Plaintiff M196 of 2015 v Minister for Immigration and Border Protection
[2015] HCATrans 239
[2015] HCATrans 239
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M196 of 2015
B e t w e e n -
PLAINTIFF M196 OF 2015
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Defendant
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON TUESDAY, 15 SEPTEMBER 2015, AT 9.34 AM
Copyright in the High Court of Australia
MR P.R.D. GRAY, QC: Your Honour, I appear with MR A. ALEKSOV for the applicant for an enlargement of time and the plaintiff in this proceeding. (instructed by Clothier Anderson Immigration Lawyers)
MR C.J. HORAN: May it please the Court, I appear with MR T.B. GOODWIN for the defendant in this matter. (instructed by Australian Government Solicitor).
HER HONOUR: Mr Gray.
MR GRAY: Your Honour, there are three principal issues. Is it necessary in the interests of the administration of justice that the time within which to apply for relief under section 75(v) of the Constitution be extended, and your Honour will have regard in this respect to section 486A(2) of the Migration Act. Questions of enlargement of time under the High Court Rules are, in my respectful submission, subsumed within the matrix of considerations that your Honour will address under that question, and the outcome would be the same under the Rules.
Second, is the delegate’s decision affected by jurisdictional error of the kind, broadly speaking, identified by Justice Mansfield in the DZADQ Case in 2014, which is at tab 9 of the defendant’s authorities. Third, is the delegate’s decision affected by jurisdictional error, broadly speaking, of the kind, or analogous to the kind, identified by Justice Hayne in the Plaintiff M13 Case in 2011, at tab 16 of the defendant’s authorities, and more broadly still, with reference to the decision of the plurality of this Court in SZATV.
There are a number of subsidiary questions under each of those principal points with respect to extension or enlargement of time. We accept, as we must, the applicability of the Marks factors, although, as your Honour well knows, that was an industrial case and it had previously gone as high as the Full Bench of the Commission and then it went into a hiatus for many months. This case, in contradistinction, is far more serious. It is potentially a life and death matter for the plaintiff and applicant.
Furthermore, your Honour, there is evidence ‑ if I could ask your Honour to take up the exhibits to Mr McDermott’s affidavit ‑ that the plaintiff in late 2012, the critical time, was suffering – or a time leading into the critical time, was suffering a major depressive disorder and did not have legal advice, on his instructions to my instructors, when notified of the refusal decision.
Your Honour, I will take your Honour to that evidence in just a moment but just in terms of housekeeping, would it be worthwhile to go through the documents that we believe should be before your Honour. First amongst those, I am acutely aware that we did not file our principal submissions, that is, our substantive submissions in relation to today’s hearing until we sent an email to the Registry late last night.
HER HONOUR: I have those Mr Gray and I have read them.
MR GRAY: Thank you, your Honour.
HER HONOUR: I have Mr McDermott’s affidavit and the exhibits.
MR GRAY: Thank you, and does your Honour also have Ms Verma’s affidavit?
HER HONOUR: I do, of 1September.
MR GRAY: Thank you.
HER HONOUR: Is there anything else that you think I should have. I will tell you what I have, if that helps.
MR GRAY: Well, your Honour also has our application ‑ ‑ ‑
HER HONOUR: Well, I have an application for an order to show cause.
MR GRAY: Yes.
HER HONOUR: I have the submissions which were filed by your junior on the 1st.
MR GRAY: Yes.
HER HONOUR: I have the affidavit of Ms Verma of 1 September, the affidavit of Mr McDermott, the submissions that were filed by email last night and the transcript, and I have the submissions from the Minister.
MR GRAY: Thank you, your Honour. No, I believe that is all. Could I just say that in relation to 486A a written account of the reasons why it is necessary, in the interests of the administration of justice, is required, our friends have footnoted, in effect, an acknowledgment or concession that by reason of us having set that out in our submissions of the 1st ‑ ‑ ‑
HER HONOUR: That was sufficient.
MR GRAY: That was sufficient ‑ ‑ ‑
HER HONOUR: Yes.
MR GRAY: If your Honour is content with that.
HER HONOUR: I understand that.
MR GRAY: Thank you, your Honour. So going to the subsidiary questions under each of these grounds, I will deal with the Marks factors first, your Honour, if I may.
HER HONOUR: Yes.
MR GRAY: We have addressed in writing this, in our outline, at paragraphs 8 to 19 and the Minister has done so at paragraphs 30 to 44. We submit that your Honour should in this case go to what we say in this case is the most important of those factors, the potential effect on the applicant for extension of failure of the application which as I have said is potentially a matter of life and death and also to the prospects of the proceeding and those matters are sufficient, in our respectful submission, to justify your Honour reaching the conclusion that you should be satisfied that it is necessary in the interests of justice to extend time.
True it is that the extension is a lengthy one and I am not able to point in express and direct terms to a narrative explanation given in direct evidence by my client, the applicant, for the extension of time, but the Court can glean sufficient to be satisfied of explanations for what has occurred. I would now just seek to take your Honour to a couple of documents relevant to the period leading up to and including the critical period of late 2013 when it was that your Honour will have seen from the affidavit material that a decision was made in early September 2013, a decision was made to refuse the applicant a visa.
HER HONOUR: The delegate made a decision.
MR GRAY: That is so, your Honour. It did not come to the notice of the applicant until a telephone call in November when they received this email.
HER HONOUR: I accept that, and putting aside the automatic operation of the Act and its provisions about notification, it is really a concern for the period from that November notice onwards.
MR GRAY: Relevant to that point, your Honour ‑ ‑ ‑
HER HONOUR: Yes.
MR GRAY: ‑ ‑ ‑ and reasonably so, after his request for the reissuing of the decision had been rejected, was of the belief that he could not take the review any further.
HER HONOUR: Where do I find that?
MR GRAY: If your Honour goes to Mr McDermott’s exhibits ‑ ‑ ‑
HER HONOUR: Yes.
MR GRAY: At CMM‑21 there is an account of a compliance client interview, if your Honour has that.
HER HONOUR: I do.
MR GRAY: If your Honour has, on page 1 of that, the box in the middle of the page ‑ ‑ ‑
HER HONOUR: I read that all he wanted to do was the right to appeal the decision which is the last line in the right‑hand box.
MR GRAY: Yes, and then on page 9, your Honour, under the first question:
Like I said man, all I wanted from the people at your department is for the 28 days for the review. All I got asked is ‘when am I leaving’. Do you want me to give you a date for my certain death, I can’t.
Now, our friends in a footnote to their submission have then placed ‑ ‑ ‑
HER HONOUR: No, no, hang on, keep going, it says:
The way it was explained to me by a lawyer is that I need to apply to a federal court ‑ ‑ ‑
MR GRAY: Yes, that is what our friends rely upon. It is unclear, this must be remembered, your Honour ‑ ‑ ‑
HER HONOUR: Can I say this to you, Mr Gray, for my part, I had assumed from your submissions that you accepted that there was, as I think you said this morning, a delay.
MR GRAY: Yes.
HER HONOUR: The delay is substantial.
MR GRAY: Yes.
HER HONOUR: But that if ‑ do not take this as a simplistic manner of approaching the issue ‑ but that if your prospects of success on your substantive application were so good, in a sense that you had a strong prima facie case, then the, in effect, balance would be, given the consequences that you put forward, sufficient for me, as I understand your submission, to come to the view that it was in the interests of justice to extend time.
MR GRAY: Yes.
HER HONOUR: I will put it another way. How does this material assist you? It does not seem to assist you at all other than to reinforce the fact that he was in contact with people, was being told that he had rights and did not exercise them.
MR GRAY: Well, your Honour, I have to traverse it. It is one of the factors that your Honour needs to consider. It is put against us that the last line that your Honour has also seized upon ‑ ‑ ‑
HER HONOUR: Well, I have not seized upon it. I am just completing the story.
MR GRAY: Yes. Well, forgive my use of the expression “seized upon” but the line that your Honour has drawn my attention, our friends also deploy against us. It is unsafe to do so, in my submission. This interview was in 2015, in July 2015, after the applicant had ‑ ‑ ‑
HER HONOUR: June, I think, is it not?
MR GRAY: I am sorry, 24 June 2015, and that is after the applicant had been taken back into immigration detention. It is completely unclear when it is that the applicant might have been referring to, when he refers to it having been explained to him by the lawyer, that he needs to apply to a federal court. No inference should be drawn that he is speaking with reference back to the time around November 2013.
Your Honour, can I ask you to turn to exhibit 24. The instructions relayed to my instructors appear in the letter to the Minister of 14 August 2015 which is a letter requesting exercise of public interest power under 48B and 195A of the Act. On page 3 of that document ‑ I will not read the name obviously ‑ but does your Honour have the first paragraph? They are the instructions of my client on this point. There seems to be an incorrect year given there, but in all the circumstances, that passage should be read as referring to November 2013, which is the relevant time.
Next, your Honour, towards the end of this bundle, it is not paginated but it is best to work back from tab 25, if one works back five pages, one comes to the beginning of a letter from Dr Aaron Cunningham & Associates. It is a psychological assessment and it sets out, in particular at page 3, an opinion that my client, certainly as at that time, and the inference can be drawn in respect of this particular condition that it would have had effects on into the future, suffering with major depressive disorder.
Now, this was a document that appears to have been prepared in respect of disposition in relation to criminal matters. Be that as it may, it is of relevance to your Honour’s consideration of whether there is at some level an explanation for the delay or for aspects of the delay.
It is further put against us that when the applicant was taken into immigration detention in June 2015, there was a period during which, at least from 23 July 2015, those instructing me were acting on his behalf seeking a discretionary public interest decision by the Minister and that they had not commenced a proceeding and did not commence a proceeding until very shortly after, but after those representing the Minister declined to refer the matter to the Minister for a discretionary decision.
It is put against us in our friends’ submissions that in a number of cases judges of, in particular the Federal Court, have not accepted that delay in commencement of judicial proceedings in light of engagement of such mechanisms under the Act is an adequate explanation for delay. Your Honour, I have to accept what has been said in those judgments. Can I say this, the delay in question was of short duration, of only a little over a month ‑ ‑ ‑
HER HONOUR: You mean post July?
MR GRAY: Yes, post 23 July until 1 September, so it is about a week or so over a month in an overall timeline extending to about two years and in the circumstances it is perfectly reasonable that those acting on behalf of the applicant and the applicant himself took a decision which can be categorised as a perfectly responsible decision to avoid approaching the court in light of the delay that had already occurred. Now, in a sense, because of those authorities which stand against us on this month or so of the delay, in strict terms I do not have an explanation for that month of delay but ‑ ‑ ‑
HER HONOUR: But you have provided what you say is the position, factually.
MR GRAY: Yes, your Honour. What I have tried to do in this part of my address, your Honour, is address the explanation for delay criterion in Marks. We say that there are some aspects of that explanation that are less than optimal. However, your Honour should give greater weight to the prospects of the merits of the matter and the potential effects upon the applicant and that when your Honour does so, with respect, your Honour can come to the conclusion it should do so, then extension should be granted. I will now turn to the merits.
So, as I said, what I term the second issue, which is ground 1 of the merits, is whether the delegate’s decision was affected by jurisdictional error broadly speaking of the kind identified by Justice Mansfield in DZATQ. As his Honour noted in that case - this is a case about the Refugee Review Tribunal, not about the delegate - but in that case his Honour noted that section 424(1) of the Act required the Tribunal to have “regard” - that is the word used - to information that it had obtained and I am not sure if we have noted this in our submission but your Honour probably well knows, a similar provision binds the delegate, or bound the delegate in this case, and that was section 56. The work done by that provision is relevantly the same as the work identified by Justice Mansfield in the case I have mentioned.
The question posed is, does the decision record betray that the delegate here did not engage in an active intellectual process with respect to the country information before the delegate or in addressing the position of the plaintiff by reference to findings on that country information and there is a second limb to Justice Mansfield’s judgment. Does the decision record betray that the delegate erred by misapplying the real chance test and of course the real chance test is the explication in Chan of the well‑founded fear element of the “refugee” definition in the UN Convention.
