WZAQE v Minister for Immigration

[2013] FCCA 97

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAQE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 97

Catchwords:
MIGRATION – Judicial review – independent merits review – relocation within Pakistan – alleged denial of procedural fairness.

Legislation:
Migration Act 1958 (Cth), ss.5(1), 46A(1) and (2), 424(3), 476

Cases cited:
Minister for Immigration & Citizenship v SZQHH & Anor (2012) 200 FCR 223; [2012] FCAFC 45
Muin & Anor v Refugee Review Tribunal & Ors (2002) 190 ALR 601; [2002] HCA 30
Plaintiff M61/2010E & Anor v The Commonwealth of Australia& Ors (2010) 243 CLR 319; [2010] HCA 41
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909; [2003] HCA 60
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63
SZQDZ & Ors v Minister for Immigration & Citizenship & Anor (2012) 200 FCR 207; [2012] FCAFC 26
SZQFY v Minister for Immigration & Citizenship [2012] FCA 486
VHAP of 2002 v Minister for Immigration & Multicultural Affairs (2004) 80 ALD 559; [2004] FCAFC 82

Applicant: WZAQE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: PEG 406 of 2011

Judgment of: Judge Lucev

Hearing date: 27 July 2012

Date of Last Submission: 27 July 2012

Delivered at: Perth

Delivered on: 24 April 2013

REPRESENTATION

Counsel for the Applicant: Mr H Jackson

Solicitors for the Applicant: CASE for Refugees

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 406 of 2011

WZAQE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application under s.476 of the Migration Act 1958 (Cth),[1] amended on 30 May 2012, for a declaration and an injunction against the first respondent, the Minister for Immigration and Citizenship.[2] The applicant alleges that he is entitled to declaratory relief in respect of the second respondent’s[3] recommendation of 11 November 2011[4] that the applicant not be recognised as a person to whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees.[5]

   [1] “Migration Act”.

   [2] “Minister”.

   [3] “IMR”.

   [4] CB 199-223 (“IMR Recommendation”).

   [5] Collectively “the Convention”.

Background facts

1. Uncontroversial background facts are as follows:

   a)the applicant is an ethnic Pashtun, a citizen of Pakistan, of Sunni religion and from the Jaji (or Zazi) tribe from the Kurram province in North West Pakistan. The applicant arrived on Christmas Island on 13 August 2010;

   b)on 7 September 2010, the applicant was interviewed by an officer of the Department of Immigration and Citizenship[6] on Christmas Island, and applied for asylum under administrative arrangements established by the Department and described by the High Court in Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors;[7]

   c)the applicant satisfies the definition of an “offshore entry person”,[8] and under s.46A(1) of the Migration Act is therefore prohibited from applying for a protection visa;

   d)section 46A(2) of the Migration Act provides the Minister with the power to “lift the bar” which is imposed by the prohibition under s.46A(1) of the Migration Act;

   e)the administrative processes are designed to determine whether an applicant satisfies the definition of a refugee, and to “inform the Minister of matters that are relevant to the decision whether to exercise his statutory powers in favour of an offshore entry person”;[9]

   f)under the arrangements in place, the applicant requested a Refugee Status Assessment.[10] Having considered the material provided by and on behalf of the applicant, the Minister’s delegate[11] determined on 23 November 2010 that the applicant did not meet the definition of a refugee set out in Article 1A of the Convention;[12]

   g)the RSA Decision was reached on the basis that “the internal flight option is both relevant and reasonable and [the RSA Officer did] not accept that the applicant cannot relocate to others [sic] parts of Pakistan if he returns to that country and does not want to return to the Kurram Agency”;[13]

   h)on 7 December 2010 the applicant requested independent merits review of the RSA Decision. The IMR conducted an interview[14] with the applicant on 24 October 2011;[15] and

   i)on 11 November 2011, the IMR determined that the applicant “not be recognized as a person to whom Australia has protection obligations under the 1951 Convention”.[16]

   [6] “Department”.

   [7] (2010) 243 CLR 319 at 342-345 and 351-352 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.38-52 and 73 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”).

   [8] Migration Act, s.5(1).

   [9] SZQDZ & Ors  v Minister for Immigration & Citizenship & Anor (2012) 200 FCR 207 at 210 per Keane CJ, Rares and Perram JJ; [2012] FCAFC 26 at para.9 per Keane CJ, Rares and Perram JJ.

   [10] “RSA”.

