FFU18 that he would return to Parachinar to collect his family, and that the Authority determined that FFU18 would, as he had done in the past, work away from his family, and that he would do this in Islamabad, and that, rather than he going to collect his family, his family would join him in Islamabad when it was safe for them to travel to do so.
It follows that the Authority did not fail to consider FFU18’s claim that he would travel back to Parachinar to collect his family, and that ground 4 does not therefore establish jurisdictional error in the Authority Decision.
CONCLUSIONS 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 forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 6 December 2024
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