FSR18 v Minister for Home Affairs
[2019] FCCA 2295
•17 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FSR18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2295 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Pakistan – Authority accepting the claim but finding that the applicant could relocate to Islamabad – whether the Authority erred in considering the reasonableness of relocation considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36 |
| Cases cited: AHK16 v Minister for Immigration [2018] FCAFC 106 Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 CID15 v Minister for Immigration [2017] FCA 780 CIT17 v Minister for Immigration [2018] FCAFC 150 Minister for Home Affairs v Buadromo (2018) 362 ALR 48 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 MZACX v Minister for Immigration (2016) 161 ALD 73 MZANX v Minister for Immigration [2017] FCA 307 MZZQV v Minister for Immigration [2015] FCA 533 Randhawa v Minister for Immigration (1994) 52 FCR 437 SZATV v Minister for Immigration (2007) 233 CLR 18 SZQPY v Minister for Immigration [2013] FCA 1133 |
| Applicant: | FSR18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3057 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Mostafa |
| Solicitors for the Applicant: | Hunter Shafiz Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 10 October 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3057 of 2018
| FSR18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 10 October 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a Pakistani national, whose home area in Pakistan is Kurram Agency.[1] He arrived in Australia on 17 July 2013 at Christmas Island as an unauthorised maritime arrival and lodged his SHEV[2] application on 5 December 2016.[3]
[1] Court Book (CB) 325 at [4], CB 329 at [26]
[2] Safe Haven Enterprise Visa
[3]CB 324 at [1]
The record of the applicant’s “Irregular Maritime Arrival & Induction Interview” records that the applicant has a wife and two young children (twins, born in 2012).[4] In the statutory declaration accompanying his SHEV application, the applicant stated that his family had moved to Parachinar city.[5] The applicant stated that he feared harm on account of matters including being a Shia from Parachinar.[6]
[4] CB 8-9
[5] Parachinar being the part of Kurram Agency where the applicant’s village is located: see, eg, CB 8, 71 at [3]; 84
[6] CB 72 at [12]
While awaiting his SHEV interview, in June 2018, the applicant’s representative supplied the Minister’s Department with two letters from the applicant’s “Accredited Mental Health Social Worker-Counsellor”, Mr Muniswummy.[7] These letters indicated that the applicant “has been experiencing post-traumatic stress”, and that “the impact of trauma experienced by [the applicant] is significant”.[8] The letters referred to the applicant being administered the “DASS 21 – Depression, Anxiety and Stress Scale”, with his score on the DASS 21 scale being “in the [e]xtremely severe range indicating the presence of depression, anxiety, and stress”.[9] Mr Muniswummy recommended that the applicant continue his treatment “by participating in mental health counselling, in addition to following his medication regime”.[10]
[7] CB 124-7; 129-31
[8] CB 126, 130
[9] CB 126, 131
[10] CB 131
On 6 August 2018, the applicant attended a SHEV interview.[11] During the interview, the delegate raised the issue of whether the applicant could return to an area of Pakistan that was not his home area, in particular Islamabad, Karachi or Lahore.[12] Other relevant aspects of the interview are summarised by the Authority at [28] of its decision:
At the SHEV interview the delegate posited that Pakistan had a number of cities in which it is relatively safe for Shia Muslims to which the applicant could relocate. He asked the applicant whether he could live in Karachi, Lahore or Islamabad. The applicant responded that there is no safe place anywhere in Pakistan for Shias from Parachinar as they are targetted [sic]. The applicant stated that he is illiterate, and does not know anyone outside of Kurram Agency, that it would be very hard to find a job or put his children in school. The applicant has also stated that his mental state will get worse and he will be ‘mentally finished’ if he were returned to Pakistan. The applicant’s representative also argued that the applicant’s employment prospects are affected by the discrimination against Shias from Parachinar, and that he would be unable to work as a driver in a city like Islamabad as he does not speak Urdu. The applicant’s representative also stated that Islamabad is a very expensive city to which to relocate and that the costs of living would far exceed what the applicant’s family face in Kurram.
(applicant’s emphasis retained)
[11] CB 168
[12] CB 294
On 20 August 2018, the applicant’s representative provided a post-interview submission, though due to this containing a formatting error, the submission was re-supplied on 21 August 2018.[13] References in the applicant’s submissions to this Court will refer only to the second version of the submissions to the delegate, which appear at CB 243-279 (delegate submissions).
[13] CB 194, 236
The delegate submissions stated that the applicant reported that his family was unsafe and living in fear in Pakistan, and that “the safety of his children” was of particular concern,[14] referred to a number of violent incidents, including in Parachinar,[15] and stated that:[16]
Of particular personal significance to [the applicant], were the attacks on 25 April 2017 that resulted in a large number of his family being killed. This lead [sic] to him slowly being encouraged to access mental health resources due to his deteriorating mental health.
[14] CB 243-4 at [7], [9]
[15] at [16]-[22]
[16] CB 245 at [23]
At [67]-[74], the delegate submissions referred to the prevalence of sectarian violence in Rawalpindi and Islamabad, with reference also later made to terrorist violence in these cities.[17] Under the heading “Unreasonableness of Relocation in General” and elsewhere, the delegate submissions made a number of points against the reasonableness of the applicant relocating within Pakistan (either generally, or, relevantly for present purposes, in relation to Islamabad).
[17] at [124]-[127]
First, under the heading “Tribal and Family Links”, the delegate submissions stated:[18]
Relocation within Pakistan cannot occur without family or tribal support, given the unrivalled significance of both in Pakistani life (particularly in Pashtun culture). In his book Pakistan: A Hard Country (2011), Anatol Lieven stresses the continuing role of tribal and clan links in ensuring personal safety and economic security in Pakistan. As Lieven states, ‘in a violent society in which none of the institutions of the state can be relied on to act in accordance with their formal rules, close relations with kinsfolk are essential for help against rivals, against the predatory and violent police, in the courts, in politics, and in the extraction of political patronage – all areas of activity which overlap and depend on each other.’