   [11] “RSA Officer”.

   [12] CB 124-125 (“RSA Decision”).

   [13] CB 124.

   [14] “IMR Interview”.

   [15] CB 205.

   [16] CB 223.

Grounds of review

1. The applicant’s grounds of review are annexed to the Amended Application filed 30 May 2012, and are as follows:

   1.The Second Respondent made an error of law in that he failed to accord procedural fairness to the applicant in that he:

   1.1failed to bring to the attention of the Applicant that:

   1.1.1The Second Respondent had before him information, provided by the Applicant, which appeared to support findings adverse to the Applicant’s interest, and

   1.1.2The Second Respondent had “consulted” other material, not provided to the Applicant, which appeared to support findings adverse to the Applicant’s interest;

   1.2failed to provide the Applicant with the substance of the information which appeared to support findings adverse to the Applicant’s claim, and

   1.3failed to provide the Applicant with an opportunity to respondent [sic] or otherwise deal with that information.

Applicant’s submissions

1. The applicant submits as follows:

   a)the IMR found that there was a real chance that the applicant would suffer persecution for a Convention reason – that of being a member of the Jaji, a sub-tribe of the Turi, which has fought an on-going battle with the Taliban;

   b)the IMR found that:

   …given the role of his [the Applicant’s] father in opposing the Taleban and the on-going conflict in Kurram, there is a real chance the applicant, given his association to his father, will suffer serious harm for reason of an imputed political opinion of opposition to the Taleban were he to return to Kurram, and that given the level of unrest in the region and the alleged close relations between elements of the Pakistan state and the Taleban, there may well not be a reasonable level of state protection to him in Kurram;[17]

   [17] CB 220; IMR Recommendation at para.41.

   c)the IMR then asked whether it “…is reasonable for the applicant to relocate away from Kurram”.[18] There is no challenge to the correctness of the IMR’s approach in raising this question. The manner in which the applicant was asked to provide the IMR with relevant information, and the failure of the IMR to indicate to the applicant that he proposed to make adverse findings against the applicant based on country information are, however, said to amount to a failure to provide the applicant with procedural fairness;

   [18] CB 220; IMR Recommendation at para.43.

   d)the IMR Recommendation acknowledges that it was not until the IMR Interview that the applicant was given an opportunity to make submissions about the reasonableness or otherwise of the suggestion that he might relocate within Pakistan.[19] The IMR Recommendation continues by stating that the applicant “and his adviser were given the opportunity to discuss the issue of relocation at his IMR interview and he and his adviser were given the opportunity to present submissions addressing relocation subsequent to the interview”;[20]

   [19] CB 220; IMR Recommendation at para.42.

   [20] CB 220; IMR Recommendation at para.42.

   e)in the IMR Interview, the IMR asked the applicant:

   Ok, if it is not safe in that part of Pakistan why can you not go and live in Karachi or Islamabad?[21]

   [21] Affidavit of Annette Van Gent, sworn 2 July 2012 (“Ms Van Gent’s Affidavit”) at Annexure A (“IMR Interview Transcript”) at page 6.

   The answer given was that, being from a tribal area, which is dominated by the Taliban, there is much suspicion and prejudice directed towards him and others like him. The applicant stated that the border police subject them to scrutiny and investigation, they are shaken down for bribes and there is resistance to providing accommodation. The applicant also stated that such attitudes have, in the past, been given governmental support by statements of the government to the effect that citizens ought not to give assistance to those fleeing tribal areas during conflicts;[22]

   [22] IMR Interview Transcript at pages 6-7.

   f)when asked by the IMR about his ability to flee the country first by travel to Islamabad overland and then by air to Karachi, the applicant said that it was “with great difficulty”. He said that “it was dangerous but there was two options, whether to stay in the village or leave there. There was (a) threat to my life…I have no option other than to face it.”[23] At that point, the IMR stated “I don’t have any other questions”;[24]

   [23] IMR Interview Transcript at page 7.

   [24] IMR Interview Transcript at page 7.

   g)the applicant then invited further questions but none were put by the IMR. A conversation ensued between the IMR and the applicant’s adviser as to the nature of the material which should be provided to the IMR. Early on in that conversation, the IMR states that, as further information was to be provided “it would be good for me to mention some of the things that I am thinking about at present …”.[25] The IMR noted:

   [25] IMR Interview Transcript at page 7.