We place more emphasis, your Honour, on the second limb. That is not to exclude the first limb…..consideration altogether but I cannot stand here and say that there was not any consideration given to the country information. It is just that there are very concerning gaps and leaps of logic and what has occurred is a very high level superficial consideration of the applicant’s position.
In the end, what it boils down to is a numerical‑type analysis by which, and I will come to this of course in a minute by reference to the reasons by which the delegate has stood back and looked at the numbers of Shias and Hazaras who are killed in Pakistan and has said by reference to the population in general of those minorities the chance of my client, who is a member of both of those groups, being persecuted is not numerically high enough to constitute a proper foundation for a well‑founded fear of persecution.
Now, there are aspects of Justice Mansfield’s judgment I wish to take your Honour to now and then I wish to dive into the decision record in this case. If your Honour takes up the defendant’s folder of authorities, Justice Mansfield’s decision is at tab 9. The key elements of his Honour’s reasoning are to be found from paragraph 52 onwards. Paragraph 52, by reference to earlier decisions of the court, identifies the crucial issue in the case as having the following essential link, an essential link to an assessment of the well‑foundedness of the fear of persecution and his Honour says:
An essential link to that is to consider the country information to assess the political climate in that country.
Then in this case his Honour found that in his view:
the Tribunal has erred, either in not engaging in an “active intellectual process” with the country information as a whole or alternatively by failing to address the appellant’s position in accordance with law in relation to its findings based on the country information.
His Honour uses the expression in paragraph 53, in the fourth line, “having regard to” – he is there harking back to section 424 that finds its analogue in section 56 for a delegate. In the latter part of that paragraph 53, his Honour splits the issues that confront him into two. He is concerned that the Tribunal has not engaged in an active intellectual process with regard to considering that country information and he also says that the Tribunal might have misapplied the real chance test to that information.
His Honour is not clear on which of the two errors have occurred but that does not matter. His Honour was satisfied that one of those brands of error had occurred, and either of them constitutes jurisdictional error. As I said, your Honour, we place more emphasis on the latterly, misapplication of the real chance test and there are, I will come to the reasons in this case in a minute, but your Honour will see that there are some striking similarities between DZADQ and the present case on that limb of his Honour’s reasoning.
Paragraph 61 I would wish to draw to your Honour’s attention. His Honour refers back to a paragraph which is extracted at 54 of his judgment, a paragraph of the Tribunal’s decision. I will not read it, your Honour, but it is a fairly superficial analysis, although it is a little lengthy. It is essentially a demographic analysis: how many Shia Muslims are there in Pakistan and what, in a sense, is the numerical risk of the applicant in this case of DZADQ being subjected to harm by reason of being amongst that minority. Paragraph 61:
In my view, the reasons of the Tribunal, particularly at –
that paragraph that has been extracted –
show that it did not have regard to the country information in the light of its findings. That paragraph, apart from a statistical analysis, does not disclose any reason for the general conclusion which it contains. The Tribunal identified and recognised the general risks facing the appellant as a Shia Muslim in Pakistan. However, it proceeded to find that the risk is “remote” because there were over 40 million other Shias in Pakistan. There was nothing else in the Tribunal’s reasons that would explain how it considered the risk to be remote besides referencing that number.
We say, when the delegate ‑ ‑ ‑
HER HONOUR: Keep going, Mr Gray. This is different from the delegate’s approach. This is what is put against you, I think. Where you ‑ ‑ ‑
MR GRAY: Yes, the delegate in this case considered relocation, that is so, but we have a challenge to the relocation limb of the delegate’s decision in this case, based largely on an analogy within 13.
HER HONOUR: Yes.
MR GRAY: Your Honour, I will not read it but could I ask you also to note paragraph 65.
HER HONOUR: For what proposition?
MR GRAY: The same proposition. There is more explication of how a numerical analysis is insufficient to meet the requirements of the well‑foundedness test or the real chance test. In particular in paragraph 65, there is ‑ ‑ ‑
HER HONOUR: Can I ask this question?
MR GRAY: Yes, your Honour.
HER HONOUR: So, are you going to come to the delegate’s decision in this case to make good the proposition which is at 65?
MR GRAY: Yes.
HER HONOUR: Paragraph 65 seems to suggest that a statistical analysis of its own is not going to be sufficient.
MR GRAY: Yes.
HER HONOUR: His criticism, Justice Mansfield’s criticism is that he should have considered the appellant’s particular circumstances.
MR GRAY: Yes.
HER HONOUR: You say that did not happen here.
MR GRAY: When one strips the delegate’s conclusion on the remoteness of a risk back to its bare bones, it was the same analysis.
HER HONOUR: All right, let us go through that, shall we?
MR GRAY: Just before we do, with 65, your Honour, Justice Mansfield noted the relevance of the fact that the Taliban, the instrument of all this persecution in the case, had a widespread influence according to the country information throughout the country and that was ‑ ‑ ‑
HER HONOUR: What I am supposed to do with that, though, in this case?
MR GRAY: That is a relevant part of the backdrop as to why a mere statistical analysis portrays a misapplication of the real chance test.
HER HONOUR: Yes.
MR GRAY: In the delegate’s decision – I hope your Honour will be a little patient with me; I am going to take your Honour through the 20‑step analysis.
HER HONOUR: Right.
MR GRAY: I numbered them all off, and I cannot think of a way to do it more briefly, but it will amount to putting notes at the side of the decision as we go, I think. Could your Honour please turn to page 8, in whichever form you have it? The decision is an exhibit to both Ms Verma’s affidavit and Mr McDermott’s. Does your Honour have it in handy form?
HER HONOUR: I do.
MR GRAY: Thank you. If your Honour goes to page 8, step 1, there is at about point 7 of the page reference to the Shia minority in Pakistan. It is a substantial minority, percentages ‑ ‑ ‑
HER HONOUR: I do not understand where we are.
MR GRAY: I am sorry, your Honour. “Country Information” is the heading, “Shia Muslims in Pakistan”, and then there is a reference to a UK Home Office report in 2012 giving a full population, then a census ‑ ‑ ‑
HER HONOUR: “Shia minority of 25 per cent”, is that what you want?
MR GRAY: Yes, and :
Another source has estimated the size of the Shia population in Pakistan as between 17 to 26 million.
Here, the delegate is building the foundations of what we say was the numerical analysis of whether the risk in question was a real one or a remote one. Next, there is the next paragraph and then the country information cited in the paragraph after that, so from about point 8 to point 10 of the page is the beginning of what turns out to be an ample, if not overwhelming, flood of country information indicating that Shia Muslims are the targets of extremist violence.
HER HONOUR: Is this step 2?
MR GRAY: Yes. Now, a number of organisations are named. They are identified as:
militias inspired by fundamentalist Wahhabi ideology –
There is a reference to the violence –
This anti-Shia violence, however, tends to be more prevalent –
but there is no finding, and your Honour will search in vain for any finding that there is any safe haven in the country. Could I ask your Honour just to note in step 2 the name “Lashkar‑e‑Janghavi”? That is a breakaway group, as I understand it, of the next organisation, “Sipah‑e‑Sahaba”. You will also see Lashkar‑e‑Janghavi referred to as “LeJ”. I will not read that extract from CISLIB 22987, but your Honour has it there. That goes over the page, and there are figures given – this is really step 3, your Honour.
HER HONOUR: Where is step 3?
MR GRAY: Step 3 is part of the extract from CISLIB 22987. At the top of page 9, in amongst the quote, there are figures given for deaths of Shias ‑ ‑ ‑
HER HONOUR: So in Quetta, 450 in the other region. Is that ‑ ‑ ‑
MR GRAY: Yes, 650 Shias in Quetta ‑ ‑ ‑
HER HONOUR: Is that step 3?
MR GRAY: Yes – 450 in another region, and those people were killed recently, it is said, no date was specified – but it seems to have been within a period of about a month in 2012. Step 4, your Honour, “Human Rights Watch”, at point 4 of page 9 – this is very important, your Honour; I will come to the reason why in due course by reference to the case law. Second line, your Honour:
the supposedly banned Lashkar-e-Jhangvi, operated with impunity –
“impunity” meaning there is a state inability or unwillingness to protect –
even in areas where state authority is well established, such as the Punjab province and Karachi.
Could I ask your Honour to note the reference to “Punjab province and Karachi”? The reason for that is that the areas that in the end the Tribunal speculates could really be no higher than that might be safe for Hazara communities to live later on all fall within either Punjab province or Karachi. That is a very, very concerning gap in the analysis, your Honour, when one considers that. I will come to that finding later in the decision.
Your Honour, just within this quote – this is still on step 4 – while we are in this quote from Human Rights Watch 2012, as your Honour sees now the beginning of discussion not just of Shias, but of Hazaras, because some of the examples of violence against Shias is directed specifically to members of the Hazara community – people being pulled off a bus and executed, and so on. Does your Honour see that?
HER HONOUR: Yes.
MR GRAY: Now, Hazaras are Shias, as I understand this country information, but not all Shias are Hazaras by any means. Hazaras are a much smaller group within those who are generally adherents to the Shia religion. Your Honour will have remembered that quite large figures are given for the Shia population in Pakistan, but much smaller figures are given in this country information for the Hazara population.
This is another concerning aspect of the analysis a little later on because there does not seem to have been any express consideration given. Even if a numerical analysis were legitimate, and we say it is not, it is not a lawful application of the well‑founded fear and real chance test for the reasons I have just briefly outlined – but even if it were, it miscarried.
The fifth step, your Honour, is the next piece of country information – this is the United States Commission on International Religious Freedom 2012. It is a part of this flood of country information I mentioned. In particular, there are references to incidents in Karachi and Punjab.
The sixth step and seventh step, your Honour – there are really two points I wish to draw from the next piece of country information, South Asia Terrorism Portal 2012. The first of these, step 6, is on page 10. The information in question is about a breakaway faction of the Sipah‑e‑Sahaba known as the LeJ, to which I have already adverted, and here there is evidence that it distributes pamphlets calling Shias people who are obligatory to be killed. The seventh step, your Honour, is ‑ ‑ ‑
HER HONOUR: Sorry, I do not quite understand what I am doing with step 6?
MR GRAY: What step 6 shows is that this is an organisation which the country information, it seems to be accepted, indicates it operates with impunity even in areas where state authority is well established – that is this group, Lashkar‑e‑Janghavi, LeJ – and I am just demonstrating that the country information proves that it targets all Shias. It regards them as obligatory to be killed under religious edict.
HER HONOUR: Yes.
MR GRAY: The seventh step is linked to the sixth step. It is that there is no geographical limitation ‑ ‑ ‑
HER HONOUR: Where do I find this?
MR GRAY: At the bottom of the quote.
HER HONOUR: I see.
MR GRAY: In that quote, your Honour, in step 7, you will see the “mission”, as it is put, of this group is not limited specifically to Shias, but it goes to a greater level of specificity affecting the interests of my client. It specifically mentions Shia Hazaras, who, as I said before, are a subgrouping of Shias. Your Honour, I do not wish to place reliance on it, because I think there is probably a different piece of information relied upon – I just draw to your Honour’s attention ‑ ‑ ‑
HER HONOUR: Sorry, where are we going now?
MR GRAY: The second line in the very next paragraph says that:
according to a Hazara chief, there were six to seven thousand Hazara’s living in Pakistan ‑ ‑ ‑
HER HONOUR: Do you rely on this?
MR GRAY: Do you have that?
HER HONOUR: Yes. Is that step 8?
MR GRAY: It is not, your Honour, because I do not know whether in the end that was accepted by the delegate, because there is another figure given later of 600,000, which may have been accepted, but could your Honour just note it lest it cause confusion. I do not know whether that is right, whether the figure is 6 to 7,000 Hazaras in Pakistan or the much larger figure of 600,000, to which I will take you in a minute, but either way, it is a substantially lesser figure than the overall figure of Shias in Pakistan.
Step 8, your Honour, is the killings specifically of Hazaras, as reported in cable CX281443. That is at point 5 of page 10. Does your Honour have that? I will just move on:
“Over 600 Hazaras have been killed since 2000,” –
it records there; so that is as at 2012.
HER HONOUR: We do not know where that is, though, do we?