In this cultural context, one cannot merely assess conditions in a given city in isolation. The fact that residents of a given city may enjoy a certain level of prosperity or security does not mean that all people moving to that city would enjoy the same level of protection or well-being (without the benefit of ties of kinship or other ‘traditional’ support mechanisms). Without practical support from family members in any prospective site of relocation, [the applicant] will not be able to establish himself or to live in conditions of reasonable security or dignity. As explained during his interview, [the applicant’s] family lives in Parachinar and he has no links outside of Parachinar in Pakistan.
[18] CB 266, endnote excluded, applicant’s emphasis retained
Secondly, the delegate submissions noted that Islamabad was considered a “very expensive” city to relocate to, and that, unlike in the applicant’s home state, there were various matters such as housing that would not be provided to the applicant for free.[19] The delegate submissions queried the applicant’s “ability to survive in Islamabad with 2 children”,[20] and stated:[21]
Further, [the applicant] advises that in Islamabad there is no capacity for him to farm as the major cities are urbanised areas without land. He fears that if he were to work as a driver, due to his inability to communicate in Urdu and his risk profile as a Shia from Parachinar that he can easily be kidnapped like other Shias from Parachinar without the assistance of the authorities. He also fears that his 2 children will not conceal their identity which will draw unfavourable attention. Employment as as [sic] a driver does not offer him discretion and he has no other skills to work in an industry that exposes him less to the dangers of being recognised as a Shia Turi.
[19] CB 266 at [144]
[20] at [145]
[21] CB 266-267, emphasis added
Thirdly, the delegate submissions referred to the difficulties that the applicant would face in finding a place to live, noting that Pakistan overwhelmingly relied upon family support in ensuring accommodation for internally displaced persons.[22] This problem was said to be compounded in Islamabad due to the high cost of living in the city.[23] The delegate submissions noted that:[24]
it is expensive to live in Islamabad and difficult to find housing in that city. Housing crises have worsened in recent years, in part because of the active complicity of state agencies: ‘[s]ome state agencies ruthlessly evicted people from settlements, such as the one in Islamabad, causing enormous misery to ordinary working class citizens’. The city’s squatter settlements and slums were forcibly cleared in 2015, leading to the loss of substantial numbers of dwellings. Settlements for the poor in Islamabad also enjoy ‘dismal’ levels of water supply and sanitation.
[22] CB 268 at [150], [152]
[23] CB 268 at [153]
[24] CB 268 [153], endnotes excluded, emphasis added
The delegate’s decision
The day after the delegate submissions were sent, the delegate made the decision set out at CB 285-304, refusing to grant the applicant a SHEV.
The delegate found that, based on there being a high risk of “sectarian attacks/conflict” in the foreseeable future, the applicant faced a real chance of persecution in Kurram Agency on account of, among other things, his race or religion.[25] However, the delegate was not satisfied that this real chance extended to “areas of Pakistan such as Islamabad, Lahore or Karachi”.[26] As such, the delegate found that the applicant was not a refugee as defined in s.5H(1) of the Migration Act 1958 (Cth) (Migration Act).
[25] CB 292
[26] CB 296
Turning to s.36(2)(aa) of the Migration Act, the delegate found that, for the same reasons that applied in relation to the refugee criterion, the applicant faced a real risk of significant harm in Kurram Agency.[27] However, for those same reasons, the delegate found that the applicant would not face a real risk of “significant harm from insurgents on his return to Lahore, Karachi and Islamabad”.[28]
[27] CB 297
[28] CB 297
The delegate then turned to the question of whether generalised violence in Lahore, Karachi or Islamabad meant that the applicant would face a real risk of significant harm in these cities. The delegate found the applicant would not.[29]
[29] CB 297-8
Next, the delegate considered whether the applicant would face a real risk of significant harm on return to Pakistan on account of his mental health. The delegate found that the applicant would not suffer significant harm on return to Pakistan on this basis.[30]
[30] CB 298-9
Having considered whether the applicant would face a real risk of significant harm in Lahore, Karachi or Islamabad, the delegate then turned to the question of the reasonableness of the applicant relocating to one of these cities. The delegate found that it was reasonable for the applicant to do so.[31] Two aspects of the delegate’s reasoning on this point should be noted.
[31] CB 300
First, in considering the question of the reasonableness of relocation, the delegate considered the applicant’s mental health.[32] Thus although the applicant’s mental health had been considered by the delegate earlier (when considering whether the applicant would face significant harm in Lahore, Karachi or Islamabad), the delegate returned to the mental health issue when considering the reasonableness of relocation.
[32] CB 300
Secondly, in relation to the applicant’s familial circumstances, the delegate stated:[33]
Were the applicant to return to Lahore, Islamabad or Karachi I accept that the applicant would, as he claims, be apart from his family upon his arrival and during the period in which he established himself. However, once the applicant had established himself he could, as security concerns and financial considerations allow, make arrangements to have his wife and children join him. In establishing himself in Lahore, Islamabad or Karachi he would not be burdened at the outset by having to pay additional accommodation costs for his wife and children who would be living in the Kurram Agency with his family as they are now. Given that the applicant has chosen to apply for temporary protection in Australia such that he would continue to live apart from his wife and children for the foreseeable future I consider that it would not be unreasonable for the applicant to live apart from his wife and children during the period in which he is establishing himself in Lahore, Islamabad or Karachi. I do not accept the applicant’s claim that he would be financially responsible for his larger family in the Kurram [Agency] should he return to an area of Pakistan such as Lahore, Islamabad or Karachi. Whilst I accept that living conditions in areas such as Lahore, Islamabad or Karachi would not be without difficulties, and he may face challenges in re-establishing himself without family support; I do not accept that the applicant would be unable to subsist or find suitable work upon his return to Pakistan.
(applicant’s emphasis retained)
[33] CB 300, emphasis added
The delegate thus addressed (at least to some extent) the applicant’s ability to relocate in light of the financial pressure that having a wife and children would create for the applicant. The delegate reasoned that the applicant would be able to establish himself, and would then be able to afford to support himself and his family when they joined him.