   I still have to think whether you have to come all the way to Australia in order to be safe. As you said yourself, there are large numbers of people within Pakistan who have had to flee their areas because of conflict. I accept that internally displaced people often face suspicion and even hostility into the areas in which they move. But large cities like Karachi and Islamabad have many migrants who move from rural areas and even tribal areas. There are many different people living in large cities like Karachi and Islamabad of different ethnic and tribal backgrounds. The majority of course are Sunni but they [sic. - there] are Shia living there. I have to take into account that you have a trade as a leather worker and one could expect a person like yourself to earn a living in a city. So I really have to think whether it would be practical and reasonable for you to move to one of the Pakistan cities such as Karachi or Islamabad if you felt unsafe in your own area.[26]

   [26] IMR Interview Transcript at pages 7-8.

   h)the IMR finishes the above statement by saying that that is “probably enough for me (sic - to) have given your adviser and you some idea of what would be useful for me to receive”.[27] There was then a further discussion about the issue and the IMR stated “Look, I am not sure, I mean I could start writing this down but I think I will be getting this from you”.[28] In other words, the IMR made it clear that he didn’t want to discuss the matter of relocation at the time but would prefer a written submission on the matter. That itself is not an approach about which complaint is made. The IMR was inviting further material about a matter which he considered was critical to the IMR Recommendation. The adviser understood the critical issue, later stating “I will focus specifically on the question of relocation” and the IMR stated “I think that’s important”.[29] Soon after, the adviser stated to the IMR “So you are happy to receive written submissions and if there is any questions that arise on the basis of that, you will send us a letter saying…” to which the IMR stated “I would have to, yes. If it is required for me to put something to you I will.”[30] The IMR’s statement in that regard is consistent with his common law obligations;

   [27] IMR Interview Transcript at page 8.

   [28] IMR Interview Transcript at page 8.

   [29] IMR Interview Transcript at page 8.

   [30] IMR Interview Transcript at page 9.

   i)the IMR stated that he had had regard to country information cited and specifically referred to in the RSA Decision, as well as material submitted by the applicant and his adviser, and other relevant material consulted by the IMR and cited in the IMR Recommendation.[31] That information is relied upon to support the conclusions reached as discounting each and every one of the claims made by the applicant;[32]

   [31] CB 218; IMR Recommendation at para.29.

   [32] CB 220-222; IMR Recommendation at paras.44-52.

   j)it is impossible to know what the IMR has relied upon when he states that he had regard to “country information cited and specifically referred to in the Delegate’s [RSA] Decision”.[33] There are 27 items “cited” in the RSA Decision, and 14 of them are “specifically referred to”.[34] The RSA Decision also quotes from documents which are not “specifically referred to”.[35] None of that material was identified by the IMR as “credible, relevant and significant” information that was apparently adverse to the applicant’s interests. Neither was the substance of it brought to the applicant’s attention for the purpose of giving him the opportunity to respond to it;

   [33] CB 218; IMR Recommendation at para.25.

   [34] CB 120-121.

   [35] CB 123.

   k)the IMR also did not identify material within the applicant’s own submission as “credible, relevant and significant” information that was apparently adverse to the applicant’s interests, and nor was the applicant given the substance of that information and given the opportunity to respond to it. That material constituted “country” information, which s.424(3)(a) of the Migration Act provides need not be provided to an applicant in review proceedings carried out under the Migration Act by the Refugee Review Tribunal. In Plaintiff M61 the High Court noted that:

   … those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments.  The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made.  He did not.

   l)the applicant submits that the IMR’s statements quoted above do not satisfy the obligation. Those statements constituted an invitation to make submissions on the subject of relocation, but did no more than raise the topic. The IMR concluded by putting it thus:

   …I really have to think whether it would be practical and reasonable for you to move to one of the Pakistan cities such as Karachi or Islamabad if you felt unsafe in your own area.[36]

   Those statements fall well short of identifying material that is relevant, credible and significant and which is adverse to the applicant’s interests and putting the substance of that information to him. On no reasonable analysis could it be said that those statements, made prior to the receipt of the applicant’s submissions on the topic of relocation, satisfy the requirement in relation to the matters addressed; and

   m)the IMR’s failure to identify relevant, credible and significant information adverse to the applicant prior to the making of the IMR Recommendation, and the failure to bring the substance of that information to the attention of the applicant or his adviser constitutes a failure to provide the applicant with procedural fairness.[37]

   [36] IMR Interview Transcript at page 8.