MR GRAY: No. It is unclear whether that is a figure limited to Baluchistan province ‑ ‑ ‑
HER HONOUR: Is it not Balochistan? No?
MR GRAY: We were actually debating that at the Bar table just before. We think it is Baluchistan – Balochistan, all right; I stand corrected by my learned instructor. It is closer to what your Honour was saying.
HER HONOUR: I do not know that it is, but anyway, let us keep going; step 8.
MR GRAY: That is step 8. Step 9 is some information, at about point 8 of page 10, on the nature of the Hazara community in Quetta.
HER HONOUR: Yes.
MR GRAY: That is the Hazara community the applicant did live in, and to which the delegate accepts it would be unsafe for him to return. I draw it to your Honour’s attention because it is some information at some level as to the cultural or social characteristics of Hazara communities, at least in that part of Pakistan, Quetta being in Balochistan. You will see, your Honour, that there are references to the community being “close‑knit”, essentially, and there is also reference to:
The bulk of Hazaras –
at least in that area –
are members of the Shia sect –
It is not every single Hazara who would be regarded as Shia, but there is a sort of a recognised correspondence. Then there are figures that are certainly figures of killings of members of the Hazara community in Quetta.
HER HONOUR: This is on page 190, step 10?
MR GRAY: No, it is not; I am just drawing it to your Honour’s attention. Your Honour asked where is the – we do not know where the step 8 figure relates to, whether it is geographically limited, and I do not think the information on page 11 at point 2 really clears that up, because the timeframe is different. In addition to killings, of course, there are many other injuries. Step 10, your Honour, is:
the applicant displays facial features common with people of Hazara ethnicity.
There must be some relevantly recognisable feature of Hazara people’s faces in general. That is at point 4 of page 11. Step 11, your Honour, is not, we would say, a wholly inadequate step, but it exhibits error because it does not go far enough. I am referring here to about point 9 of page 11:
Yet there are places in Pakistan where every aspect of life is not overwhelmed by conflict and a fear of extremist groups –
but there is no finding made as to where on earth, or in Pakistan the delegate is referring to at that point. When one considers the nature of the observation, if it is a finding, it is equivocal at best. What does it mean “where every aspect of life is not overwhelmed by conflict and a fear of extremist groups”? Does it mean that those places are safe, or does it mean that some aspects of life are not safe, and some are? It is very hard to know.
It is, in my submission, a finding or observation that conceals more than it reveals and it conceals a paper‑thin analysis as to whether there is anywhere in Pakistan in which LeJ, which has an avowed mission to kill Shias and, in particular, Shia Hazaras, acts with impunity. Next is step 12, your Honour, on page 12 at point 1 or 2. This is the second paragraph:
While extremists have been known to have a presence in cities all over Pakistan –
Then this, again, is a finding or observation that tends to conceal more than it reveals –
the violence tends –
I am placing emphasis on the mere use of “tends” –
to be directed specifically against people with a profile –
and by “profile”, the delegate is meaning a high profile; somebody who is visible in some way. The example the delegate then gives is “clergy”, presumably Shia clergy, or clergy of parts of the religion with which the militant groups mentioned, including Lashkar-e-Janghavi, do not agree.
It is pretty axiomatic logic, your Honour. The fact that high‑profile people are targeted does not mean that low‑profile people are not, or that they do not have a well‑founded fear of persecution. That submission is given life by the very terms in which the delegate expressed the observation that violence “tends” to be directed specifically against people with a profile. It does not even purport to be an exclusive or a comprehensive finding.
Step 13 is also on page 12, your Honour. It is at about points 3 to 5. This is the key numerical or statistical analysis – it is not really statistical because there is no consideration of standard deviations and things like that – but this is the ‑ ‑ ‑
HER HONOUR: So where are you now? We are on page 12?
MR GRAY: I am at page 12, between point 3 and 5. It is the full paragraph commencing “Country information indicates”.
HER HONOUR: That whole paragraph?
MR GRAY: Yes, ending in:
I am of the opinion that the chance that the applicant would be seriously harmed due to his religion or race is remote.
This is the crux of the decision, and I made the submission a little earlier when I was referring your Honour to aspects of Justice Mansfield’s decision in this case when you strip the delegate’s decision back to the bare bones the approach to decision‑making is the same as that which was criticised by Justice Mansfield in his case.
HER HONOUR: The problem with adopting this step‑by‑step process is that it is contrary to the way in which we have all been taught since before I had grey hair about the way in which we should deal with decisions by delegates, i.e. we do not break them up in this piecemeal manner; we take them as a whole. Although you say step 13, which, as I understand, is the entire paragraph, is “the crux of the decision”, it is apparent from what follows that there are other aspects to it that cannot be read without taking those matters into account.
MR GRAY: Your Honour should take them into account, but I say this is the most important paragraph. This is really where the delegate expressed the finding on which the rest of the decision hangs, in the sense that it is only because of this numerical analysis that the delegate was able, in any sense, to reach a finding that there might be somewhere safe in Pakistan for the applicant. The delegate accepted that he would not be safe in Quetta or in Balochistan because of his profile – his mother had been involved with PPP – in relation to some other parts of the country only identified in the most general terms:
Yet there are places in Pakistan where every aspect of life is not overwhelmed –
et cetera, and by reference to some cities, that I will come to in a moment, which happen to be places where the earlier country information indicates there are attacks against Shias. It is only because of this paragraph that there was really any ostensible reasoning that could have led to a conclusion that the applicant might be safe elsewhere in Pakistan. That is why I say it is the crux. I certainly do not say that your Honour can or should ignore any of the rest of the decision – the decision has to be read as a whole. It is just that one has to adopt some sort of analytical technique, and this 20‑step process is a valid approach, in my submission.
The next step, your Honour, was 14, and it deals with this question of whether the applicant has a profile and how far does it extend ‑ ‑ ‑
HER HONOUR: Is that the next paragraph?
MR GRAY: Yes. It is found that he does not have:
a profile outside of his home region that distinguishes him from the wider Hazara or Shia community.
That said it is still the numerical analysis in step 13 that is the basis of the relocation finding against him ultimately. Next, the next paragraph, this ties off ‑ ‑ ‑
HER HONOUR: Is this step 15?
MR GRAY: Yes, step 15, your Honour, thank you. This ties off the point that I have just been addressing, really, that because he does not have – I am paraphrasing – a profile outside his home community, he would not be tracked down throughout Pakistan, and then the final sentence:
While the applicant has the physical features of a Hazara, which may identify his race and religion, I do not accept that these features will have any appreciable impact on what might become of him upon return, given the number –
that is a reference back to step 13, your Honour –
of Shias and Hazaras in Pakistan.
Now, it is purportedly a reference back to step 13, but there is a real concern – and this is what I adverted to earlier; that is, even on its own terms, the numerical analysis has miscarried. Your Honour can probably see what I mean; “given the number of Shias and Hazaras in Pakistan” – that is the expression used in 15. But of course, step 13 only dealt with Shias and said there are a huge amount of Shias, between 17 and 26 million, and the country information shows that there are killings of Shias, but it is a very large population within which those killings are in effect absorbed.
There is no consideration given to some sort of numerical analysis of what are the probabilities, risks, on a strictly numerical basis of being an Hazara within a much smaller minority population by reference to the statistics about annual killings of Hazaras. Even on its own terms, the analysis has miscarried. Your Honour will not find any supporting analysis equivalent to step 13 for step 15 insofar as it refers to Hazaras. It is just not in the decision.
Next, step 16 is on the break of the page, between pages 12 and 13. It is a finding – and it is no doubt right – that there are Hazara communities outside Quetta in Pakistan. To some extent they exist, and some of them are named – or perhaps all of them are named. In the country information at CX269729, there is a relative expression or adjective used to describe three places in particular:
safer places in Pakistan such as Karachi, Islamabad, Lahore and elsewhere –
it is said. Firstly, that is not a finding; it is just a reference to some country information. Secondly, it is just a relative term; there is no finding that they are safe in any relevant sense. Thirdly, when the finding is made, Islamabad is not mentioned. The finding appears over the break of the page, at the top of page 13:
A 2010 report indicated that there are Hazara settlements in Karachi, Lahore and Multan.
Lahore and Multan are in Punjab province – I ask you to take judicial notice of that. Lahore is, in fact, the capital of that province. Does your Honour remember me asking you to mentally flag the ‑ ‑ ‑
HER HONOUR: Sorry, is this still step 16?
MR GRAY: Yes.
HER HONOUR: Where does step 16 end?
MR GRAY: Just there.
HER HONOUR: At the end of that first sentence?
MR GRAY: No. It also includes the estimate of 600,000 Hazaras – I think I adverted to that a little earlier.
HER HONOUR: Yes.
MR GRAY: Now, Karachi, Lahore and Multan, your Honour. Your Honour will remember I asked you to mentally note the attacks on Shias in Karachi and ‑ ‑ ‑
HER HONOUR: Step 5.
MR GRAY: Yes, step 4, step 5.
HER HONOUR: Yes.
MR GRAY: At step 4, LeJ:
operated with impunity even in areas where state authority is well established, such as the Punjab province and Karachi.
It just does not go anywhere in step 16 to say that there are Hazara settlements in those places. They are the places where LeJ acts with impunity, or they are amongst the places where it acts with impunity. Step 17, there is consideration of the languages, education and work background of the applicant. That is at point 2 to 3 ‑ ‑ ‑
HER HONOUR: This is step 17?
MR GRAY: That is step 17.
HER HONOUR: Yes.
MR GRAY: Now, after considering those matters – I cannot say they were not considered – albeit in brief terms, the delegate then neatly reverses the onus, I say:
I do not consider that there is evidence to indicate that the applicant would not be able to relocate to any other area in Pakistan.
It begs the question, what other area? We will come to Lahore in just a moment, but there is an open gulf left on that question –
I do not consider that there is evidence to indicate that the applicant would not be able to find accommodation in Pakistan. Furthermore, persons able to speak Urdu, the national language, could conceivably live and work throughout the country, particularly in major cities.
HER HONOUR: Is this step 18, or still 17?
MR GRAY: This is part of step 18. It is the delegate’s consideration, albeit through reverse onus, of whether there are impediments to the applicant living elsewhere in Pakistan. But the vice in the analysis is the inadequacy of any identification of the places to which the applicant could safely relocate. Practicability is being addressed, but not safety.
As your Honour knows from Randhawa onwards, the question of internal relocation has had to be considered by reference not only to whether there are places elsewhere in the home country, such as would not give rise to a well‑founded fear of persecution, but also as a second limb, the decision‑maker has to consider the reasonableness or practicability of the person relocating to such a place. It is really that first aspect that has miscarried in this analysis and therefore the second aspect is happening in thin air and also miscarries.
Now, your Honour, part of step 18 involved specific reference to Lahore. Two of the applicant’s sisters reside in Lahore. There is not any consideration of what might be the cultural constraints involved in a brother trying to, in effect, move into what would have been described as the close‑knit communities by dint of a relationship with a female relative. We do not know whether those female relatives are married or not, but this is not a society in which one can accept that the cultural norms are the same as in Australia.
There is just no foundation for the finding that this indicates that he has family networks available to him to assist him to resettle presumably in Lahore; it is said in an area outside of Balochistan. In any event, Lahore is in Punjab. It is the capital of Punjab province, an area in which LeJ acts with impunity on the country information that appears to have been accepted.
Step 19 involves just a reference to what is the ex facie constitutional right of citizens of Pakistan to move freely within Pakistan. That is of no real moment, or of very limited moment in – it is certainly insufficient at law to evidence an analysis of the practicabilities or reasonableness of relocation. It is simply a legal formal point. This is step 19, your Honour, in the middle of page 13. This is a return to, in effect, the reversal of the onus:
I can find no evidence that it is not possible ‑ ‑ ‑
HER HONOUR: This is still step 19, is it?
MR GRAY: Yes.
HER HONOUR: Where does that end?
MR GRAY: It ends, your Honour, at the end of “broader sense”.
HER HONOUR: Yes.
MR GRAY: Step 20 is a wrap‑up that ‑ ‑ ‑
HER HONOUR: The last two paragraphs?