The Authority’s decision
The applicant’s representative sought extensions of time from the Authority in which to make submissions.[34] These were not granted.[35] In the result, the Authority made its decision without receiving further submissions from the applicant.
[34] CB 313, 316
[35] CB 315, 319
The Authority accepted that the applicant was married with two children born in 2012 who remained in Parachinar, and that he might be “identifiable as a Shia Muslim who is an ethnic Pashtun from the Bangash Tribe in Kurram Agency”.[36] The Authority accepted that the applicant had been “diagnosed as experiencing anxiety, depression and stress” at [8].
[36] [6]-[7]
The Authority did not accept the applicant’s claims that he had received no formal or informal education, and found that the applicant “has at least a basic command of English and some degree of literacy in Pashto”, which the Authority found was the applicant’s first language.[37] It found at [19] that the applicant had “worked as a commercial driver in Pakistan and in Australia”. The evidence also showed that the applicant had previously worked as a farmer.[38]
[37] [11], [19], [54]
[38] see eg [11], [18]
As to s.36(2)(a), the Authority found at [26] that the applicant “would face a real chance of being killed or seriously injured for reason of being a Shia Muslim if he were to return to reside in his home area, Kurram Agency”. It noted at [27] that, under s.5J(1) of the Migration Act, the real chance of persecution has to relate to all areas of Pakistan. The Authority then summarised parts of the applicant’s interview with the delegate.[39]
[39] see [28], set out at [6] above
The Authority then considered, from [29]-[43], whether the real chance of persecution that the applicant faced in Kurram Agency extended to all areas of Pakistan, and in particular, Islamabad. It found at [43] that the applicant would not face a real chance of harm in Islamabad. Some aspects of the Authority’s reasoning here should be noted.
First, in relation to the security situation in Islamabad, the Authority found that:
a)“Country information shows that in recent years Islamabad has experienced a small number of sectarian attacks by suicide bombers or gunmen”, though these were targeted against “leading figures”;[40]
b)Islamabad “has seen some attacks by militant groups, including groups like the TTP[41] and LeJ,[42] upon court offices and government and security institutions and journalists”, though “such attacks have also been rare and have generally produced few civilian casualties when they have occurred”;[43] and
c)DFAT[44] had reported on “relatively safe” circumstances for Shia Muslims in Islamabad, and the evidence before the Authority was “that generalised crime (including kidnapping), and militant attacks are not currently a significant problem in Islamabad and have not been a significant problem for a sustained period of time”.[45]
[40] of which the applicant was not one ([31]-[32])
[41] Tehrik-e Taliban Pakistan
[42] Laskhar-e-Jhangvi
[43] [32]
[44] Department of Foreign Affairs and Trade
[45] [39] (applicant’s emphasis retained)
These findings supported the broader finding that the applicant would not face a real chance of harm in Islamabad. However, they also showed that it was not the case that there was no risk of harm in Islamabad for the applicant.
Secondly, the Authority found that:[46]
The applicant has demonstrated a willingness to access treatment for his mental health in Australia, and I am satisfied that, if it required, the applicant will be able to access adequate treatment for his mental health condition in Islamabad.
[46] [42]
Having concluded that the applicant did not satisfy the s.36(2)(a) criterion at [44], the Authority turned to s.36(2)(aa). It found at [47] that the applicant faced a real risk of significant harm in his home area. Turning to s.36(2B), the Authority found at [49] that, for the same reasons given in relation to the refugee criterion, the applicant also did not face a real risk of significant harm in Islamabad.
This left the question of whether it was reasonable for the applicant to relocate to Islamabad. This Authority’s reasoning on this question appears at [50]-[55], with the Authority’s conclusion that it would be reasonable for the applicant to relocate stated at [56].
At [50], in relation to the applicant’s familial circumstances, the Authority found that:
a)there was no evidence that the applicant’s family, who resided with the applicant’s father in Parachinar, was “reliant on [the applicant] for their basic needs”. Thus the Authority’s view was that the applicant’s wife and children, who lived apart from him at present, lived with another family member and did not require support from the applicant in that circumstance; and
b)the applicant would “be able to continue to maintain contact with his wife and children and could call on his extended family for some assistance, such as assisting his wife and [children] to come to Islamabad should they wish to do so”.
At [51], the Authority stated:
The applicant’s representative has highlighted the significance of family and tribal links for persons from the FATA[47] and how this impacts on their ability to be safe, as well as access accommodation and employment opportunities. DFAT’s 2016 Thematic Report ‘Shias in Pakistan’ observes that, in Pakistan, Shias relocate with relative ease and frequency because of family and communal networks throughout the country. Islamabad has a significant Shia population - including Shias from Parachinar living in suburbs such as Koh-i-Noor and Golra Sharif, and in small towns close to Islamabad such as Taxila, Bahra Kahu, Bani Gala and Bari Imam. Islamabad is a functioning city which will provide the applicant with access to infrastructure and services necessary for subsistence.
(applicant’s emphasis retained)
[47] Federally Administered Tribal Areas (of which Kurram Agency was a district)
At [52]-[54] of the decision, the Authority addressed the economic situation in Islamabad, and in particular the applicant’s ability to obtain employment and accommodation. At [52], the Authority accepted that Islamabad “may be more expensive for the applicant to live in” as compared to his home area. The Authority at [52] referred to a (high level) DFAT finding that “cities like Islamabad provide greater access to employment”, and then at [53] stated:[48]
DFAT understands that in Islamabad’s working class areas that have significant populations of Shias from Parachinar accommodation costs range from AUD135-270 per month (for 1-2 rooms) to AUD685 per month (for a house). DFAT also note that members of the Turi community often share accommodation to alleviate such costs, which are further offset by the higher wages paid in large urban centres. Many migrant Shia groups such as Turi Shias in Islamabad often own or work for small businesses.