   [37] Plaintiff M61 CLR at 353-354 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.78 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

Minister’s submissions

1. The Minister submits that:

   a)the Court can only grant the relief sought by the applicant if he can demonstrate that the IMR failed to proceed by reference to correct legal principles, correctly applied, or acted in a way that was procedurally unfair;[38]

   b)the amended application claims that the IMR failed to afford procedural fairness to the applicant. As pleaded, the complaint appears to be that the IMR failed to disclose information that was credible, relevant and significant to his ultimate conclusion that it was reasonable for the applicant to relocate within Pakistan;

   c)the applicant’s submissions also claim that the IMR failed to put his “adverse findings” to the applicant.[39] This is not a ground pleaded, and it is well established that the IMR was not obliged to give the applicant his preliminary reasons or a running commentary on what he thought of the applicant’s evidence to comply with procedural fairness;[40]

   d)the ground as pleaded, when read with the applicant’s submissions, appears to complain that the applicant was denied procedural fairness because the IMR failed to provide him with country information in the RSA Decision and the applicant’s own submissions, to which the IMR said he had regard,[41] as well as that cited by the IMR.[42] The argument appears to be based on the IMR’s statement that he had regard to “the country information cited above, as well as the applicant’s particular circumstances” in finding it reasonable for the applicant to relocate;[43]

   e)there are a number of difficulties with this argument:

   i)it seems to assume that because the IMR has had regard to country information, this is enough to make such information adverse so as to require specific disclosure. This is not so. The IMR’s reasons concerning relocation[44] do not specifically rely on any country information other than one non-adverse report submitted by the applicant[45] or what would appear to be uncontentious factual information concerning Pakistan.[46] As pointed out in VHAP of 2002 v Minister for Immigration & Multicultural Affairs,[47] the mere fact that information is relied upon in reaching an adverse result does not necessarily make it adverse or necessarily require its disclosure. And as stated in Minister for Immigration & Citizenship v SZQHH & Anor,[48] the IMR was not obliged to give the applicant notice of “every piece of country information that the IMR was considering”.[49] On a fair reading the IMR has not relied upon any adverse country information in finding that it was reasonable for the applicant to relocate. There is no duty on the IMR to disclose country information that is not apparently adverse.[50] As the IMR has not relied upon any apparently adverse country information in reaching his conclusion that it was reasonable for the applicant to relocate the complaint of a breach of procedural fairness must fail;

   ii)the complaint must also fail because apart from the information cited,[51] it relates to information in the RSA Decision and the applicant’s own submissions of which he was on notice. There is no requirement to give the applicant country information of which he is already on notice.[52] The only information not possibly in this category is that cited,[53] but this information is not adverse, and appears to be uncontentious factual information concerning Pakistan that would not require specific disclosure;[54] and

   iii)as pointed out in VHAP,[55] natural justice is ultimately a question of fairness. As the applicant’s submissions acknowledge, the IMR raised the issue of relocation at the hearing, invited written submission on it from the applicant, and had regard to those submissions. Those submissions specifically addressed and took issue with the finding in the RSA Decision that it was reasonable for him to relocate.[56] The IMR did not rely upon any adverse information of which the applicant was not on notice in concluding that it was reasonable for the applicant to relocate. No “practical injustice”[57] has been established in the circumstances.

   [38] Plaintiff M61 CLR at 353-354 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.78 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

   [39] Applicant’s submissions para.13.

   [40] Re Minister for Immigration & Multicultural Affairs & Another; Ex parte Miah (2001) 206 CLR 57 at 69 per Gleeson CJ and Hayne J; [2001] HCA 22 at para.31 per Gleeson CJ and Hayne J (“Miah”); Muin & Anor v Refugee Review Tribunal & Ors (2002) 190 ALR 601 at 661-662 per Hayne J; [2002] HCA 30 at paras.265-266 per Hayne J; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at 1918 per Gummow and Heydon JJ; [2003] HCA 60 at para.54 per Gummow and Heydon JJ; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; [2006] HCA 63 at para.48 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”).

   [41] CB 218; IMR Recommendation at para.29.

   [42] CB 218-219; IMR Recommendation at paras.30-36.

   [43] CB 221; IMR Recommendation at para.47.

   [44] CB 220-222; IMR Recommendation at paras.43-53.

   [45] CB 221; IMR Recommendation at para.49.

   [46] CB 220; IMR Recommendation at para.45.