MR GRAY: Well, yes, in particular the first of those. The delegate says:
I have considered first, whether the applicant can relocate to an area –
the emphasis should not really be on “can” on this limb but just –
can relocate to an area within his country of reference where he does not have a real chance of being persecuted for a Refugees Convention reason.
Your Honour, it is in the main on that limb that I have demonstrated in these submissions that the delegate’s analysis has miscarried: The delegate says:
Second, I have considered whether it is reasonable, in the sense of being practicable for the applicant to relocate within his country of reference. This includes an assessment of whether he could safely access a relocation option within his country of reference.
Now, just pausing there on the second limb, it is true at step 17 that the delegate considered at some level the personal circumstances of the applicant and those attributes that might make it practicable for him to find work and accommodation. There are, however, grave difficulties in that limb of the assessment being seen as having been done lawfully because the first limb was not done lawfully, and so the assessment was done in a vacuum. To the extent that Lahore was identified, I have advanced my submissions as to why that cannot have been a safe haven or an area of postulated relocation, because of the accepted country evidence earlier in the decision.
The third issue in the case is our ground 2, your Honour – is the delegate’s decision affected by jurisdictional error analogous of the kind identified by Justice Hayne in the M13 Case in 2011 at tab 16. The question here that we pose, your Honour, is in purporting to apply the internal relocation principle, did the delegate’s analysis go far enough to amount to a proper or meaningful, that is, lawful, analysis of the reasonableness or practicability of this particular person, the plaintiff, relocating to an area of Pakistan where he would not have a well‑founded fear of persecution?
This is a point that is further or in the alternative to my submissions on our first ground. An essential element, we say, on a lawful analysis will be consideration of where in the home country the person would be safe from that well‑founded fear, and I have addressed on that. Another is the reasonableness of the person relocating, and I have addressed on that.
On the first element, the cases indicate – and I will take your Honour in particular to a decision of Judge Driver in just a moment – the decision‑maker might validly take different approaches if the well‑founded fear is localised, limited to a particular location. A more generalised approach to the areas to which the person might reasonably relocate could be lawful.
So I need to address your Honour on that and as to whether this was a case of that kind. If there is generalised persecution, however – and we say of course that the country information abundantly indicated that this was a case of generalised persecution – more particularity as to the place of relocation would be required.
In the case of evidence of widespread countrywide persecution, the reasonableness of relocation, in our submission, will have to be assessed against particular postulated areas, otherwise it will not be a meaningful and lawful analysis. So this is the legal framework for the criticisms I made in the latter steps of the delegate’s decision.
As your Honour will now appreciate, we have got our numerical analysis point. That is a misconception of the real chance test and the well‑founded fear test. As a separate point in ground 2, we have our submission that in a case of generalised persecution such as this, it is insufficient at law for the analysis of the delegate to be done on a basis where particular postulated safe areas are not considered because to do so is not properly to consider the reasonableness of a particular person relocating.
HER HONOUR: Is this any different to ground 1?
MR GRAY: Yes, ground 1 emphasises the real chance test and that a mere numerical analysis is a misconception of the real chance test, and ground 2 emphasises the lack of particularity of identification of safe areas within Pakistan. There is no doubt that they are connected, your Honour, but we see them as conceptually different and we see ground 2 still having utility even if ground 1 did not succeed. Your Honour, I think I said – perhaps I did not – at the outset where in our outline we dealt with these particular arguments.
HER HONOUR: You did in relation to the enlargement of time question.
MR GRAY: Yes, okay, I am sorry, your Honour. On ground 1 we deal with ‑ ‑ ‑
HER HONOUR: Eight to 19 – ground 1, I see, yes.
MR GRAY: With ground 1 we deal with that at paragraphs 44 to 50.
HER HONOUR: Yes.
MR GRAY: Our friends in their submissions on behalf of the Minister deal with this ground at 45 to 54.
HER HONOUR: Yes.
MR GRAY: Ground 2 we deal with at 51 to 68 and our central submission is that the M13 reasoning applies by analogy to this case. I will take your Honour to M13 in just a moment. The Minster’s outline addresses ground 2 at paragraphs 55 to 65. In the course of our friends’ submissions in those paragraphs, they rely on a number of decisions in particular of the Federal Circuit Court in which in one way or another the reasoning in M13 has in effect been distinguished, always by reference to the level of particularity to which the particular decision in question descended.
We have advanced a rebuttal of those cases on which our friends rely in those paragraphs, and that is at paragraphs 60 to 64 of our outline, because we received our friends’ submissions earlier in the day yesterday and so we were able to advance a rebuttal. So, your Honour, I just want to spend another 10 minutes or so wrapping up points that arise out of the outline and take your Honour to a couple of cases, including M13.
In addition to having taken your Honour to DZADQ, can I just commend to your Honour the extracts we have given from two High Court decisions under ground 1 in paragraphs 47 and 48?
HER HONOUR: Are we going back to ground 1 now?
MR GRAY: Yes, I am. I just want to tie those off, your Honour.
HER HONOUR: Yes.
MR GRAY: The case of S395, we just extracted paragraph 58 simply really for the oft‑cited proposition at the end of the quote that:
The central question is always whether this individual applicant has a “well‑founded fear of being persecuted –
We deploy this in support of our attack on the numerical analysis which I have described as the crux of the decision against our client because in a sense it is simply an aggregated statistical mode of analysis. It is not individualised to him. Now, true it is that his individual characteristics – employment and so forth – were purportedly dealt with. They were mentioned and considered in connection with relocation, but in a way that miscarried for the reasons I advance under ground 2, because postulated safe havens were not identified.
The crux of the decision being the numerical analysis, we say this is a brand of error falling within the category of failing to deal with the question of whether this individual applicant, not just some hypothetical Hazara Shia in the abstract or the aggregate, but this particular applicant, had a well‑founded fear. We also rely, your Honour – or we do not rely so much as draw to your Honour’s attention - the passage at paragraph 48.
The numerical analysis point has to be dealt with - we say, the reasoning of Justice Mansfield can be followed, but it has to be dealt with also in light of what Justice McHugh mentioned in the course of his judgment in S152 and the outcome in that case in effect went the other way. That was a case involving randomised chance of violence – perhaps I should hand that case up because I do not believe it is in our friends’ authorities. It is Minister for Immigration v Respondents S152/2003 222 CLR 1.
That was a case in which the violence in question was randomised violence by personal actors and there was no evidence of impunity or a failure, inability or unwillingness of the state in question to provide protection. Your Honour, I will have to leave it there because we do not have that case in our list, I am sorry.
HER HONOUR: It is all right, we can go and get it; that is fine.
MR GRAY: Yes, but I wished to draw it to your Honour’s attention. Because of the evidence to which I have taken your Honour of the impunity with which LeJ can act, as recorded in the accepted country information in this case, S152 is distinguishable.
Ground 2, your Honour, I just want to tie off the authorities and loose ends under this ground. As your Honour can see, we deal with this at paragraphs 51 to 68. Our emphasis – a link to M13, our emphasis is on drawing an analogy with Plaintiff M13. Your Honour has that case in our friends’ bundle at tab 16.
In this case the delegate, in dealing with a claim of persecution advanced by a 53‑year‑old Malaysian woman who had been victimised in effect by her family, the delegate had not made any finding, in fact had expressly indicated that the delegate did not know where it was in Malaysia that the woman had lived. Notwithstanding that, the delegate made the finding extracted at paragraph [18] concerning relocation elsewhere within Malaysia. I will not read it out to your Honour, but does your Honour have that?
HER HONOUR: Yes.
MR GRAY: His Honour then went on to make two points about this aspect of the delegate’s reasons. The first point was the one I have just adverted to; the delegate had not known where the plaintiff had been living before she left Malaysia. Secondly, there was no finding about:
a place to which the plaintiff could relocate –
It is certainly not a matter that was:
identified in the delegate’s reasons, beyond the delegate saying –
in a general way –
that such a place would need to be “in a larger community such as Kuala Lumpur”.
On that limb of what is said in paragraph [19], there is a marked similarity with the reasons of the delegate in this case. I have already taken your Honour through my analysis of those aspects of the delegate’s reasons that are on all fours with that. Now, it is said against us that M13 was decided not by reference to the absence of a finding as to the place to which the plaintiff could relocate but, rather, by reason of the delegate’s ignorance of the place the plaintiff originally lived in in Malaysia, and it is true that that was his Honour’s ratio. Your Honour can see that from paragraph [22]. We accept that because his Honour identified error ‑ ‑ ‑
HER HONOUR: I do not know about that, because in [20] what his Honour says is the second point to notice is that he cannot work out whether it is reasonable or practicable without knowing where the woman has come from.
MR GRAY: Yes.
HER HONOUR: Anyway.
MR GRAY: His Honour said that at [20] and then at [22] it is said against us by our friends that the ratio of his Honour is really by reference to the ignorance of the delegate as to the place from which the plaintiff has come, as opposed to the place to which she could relocate. We accept that the emphasis his Honour placed was on the first point in his ratio at [22]:
When the delegate’s reasons are read as a whole, it is evident that the particular circumstances of the plaintiff were not considered by the delegate in forming the opinion that she could relocate to avoid the risk of persecution. So much follows from the delegate not know from where the plaintiff would have to relocate.
So it is true that emphasis was placed on that point in his Honour reaching the conclusion that there had not been the lawfully mandated requisite consideration of the plaintiff’s particular circumstances. But that is not to preclude the relevance and the potential for the second matter to have led to a similar conclusion. It is just that his Honour did not need to go further and decide the case by reference to the second matter that he had noted in paragraph [19]. I will take your Honour to Judge Driver’s analysis now. In our submission, the delegate ‑ ‑ ‑
HER HONOUR: How does Judge Driver’s analysis help me?
MR GRAY: Well, just because it is persuasive. It is a decision that our friends have referred to in their submission and what his Honour has said is a helpful rubric for how modes of analysis of internal relocation might lawfully proceed. Of course it is in no way binding your Honour. That judgment is at tab 13 of our friends’ bundle and the decision is called SZSQH v The Minister [2013] FCCA 817. Judge Driver at paragraph [10] notes that – this is on internal relocation of course, your Honour, again – paragraph 10, third sentence:
In considering the possibility of relocation, depending on the circumstances, a decision‑maker may take several approaches. A decision‑maker may find that an applicant would face a well‑founded fear of persecution in some areas of a country but that risk could be avoided by relocating to one or specific safe locations. In such an analysis the decision‑maker is drawing the boundaries of safety in particular locations in a country.
That is not the only way in which it can be done; that is one way in which it can be done. Paragraph [11]:
In other circumstances, however, where the risk is localised, it is in my view open to a decision‑maker to draw the boundaries of safety around the local area so that potentially the whole of a country may be safe outside the risk area. That is not to say that a decision‑maker can avoid considering the practicalities of relocation but in the present case –
he finds that “the tribunal did give adequate regard to that”, but I am referring to this for the analysis. I also note for your Honour’s attention that
some reference was given to, under the complementary protection provisions, express codification of the concept of internal relocation. Does your Honour have that at paragraph [12]? Your Honour should be mindful of that. It is perhaps an indication of parliamentary intention that there be equivalent treatment of the principle of internal relocation as between Convention protection under section 36 on the one hand and complementary protection on the other. The terms in which internal relocation is codified for the purposes of complementary protection do refer to:
an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm.
We say the test under general law concerning the Convention definition is no different. There has to be focus on an area and if the violence in question is not localised – and this was not such a case, of course – more particularity as to that area is required, otherwise there will be a miscarriage of consideration of the specific circumstances of the applicant. Those are the submissions on behalf of the applicant and plaintiff.
HER HONOUR: Thank you, Mr Gray. Mr Horan.
MR HORAN: If your Honour pleases, there are three factors to be addressed on the application for extension of time. The first is the extent of an explanation for the delay, the second is the prospect of success, and the third is the public interest in the finality of decisions of public bodies and officials. Those are the three relevant factors from Justice McHugh’s decision in Marks that are directly engaged in the present case. The Minister submits that, taking into account each of those three factors it is not in the interests of the administration of justice to make an order to extend time.