(applicant’s emphasis retained)
[48] emphasis added – the problem with the emphasised section is addressed further below
The Authority noted that DFAT had reported that members of the Turi community often shared accommodation to alleviate costs which were further offset by the higher wages paid in large urban centres. Contrary to the applicant's claims, the Authority considered he had a basic command of English and some degree of literacy in Pashto. It noted that there is a large Pashtun community in urban areas and that the applicant worked previously as a commercial driver, a sector dominated by Pashtuns. Although it accepted family favouritism played a more significant role in Pakistan, it was not satisfied the evidence showed he would be unable to find employment or accommodation in Islamabad without these connections.[49]
[49] CB 335 at [53]-[54]
In light of the above reasoning, the Authority found at [56] that it would be reasonable for the applicant to relocate to Islamabad.
The present proceedings
These proceedings began with a show cause application filed on 31 October 2018. The applicant now relies upon an amended application filed on 1 April 2019. The grounds in that application are:
1. The IAA erred when considering whether it was reasonable for the applicant to relocate to Islamabad.
Particulars
a. The IAA accepted that the applicant faced a real chance of being killed or seriously injured on account of being a Shia Muslim if he returned to his home area in Pakistan, the Kurram Agency: at [26], [47].
b. The IAA found that the applicant did not face a real risk of significant harm in Islamabad: at [49].
c. The IAA then considered whether it would be reasonable for the applicant to relocate to Islamabad: at [50]-[56]. In doing so, the IAA erred by one or more of:
i. failing to consider whether the applicant’s mental health problems bore upon whether it was reasonable for him to relocate to Islamabad, as opposed to whether he faced a real risk of significant harm in Islamabad: cf the Delegate’s consideration of this issue at CB 300; see also CB 328 [28];
ii. failing to consider the additional difficulties that the applicant would face in Islamabad with his family, and in particular with two children as compared to a single man: cf the Delegate’s consideration of this issue at CB 300; see also CB267 [145]-[146] and 329 [28];
iii. failing to consider:
1. the applicant’s submissions that his lack of family support in Islamabad bore upon the security that the applicant would have in Islamabad (CB 266 [142]-[143]), and so whether it was reasonable for him to relocate there;
2. the applicant’s submissions that working as a driver in Islamabad would expose him to a higher level of risk (CB 267 [146]);
3. whether in light of the above submissions or otherwise, the security situation in Islamabad made in unreasonable for the applicant to relocate there, as distinct from whether the applicant faced a real risk of significant harm there. In this respect, the IAA had earlier accepted that sectarian attacks did occur in Islamabad to some degree: see, eg at [32];
iv. failing to undertake the relevant enquiry in the factually intensive manner required: cf MZANX v Minister for Immigration and Border Protection [2017] FCA 307. In this respect in addition to the matters referred to above:
1. the IAA stated that DFAT had noted that accommodation costs in Islamabad were “offset by the higher wages paid in large urban centres”: at [53]. The relevant statement from DFAT was that expenses could be … “offset by higher wages paid in large urban centres, particularly for those with relevant skills, including foreign language and computer skills” ([emphasis] added);
2. the IAA did not consider whether (and could not, on the evidence, have concluded), that the applicant had “relevant skills” so as to enable him to access the higher wages referred to by DFAT;
3. the issue of the financial viability of the applicant relocating to Islamabad had been squarely put in issue: see, eg, CB 266-8 [144]-[145], [153]-[153];
4. the point was all the more critical for the applicant given that his position was that he would be relocating to Islamabad with his children: CB 267 [145]-[146] and 329 [28];
5. the IAA stated that many “migrant groups such as the Turi Shias in Islamabad often own or work for small businesses” (at 335), but failed to consider whether the applicant would be able to obtain such work, and whether such work would allow the applicant to access the “higher wages” referred to by DFAT.
In addition to the court book filed on 15 February 2019, I have before me as evidence the affidavit of Hoda Shafizadeh made on 27 March 2019, to which is annexed a DFAT Thematic Report on Shias in Pakistan dated 15 January 2016 (DFAT Thematic Report).
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial on 20 August 2019.
Consideration
Did the Authority err in its relocation assessment?
Applicant’s contentions
The application as amended raises a number of particulars in respect of which the applicant contends the Authority erred in dealing with its relocation assessment.
Particular (c)(i)
In light of the facts and authorities summarised above, the error particularised in particular (c)(i) can be outlined briefly in two steps.
First, the Authority is said to have failed to consider the impact of the applicant’s mental health on whether it was reasonable for the applicant to relocate to Islamabad. There is no mention, let alone consideration, of this issue in [50]-[55] of the decision. It is accepted that the Authority considered at [41]-[42] the question of the applicant’s mental health in relation to the question of whether the applicant faced a real chance of persecution in Islamabad (as noted at [29] above). It is accepted that the same reasoning was deployed by the Authority on the question of whether the applicant faced a real risk of significant harm in Islamabad;[50] but that was as far as the Authority’s consideration of the applicant’s mental health went.
[50] [49]
Secondly, this failure by the Authority is said to have been an error. It was an error because his mental health was an issue raised by him (though in any case, on the material before the Authority, the applicant’s mental health was obviously a matter that bore upon whether it was reasonable for the applicant to relocate).[51] Thus the delegate, in considering the question of the reasonableness of relocation, considered the applicant’s mental health.[52] The delegate’s doing so highlights the Authority’s error in the present case. The error is said to mean that the Authority did not complete its statutory task, as outlined in the authorities referred to.
Particular (c)(ii)
[51] see [28], set out at [6] above
[52] CB 300
At [50], the Authority dealt with the issue of the applicant potentially being separated from his family if he relocated to Islamabad. The Authority did so by finding that the applicant’s family could join him in Islamabad. Though the Authority found that the applicant’s family was not reliant on the applicant for their basic needs, this finding applied to the family’s current circumstances. That is, while the applicant’s wife and children lived with the applicant’s father in Parachinar, they would not be reliant on the applicant for their basic needs. The Authority did not suggest that the applicant’s wife and children would be anything other than dependent on him if they joined him in Islamabad.
