FJV18 v Minister for Home Affairs
[2020] FCCA 1032
•1 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FJV18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 1032 |
| Catchwords: MIGRATION – Judicial review - Immigration Assessment Authority - application for SHEV visa – where the Authority decided the applicant would not be at real risk of significant harm in home country if internal relocation – whether the Authority properly considered whether relocation “reasonable”, in the sense of “practicable”, for the particular individual and his family under s 36(2B)(a) Migration Act. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J(1), 36, 36(2B)(a), 486F(2) Federal Circuit Court Rules 2001 (Cth), sch.1 pt.3 div.1. |
| Cases cited: FCS17 v Minister for Home Affairs [2020] FCAFC 68 MZANX v Minister for Immigration and Border Protection [2017] FCA 307 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 SZVRA v Minister for Immigration and Border Protection [2017] FCA 121 AHK v Minister for Immigration and Border Protection [2018] FCAFC 106, 161 ALD 457 DAB16 v Minister for Home Affairs [2019] FCA 2114, (2018) 161 ALD 457. |
| Applicant: | FJV18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 416 of 2018 |
| Judgment of: | Judge Young |
| Hearing date: | 28 April 2020 |
| Date of Last Submission: | 28 April 2020 |
| Delivered at: | Darwin |
| Delivered on: | 1 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr H Smart |
| Solicitors for the Applicant: | Mabo Chambers |
| Counsel for the First Respondent: | Mr T Ellison |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 10 September 2018.
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 12 February 2018.
Costs are reserved. The applicant and first respondent may file written submissions in relation to costs within 7 days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
ADG 416 of 2018
| FJV18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 10 September 2018 to affirm a decision of the Minister's delegate to refuse the applicant a Safe Haven Enterprise Visa.
The applicant is an ethnic Hazara and member of the Shia sect from Quetta, Pakistan. He arrived in Australia in 2013. The Authority accepted the applicant's claims that he was subject to persecution in Quetta because of his ethnicity and religion. The Authority accepted that as a Hazara Shia living in Quetta the applicant would face a real chance of serious harm should he return to his home area. It was satisfied that Hazara Shias were disproportionately targeted by militant and extremist groups in Quetta.
However, the Authority was not satisfied that the applicant is a refugee because it was not satisfied, for the purpose of s 5J(1) of the Migration Act (‘the Act”), that the was a real chance of persecution which relates to all areas of Pakistan. The Authority concluded that the applicant would not face a real chance of persecution if he relocated to Islamabad.
The Authority relied on country information from the Department of Foreign Affairs and Trade (“DFAT”) to the effect that sectarian attacks against Shias in Islamabad had declined and that there were no reported deaths of Shias from terrorist attacks in Islamabad in 2016, 2017 and to 26 April 2018. It noted that there were reports of an attack at a Shia mosque in Islamabad in November 2018, resulting in the death of one man, however, the country information indicated the target was an intelligence officer and that may have been the reason why he was attacked rather than because of his religion. The Authority found that sectarian violence against Shias in Islamabad was rare and the applicant did not face a real chance of serious harm by reason of a refugee ground in that city. It was not satisfied that the applicant was a refugee.
In undertaking its complementary protection assessment the Authority concluded that the applicant was an able-bodied man with experience as a mechanic, truck driver and cable layer in Pakistan. He had shown himself to be adaptable. The Authority accepted country information that Islamabad provided greater access to employment. It concluded that the applicant, with his variety of skills and work experience, could reasonably obtain employment in Islamabad. It concluded that it was reasonable for the applicant to relocate to Islamabad where, for the purpose of s 36(2B) of the Act, he would not be at real risk of significant harm. It concluded that the applicant's wife and seven year old daughter could reasonably join the applicant in Islamabad. The Authority was not satisfied the applicant was entitled to complementary protection.
The applicant relied on five grounds of review. The amended application supplemented the grounds of review with what are, in substance, submissions. The submissions are discursive and replete with assertions which seem to be no more than factual disagreement with the Authority’s conclusions. It is unclear whether the assertions necessarily relate to evidence before the Authority. The grounds of review, even supplemented by submissions, are difficult to follow.