I will just note very briefly at the outset that this matter was listed as an application for an extension of time and I note from the plaintiff’s submissions that for the first time after 5 o’clock yesterday an application was made for final relief and a final disposition of the proceedings. Now, that may be a course that is open to your Honour, having heard full argument on the application for an extension of time. My recollection, although it is perhaps faulty, is that something similar may have happened in Plaintiff M13 which was heard as an application for an extension of time but resulted in both the time enlargement and substantive merits being dealt with in the same hearing.
But I just note that it is slightly unsatisfactory that the defendant has received for the first time notice of that relief sought by the plaintiff, having taken the liberty of some extra time to respond to our written submissions, but of course the defendant has not had any opportunity to respond to the plaintiff.
HER HONOUR: What is your position?
MR HORAN: Well, I am prepared to deal with the prospects certainly for the purposes of the extension of time application and our submission is that there are insufficient prospects to warrant the extension of time so that ultimately the Minister submits that there is no arguable case on either of the grounds of review and to a large extent that involves dealing with the substantive merits at a fairly high level of detail. It is a matter for your Honour ultimately. I am not seeking to object to ‑ ‑ ‑
HER HONOUR: Well, I want to know what the Minister’s position is. I do not think you can sit on the fence.
MR HORAN: No.
HER HONOUR: You either say that it is option one or option two, with no disrespect.
MR HORAN: Well, if your Honour would excuse me, I might just confirm my instructions.
HER HONOUR: Sure.
MR HORAN: Your Honour, my instructions are that the Minister is content for the matter to be dealt with on a final basis, but our primary submission is that the final basis will involve a refusal of the application for an extension of time. Now, in relation to the explanation for delay, the extent of the delay is of course significant. It is about 20 times the prescribed review period of 35 days or five weeks and your Honour has been taken on the last occasion to the observations of Justice McHugh in Ex parte Marks that a case must be very exceptional ‑ ‑ ‑
HER HONOUR: I do not think I need to be taken to those again.
MR HORAN: No, but the only point I was seeking to make from that case is that the circumstances need to be very exceptional to justify an extension of time of more than one year. Now, we accept that those comments were made in a different context, but that the time limits have been specifically applied by the Migration Act to the context in question and that reveals a legislative intention that, even in contexts including applications for protection visas or other rights to remain in the country, there are statutory time limits within which review must be sought, subject to an exceptional case justifying the exercise of the discretion to extend time.
Now, the two relevant periods - the first period was the period from November 2013 to 24 June 2015. The evidence indicates that notification of the ‑ ‑ ‑
HER HONOUR: We have been through all this. Do I need to have this outlined to me? I do not mean to dissuade you from it if you want to do it, Mr Horan, of course, but does your submission rise any higher than that the delay covers two periods, explanation unsatisfactory, and they are both factors which weigh heavily against the grant of relief sought?
MR HORAN: Yes. I just wanted to make some further points in response to my learned friend on the explanation for the delay. One significant point to note is that my learned friend said it is unclear from the evidence what the explanation was for that first period and in particular whether the plaintiff had advice about his avenues. It is significant to note that the plaintiff has not himself given evidence on that question, and if any inference is to be drawn on that question, the inference is an adverse one to be drawn from his failure to give evidence that he had no legal advice alerting him to the possibility of judicial review prior to June or July 2015.
The defendant’s submissions have referred to his admissions made in June 2015, when he was apprehended. They are contained in the compliance client interview, which is at exhibit CMM‑21. There is one further relevant page in addition to the page your Honour was taken to, which is page 9 of that interview. The first point is that, at the very least, that answer makes it clear that the plaintiff ‑ ‑ ‑
HER HONOUR: Is this the material that Mr Gray took me to? We are back on that page, yes?
MR HORAN: Yes. The plaintiff received advice from a lawyer, so he has received legal advice, and the advice was in relation to application to a federal court. He has received legal advice about judicial review at some stage prior to being taken back into immigration detention. The only other part of the interview which touches upon this is three pages earlier, at page 6, when the interviewer asks:
Are you intending to apply for any visas in Australia?
The response recorded is “Do not know”. Then in the “Comment/Details” box, he was asked –
If you weren’t located by the police today what were you intending to do regarding your immigration status?
I intended to get a lawyer and appeal to the federal court. That’s all I asked for.
Why haven’t you done that already?
I’ve been unemployed –
It marries with the later admission that he was aware of the avenue of seeking judicial review, and the reason given there for not having pursued that was, in essence, one would infer, a financial one. In any event, beyond that, we do not have any evidence from the plaintiff to explain those references in the client interview, or to directly explain to this Court why he did not commence these proceedings in that first period.
I need not say anything more about the second period; that is dealt with in our written submissions in relation to the cases about the election to seek ministerial intervention not being ordinarily an adequate explanation or justification for further delay in seeking review. Those cases are referred to in paragraphs 40 and 41 of the defendant’s outline.
Dealing with the prospects of success on the two grounds of review, if I could make two overarching points which apply to this Court’s consideration of both the grounds as put by my learned friend. The first is the orthodox proposition that the merits of the case and the factual findings to be made on the country information were matters for the delegate. It is not for this Court to consider for itself what findings or inferences should arise from the country information to which my learned friend referred, beyond considering the lawfulness of the delegate’s findings and whether or not they revealed legal error.
The second point is that in addressing that question of whether there is legal error, it is long accepted that the delegate’s reasons are entitled to a fair reading and a beneficial construction. The principal authority that is cited in that regard is the case of Wu Shan Liang (1996) 185 CLR 259 at 272. It was recently referred to by his Honour Justice Gageler in the case SZSCA, which dealt with relocation in an indirect way, [2014] HCA 45 at paragraph [50]. I think there is probably a reported citation to that case, so I apologise to your Honour; that is the media neutral citation. His Honour said there, referring to Wu Shan Liang:
The Tribunal’s reasons –
in that case –
for decision, of course, “are meant to inform and not to be scrutinised upon over‑zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.
At many points in my learned friend’s 20-step argument, he seeks to do exactly that. He seeks to have this Court reconsider the merits of the country information, and he seeks to zealously scrutinise the findings which were made by the delegate based upon a full consideration of that information.
The danger of extending the approach adopted by Justice Mansfield in DZADQ regarding active intellectual process is that it is a short step to having courts review for themselves the primary information, and in particular country information, that was before the decision‑maker, and to engage in impermissible merits review. If the invitation is to this Court to engage in the act of intellectual process of considering that information, that crosses the line beyond which judicial review does not extend.
Turning to the grounds in particular, the first ground deals with the reliance on demographic factors and statistical analysis. The Minister submits, for the reasons set out in the written outline, that the delegate did give active intellectual consideration to both the country information and to the plaintiff’s individual circumstances when determining that there was no real chance of harm faced by the plaintiff for reasons of his ethnicity or religion outside of Balochistan.
Without going in detail through the delegate’s findings, in summary, the delegate found that the plaintiff did not have any individual profile outside Quetta or Balochistan, and therefore he would not be recognised or targeted by extremists outside those areas. In other words, outside his home area of Quetta or Balochistan, there was nothing to distinguish the plaintiff from the general community of Hazara Shias.
Having made those findings, the delegate correctly addressed the question of whether Hazara Shias faced a real chance of serious harm or persecution for reasons of ethnicity or religion in areas outside of Quetta or Balochistan. In that context, it was not illegitimate to have regard to demographic factors. In this case, unlike in the case of DZADQ, this did not supplant a proper consideration of the risk of harm faced by the plaintiff, whether as an individual or as a member of the ethnic and religious group of Hazara Shias.
In particular, there was express consideration of the plaintiff’s profile, or lack of profile, together with the general information about risks faced by Hazara Shias throughout Pakistan. The finding that was reached was that simply being identifiable as a Hazara Shia would not give rise to a real chance of harm outside of Balochistan. Much of my learned friend’s argument seeks to go behind that finding, and attempts to draw out of the country information material that is said to be inconsistent with that finding.
One of the key findings in that regard, because it relates to the mischaracterisation of this case by the plaintiff as a case involving generalised harm as opposed to localised harm, is that it ignores the finding – it was outlined in one of my learned friend’s steps – which appears at page 12, point 2 of the page, in relation to targeting of persons by extremists.
HER HONOUR: Is this step 12?
MR HORAN: I think it is step 12, your Honour, yes.
HER HONOUR: It reads:
While extremists have been known to have a presence in cities all over Pakistan, the violence tends to be directed specifically against people with a profile.
MR HORAN: Correct. My learned friend ‑ ‑ ‑
HER HONOUR: He had four complaints. His complaint was that “tends” was not specific enough; second, it does not establish that low‑profile people are not targeted, or have a fear of persecution; and thirdly, that “tends” is not an exclusive or comprehensive finding.
MR HORAN: Yes. In relation to the focus on “tends”, that attracts the principle in relation to giving the delegate’s reasons a fair reading and reading them as a whole. It is overzealous to read that finding, which was clearly intended to be and was subsequently relied upon, as a basis on which the delegate found that the risk of violence to Hazara Shias from extremists was in relation to those people who had an individual profile. It is for those reasons that the delegate goes on to spend several paragraphs dealing in detail with that very question. The two paragraphs from the middle of the page onwards specifically address whether or not the applicant would be recognised or targeted outside Quetta, and the finding is:
I do not accept that the applicant has been personally targeted by [LeJ] or any other extremist group. I do not accept that he holds a profile outside of his home region that distinguishes him from the wider Hazara or Shia community.
I do not accept that any profile held by the applicant’s family is likely to place him at risk of harm outside his home region.
Now, those findings are specific. They are not couched in equivocal language of “tends”. They are based upon country information which includes that summarised at point 2 on the page, and step 12 in my learned friend’s analysis, that violence tends to be directed specifically against people with a profile. But that then leads to a finding of fact made by the delegate that the applicant does not face a risk of harm outside his home region by reason of any profile held by him or his family.
So, in that context, the references to the information that my learned friend took the Court to need to be read in that light. It is one thing to say out of context that there is information that LeJ operates with impunity throughout Pakistan, but if “operating with impunity” by LeJ or any extremist group relates to targeted attacks against people with a profile, then that is not sufficient to demonstrate the type of generalised harm on which my learned friend seeks to put the case.
On the findings of the delegate, this is not a case about generalised harm throughout Pakistan. It is a case in which there is a particular risk of harm in Quetta and Balochistan. Outside those areas, the risk of harm from extremists is limited to those who have a profile.
HER HONOUR: Where do I get that from?
MR HORAN: It comes from a combination of the finding that:
While extremists have been known to have a presence in cities all over Pakistan, the violence tends to be directed specifically against people with a profile -
and the subsequent consideration of whether or not the applicant’s profile would lead to any harm outside his home area. I could take the Court through the earlier country information and point out the various references in that information to persons being targeted, but I think I would be falling into the same error that would be subject to the same criticism that I level at my learned friend. It is not for this Court to assess for itself that information, but it was open on the country information before the delegate to conclude that the risk of harm outside of the plaintiff’s home area was in relation to targeted harm from extremists.
Now, against that background, the delegate did have to consider the position of Hazara Shias in general. Having made a finding that the plaintiff was indistinguishable from any other Hazara Shia, the plaintiff’s criticism that the delegate dealt with Hazara Shias in the abstract falls away, because that was precisely what the delegate was required to do, having dealt specifically with the question of individual profile and concluded that there was nothing to distinguish the plaintiff from any other Hazara Shia.
The remaining question was does any Hazara Shia face any, and if so, what, risk of harm? That is a question that then leads to the consideration of the demographic information as one factor – not the only factor, but as one factor in concluding that the risk of harm outside of the home area was remote.
In relation to the decision in DZADQ, if I could just go briefly back to the decision of Justice Mansfield in that case, which is at tab 9, the key points to emphasise are, as my learned friend noted, the relevant paragraph from the Tribunal’s reasoning which was the subject of his Honour’s consideration, and that appears at paragraph [54] at page 671, and also a subsequent paragraph from the Tribunal’s reasons at the following paragraph, in the judgment paragraph [55]. It is evident from that extract from the Tribunal’s reasoning that the only thing that was relied upon by the Tribunal in that case was the superficial analysis that because:
there are estimated to be over 40 million Shia Muslims in Pakistan . . . there is only a very remote chance that the applicant will be the victim of an incident of sectarian violence –
There was nothing more that the Tribunal pointed to, to reach its conclusion on “real chance”. That is then picked up by his Honour at paragraph [61] where the basis for his Honour’s conclusion is that:
That paragraph, apart from a statistical analysis, does not disclose any reason for the general conclusion which it contains . . . There was nothing else in the tribunal’s reasons that would explain how it considered the risk to be remote besides referencing that number.