In addition to the Authority’s reasoning pointing to the applicant’s family joining him in Islamabad, the applicant’s case on relocation was also that his family would do so. Thus [145]-[146] of his submissions to the delegate referred to difficulties with the applicant’s “ability to survive in Islamabad with 2 children” and his “fears that his 2 children will not conceal their identity which will draw unfavourable attention”. The applicant had also claimed[53] that it would be very hard to “put his children in school” and that the “costs of living would far exceed what the applicant’s family face in Kurram”. Again, these submissions are premised on the applicant’s family joining him in Islamabad.
[53] see [28] of the Authority’s decision
The applicant contends that on the Authority’s own reasoning, as well as on the case made by the applicant, in order to complete its task, the Authority had to consider the reasonableness of the applicant relocating, not just as, essentially, a single man, but with a wife and two young children. An example of a decision maker engaging in (at least some) analysis of this kind appears in the passage of the delegate’s decision at CB 300 that is set out at [20] above. The delegate considered that the applicant would be able to establish himself in the manner of a single man, and then bring his family to live with him in due course. The delegate considered that it “would not be unreasonable” for the applicant to live apart from his wife and children while he established himself elsewhere in Pakistan.
In contrast, there is nothing said in [50]-[55] of the decision as to the applicant’s ability to support his wife and children in Islamabad (even later, after the applicant had initially relocated to Islamabad alone). There is nothing said about the difficulties that having three extra mouths to feed, and three additional people to shelter, would cause the applicant. Nor is anything said regarding the ability of the applicant to place his children in school addressed. At [52], the Authority refers to the applicant contending that “he would face undue hardship and be unable to subsist due to the high cost of living in Islamabad” (applicant’s emphasis retained). This focus on the applicant alone, in the absence of some other consideration of what the situation would be when his family joined him, confirms that the Authority failed to consider the additional difficulties that the applicant would face when his family joined him in Islamabad.
The applicant submits that the absence of such consideration shows error. The applicant’s “particular circumstances”[54] included that he had a family that he claimed (and that the Authority reasoned) would join him in if he relocated to Islamabad. That circumstance required attention from the Authority in order for it to complete its statutory task. This is said to be all the more so given the applicant’s claims regarding schooling and the comparative costs of living for the applicant’s family (not the applicant alone) in Kurram Agency versus Islamabad.
Particular (c)(iii)
[54] SZATV v Minister for Immigration (2007) 233 CLR 18 at [24]
Particular (c)(iii) relates to the Authority’s treatment of the security situation in Islamabad and submissions that the applicant made regarding potential harm in Islamabad. In MZACX v Minister for Immigration,[55] Kenny J stated of the second stage of the relocation enquiry:[56]
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. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus.
(applicant’s emphasis retained)
[55] (2016) 161 ALD 73
[56] at [35]
Later at [48], her Honour stated:
The fact that a risk of serious harm, or that a person may be the victim of ethnically motivated crime, is remote 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.
These statements of principle are said to be relevant for two reasons in the present case. First, they show that the Authority’s finding that the applicant did not face a real risk of significant harm in Islamabad did not mean that the Authority could ignore the risk of harm, albeit remote, that existed in Islamabad when considering the reasonableness of the applicant relocating there.
Secondly, they are said to show that issues raised by the applicant regarding security or risks in Islamabad were issues that could affect whether it was reasonable for the applicant to relocate to Islamabad. As such, having been raised by the applicant, they were issues that the Authority needed to consider in order to complete its statutory task.
The applicant submits that, approaching the present case in the manner required by MZACX, the Authority erred.
First, the applicant had squarely put in issue that the absence of any familial connection in Islamabad made the city a more dangerous place for him.[57] The closest that the Authority came to addressing this point was at [51], set out above. However, as noted above, the Authority’s statement that DFAT had noted that Shias relocate with relative ease and frequency because of family and communal networks throughout the country does not engage with the position of a Shia without a relevant familial network. The failure to address the point is said to have been an error.
[57] see CB 266 at [142]-[143], set out at [10] above
Secondly, the applicant had claimed that he would face a risk of kidnapping if he worked as a driver, including because of his inability to communicate in Urdu.[58] The Authority accepted that the applicant could not speak Urdu, and alluded to the likelihood of the applicant working as a driver if he relocated to Islamabad (without expressly finding that this would occur).[59] However, the Authority did not deal with the risk that the applicant claimed he would face in working as a driver.
[58] see CB 266 at [146], set out at [11] above
[59] [54]
The applicant contends that this was an error, as the Authority thereby left unanswered the question of whether it was reasonable for him to relocate bearing in mind the risks that he might face. It was also an error that infected the Authority’s consideration of whether the applicant would find work in Islamabad. To consider whether the applicant would be able to do so, the Authority needed to consider whether the applicant could reasonably be expected to work as a driver if this exposed him to greater risk.
Thirdly, the applicant submits that, in addition to failing to consider the two points made above, the Authority did not consider whether the risk (albeit remote) that the applicant might face in Islamabad was such that it was unreasonable for him to relocate. There is no discussion of this matter at [50]-[55]. This was despite the Authority’s reasoning in relation to the risk of harm in Islamabad showing that, though the Authority regarded the risk as remote, there was some level of risk. Thus the Authority is said to have failed to consider whether relocation was reasonable, having regard to all the circumstances of the appellant’s case, including the risk of harm that existed.[60]
Particular (c)(iv)
[60] cf MZACX at [49]
The error particularised in particular (c)(iv) is said to be akin to that identified in MZANX v Minister for Immigration.[61] In that case, Mortimer J held at [49] that the decision maker had failed to deal with the appellant’s objections to relocation in a way that enabled the decision maker to “assess reasonableness and practicality for the appellant, as an individual”. Her Honour identified at [50] the need, in assessing reasonableness, to focus on “the individual circumstances of the person concerned, and what is practicable and reasonable for that person”.[62] Her Honour contrasted this with the use of generalities and formulaic assessments.[63]
[61] [2017] FCA 307
[62] emphasised words in original emphasised in quote
[63] at [51], [55], [56] (see [44]-[45] above)
In MZANX at [56], Mortimer J noted that the appellant would have been relocating to Kabul:
to live with a partner and young child. That is, in fact, what will occur and there must be a considered attempt to assess what, in a real and practical sense, will happen to that individual and her or his family in those circumstances.