The grounds of review are as follows:
Ground 1
Failing to take into account the relevant considerations required for assessment of the claim under s 36 of the Act. In that the Second Respondent decided the matter without differentiating the on the ground realities of Islamabad and Punjab Province, such as the different level of threats Hazara Shias face as opposed to the general Pakistani Shia population.
Ground 2
Failing to correctly identify the issues, failing to take into account relevant considerations by misinterpreting the DFAT report and applying the information to the Applicant's claim without taking his Hazara ethnicity into account. Undue weight was given to the misleading DFAT report.
Ground 3
The determination under ss 36, 5H and 5J of the Act, that the Applicant can be relocated to Islamabad without real risk of significant harm or serious harm, was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
Ground 4
Failing to take into account the relevant considerations in assessing "serious harm" including significant economic hardship that threatens the Applicant's capacity to subsist and his relocation viability in Islamabad, as required by ss 36, 5H and 5J of the Act. The Respondents made far-fetched assumptions.
Ground 5
Relying on incorrect information, such as the DFAT reports, which undermined and prejudiced the applicant's claim.
Consideration
The nub of the applicant's submissions in relation to grounds 1 and 2, as far as I can understand them, is that the information before the Authority about the absence of attacks on Shias in Islamabad did not specifically address the situation of Hazaras. It was asserted that the Authority did not distinguish between Hazaras, an ethnic group, and Shias, a religious group. I do not accept that submission. The Authority clearly distinguished between Hazaras as an ethnic group and their membership of a larger religious grouping, Shias. The Authority acknowledged that Hazaras faced a higher risk in Pakistan than other Shias because of their distinctive physical appearance (reasons dated 10 September 2018 (“reasons”) para. [16]).
The Authority’s reasoning about the risks to Hazaras in Islamabad involved a number of elements. First, it observed that, according to country information, while the majority of the one million or so Hazaras living in Pakistan lived in Quetta, there were “smaller significant Hazara populations in major urban centres throughout Pakistan” (reasons para. [15]). According to country information from DFAT “there is a Hazara community living in Islamabad” (reasons para. [22]).
Secondly, the Authority observed that Hazaras are “overwhelmingly” members of the Shia sect (reasons para. [15]).
Thirdly, it noted that there had been no reports of sectarian attacks against Shias in Islamabad from 2016 to April 2018. The Authority's finding that there were no sectarian attacks on Shias in that period contained an implicit finding that there had been no sectarian attacks on Hazaras, who are overwhelmingly Shia, in Islamabad either.
In my view, this was logical reasoning by the Authority based on the country information. There was no necessity to specifically consider the position of Hazaras if there were no reports of sectarian attacks on any Shias, Hazara or otherwise, in Islamabad. This reasoning discloses no error.
The nub of the claims in grounds 3 and 4 appear to be that there is no Hazara community in Islamabad, contrary to the country information relied on by the Authority, and that the applicant would not have the capacity to subsist in Islamabad.
The submissions in support of the ground appear to conflate the concepts of reasonableness of relocation under s 36(2B)(a) and well-founded fear of persecution in s 5J of the Act, which requires that a person’s fear of persecution on one of the Convention grounds must involve “serious harm” to the person. “Serious harm” is defined as including “denial of a capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist”.
The Authority was not satisfied that the applicant was at risk of serious harm for a Convention grounfd in Islamabad. The separate question of whether it is reasonable to relocate does not arise in assessing whether a person is a refugee for the purposes of section 5J: FCS17 v Minister for Home Affairs [2020] FCAFC 68. The issue of whether it is reasonable to relocate does however arise in considering the question of complementary protection. Section 36(2B) provides that 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 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.