   [47] (2004) 80 ALD 559 at 566 per Allsop J (Conti and Gyles JJ agreeing at 564); [2004] FCAFC 82 at para.27 per Allsop J (Conti and Gyles JJ agreeing at para.17) (“VHAP”).

   [48] (2012) 200 FCR 223; [2012] FCAFC 45 (“SZQHH”).

   [49] SZQHH FCR at 234 per Rares and Jagot JJ; FCAFC at para.30 per Rares and Jagot JJ.

   [50] Miah CLR 97 per McHugh J; HCA at para.141 McHugh J; SZQHH FCR at 233 per Rares and Jagot JJ; FCAFC at para.27 per Rares and Jagot JJ.

   [51] CB 218-219, IMR Recommendation at paras.30-36.

   [52] SZQHH FCR at 234-235 per Rares and Jagot JJ; FCAFC at paras.30 and 33 per Rares and Jagot JJ, see also FCR at 243 per Flick J; FCAFC at para.68 per Flick J; SZQFY v Minister for Immigration & Citizenship [2012] FCA 486 at para.61 per Siopis J (“SZQFY”).

   [53] CB 218-219, IMR Recommendation at paras.30-36.

   [54] VHAP ALD at 566-567 per Allsop J; FCAFC at paras.28-30 per Allsop J.

   [55] VHAP ALD at 566 per Allsop J; FCAFC at para.28 per Allsop J.

   [56] CB 124, 143-143, 192-195.

   [57] Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14 per Gleeson CJ; [2003] HCA 6 at para.37 per Gleeson CJ (“Lam”).

Consideration

1. In the RSA Decision the RSA observed as follows:

   I am of the view that the claimant has not established that he is a refugee within the meaning of the Convention, and therefore I am not required to consider relocation as an option. However, as his representative raised the issue of being unable to live elsewhere in Pakistan because of the strengthening position of the Taliban, I will address the matter.

   Although estimates vary, the Sunni Muslim population of Pakistan is believed to be between 75% to 90% of the more than 160 million inhabitants. Sunnis live in all parts of the country and dominate most sectors of society. The claimant’s agent claims that he would be under risk from the Taliban anywhere in Pakistan, but given the large population I do not consider that he would be individually targeted if he moved elsewhere in Pakistan. While various pro-Taliban elements have targeted Pakistani political and military targets, I do not consider that a person in the claimant’s position would be at more risk than the general population. While the Taliban remains a threat to the Pakistani government, there is no realistic chance that the Taliban could overthrown [sic] the Pakistani in the foreseeable future [4.35].

   Based on the above findings, I am not satisfied the present claimant would face a real chance of persecution if he were to return to Pakistan. In the last few years, the large numbers of Internally Displace Persons (IDPs) who have fled the sectarian and insurgent conflicts in the FATAs attest to the viability of internal flight:

   Thousands of displaced Shiites from Parachinar are scattered among relatives in Peshawar, capital of North-West Frontier Province, which abuts the tribal areas, and in hotels and shelters where images of Iranian religious leaders decorate the halls. [8]

   I consider the internal flight option is both relevant and reasonable and so I do not accept that the claimant cannot relocate to others [sic] parts of Pakistan if he returns to that country and does not want to return to the Kurram Agency. While the claimant is in the slightly unusual situation of being a member of a Sunni tribe which supports the Shia Turi in their conflict with the Taliban, as a Sunni Muslim and a supporter of the ruling PPP party, it is hard to see why he could not relocate to most areas of Pakistan if he does not want to return to Parachinar. Accordingly, I am not satisfied the claimant has a well founded fear of persecution for a Convention reason in Pakistan.[58]

   [58] CB 124; RSA Decision at page 7 (reproduced without amendment).

2. The applicant was therefore aware from the RSA Decision that relocation might be an issue in any independent merits review. That this was the case was revealed by a submission made by the applicant’s migration agents to the IMR on 4 March 2011 which, in relation to relocation:

   a)sets out the appropriate test for relocation by reference to the UNHCR Guidelines with respect to the relevance and reasonableness of internal relocation;[59]

   b)submitted that because of the spread of the Taliban in Pakistan, and the fact that the applicant was identifiable by his accent as a Turi tribe member there was a real chance that he would be targeted in other areas of Pakistan by reason of his imputed political opinion;[60]

   c)submitted that the applicant had no family members or relatives in other areas of Pakistan and that if relocated he would have to settle in another area of Pakistan without the social support or security of his tribe;[61] and

   d)submitted that in 2010 there were devastating monsoon floods in Pakistan which had displaced a large number of citizens,[62]

   and it was therefore disputed that the applicant could re-settle in another area of Pakistan without undue hardship and that internal relocation was neither a relevant nor a reasonable option for the applicant.[63]

   [59] CB 142.