So there really was only one sentence in the entire decision of the Tribunal that provided the foundation for its conclusion about the risk of harm to Shia Muslims. Paragraph [65] on the opposite page bears out that analysis, that, to quote his Honour, the Tribunal’s task:
was not done by the numerical analysis.
I think it has been accepted in subsequent cases that statistical analysis alone will not be sufficient to discharge the obligation to look at the question of whether or not there is a real chance of harm. But this case is very far from the facts of DZADQ in that there is far more consideration given by the delegate to the question of what risk of harm is faced by the applicant individually, the plaintiff individually, and as a member of the group of Hazara Shias.
In this case, unlike in DZADQ, there is no missing link. There is more than just reliance on a pure numerical or statistical analysis. There is an engagement with a range of country information to reach a finding of fact that, first, the applicant has no profile outside of his home area; second, that extremists target persons who have a profile; and third, that, taking into account all of those matters, Hazara Shias in general do not face a real chance of harm in some other areas in Pakistan. Then that leads to the second ground, which is the question about which other areas.
HER HONOUR: Shall we move to ground 2?
MR HORAN: Yes, your Honour. In relation to that ground, the Minister’s submission, as is evident from our written outline, is that there is no obligation on a decision‑maker to specify a particular place for relocation. The plaintiff’s submissions appear to acknowledge the long line of authority against that proposition, but seek to erect a new qualification on that principle in relation to cases where there is a generalised risk of harm throughout the entire country as opposed to a case in which the harm is localised to a particular region. For reasons I have submitted earlier, that analysis in this case is inconsistent with the delegate’s findings, because this is not a case in which, on the delegate’s findings, there is a generalised risk of harm throughout the entire country. Now, I wanted to just go to several of the cases mentioned in our written outline ‑ ‑ ‑
HER HONOUR: For what purpose?
MR HORAN: To show that, firstly, the plaintiff’s argument is not novel - it has been raised and rejected on numerous occasions; secondly, that the plaintiff is ‑ ‑ ‑
HER HONOUR: The argument being you have to specify a haven rather than an area?
MR HORAN: That you have to address internal relocation in relation to a specific area or areas. In essence, the plaintiff is seeking to rewrite the principles relating to internal relocation, and the argument would require, at the very least, disapproval of several decisions of lower courts, including those the correctness of which was accepted in special leave applications being refused to this Court.
HER HONOUR: I do not think you can rely upon that so much, but anyway – let us just deal with the principle.
MR HORAN: The starting point is the case of Randhawa, and I wanted to just go briefly to that. That is at tab 7 of the folder of authorities.
HER HONOUR: What proposition am I to get out of this case?
MR HORAN: The proposition is that it is unnecessary to specify a particular place for relocation, that the ‑ ‑ ‑
HER HONOUR: I do not quite understand where you are in disagreement with Mr Gray. Mr Gray took me to the authority which says – it is a decision of the Federal Circuit Court – the way in which you can do it is not prescribed; you can do it in a number of ways, depending upon, in effect, the circumstances. So why ‑ ‑ ‑
MR HORAN: If that is accepted, then the plaintiff’s argument on ground 2 cannot succeed. His argument turns on a proposition that the delegate failed to ‑ ‑ ‑
HER HONOUR: His proposition was, as my notes read, different approaches depending upon the circumstances, but if there is generalised persecution, you need to be more particular about the safe haven.
MR HORAN: Yes. The cases do not support ‑ ‑ ‑
HER HONOUR: Then he went on to deal with M13 and put emphasis on point 1, but not to the exclusion of the second point raised by Justice Hayne at paragraphs 19 to 22.
MR HORAN: Yes. I can deal with each of those points in turn. The devil is in the detail of my learned friend’s proposition. He says that in cases of generalised harm it is necessary to deal with the question with greater particularity. The first difficulty with that is he is assuming, incorrectly, that this is a case of generalised harm throughout the entire country, and that is not entirely consistent with the approach taken by the delegate insofar as the risk of targeted harm from extremists was not generalised – there was a generalised risk of targeted harm throughout the country, but there was not, on the delegate’s findings, a generalised risk of harm throughout the entire country to Hazara Shias who were not distinguished from any other member of that group.
The second problem is that his argument floats at a level of generality and does not grapple with what level of particularity is said to be required. Is it sufficient, as here, to identify three or four areas in which there are large Hazara communities, one of which includes two of his relatives – putting to one side the submissions about cultural considerations, which really appear to be directed to the merits. I should note in passing that there is that material before the Court from the protection visa application that the two sisters are married. That is contained in the middle of CMM‑1, which the protection application.
In this case, the delegate has addressed a level of particularity in that there is country information that is considered which looks at specific areas in which there are Hazara communities, and to which it is common for Hazara Shias to relocate. When the delegate makes his or her finding that there is no real chance in other areas of Pakistan it is done in the light of that country information.
What the cases show, and what I was seeking to briefly make good, was that there are other cases similar to the present in which it has been sufficient for a decision‑maker to point to several possible places of relocation without specifically identifying the safe haven in question. In some cases, what Judge Driver was addressing was really a more black‑and‑white situation where it was clear that you could define an area positively by looking at specific safe areas, or negatively by saying the only dangerous area is the applicant’s local area; every other place in the country is safe.
Those observations were made with particular regard to the complementary protection requirement in section 36(2B)(a) and one has to be cautious about translating that directly to the general internal relocation principles under the Refugees Convention. That is certainly one approach that would be permissible under the Convention, but it is not the only approach, and the cases show that it is sufficient for a decision‑maker to identify one or more possible safe areas in respect of which there are no practical impediments to relocation, and looking at the personal circumstances of the applicant, as the delegate did here, reach a conclusion that it is reasonable and practicable to relocate to any of those areas at the choice of the applicant.
The reason I wanted to go briefly to Randhawa was just to note that the findings in that case in some respects have echoes of the findings that were made and the approach that was taken by the delegate in the present case, so that it is instructive to look at the way in which the court approached both the findings in that case and the arguments that were raised on judicial review. If I could take your Honour to, in Chief Justice Black’s judgment at page 439, point D, the first finding, which was the reason why the application was rejected, it was:
on the basis that the applicant could live safely outside of the Punjab and that it would not be unreasonable to expect him to do so, particularly as he has lived outside the Punjab previously.
Then down at point F there is a finding on the basis of advice in Department of Foreign Affairs and Trade cables that:
the applicant could reasonably be expected to relocate to another area of India.
Then finally, at the top of the following page, 440 at point A, the finding was:
it is not unreasonable for the applicant to relocate for the following reasons:
·the DFAT cables advise that there are large communities of Sikhs in several areas outside the Punjab, thereby providing the opportunity for the applicant to live with a Sikh community if he relocated; and
·the applicant has lived outside the Punjab previously.
That is similar in some respects to the facts of the present case. At point F on the same page the argument that was advanced to the court by the appellant is identified and the appellant in that case contended that the decision‑maker’s duty required consideration of:
a series of specific matters . . . including the area, city or region to which it was contemplated that an applicant could relocate and also what counsel described as the general lifestyle adjustments that would need to be made by a person were he or she to relocate –
That argument was rejected at page 443 by Chief Justice Black where his Honour concludes at point C – does your Honour have that:
However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant.
HER HONOUR: Where is this?
MR HORAN: It is at point C of the page.
HER HONOUR: On what page?
MR HORAN: Of page 443, I am sorry, your Honour.
HER HONOUR: I see.
MR HORAN:
Once the question of relocation had been raised for the delegate’s consideration, she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision‑maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision‑maker’s task will be largely determined by the case sought to be made out by an applicant.
So here the finding was a conclusion that the appellant could reasonably be expected to relocate elsewhere in India, in particular in areas where large numbers of Sikhs reside. Just for completeness, your Honour, the DFAT cables which were referred to by Chief Justice Black are set out in more detail in Justice Beaumont’s judgment at page 445.
HER HONOUR: I understand why you are taking me to this decision and I understand the principle that is set out there, but this is not some sort of comparison on fact case, is it? I do not sit here and compare it with the facts set out in this case. I take the propositions which are set out there that it is not needed to be specific, that you cannot do it generally and you have to somehow do something in between which determines two questions: where can they go and can they do it?
MR HORAN: And can they reasonably do so.
HER HONOUR: Yes. There is nothing more, is there?
MR HORAN: Well, there is not, but the cases are instructive. I will not go through them in detail. I will leave your Honour to – they are set out in paragraph 62 of the defendant’s outline, but the important cases referred to there are the decision of Justice Downes which is SZFYV, which stands for the proposition that there is no obligation on a decision‑maker to satisfy him or her or itself that there was a particular place for relocation.
I would just ask your Honour – I will not go through them, but there are two cases which are very similar, one which is almost identical in factual findings to the present case. The case of SZSEW, the findings of the Independent Protection Assessor are set out at paragraphs [16] to [18] of that judgment, and the ground of review in relation to failure to address a specific location or place of relocation is set out at paragraph [19] in ground 1(d) and Judge Cameron rejects that ground at paragraph [23].
But more on point, at least factually, is the decision of Federal Magistrate Smith in SZQBC - I will just double check I have the correct case – where the findings of the Tribunal in that case are set out at paragraphs [12] to [14] of his Honour’s judgment and they have quite a close similarity to the findings made in the present case. The ground of review was set out again at paragraph [19] and it was particular 1(d) that the Tribunal failed:
to specify where in Pakistan it would be reasonable for the applicant to relocate.
That was held not to involve jurisdictional error, at paragraphs [34] to [38]. But in particular the use of these decisions is instructive because they postdate the decision in Plaintiff M13/2011.
HER HONOUR: They what, sorry?
MR HORAN: These decisions deal with the argument in the light of the decision in Plaintiff M13, so that it shows the point of distinction as to why that decision does not govern a case such as the present. So his Honour, Federal Magistrate Smith, as he then was, deals with what the decision in Plaintiff M13 stands for at paragraphs [35] and [36] and the case is explained as one of failing to address the particular circumstances of the plaintiff in that case in dealing with whether relocation was reasonable. His Honour concludes at paragraph [36]:
I do not read his Honour as suggesting that the identification of an area of lesser risk in a country, that is, lesser than a real chance, is required to be identified by a delegate with any particular degree of precision, before applying the principle of relocation. As I understand the authorities, what is needed is that the decision‑maker must be satisfied that the real chance of persecution facing the applicant if he returned to his country of nationality would be localised to a particular area, so as to allow a geographic distinction in relation to other areas presenting only a lesser risk of the feared persecution.
So in this case, at paragraph [37], his Honour did not accept that the Tribunal:
having identified the area of heightened risk amounting to a real chance of Convention‑related persecution facing the present applicant as being “Quetta and Baluchistan,” was bound to identify with more precision the areas where it envisaged that the applicant could relocate so as not to incur a real chance of persecution for Convention reasons in Pakistan.
The country information relied on was essentially the same and the conclusion reached by the Tribunal was essentially the same as the delegate’s decision and reasons in the present case, that is, that there were safe areas to which Hazara Shias could relocate. So in that sense we say that on its facts that decision is particularly instructive.
HER HONOUR: It sounds like merits review to me.
MR HORAN: Well, it is an application of the legal ground on which my learned friend relies to facts which are very similar to the present case, and it would require disapproval of this decision for the applicant’s argument to be accepted. So I rely generally on all of the other cases that are referred to in paragraph 62 of the outline.
HER HONOUR: Just so I understand you completely, why do I need to go to each of these, other than - well, why do I need to go to each of these authorities, none of which bind me at all?
MR HORAN: They were relied upon in advance of getting submissions from the plaintiff to support ‑ ‑ ‑
HER HONOUR: No, I understand that but I am asking now what am I looking at them for?