At [62], her Honour stated that:
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 a 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 health care would be quite different.
Her Honour then identified a number of instances in which the decision maker had made general factual findings in relation to the reasonableness of the appellant relocating to Kabul without descending into the detail of the appellant’s individual case.[64] This included the decision maker failing to address the nuances in country information that the decision maker relied on to make factual findings that contributed to the adverse answer for the appellant on the reasonableness question.[65]
[64] at [63]-[64], [66]-[68]
[65] at [67]-[68]
At [69], Mortimer J stated that the matters her Honour had identified :
illustrate the fact intensive nature of the inquiry. What is reasonable and practicable for one Hazara person in terms of relocation to Kabul may not be for another. It may depend on whether she or he is accompanied by family members or has dependent children, on her or his level of education, her or his resourcefulness, psychological resilience, physical health, and knowledge of the Hazara community in Kabul. These are the kinds of inquiries necessary to reach a rational and reasonable conclusion on whether, as a matter of practical reality, an applicant can safely relocate.
Her Honour concluded that the decision maker did not “deal at a factual level with the specific objections raised by the appellant” and did not “examine the material and make findings about whether the appellant as an individual with his wife and young child could, as a matter of practical reality, relocate to Kabul in a way which would allow them to meet their basic needs as individuals and as a family”.[66]
[66] at [70]
Similar problems are said to affect the decision in the present case. For instance, like in MZANX, the Authority failed to address important nuances in the country information that it relied upon. These nuances were significant, especially in light of the way that the applicant had put his case against relocation.
At [53], the Authority referred to the costs of accommodation in Islamabad’s “working class areas”. The Authority stated that DFAT noted that such costs were offset by matters including “the higher wages paid in large urban areas”. It is apparent that the DFAT information relied upon by the Authority was the DFAT Thematic Report. At [5.5], the DFAT Thematic Report referred to the accommodation costs that were noted by the Authority at [53]. The DFAT Thematic Report then continued at [5.6]:
To some extent, these expenses are offset by higher wages paid in large urban centres, particularly for those with relevant skills, including foreign language and computer skills. Migrant communities also provide a support network which can help alleviate higher living costs in these areas. For example, it is common for 3-4 Turi migrant families to jointly purchase and occupy a house in suburbs like Bahra Kahu, while other Turis choose to live independently in Islamabad.
(applicant’s emphasis retained)
There is no reference to the emphasised wording in the Authority’s analysis. The applicant contends that to say that DFAT reported that there were higher wages paid in places like Islamabad without descending into the detail of the skills one would require to obtain such wages reflects the type of erroneous approach identified in MZANX. The Authority’s approach relied on a generality, and lacked the factually intensive analysis required.
The flaw in the Authority’s approach is said to be further highlighted when the case made to the Authority by the applicant is considered. The high cost of living in Islamabad was raised by the applicant:[67]
The applicant’s representative also stated that Islamabad is a very expensive city to which to relocate and that the costs of living would far exceed what the applicant’s family face in Kurram.
[67] [28] of the Authority decision; delegate submission at CB 268 at [153]
If the Authority was to answer these submissions by relying on the availability of higher wages as identified by DFAT, then the Authority needed to consider whether the “individual circumstances of the person concerned” were such as to make those higher wages accessible.[68] The Authority did not do so (and had it done so, it is improbable that the Authority could have found, on the available material, that the applicant had the relevant skills).
[68] cf MZANX at [50]
The Authority also stated at [53] that “[m]any migrant Shia groups such as Turi Shias in Islamabad often own or work for small businesses”. In context, the Authority appeared to be stating this as some kind of answer to the issue of the costs of living in Islamabad. But the Authority did not go on to consider whether the applicant would be able to own or work for a small business.
The applicant submits that the failure by the Authority to discharge its statutory task is further highlighted by other matters to which reference has been made in the submissions above relating to the errors particularised in (c)(i)-(iii).
The applicant submits that assessing “reasonableness and practicality for the [applicant], as an individual”[69] meant that, when the Authority came to consider the applicant’s ability to relocate in light of the costs of living in Islamabad, the Authority should have considered the applicant’s mental health, and the fact that, in due course, his family would join him. So aside from the applicant not having the relevant skills to obtain the higher wages that were on offer for some, he would be more in need of those higher wages because he would have a family to support. The applicant would have to attempt to deal with the difficulties this created in circumstances where, unlike the hypothetical “normal” Shia Pashtun from Kurram Agency, the applicant also had to deal with his mental health problems.
[69] MZANX at [49]
The applicant contends that all of these matters then combined with the fact that, though the risk of harm to the applicant was remote in Islamabad, it was nevertheless the case that “sectarian attacks by suicide bombers and gunmen” did occur in the city.[70] There was thus another relevant matter thrown into the mix that affected whether it was reasonable for someone in the applicant’s circumstances (with no familial links, no apparent way to obtain the higher wages that were available for some, mental health problems and, in due course, the obligation of supporting a wife and two young children) to relocate to Islamabad. There was no assessment by the Authority of the position of the applicant as a person affected by all of these different circumstances combined.
[70] [32] of the Authority decision
The applicant submits that the result is that the Authority erred. Like in MZANX, the Authority failed to “deal at a factual level with the specific objections raised by the appellant”, and failed to “examine the material and make findings about whether the appellant as an individual with his wife and young child[ren] could, as a matter of practical reality, relocate to [Islamabad] in a way which would allow them to meet their basic needs as individuals and as a family”.[71] Put another way, the case made by the applicant against relocation to Islamabad is said to have been not properly considered by the Authority.