   [60] CB 142.

   [61] CB 142.

   [62] CB 142-143.

   [63] CB 143.

3. Various press articles were also submitted to the IMR, including press articles dealing with violence in areas other than the Kurram, and, in particular, dealing with killings in Karachi.[64]

   [64] CB 158-159.

4. It was in the above context that the exchanges at the IMR Interview took place. In addition to the exchanges set out above it is relevant to note that the applicant’s agent told the IMR that:

   I will focus specifically on the question of relocation.

   to which the IMR responded:

   I think that’s important.[65]

   [65] IMR Interview Transcript at page 8.

5. A little later the following exchange occurred:

   [Applicant’s agent] …I will address, just so I can check if there’s any other issues, I’ve got to address particular relocation. I’ll include the references about the [?] are etc so we are talking about the same groups. That’s your main question?

   [IMR] Yes I think it is largely coming down to relocation as the crunch for me.[66]

   [66] IMR Interview Transcript at page 9.

6. Although the discussion at the IMR Interview was not overtly technical, it is plain that the IMR required the question of relocation to be addressed in the context of why the applicant said he could not go and live in a major city such as Karachi or Islamabad.

7. The post-IMR Interview submissions of the applicant are set out in full in the IMR Recommendation, and cover more than nine pages.[67] The gist of the submissions is that:

   a)no part of the North Western Frontier Province or the Federally-Administered Tribal Areas is suitable for relocation of the applicant because of ongoing military operations between Taliban militants and the Pakistani military,[68] which appears to be a matter about which there is no significant dispute, as that claim is accepted by the IMR;[69]

   b)it addresses the existence of large ethnic Pashtun communities elsewhere in Pakistan, and the ability of the applicant to seek shelter amongst his own ethnic group elsewhere in Pakistan, which included specific submissions as to the suitability of relocating to Karachi, and the various ethnic, political, employment and accommodation difficulties that would exist for the applicant; and

   c)it addresses the applicant’s relocation to Islamabad, and the various religious and political difficulties that would attend the applicant there.

   [67] CB 206-216; IMR Recommendation at para.27.

   [68] CB 207; IMR Recommendation at para.27.

   [69] CB 220; IMR Recommendation at para.41.

8. The applicant also made a personal submission on 4 November 2011 to the IMR, but that submission did not go into significant detail in relation to relocation save to observe that there were other militant groups operating in Peshawar, Islamabad, Karachi and Lahore, and that the Taliban were all over Pakistan.[70]

   [70] CB 216-217 at para.28.

9. In the IMR Recommendation the IMR refers to certain country information with respect to relocation, and the position in Karachi and Lahore. The IMR notes that the law in Pakistan provides for freedom of movement within the country, and that persons could live and work throughout the country, particularly in major cities such as Karachi, Lahore and Rawalpindi, and that Karachi is also home to a large Pashtun population.[71] There is also information set out in relation to the population and ethnic make-up, particularly with respect to Pashtuns, of Karachi and Lahore, and some very generic information in relation to political allegiances and terrorist attacks in both of those cities. None of the information is specific to the applicant personally, but is rather applicable to the population at large, or significant sections of the population at large, in those cities.[72]

   [71] CB 218; IMR Recommendation at paras.30-31.

   [72] CB 218-219; IMR Recommendation at paras.32-36.

10. The IMR’s findings and reasons noted that:

    a)there were significant populations of between four and seven million Pashtuns in Karachi, being the largest single concentration of ethnic Pashtuns outside of the traditional Pashtun lands, and more than a million ethnic Pashtuns in Lahore, or approximately 15 per cent of the city’s population;[73]

    b)the majority of Pashtuns living in cities such as Karachi are Sunni, like the applicant, and that given the remoteness of Kurram, and the inter-tribal negotiations which gave rise to the fear of persecution which involved his father rather than the applicant, there was no real chance that the applicant would be targeted for persecution in a city such as Karachi;[74]

    c)there was no country information available which suggested that the sizeable community of Pashtuns found in Pakistan’s cities are targeted for harm by either Pashtun or non-Pashtun extremist groups, nor was there any evidence that the cause of localised conflict in Pakistan cities are related to the issues that caused conflict in the Kurram;[75]

    d)the applicant passed safely through Islamabad and Karachi on his journey to Australia;[76] and

    e)the chance of the applicant being persecuted by reason of an imputed political opinion, that being his father’s anti-Taliban stance, if he relocated to Karachi or Lahore, was remote given the very localised nature of the conflict in which is father was involved, and that conflict did not give the applicant the kind of profile which would see the Taliban pursue him from the Kurram to other parts of the country such as Karachi or Lahore.[77]

    [73] CB 220; IMR Recommendation at para.45.