MR HORAN: To support the proposition that there is no general or universal requirement that a decision‑maker applying the internal relocation principles must specify with any particular degree of precision the place to which the applicant or plaintiff can reasonably relocate. What is required to be addressed is whether there are areas in which there is no real chance of Convention‑related harm - let us call those safe areas - to which it would be reasonable in the sense of practicable for the applicant to relocate.
That is a two‑stage test. It is not argued in this case that the delegate did not address the second stage in terms of looking at the personal circumstances of the plaintiff and the impact of relocation on him. I think it is conceded that the paragraphs in the reasoning which were identified at step 17 involved consideration of the personal circumstances that bear upon the impact of relocation.
The way in which the point is put is that it was not possible for the delegate lawfully to consider the impact of relocation without identifying a particular or specific safe area to which the applicant could relocate. There was not anything before the delegate to indicate that there was any particular impediment to the applicant returning or relocating to areas outside of Balochistan.
So, in one sense the question may, as your Honour pointed out, merge into the first question about whether there was sufficient identification of safe areas and whether that was properly addressed and that is the subject of ground 1. But ground 2, although related to ground 1 seeks to advance a discrete point that the delegate failed to look at the particular circumstances as required by the principles applied in Plaintiff M13 because there is no finding about specific areas to which the plaintiff can relocate.
The first point is that Plaintiff M13 does not stand for the proposition that a failure to identify a place or places to which a plaintiff can relocate necessarily involves an error of law because that case turned upon different facts and circumstances and in particular a complete failure to address any of the personal circumstances of the plaintiff, for example, where she was living before when she left Malaysia and how she could live in anonymity in another area. So it was not really a case that has any bearing upon the present.
The other cases show that a finding that is made in relation to other areas within the country of reference can be a proper finding in the application of the internal relocation principles provided that the delegate or decision‑maker has turned his or her mind to whether or not, firstly, those areas would be safe in the sense of areas in which the plaintiff would not face a real chance of Convention‑related persecution, and, secondly ,whether it would be reasonable in the sense of practicable for the plaintiff to move or relocate there and each of those steps was performed in the present case.
So, perhaps turning finally to the findings that were made in that regard in the delegate’s decision, firstly, we say the findings have to be looked at as a whole and it is difficult to separate the question of identification of safe areas for relocation from the question addressed by the first ground which is the assessment of the risk of harm faced by Hazara Shias outside the plaintiff’s home area, but the delegate did address that question in sufficient amount of specificity by referring to country information at the bottom of page 12 and onto the top of page 13 about locations in which Hazara communities exist, those being and including Karachi, Lahore, Multan and perhaps Islamabad and that in those areas the plaintiff would not face a risk of harm as a Hazara Shia for reasons of his ‑ ‑ ‑
HER HONOUR: I understand that they are the reference to, on your submission, the areas that would be safe on the first limb.
MR HORAN: Yes.
HER HONOUR: Where is the finding that says that the plaintiff would not suffer - face real chance of harm in those areas?
MR HORAN: It is a finding ‑ ‑ ‑
HER HONOUR: Do I have to come down to step 20?
MR HORAN: I think one can go both back to step – I should have written these against the paragraphs of the reasoning – but page 12, point 5, which is step 16.
HER HONOUR: Well, we have been there. That is just identifying the areas so we have done that.
MR HORAN: I am sorry. The finding I was referring to was on page 12 at point 5:
I am of the opinion that the chance that the applicant would be seriously harmed due to his religion or race is remote.
That is talking about areas outside of Quetta or Balochistan which are then dealt with in the following paragraphs and then, at page 13, after referring to the areas in which there are Hazara communities or settlements, the findings are made from point 5 of page 13 onwards, but in particular the paragraph commencing “While I accept” and the delegate finds that:
While I accept there would be challenges in doing so, I can find no evidence that it is not possible or reasonable for the applicant to relocate to areas outside of Balochistan.
Now, the delegate in referring to ‑ ‑ ‑
HER HONOUR: Mr Gray says that is a reverse of the onus.
MR HORAN: Well, that is not a ground that is specifically raised in the application so if that is relied upon independently as an error, there is no onus that applies to administrative decision‑making and on a fair reading, all the delegate is saying is that there is nothing before her to suggest that the applicant cannot relocate to an area outside of Balochistan and those areas include ‑ ‑ ‑
HER HONOUR: I understand, but we are dealing with the first limb of this bit, so we are dealing with areas safe where the plaintiff will not face a real chance of persecution.
MR HORAN: Yes.
HER HONOUR: At the moment we have, as I understand the way you put it -I put to one side for the moment the general observations which I clearly have in the front of my mind - we have the findings of the areas themselves ‑ ‑ ‑
MR HORAN: Yes.
HER HONOUR: ‑ ‑ ‑ at the bottom of page 12 and to the top of page 13. We have the finding in the middle of page 12 which was described as at the end of step 13, that:
given the large numbers - in terms of population . . . in considering the applicant’s profile, I am of the opinion that the chance that the applicant would be seriously harmed due to his religion or race is remote.
Where is the link that says those areas identified are areas where the plaintiff would not face a real chance of persecution?
MR HORAN: It is tied up with the findings in relation to targeted violence from extremists being directed against people with a profile. The findings that the applicant does not have a profile outside of his home area, and therefore, the chance that he will be seriously harmed due to religion or race falls to be determined on the basis of the risk faced by any member of the group, Hazara Shias. There are two relevant aspects of geographical specificity that the delegate refers to. The first is at page 11 at point 8 on the page, the second‑last paragraph, where the delegate accepts that:
some localities are too dangerous to be considered for relocation.
The delegate foreshadows there that there are places in Pakistan which do not fall into that description, which are identified as places –
where every aspect of life is not overwhelmed by conflict and a fear of extremist groups.
The delegate then goes on, immediately following that, to note that although extremists have a presence across all of Pakistan –
the violence tends to be directed specifically against people with a profile.
I have addressed that finding. Then the finding is made that the applicant, as someone without a profile, does not face any more than a remote chance of being “seriously harmed due to his religion or race” in areas outside of Balochistan.
Against that background, if one then looks at the findings at the bottom of page 12 and the top of page 13 as identifying areas in which many Hazaras live and, furthermore, areas to which many Hazara Shias relocate to avoid the threat of harm in Quetta, that when the delegate concludes that the applicant can relocate to an area – this is at point ‑ ‑ ‑
HER HONOUR: Point 5 on page 13.
MR HORAN: Or point 7 on page 13, identifying the question for consideration as:
whether the applicant can relocate to an area within his country of reference where he does not have a real chance of being persecuted for a Refugees Convention reason.
That is referring to areas other than those that are too dangerous to be considered for relocation. In particular, it refers to the areas in which there are large Hazara communities or settlements, including those in Karachi, Lahore and Multan. On a fair reading, what the delegate is doing is saying that outside of your home area, there are other areas that are, firstly, safe, and secondly, to which you can reasonably relocate. We submit that that is an orthodox and conventional approach, and that any attempt to divide up that analysis into discrete steps and seek to examine or analyse each step in isolation from the other is inconsistent with the proper approach to review of decisions of this nature.
There are cases in which similar approaches have been adopted to that adopted in the present case, including in Randhawa itself, which have passed muster when scrutinised on judicial review. In my submission, nothing has changed since Randhawa which would render this approach, and this analysis, impermissible, bearing in mind that this is a delegate’s decision and not a Tribunal decision, reasoned and considered, that they address the particular circumstances of the applicant and they reach findings that are open in relation to the risk of harm faced by Hazara Shias without a profile in areas outside of Quetta and Balochistan.
That finding of fact, that there are areas outside those regions that are safe, combined with the consideration of whether or not the applicant can reasonably relocate – taking into account all of his particular circumstances – are sufficient to lead to the conclusion that protection obligations were not owed because of the application of the internal relocation principle.
Now, in summary, and to conclude, in essence, the approach adopted by my learned friend is, in ground 1, to try and draw an analogy between this case and the case in DZADQ. That analogy is flawed, because it is quite clear that the Tribunal’s reasoning in that case was completely different to the reasoning in the present case, and the conclusion on “real chance of harm” was based on nothing more than a pure statistical analysis.
In this case, as in several cases in the Federal Circuit Court since DZADQ, the consideration of the individual circumstances has not been supplanted by a mere statistical or numerical analysis. It is permissible to refer to demographic information as one of the factors that inform an assessment of the risk of harm to the plaintiff, both individually, but more relevantly here to the plaintiff as a member of the general ethnic and religious group to which he belonged.
The second ground seeks to draw an analogy with the circumstances in Plaintiff M13, and again, the analogy is flawed, because that case does not stand for the proposition for which it is advanced and relied upon. It stands for the quite conventional proposition that a delegate must address all of the particular circumstances of the individual applicant in applying the internal relocation principles.
In that case, there were multiple defects revealed by the delegate’s reasoning which showed a complete failure to take into account the individual circumstances of the plaintiff in that case. But critically, in that case, it turned upon a complete failure to address even the place where the plaintiff had been living before leaving Malaysia, and no consideration of how, in a practical sense, the plaintiff could maintain anonymity in a place of relocation.
The present case is far different. It is much closer by way of analogy to the approach adopted in cases such as Randhawa, and in more recent decisions such as SZSEW and SZQBC in the Federal Circuit Court. As in those cases, the challenge to the legality of the decision should not succeed. For those reasons we say that the grounds do not have sufficient prospects of success and do not raise an arguable case, so that the Court should refuse the application for an extension of time. I did refer to the third point earlier. That was ‑ ‑ ‑
HER HONOUR: Interests of justice.
MR HORAN: ‑ ‑ ‑ the public interest in finality, and I do not really seek to elaborate that, but just to reiterate that that is a relevant factor. It is not a specific prejudice to the Minister per se, but it is a general interest in prescribed time limits, whether by statute or by Rules of Court, to be observed and not simply to pay lip service to those requirements by engaging in a full argument of the merits of grounds, and just determining in every case the extension of time application simply backwards after having formed the view on the merits.
But of course, in cases like this, and in many other cases, the Court will, in dealing with the extension of time, address whether or not there is an arguable case on the merits, and in many cases, the reasons for refusing are supported by a finding that there is no arguable case. There is independently of both the explanation for delay and the prospects of success a public interest in upholding or observing prescribed time limits in schemes such as the present. If your Honour pleases.
HER HONOUR: Thank you, Mr Horan. Mr Gray.
MR GRAY: Your Honour, I will deal with the last point first and then I have got four topics for reply, if I may. On public interest there is undoubtedly a public interest in the general ‑ ‑ ‑
HER HONOUR: I do not think you need to address it.
MR GRAY: This is a mentally ill man, it is an exceptional case. Now, the first topic for reply is the assertion made by our friends against us that we are infringing the principles in Wu and the specific bases for levelling that charge against us I think focused on my taking your Honour through the country information in the first instance and then specifically in referring to the paragraph at step 12 dealing with the finding or the observation that the violence tends to be directed specifically against people with a profile. I will just deal with the point at a general level and then I will dive into some specifics.
Your Honour, I am acutely conscious of Wu and of the borderline between impermissible merits review and judicial review. My purpose in taking your Honour through the country information – and I will take your Honour to a specific reference by Justice Mansfield, his judgment in a moment – was to demonstrate to your Honour that in the absence of specific findings as to the scope of violence and particular safe havens, the country information speaks for itself and it is not only permissible to take the Court to it, it is incumbent upon me to take the Court to that material.
This is a decision, like many administrative decisions, not perfectly expressed. That is not the point. We are engaged in an exercise to try to discover the logic which has actuated the mind of the delegate in deciding this case against my client, this visa application against my client, and it is perfectly legitimate to engage in that endeavour and having exposed the reasoning, the path of logic adopted by the delegate as best we can within the confines of the language used, to then make submissions as to whether legal error is demonstrated by reference to the reasoning thereby exposed. That is what I have been doing.