[71] cf MZANX at [70] (though the error in the present case was said to not be limited to a failure to give due consideration to the applicant’s familial circumstances alone)
Minister’s contentions
The particulars to the ground of the amended application first complain that the Authority failed to consider the applicant’s mental health problems when considering the reasonableness of relocation to Islamabad. However, the Minister contends that it is apparent from the Authority’s reasons at [42]-[43] that the Authority did consider this matter, and concluded that the applicant could access adequate treatment for his mental health condition in Islamabad. There is said to be no basis for the applicant’s contention that the Authority was only considering whether the applicant had a well-founded fear of harm in Islamabad. That is said to fly in the face of the Authority’s reasons at [42]-[43] and is not a fair reading of those reasons, contrary to Minister for Immigration v Wu Shan Liang[72] at 271-272. While the Authority deals with the issue of the applicant’s mental health when considering whether he would face a real chance of harm in Islamabad, that consideration is equally relevant to whether relocation to Islamabad was unreasonable, and the Authority’s reasons at [42]-[43] are on a fair reading among the “applicant’s overall circumstances” considered by the Authority at [56] when considering relocation; see similarly AHK16 v Minister for Immigration[73] at [43]-[44].
[72] (1996) 185 CLR 259
[73] [2018] FCAFC 106
The applicant then complains that the Authority did not deal with the “additional difficulties” he would face if his family joined him in Islamabad. The Authority states at [28] that he had claimed he would find it hard to find a job or put his children in school. The Authority records at [50] that the applicant could call on his extended family for assistance, such as assisting his wife and children to come to Islamabad if they chose to, and at [54] that the applicant would be able to find employment in Islamabad. The Minister contends that on a fair reading, therefore, the Authority has found that relocation would be reasonable even if his wife and children joined him there. Again, the Authority did not need to refer to every contention made or give a “line by line refutation” of his claims concerning relocation.[74]
[74] Minister for Home Affairs v Buadromo (2018) 362 ALR 48 at [48]-[49]
The applicant thirdly complains that the Authority did not consider his safety in Islamabad when considering the reasonableness of relocation there. This is again said to be an unfair reading of the Authority’s reasons. The Authority had not found any particular risk to the applicant in Islamabad at [39]-[40], and its previous findings to that effect can be taken to inform its consideration of the “applicant’s overall circumstances” at [56] and so the reasonableness of relocation to Islamabad.[75] To the extent that the applicant claims that the Authority did not address whether he feared harm in Islamabad because of his lack of familial networks or harm as a non-Urdu speaker, these are said to have been comprehended within the Authority’s finding at [40] that ordinary Shias with the applicant’s background are able to worship and go about their day to day activities without facing a real chance of harm for that reason. The Authority did not need to specifically record every contention put to it.[76] In particular it was not required to specifically address whether the applicant would work as a driver in Islamabad, this being essentially a matter for him.
[75] see similarly CIT17 v Minister for Immigration [2018] FCAFC 150 at [84]-[86]
[76] again see Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at [46]-[47] and Buadromo at [48]-[49]
The final complaint is, in effect, that the Authority failed to consider the applicant’s financial circumstances in Islamabad and his ability to subsist there. This objection to relocation was noted by the Authority at [50] and addressed by it at [51]-[54]. The Minister contends that the applicant’s complaints are again in the nature of requiring a “line-by-line refutation” of his claims by the Authority, which was not required. On a fair reading of [51]-[54] the Authority has found that the applicant would be able to find accommodation and employment in Islamabad and subsist there, having regard to the fact that Islamabad is more expensive than Kurram Agency. It is apparent from [50] and [54] that it has specifically had regard to the applicant’s individual circumstances, unlike in MZANX at [70]. Otherwise the Minister contends that the complaint merely argues with the Authority’s conclusions and seeks merits review.
Resolution
The general principles governing this case are not controversial.
Because s.5J(1)(c) of the Migration Act applied in this case, the reasonableness of relocation only directly arose for consideration by the Authority’s when considering complementary protection under s.36(2B)(a). The adequacy of the Authority’s reasons when considering s.36(2B)(a) is to be assessed having regard to the well-established principles in Applicant WAEE at [46]-[47] and Buadromo at [48]-[49]. That is, while the Authority must consider the applicant’s claims concerning relocation, its reasons in doing so need not refer to every contention or item of evidence made therein, or provide a “line-by-line refutation” of them, and it may be unnecessary for it to make a finding on a particular matter because it is subsumed in findings of greater generality. The comments of Mortimer J in MZANX at [55]-[56] relied upon by the applicant do not purport to, and could not, contradict this line of authority. They were nevertheless important. To the extent that they suggest that the Authority should carefully consider the applicant’s individual circumstances, the question is whether its reasons at [50]-[56] indicate that it has done so.
In addressing the question of complementary protection, the relocation test involves two stages or two questions; the first is whether there is an area in the receiving country where there is “no appreciable risk” of the relevant harm; the second is whether, if there is such an area, relocation to it is reasonable.[77] The issue of reasonableness is “separate and distinct”.[78]
[77] MZACX at [35]; see also CID15 v Minister for Immigration [2017] FCA 780 at [32]
[78] MZACX at [25]; SZQPY v Minister for Immigration [2013] FCA 1133 at [73]
Secondly, when dealing with the reasonableness question, the matters to be considered include “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”.[79] The “extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant”,[80] but that is not to say that the task is wholly determined by the applicant’s case. Rather, a “range of issues may become relevant to the question of whether internal relocation is reasonable, depending on the circumstances and the issues raised by an applicant for refugee status, and, when they do, must be carefully regarded by the decision maker”.[81] (emphasis added)
[79] SZATV at [24]
[80] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 443
[81] MZZQV v Minister for Immigration [2015] FCA 533 at [68] (emphasis added)
Thirdly, as MZZQV shows, the task of assessing reasonableness requires careful attention to the relevant material. It “involves a fact intensive assessment. Generalities will not suffice”.[82] As Mortimer J stated in MZANX at [55]:
General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start 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…
[82] MZANX at [51]
Absent this careful, factually intensive analysis, “the risk is that the assessment becomes formulaic, and removed from any real factual basis” relevant to the individual in question.[83]
[83] MZANX at [56]
The Authority’s reasoning on the reasonableness of relocation is relatively brief and should be set out in full:[84]
The applicant contended that internal relocation to Islamabad is unreasonable on the basis that he does not have family, friends or tribal links outside of Kurram, will be unable to find a job, and thus will be unable to establish himself or subsist. I note that the applicant stated in the SHEV interview that his father worked for 20 years in Abu Dhabi before he was married, and that he has now returned to Pakistan and lives with the applicant’s family in Parachinar. There is no evidence before me that the applicant’s family is reliant on him for their basic needs. The applicant has demonstrated resilience and an ability to live independently from his wife and family for an extended period of time and a willingness to continue to live apart from them in Australia if he was successful in obtaining a SHEV. I consider that he will be able to continue to maintain contact with his wife and children and could call on his extended family for some assistance, such as assisting his wife and child to come to Islamabad should they wish to do so.