    [74] CB 221; IMR Recommendation at para.45.

    [75] CB 221; IMR Recommendation at para.46.

    [76] CB 221; IMR Recommendation at para.46.

    [77] CB 221; IMR Recommendation at para.49.

11. On the basis of all of the above matters the IMR found that it was reasonable and practicable for the applicant to relocate to a city such as Karachi or Lahore, and that there was no real chance that he would suffer persecution by reason of a Convention reason in those cities.[78]

    [78] CB 222; IMR Recommendation at para.51.

12. There is no doubt that the common law rules with respect to procedural fairness apply to the hearing and determination resulting in the IMR Recommendation.[79] In Plaintiff M61 the High Court said, in respect of the requirement to provide procedural fairness, there in relation to country information, that:

    … procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides (s.424A(1)) that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. In particular, it does not extend (s.424A(3)(a)) to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.[80]

    [79] Plaintiff M61 CLR at 356-357 and 358 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.91 and 98 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

    [80] Plaintiff M61 CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell.

13. The use of the phrase “procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims” suggests that it is those matters which “bear upon whether to accept the plaintiff’s claims”, that is, which are likely to be adverse to a plaintiff’s claims, which need to be put. That suggests, that in the current case, the IMR only needed to put those matters which were adverse to the applicant’s claim to the applicant for comment.

14. The basic rule as set out above with respect to procedural fairness applies. In light of the High Court’s judgment in Plaintiff M61 it is apparent that it is information which may bear upon an independent merits reviewer’s decision whether to accept the applicant’s claims which must be put to the applicant.

15. The Full Court of the Federal Court in SZQHH said that:

    27 An administrative decision-maker must determine whether particular information he or she has is credible, relevant and significant before arriving at a final decision: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at 96 [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. If the decision-maker determines that he or she has information that is, first, credible, relevant and significant and, secondly, apparently adverse to the interests of a person who will be affected by the decision, then, ordinarily, procedural fairness requires that the decision-maker must give that person an opportunity to deal with the information. The person whose interests may be affected should be given the substance of the potentially adverse information, so that he or she may respond to it. However, in general, it is not necessary for the decision-maker to give the person whose interests may be affected a copy of any document containing the information or to identify its source….[81]

    and:

    30 However, the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person’s answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.[82]

    [81] SZQHH FCR at 233 per Rares and Jagot JJ; FCAFC at para.27 per Rares and Jagot JJ.

    [82] SZQHH FCR at 234 per Rares and Jagot JJ; FCAFC at para.30 per Rares and Jagot JJ.

16. In SZQEK v Minister for Immigration & Anor[83] the Court, having cited various passages from Plaintiff M61 and Miah, concluded that prerogative relief ought to be granted, and then went on to observe that:

    … it is necessary to examine the particular circumstances, before concluding that there is an obligation to invite comment on country information identified as relevant by a refugee decision-maker. The factual issues arising in the review, the path of reasoning adopted by the decision-maker, and the novelty, credibility and materiality of the information to the decision, all need to be considered before concluding that there has been a failure of procedural fairness. Underlying the assessment is a basic concern for a fair procedure.[84]

    [83] [2011] FMCA 628 (“SZQEK”).

    [84] SZQEK at para.31 per Smith FM.

17. In SZQEK it was only in respect of the UNHCR 2010 Guidelines that a denial of procedural fairness was found. With respect to two of those documents the Court relevantly found that:

    50 … In short, they were both documents which had been cited in the RSA assessment, and the applicant was sufficiently on notice as to their existence and potential materiality.

    51 In my opinion, consideration of the fairness of the procedures followed by Mr Karas requires consideration of the manner in which country information had been presented and addressed by the Department of Immigration in the course of the preceding RSA assessment. It was plain, in my opinion, that the issues which Mr Karas would be addressing would continue to be the issues which had been addressed by the RSA assessment, and that the applicant's refugee claims addressed in the RSA would be reviewed in the light of the material previously cited in the RSA and such additional claims, evidence and country information which might become available to Mr Karas.