Can I now turn to “tends”? Step 12 was always going to be an important step and it has been revealed by my friend’s submissions that in the Minister’s analysis of the delegate’s decision it is an important step because what is said is in defence, if you like, of step 13, step 13 was but one factor. There is another. I think in essence what my friend, Mr Horan, is saying is that there are two factors relied upon in the critical issue of the extent of violence or well‑foundedness of fear of persecution of Shias. I say Shias advisedly because this aspect of the decision – step 12 and 13 – is only dealing – only dealing with Shias – can I come back to that in a second.
Step 12 and the word “tends”, I do not mean to load up “tends” with more weight than it can bear. It means what it says. It is a tendency point that the delegate is making. It is nothing more than that. It is not in terms nor in the logic revealed within a proper beneficial reading of what is said intended to be an exhaustive finding. It is not intended to be an exhaustive finding by any means. It is not a finding nor could it be that the violence faced by Shias ‑ ‑ ‑
HER HONOUR: I think this is part of your submissions in‑chief. There is no need to repeat those submissions.
MR GRAY: Very well, your Honour. Could your Honour please have regard to step 4 when assessing this point because the material accepted by the delegate included clear country evidence that people who did not have a profile would have been hauled out of buses, et cetera, and executed - step 4 on page 9, including in Punjab and Karachi, supposed cities to which people can move.
Now, I will just round up on this issue, your Honour. The other factor in support of our friend’s analysis to the effect that there is an adequate identification of the extent of the well‑foundedness of fear in Pakistan depends on step 13. Even viewed in light of step 12, which at best is a non‑exhaustive tendency point, even if steps 12 and 13 are viewed in combination it is still just a numerical analysis.
Can I ask your Honour to have special regard to paragraph [65] of Justice Mansfield’s decision and the words his Honour used to express the legal error he found resonate with particular relevance to this case even if 12 and 13 are read together. As my friend said, at the middle of [65] his Honour’s encapsulation of the point was that the decision‑maker could not do the task by “numerical analysis”.
If it be the case that there is nothing to distinguish the appellant from other Shia Muslims in Pakistan by analogy here, that is in essence where my friend’s analysis ends up, that there is nothing, absent his profile in Balochistan to distinguish him from Shias and Hazaras in Pakistan, if that be the case – I am going back to Justice Mansfield’s remarks, then:
provided the country information (common to both the delegate and the tribunal) stands, it is hard to see how the conclusion of the tribunal is sustainable.
His Honour has inferred error by reference to the country information. That was the purpose for which I took your Honour to it. It is a necessary background to the submission:
If there were some small or local sectarian violence, the picture the country information indicated would not be so dramatic or compelling. To the contrary, the picture appears to be that it is coordinated, pervasive and effective, and the Taliban are presented as a cogent and broadly spread instrument of its application. It should not be adequate, in the face of such data, to say in effect that although a significant number of Shia Muslims will be severely harmed or killed by that pervasive targeted violence because you as a target group are numerous, the chances of any particular one of you being as harmed or killed is not a real one or is fanciful.
This is on all fours with the reasoning of the delegate and it exhibits Chan error. It is a misconstruction and a misapplication of the well‑founded and real chance test.
Next, your Honour, my friend submitted that this was not a case of generalised harm throughout the country. I took your Honour through the country information and I demonstrated to your Honour that this was a case with perhaps a quixotic reference at point 11:
Yet there are places in Pakistan where every aspect of life is not overwhelmed by conflict and a fear of extremist groups -
without any specificity at all, just a reference to a cable and we do not get a cable, or a CISLIB document. We do not get the detail, but it is not a finding. Apart from that quixotic reference, the country information demonstrated that this is a case of generalised harm throughout the country. In particular one has LeJ with its mission to eradicate Shias and in particular Shia Hazaras from every nook in Pakistan and a finding that they act with impunity even in areas where the government otherwise has authority.
Your Honour, where does my friend’s submission, I ask rhetorically, come from that this is not a case of generalised harm throughout the country? I took your Honour through the country information, my friend did not. Next, your Honour ‑ ‑ ‑
HER HONOUR: This is the fourth point in reply?
MR GRAY: Yes, this is the third point in reply, Randhawa and SZQBC. Your Honour, please have regard to page 439 of Chief Justice Black’s judgment at extract at paragraph 5.6.5. Randhawa was a case of localised violence in the Punjab; it was not a case of generalised violence throughout India in respect of people who had been members of the Akali in Punjab.
Just dealing with this under the third reply topic, SZQBC, that is a 2011 decision of the Federal Circuit Court. It is redolent, when one looks at the reasoning that was adopted by the Tribunal, of the sort of numerical error identified by Justice Mansfield in 2014 in the later case of DZADQ. That judgment, of course, was not available – had not been decided at the time that SZQBC was decided in 2011.
In addition, your Honour, can we just note that it may well be the case – this is at tab 14, SZQBC – it may well be the case that Federal Magistrate Smith was dealing with a merits decision, it was a decision of the RRT, which did descend to specificity as to safe havens by reference to country information that was surveyed but that aspect of the Tribunal decision does not appear in the judgment.
I refer your Honour in this regard to paragraph [14] of the Federal Magistrate’s judgment. It extracts paragraph 76 of the Tribunal’s decision. Paragraph 76 of the Tribunal’s decision refers back to earlier paragraphs for the proposition that there are places in Pakistan where – and the language is quite familiar – “where every aspect of life is not overwhelmed by tribal and sectarian conflict”, et cetera. We just do not know, perhaps safe havens were identified, perhaps they were not.
Fourthly, your Honour, my friend addressed – and this is my final topic for reply – by reference to pages 12 and 13 of the decision and made submissions that, in effect, there is to be gleaned on a fair reading of the case or of the decision, I should say, there is to be gleaned a set of findings amounting to a finding that violence outside Balochistan is, in effect, limited – this is how I understood my friend’s analysis – limited to being directed specifically against people with profile. That is wrong. That was not the finding.
That is inconsistent with the finding such as it exists that was made. There was no such finding, and also that areas were identified and there is reference there to Karachi, Lahore and Multan, and that it is to be gleaned – this is my take on my friend’s submission – that it is to be gleaned from the decision that the delegate was satisfied that there is no well‑founded fear of persecution in those places.
Your Honour, if or to the extent – I disagree, with respect, with my friend’s analysis. Firstly, there is not any such finding. Your Honour asked where are you to find the link and your Honour will not find the link. That finding is made. If your Honour were to be persuaded against my submission on that point, I ask rhetorically, where is the only place in the decision that that link could be supplied? It is step 13, the numerical analysis. Furthermore, the numerical analysis ‑ ‑ ‑
HER HONOUR: I think that is unfair, Mr Gray, and this is the problem about making it piecemeal. In the end, I think the way it was put against you was that you started before step 11 with the acknowledgement there were some localities too dangerous to be considered for relocation. He then went to step 11:
Yet there are [some] places in Pakistan where every aspect of life is not overwhelmed by conflict and a fear of extremist groups.
He then moved to step 12 which said to say that:
While extremists have been known to have a presence in cities all over Pakistan, the violence tends to be directed specifically against people with a profile.
Then go to step 13, no profile, the end of 13.
MR GRAY: I am sorry, no. I meant to submit, your Honour, that step 13 is the numerical analysis. Absent a profile he is just a Shia and the numbers of Shia are so large that there is only a remote chance that he would be seriously harmed.
HER HONOUR: Yes.
MR GRAY: That is step 13, and the “no profile” point is essentially step 14, but it is a predicate, if you like, of step 13. I accept that.
HER HONOUR: Then Mr Horan took me to step 14, 15, 16, part of 19 and then 20.
MR GRAY: Yes, and my submission is my friend is submitting that there have been areas identified in which on a fair reading the delegate has expressed satisfaction that my client does not face a well‑founded fear of persecution, or does not have such a fear. Now, my submission is that – I made the submission about step 12, that is a non‑exclusive finding and it could not be an exclusive finding because of the country information. This is the submission: the only point that in any rational sense can supply the
missing link, that is, the link between the areas and an assessment of well‑foundedness of fear is the numerical analysis. Stripped away of profile and of the risk of being targeted as a high‑profile person ‑ ‑ ‑
HER HONOUR: Why do I strip away the profile?
MR GRAY: Well, because I have made the submission – it is only if you accept this submission. I have made the submission that step 12 is a non‑exclusive finding just about tendency. It is not a finding that people without a profile do not face a risk. It is simply that those terrorist organisations tend to direct their violence specifically against people with a profile. It does not say they do not also bomb people going to buses or vegetable markets, as step 4 says. They do. It is horrifying material, step 4.
Furthermore, your Honour, I adverted to this in running through, it is important. Step 13, the numerical analysis, I say it is the only possible link between the areas and well‑foundedness of a person who is not accepted as having a high profile and it is a pure numerical analysis that falls foul of the principles articulated by Justice Mansfield.
Furthermore, and this is an additional error in this case, the numerical analysis only dealt with religion and not race. The last line says something about religion or race, but all the numerical material that is dealt with in that paragraph is about the numbers of Shias, not the much smaller numbers of Hazaras. Those are the submissions in reply.
HER HONOUR: Thank you.
MR HORAN: Just one point, with your Honour’s leave, I just wanted to – I meant to make this point in my submissions, but in distinguishing Justice Mansfield’s decision in DZADQ, the Minister is not taken to concede the correctness of the analysis in that decision. It is just that we primarily say it is a different case and this case is different, but there is a further question of whether or not the analysis about the use of demographic information is correct. I only say that insofar as we do not adopt or endorse the correctness of the analysis that his Honour engages in in paragraph [65] in particular.
HER HONOUR: I understand. In the circumstances and given the detailed submissions, including the ones I got last evening, I propose to reserve my decision and publish, I think, reasons for decision. It is unlikely that I am going to get those finished today I think, Mr Horan. I understand that the order I made on the 1st expires at 4.15 today. Do I need to extend that or is that the subject of an undertaking from your client?
MR HORAN: I think your Honour will need to extend it. I do not have instructions to give an undertaking, but I do not have any instructions to make submissions opposing the extension of relief. On my instructions, there is no foreshadowed removal now that the removal that was planned for 1 September having passed - there are no further arrangements on foot to remove the plaintiff.
Now, it may be that I can get instructions to give 48 hours’ notice to my learned friends of any such arrangements, so rather than undertake not to make those arrangements but simply it may be that – extension of the injunction may be unnecessary in the absence of any specific proposal to remove.
HER HONOUR: That is what I am asking.
MR HORAN: Yes. Well, perhaps if I can just see if I can get those instructions now.
HER HONOUR: Certainly. Why do I not leave it on this basis, rather than your instructor run out. It is only half past 12. I am going to leave it on the basis that I expect that the Minister will give 48 hours’ written notice to the plaintiff’s solicitors if there is to be a foreshadowed removal. If that position is not the position then you will let me know this afternoon and I will extend the order. Is that all right?
MR HORAN: Yes, if your Honour pleases.
HER HONOUR: Is that all right with you, Mr Gray?
MR GRAY: Your Honour, I submit that your Honour should simply extend the order to some comfortable – to some time that gives a comfortable margin for your Honour to give your decision in this case and provides for a little bit of leeway afterwards. This is a serious matter, of course, and we just do not wish some sort of misunderstanding to take place or anything untoward to happen and that is the safest course. Your Honour saw fit to grant the order in the first place.
HER HONOUR: I do not know that the extension is warranted. Let us just see what happens this afternoon. If there is a position given whereby the Minister says he will give at least 48 hours’ written notice, then ‑ ‑ ‑
MR GRAY: Yes, your Honour. If that does not happen we will perhaps renew our application. If that does not happen by 4.15 today, we will renew our application, I think.
HER HONOUR: Well, why not do it earlier than that? I mean, I am sure that Mr Horan’s instructor can tell me by, I do not know, 2 o’clock what the position is. If the position is not that position that I expect it will be ‑ ‑ ‑
MR GRAY: Yes, I think we all understand, your Honour.
HER HONOUR: ‑ ‑ ‑ then I will revisit the question. Can I thank you for your submissions and the Court will let you know. I do not think I will be very long but I just cannot guarantee it will be this afternoon. Is that all right?
MR GRAY: Thank you, your Honour.
HER HONOUR: Thank you, adjourn the Court.
AT 12.25 PM THE MATTER WAS ADJOURNED
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