The applicant’s representative has highlighted the significance of family and tribal links for persons from the FATA and how this impacts on their ability to be safe, as well as access accommodation and employment opportunities. DFAT’s 2016 Thematic Report ‘Shias in Pakistan’ observes that, in Pakistan, Shias relocate with relative ease and frequency because of family and communal networks throughout the country. Islamabad has a significant Shia population - including Shias from Parachinar living in suburbs such as Koh-i-Noor and Golra Sharif, and in small towns close to Islamabad such as Taxila, Bahra Kahu, Bani Gala and Bari Imam. Islamabad is a functioning city which will provide the applicant with access to infrastructure and services necessary for subsistence.
The applicant contends that he would face undue hardship and be unable to subsist due to the high cost of living in Islamabad. The applicant’s representative referred to a number of English language sources which appear to be discussing costs of living in Islamabad for Western expatriates. I also note that the 2014 Dawn article ‘Islamabad – a city only for the rich?’ features a speculative and anecdotal discussion with affluent Pakistani returnees commenting on land and property prices for large properties in middle class or wealthy areas of Islamabad. I do not accept this information is a useful comparison for the applicant’s likely situation if he were to relocate to Islamabad. I take into account that it may be more expensive for the applicant to live in Islamabad than in Kurram, however I also note that DFAT reports Pakistan has seen improved economic growth and reduced inflation in recent years and the number of people living in poverty has fallen. DFAT has observed that cities like Islamabad provide greater access to employment, education and health care services, than elsewhere in Pakistan. Shias have told DFAT that these factors were central to their decision to relocate from Kurram Agency to Islamabad.
DFAT understands that in Islamabad’s working class areas that have significant populations of Shias from Parachinar accommodation costs range from AUD135-270 per month (for 1-2 rooms) to AUD685 per month (for a house). DFAT also note that members of the Turi community often share accommodation to alleviate such costs, which are further offset by the higher wages paid in large urban centres. Many migrant Shia groups such as Turi Shias in Islamabad often own or work for small businesses.
The applicant’s first language is Pashto and I accept that he does not speak Urdu. I have earlier found that, despite his claims to the contrary, he has at least a basic command of English and some degree of literacy in Pashto. Country information indicates that only 8 per cent of the Pakistani population speaks Urdu as a first language. DFAT assess that there are approximately 30 million Pashtuns living in Pakistan, making them the second-largest ethnic group in the country (behind Punjabis). There are large Pashtun communities in all large urban areas, including Islamabad. I further note that the applicant has previously worked as a commercial driver and that country information indicates Pashtuns have dominated employment in the transport sector in Pakistan. While I accept that networks of family favouritism, patronage and nepotism play a more significant role in finding employment in Pakistan than is the case in Australia, the evidence does not indicate that the situation in Pakistan is such that a person such as the applicant would be unable to find any employment and accommodation in Islamabad without connections of this kind.
The applicant did not claim that he would need to return to Kurram Agency to renew his CNIC, but the delegate nevertheless considered this as an event that will arise ‘in the foreseeable future’. In the 2017 report “Applying For and Renewing Computerised National Identity Cards” DFAT advises that the issuing authority, National Database and Registration Authority (NADRA) confirms that persons from Kurram Agency with an existing CNIC are able to renew this online. The applicant’s identity is registered with NADRA and he holds a valid CNIC. I am satisfied that he would be able to renew his CNIC in Islamabad, without returning to Kurram Agency.
Having regard to the applicant’s overall circumstances I am satisfied that it would be reasonable for the applicant to relocate to Islamabad, an area of the country where there would not be a real risk that the applicant will suffer significant harm.
[84] CB 334-335 at [50]-[56]
I accept the Minister’s submissions set out above that the Authority gave adequate consideration to the reasonableness of relocation in considering the applicant’s mental health problems, his lack of family support in Islamabad, his former occupation as a driver and the general security situation in Islamabad. Further, I do not accept the applicant’s complaints in relation to the Authority’s general consideration about the cost of living in Islamabad and the applicant’s employment prospects.
I am, however, persuaded that the Authority did err in failing to consider the impact on the applicant of his family relocating to Islamabad with him. While the Authority at [50] stated that the applicant could draw on his extended family for assistance for his wife and child to “come to Islamabad” should they wish to do so, it appears to me that the Authority was envisaging a visit rather than a permanent relocation. The wording of this statement suggests that the applicant could call on family assistance to get his wife and children to Islamabad, which says nothing about the cost and difficulty of maintaining their residence there. In the rest of that paragraph, the Authority reasoned by reference to the fact that the applicant would be living independently from his wife and family. As the applicant’s submissions demonstrate, the relocation of his wife and children to the place he would be living in Pakistan was an issue of fundamental importance to him and was raised specifically both before the delegate and the Authority. The Authority needed to give consideration to the impact on the applicant’s need for employment, housing and the other essentials of life if he had his wife and children living with him. By failing to consider the impact of the permanent relocation of the applicant’s wife and children with him in Islamabad, the Authority fell into error.
The applicant should receive the relief he seeks.
Conclusion
The applicant has succeeded in demonstrating that the decision of the Authority is affected by jurisdictional error. I will order that the decision of the Authority be quashed and that the matter be remitted to the Authority for redetermination according to law.
I will hear the parties as to costs.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 October 2019
0
12
2