I have taken the applicant's complaint to be that the Authority did not properly undertake an assessment, pursuant to section 36(2B), of whether or not it would be reasonable for the applicant to relocate to Islamabad. The applicant's counsel indicated that he intended to raise that issue and there is some support for that assertion in the applicant's list of authorities which referred to MZANX v Minister for Immigration and Border Protection [2017] FCA 307. Given that the ground was not squarely raised in the application, I indicated to counsel for the Minister that I would give him a further opportunity to make submissions on this point, either orally or in writing, should he wish. Counsel indicated that he was ready to proceed and made oral submissions..
In considering the reasonableness of the applicant's relocation to Islamabad the Authority made the following points:
a)Islamabad is an ethnically and religiously diverse city with a population of around 2 million people. It also has a large number of internal migrants from all over Pakistan, including Hazaras.
b)It noted that the applicant is “an able-bodied man with no obvious vulnerabilities”. He has worked in a variety of occupations, including as a mechanic, truck driver and cable layer. He has shown himself to be adaptable in moving to different occupations previously in Pakistan (although there was no evidence the applicant had worked or lived anywhere in Pakistan other than Quetta).
c)DFAT country information indicated that large cities such as Islamabad “provide greater access to employment”.
d)The Authority considered the applicant, with his variety of skills and work experiences, “could reasonably obtain employment in Islamabad”.
e)The Authority had information that while the cost of housing may be higher in Islamabad than Quetta information from the same source indicated that incomes are also higher in Islamabad.
f)The applicant has a national identity card for Pakistan which is an important document in securing employment and a place to live.
g)The Authority noted the applicant has a wife and child in Quetta. The applicant's daughter is seven years old. The Authority considered that it would be possible for the applicant's wife and daughter to travel to Islamabad by air from Quetta given the danger of road travel.
The Authority rejected the applicant's claim that there was no Hazara community in Islamabad and accepted country information that the population of Islamabad includes Hazaras. The number of Hazaras living in Islamabad was indeterminate. The DFAT country information relied on by the Authority was no more specific than "the majority of Hazaras live in Quetta, Balochistan, with smaller but significant populations in major urban centres such as Karachi." (supplementary court book p 29, [3.8]) and "… there are also Hazara communities in large urban areas including Karachi (up to 15,000), Lahore, Multan, Islamabad and Peshawar" (supplementary court book p 5, [2.9]). The size and nature of the Hazara community in Islamabad may well be an important matter. If, as is the case, the applicant is an unskilled manual worker, the existence of tribal or other networks might be important factor in whether he is able to obtain work. One might expect this factor to be more important if the size of the community was small.
Another factor that could be important is language and whether the applicant might face language difficulties in Islamabad. The applicant appears to be a Dari speaker. In his visa application he says he speaks, reads and writes Dari. In his induction interview he says Hazaragi is his preferred language (Hazaragi appears to be a dialect of Dari). He said that he also speaks Urdu and Pashtun but there is no indication of his level of proficiency in these two languages. There is no indication that he is fluent in the predominant language of Islamabad (presumably Urdu). One might expect a reasonable level of proficiency in the predominant language would be an important aspect in considering the prospects of employment in Islamabad, particularly if the Hazara community was small meaning that the applicant would be forced to seek employment outside that community. These matters were not considered by the Authority.
Little or no consideration was given to the fact that the applicant is married with a young daughter and associated concerns about education, health and housing should he and his family relocate to Islamabad.
In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 the plurality of the High Court said in relation to internal relocation:
What is “reasonable" in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
The observations of the plurality were in relation to general refugee law principles and the present statutory reference in s 36(2B) of the Act was not inserted until 2011. Nevertheless Mortimer J in MZANX evidently considered those observations to be applicable to the present statutory provisions. She elaborated, in some detail, the consequences of the High Court's decision. She said at [51]:
In any context, whether refugee law or otherwise, what is "practicable" and "reasonable" for person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.
At [55] her Honour said that there needs to be:
… detailed consideration of the circumstances ‘on the ground’ in the area proposed for relocation… General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to restart her or his life in a new place, without undue hardship… Likewise, the circumstances of that individual – her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is "practical" and "reasonable" for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that that particular individual and how she or he will cope.