    52 In this respect, I accept the Minister's submission that the contents of the DFAT cable, and the documents to which it referred, were sufficiently drawn to the applicant's attention by way of the reasons attached to the RSA assessment, including its list of country information consulted at that stage.[85]

    [85] SZQEK at paras.50-52 per Smith FM.

18. SZQEK shows that it is possible for the obligation to afford the applicant procedural fairness with respect to relevant country information to be met by that country information being referred to in the reasoning in, and the list of country information consulted set out in, the decision the subject of the independent merits review.

19. In this case:

    a)the applicant raised the question of relocation initially with the RSA;

    b)even though not required to do so, the RSA Decision dealt with the issue of relocation and found that there was no reason why the applicant could not relocate to parts of Pakistan outside of the Kurram;

    c)the IMR specifically put the applicant on notice that relocation, and in particular relocation to a large city such as Karachi, Lahore or Islamabad, was the key issue to be determined by the IMR;

    d)the applicant made extensive submissions after the IMR Interview as a consequence of the IMR indicating that relocation to a major city in Pakistan was the central issue for the IMR, and in particular, the post-IMR Interview submissions by the applicant dealt with relocation to Karachi and Lahore;

    e)the IMR not only had regard to country information already considered by the RSA and put by the applicant, but also some generic country information as to freedom of movement, and population and ethnic and political rivalries in Karachi and Lahore, including information as to the substantial Pashtun communities in those cities; and

    f)the IMR ultimately found that it would be reasonable for the applicant to relocate to a major city such as Karachi or Lahore and that he would not have a well-founded fear of persecution for a Convention reason if he relocated to one of those cities.

20. Relocation to a major city within Pakistan, and in particular Karachi and Lahore, was the substantive issue raised and dealt with in the proceedings before the IMR. It was the question about which concerns were raised, and in relation to which the applicant was put on notice, as a consequence of which the applicant made extensive submissions, including submissions as to the reasonableness of his relocation to Karachi or Lahore. Further, the country information specifically referred to by the IMR under that heading in the IMR Recommendation is not information which, in a relevant sense, was adverse to the applicant. Rather, it was generic country information, which was to be considered in the balance together with the country information and submissions of the applicant.

21. Not every piece of country information to which the IMR was referred, or which the IMR utilised, was required to specifically be drawn to the applicant’s attention.[86] There is no substance to the suggestion that the applicant was not afforded procedural fairness in this case. The applicant was clearly and indisputably on notice of the substantive issue of relocation, and in particular relocation to a major city, which the IMR was considering. Further, the applicant was aware of the country information to be relied upon, and to the extent that the applicant was not aware of country information relied upon by the IMR that information was either not adverse to the applicant, or information which was no different in its tenor, effect or substance to other country information of which the applicant was aware,[87] and which was consistent with the conclusion reached by the RSA, or the critical issue to which the IMR drew the applicant’s attention during the course of the IMR Interview. To the extent that the applicant’s submissions suggest that the IMR failed to identify as credible, relevant or significant information relied upon in the RSA Decision which the IMR also relied upon, there was no such obligation on the IMR, for as a consequence of the RSA Decision that information, and the issue of relocation, were obviously in issue.[88]

    [86] SZQHH FCR at 234-235 per Rares and Jagot JJ; FCAFC at paras.30 and 33 per Rares and Jagot JJ; see also FCR at 243 per Flick J; FCAFC at para.68 per Flick J; SZQFY at para.61 per Siopis J.

    [87] SZQFY at para.61 per Siopis J.

    [88] SZQEK at paras.50-52 per Smith FM.

1. In all of the above circumstances, there was no want of procedural fairness by reason of any failure on the part of the IMR to put information or adverse findings to the applicant prior to handing down the IMR Recommendation. Given the course of the proceedings as outlined above, there was, in any event, no practical injustice which affected the applicant’s case.[89]

   [89] Lam CLR at 13-14 per Gleeson CJ; HCA at para.37 per Gleeson CJ.

Conclusion and order

1. The Court has concluded that the grounds of the application have not been made out, and it follows that the application must be dismissed. There will be an order accordingly.

2. The Court will hear the parties as to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Lucev

Associate: 

Date:  24 April 2013