And at [62] she said:
As I have noted above, the factual context which arose for the reviewer’s consideration was the reasonableness and practicality of the appellant, his wife and, at the time, almost two year old child relocating to Kabul… What might be "reasonable" or "practicable" for a resourceful young man with no family is not the same, at a factual level, as what might be reasonable and practicable for young man, his wife and young child. To take two obvious examples: the kind of housing or accommodation required would be quite different; the need to have access to healthcare would be quite different.
At [66] her Honour referred to the consideration of employment:
The reviewer’s assessment of the appellant’s employment prospects provides another example of the failure of the reviewer to discharge the task concerning relocation. The reviewer accepted that the appellant was uneducated, save for a short time in a religious school, and had a farming background. In satisfying herself on the reasonableness of the relocation to Kabul, she took into account the fact that the appellant had moved, with his family, to Tehran and found employment there making bags. That is in the circumstances a permissible and obvious aspect of the evidence for a decision-maker to consider. However, the reviewer moves from that fact immediately to a conclusion that the appellant was able to re-establish his and his family’s residence in Kabul. It is true that employment was but one factor in such re-establishment, but it is also clear on the reviewer’s reasons that it was a factor of some weight. The difficulty is that the reviewer referred to no evidence about how the appellant might find employment in Kabul. She referred to no evidence about what kinds of jobs were available for uneducated Hazaras. Could the appellant secure a similar kind of job to the one he had in Tehran? Perhaps, perhaps not: the factual investigation was not undertaken…
The reviewer in MZANX also considered the nature of the Hazara community to which the appellant in that case was to relocate. Her Honour noted, having regard to the particular country information in that case, that a nuanced inquiry may be necessary about such a community, including whether there were people from the same district or province as the returnee who could provide a network of support.
I do not suggest that the Authority was required to ask itself identical questions to those suggested by Mortimer J but the factual parallels are strong and her judgment suggests some of the questions that might arise and the level of detail required to be considered.
Counsel for the Minister submitted that the obligation to explore issues relating to whether relocation is reasonable will be limited by the nature of the applicant’s objections to relocation. In relation to the availability of health care, for example, he said that as the applicant did not raise this as an “objection” the Authority was not required to “pursue” the issue. Similarly the applicant did not complain that the nature or size of the Hazara community in Islamabad meant he would not be able to integrate or find employment. He simply denied there was a Hazara community, an assertion rejected by the Authority. He did not raise an “objection” that he was not fluent in the predominant language of Islamabad, or that housing, education or healthcare were unavailable for his family.
There is some support for counsel’s submission in MZANX. At [57] Mortimer J observed:
How these enquiries are to be made will be informed, of course, by the nature of the claims made by an applicant, and what he or she says about the practicalities of relocation. This includes what has come to be described as "objections" to relocation. Recently, Markovic J in SZVRA v Minister for Immigration and Border Protection [2017] FCA 121 said at [18]:
Whether a claimant can reasonably be expected to relocate depends upon the framework set by an applicant’s particular objection to relocation.
However, this observation was qualified by the following paragraph [58]:
There is no doubt that the “framework” set by an applicant may be an important factor. Indeed, the appellant submits the reviewer did not pay sufficient attention to the framework set by his advisers submissions on the two questions of “insecurity, political instability and social problems” and “unemployment such as to impact his ability to meet his basic needs”. However, it is important to recall that the task of the reviewer is to form the state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purpose of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.
This passage was quoted with approval by the Full Court in AHK v Minister for Immigration and Border Protection [2018] FCAFC 106, 161 ALD 457 at [27].
The Authority’s consideration of the applicant’s prospect of obtaining employment in Islamabad involved limited factors: Islamabad is a diverse city of about 2 million people, including Hazaras; large cities provide greater access to employment; the applicant is fit and able-bodied; he has shown himself to be adaptable; and, because of these factors, the applicant is likely to find employment.
In my view, there was material before the Authority which required consideration of some other factors. The applicant asserted to the Authority that he was illiterate but I note that in his visa application he claimed to read and write Dari. He also claimed to the Authority to be “uneducated” although in his induction interview he said he completed 9 years of schooling. Nevertheless, the applicant’s level of education is low and his employment history, albeit in various jobs, involved only manual labour. Serious doubts arise from these factors about his ability to obtain employment and subsist in Islamabad. Although the applicant said in his induction interview that, in addition to Dari, he spoke Urdu and Pashtun his level of proficiency in these languages was not apparent. If the applicant was not fluent in the predominant language of Islamabad his difficulties in obtaining employment would be compounded. Further, his chance of employment might depend even more on being able to access ethnic, tribal or other networks in Islamabad. Thus the size and nature of the Hazara community in Islamabad and whether there were such networks available to the applicant might also become relevant. Whether the applicant would receive family or other support while he searched for work would be relevant. All indications are that any employment the applicant would be likely to obtain would be manual or unskilled. The practical availability of such employment in Islamabad is a necessary consideration.
Other factors requiring consideration arise from the fact that the applicant is married with a seven year old daughter. Access to appropriate housing would be important. The Authority made no assessment of the availability of such housing in Islamabad.
The Authority did not refer to education and healthcare in Islamabad or elsewhere in Pakistan. Country information indicated that access to both was variable and depends upon geographic location and financial resources (supplementary court book p 7, [3.14]). Other country information indicated that “healthcare in Pakistan is generally free and accessible to all Pakistanis, but the quality of healthcare often suffers from a lack of funding and limited capacity” (supplementary court book p 22, [2.15]). It might be thought that education and healthcare would be available in a large city like Islamabad but, nevertheless, relocation to Islamabad would only be reasonable if the Authority was satisfied some level of education and healthcare was available to the applicant and his family.
In my view the Authority approached the question of relocation at a level of generality which meant it did not discharge its statutory task of examining the material and make findings about whether the applicant, and his wife and child, could as a matter of practical reality live in Islamabad in way that would allow them to meet their basic needs as individuals and a family. The assessment was affected by jurisdictional error and must be set aside.
Ground 5 takes issue with the accuracy of the DFAT country information relied on by the Authority, in particular the information saying that there was a Hazara community in Islamabad. The applicant’s submissions denied there was any Hazara community in Islamabad. The applicant’s submissions referred to a variety of materials, including UK Home Office reports and various newspaper reports. It is not apparent to me that any of this material was before the delegate or the Authority. It does not appear to be included in the court books. The applicant’s counsel did not address me about this in any helpful way. On the face of it the ground of review and the submissions were a frank attack on the merits of the decision and unrelated to jurisdictional error. The submissions made by the applicant’s counsel (solicitor advocate) were almost identical to those made by him in DAB16 v Minister for Home Affairs [2019] FCA 2114 except in that case it was denied that there was a Hazara community in Lahore. Charlesworth J dismissed the appeal in that case, finding it unmeritorious. She made an order pursuant to s 486F(2) of the Act that the appeal had no reasonable chance of success.
I am satisfied that ground 5 lacks merit for the same reasons as those given by Charlesworth J in DAB16.
Although the applicant in this case has been successful on one ground the applicant’s counsel should not have argued other grounds that are indistinguishable from grounds found in DAB16, a decision binding on this court, to have had no reasonable prospect of success. While an order pursuant to s 486F is not appropriate where the applicant has been successful on one ground it appears to me that the Court’s disapproval of the waste of time and resources involved in raising grounds of review and making arguments that have been previously identified as having no reasonable prospect of success must be taken into account in any costs order. My provisional view is that a reduction in the applicant’s costs of 25% is appropriate. This would reduce the applicant’s costs under Schedule 1, Part 3, Division 1 of the FCC Rules from $7,467 to $5,600.25. If the parties seek some other costs order a short written submission should be sent to my chambers within 7 days.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 1 May 2020
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