FEDERAL COURT OF AUSTRALIA

DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    By notice of appeal filed on 18 December 2018, the appellant appeals from a decision of the Federal Circuit Court of Australia made on 20 November 2018 in DNA17 v Minister for Immigration [2018] FCCA 3101. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth).

2    The appellant is a Pakistani national, from the city of Quetta. His ethnicity is Hazara and his religion is Shia Muslim. He arrived in Australia as an unauthorised maritime arrival on 2 February 2013. On 6 July 2016, the appellant applied for a temporary protection visa under s 36 of the Migration Act 1958 (Cth) (Act). On 29 November 2016, a delegate of the first respondent (Minister) refused the application under s 65 of the Act. The delegate decided that the appellant would face a real chance of persecution in Quetta but not in Lahore, and that it would be reasonable for the appellant to relocate to Lahore. The delegate decided that the appellant did not meet the criteria in ss 36(2)(a) or (aa) of the Act.

3    In accordance with s 473CA of the Act, on 30 November 2016 the Minister referred the decision to the second respondent, the Immigration Assessment Authority (Authority), for review under Part 7AA of the Act. On 6 July 2017, the Authority affirmed the delegate’s decision not to grant the appellant a protection visa.

4    By application filed on 3 August 2017, the appellant sought judicial review of the Authority’s decision in the Federal Circuit Court pursuant to s 476 of the Act, which grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The appellant filed an amended application on 18 June 2018 which substituted the previous grounds of review with a single ground of review: that the Authority had failed to consider a submission of substance. The Federal Circuit Court dismissed the application for review on 31 October 2018.

5    In his appeal to this Court, the appellant contends that the Federal Circuit Court erred in failing to find that the Authority committed jurisdictional error by failing to consider a submission of substance. For the reasons that follow, the appeal should be dismissed.

Decision of the Minister’s delegate

6    The appellant’s protection claims were summarised by the Minister’s delegate as follows:

•    He is an ethnic Hazara and a Shia Muslim.

•    He left Pakistan due to the ongoing violence perpetrated against Shias and Hazaras by militant groups such as Laskar-e Jhangvi (LeJ), Sipah-e Sahaba (SSP), Balochistan Liberation Army (BLA) and Tehreek-i-Taliban Pakistan (TTP).

•    Shia Hazaras in Pakistan, particularly in Balochistan, are subject to frequent targeted attacks. He has distinct facial features, which cause his [sic] to be identifiable as a Hazara. He fears that he will be killed or seriously injured as a result of a targeted attack.

•    He would be unable to practice his religion because mosques are usually the target of attack by extremists.

•    Ethnic Hazaras are persecuted as Shia Muslims in Afghanistan, Iran and Pakistan. Groups such as the Balochisan [sic] Liberation Army, the Taliban, Al-Qaeda affiliates and other extremist groups who cause harms [sic] to Hazaras as they are considered infidels.

•    On 6 May 2011, he witnessed an attack at a park near his home where he was exercising. Men in a car fired a rocket and guns on the other side of the park from where he was. Eight people were killed and many others injured.

•    After this attack he felt that he could no longer leave his house safely, so he no longer exercised and only left his house when he had to go to work. The rest of his family who did not work, remained at home.

•    He became aware of more attacks targeting Hazaras. A bus attack in September 2011 killed 29 people and on 1 September 2012 his uncle was killed along with 9 or 10 others on the road whilst he was travelling to buy vegetables to sell.

•    After he arrived in Australia on 2 February 2012, he was told by his family that there had been a big attack in Quetta near where his wife’s family live and around 80 people were killed and over 100 injured.

•    To get out of Hazara Town or Mari Abad people have to pass police checkpoints leading to Quetta. Targeted attacks occur near these checkpoints.

•    His cousin is part of the Hazara Democratic Party who try to help Hazaras but they have no power in Government and are only in the communities.

•    The Government authorities, like the police and military are unable to protect Hazara communities or individuals fearing attack.

•    There is also a large Hazara population in Karachi but this city has the same problems as Quetta. Hazaras are recognisable by their facial features, so he will be identified as a Hazara wherever he goes in Pakistan making him a target.

•    His wife and children still live in Quetta. They have informed him that that [sic] they are scared and risk being killed every time they leave their house and they do not leave Hazara Town often.

7    In relation to the refugee criteria and s 36(2)(a) of the Act, the delegate accepted that the appellant would face a real chance of persecution in Quetta, Pakistan for reasons of his race and religion. However, the delegate observed that s 5J(1)(c) of the Act requires that the real chance of persecution relate to all areas of a receiving country. The delegate noted that the appellant had stated in his written claims that he could not relocate to another part of Pakistan because the risk of harm extended throughout the country. During the temporary protection visa interview, it was put to the appellant that there are Hazara and Shia communities in other parts of Pakistan, including Lahore, which would be safer for him. The appellant responded that it would not be possible for him to relocate because he would be recognisable as a Hazara throughout Pakistan on account of his distinguishable facial features and that Hazaras have been persecuted in Karachi and it will not be long before they face the same threats in Lahore and Islamabad. Despite the claims made by the appellant, the delegate concluded that the appellant would not face a real chance of persecution in Lahore. On that basis, the delegate found that the real chance of persecution did not relate to all areas of the receiving country and therefore did not satisfy s 5J(1)(c) of the Act.

8    In relation to the complementary protection criteria and s 36(2)(aa) of the Act, the delegate again accepted that the appellant would face a real risk of being harmed and/or killed if he returned to his home area of Quetta. However, the delegate observed that s 36(2B)(a) of the Act provides that there is taken not to be a real risk that a person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm. The delegate noted again the submissions made by the appellant that the risk of harm to Hazaras extended throughout Pakistan, but found that the appellant would not face a real risk of significant harm in Lahore on account of being a Hazara and/or Shia Muslim. As to whether it would be reasonable and practicable for the appellant to relocate to Lahore, the delegate took into account the appellant’s submissions about the lack of security in Lahore, but the delegate found against the appellant on that issue. The delegate made the following further findings:

(a)    The Department of Foreign Affairs and Trade (DFAT) reported that many large urban centres such as Lahore are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a higher level of State protection (relying on the DFAT Thematic Report – Shias in Pakistan – January 2016).

(b)    DFAT also reported that Lahore is home to Hazara communities and that some Hazaras from Quetta have relocated to Lahore (relying on the DFAT Thematic Report – Hazaras in Afghanistan and Pakistan – March 2014).

(c)    The appellant has demonstrated that he is resourceful and has successfully lived apart from his family and settled in unfamiliar places including Iran and Australia.

(d)    The appellant is educated and has remained in continuous employment from when he finished his education, including in Australia. He is able-bodied and multilingual. The delegate was satisfied that he would be able to obtain employment in Lahore.

(e)    While most of the appellant’s family remain living in Quetta, including his wife and five children, the appellant has lived apart from his family since he departed Pakistan in December 2012. The delegate considered it would be possible for his family to visit him in Lahore or relocate to live with him in Lahore. There are no legal impediments to relocation in Pakistan and DFAT information indicates that Hazaras have relocated from Quetta to Lahore (relying on the above cited DFAT March 2014 report).

9    Based on the foregoing findings, the delegate concluded that it is reasonable for the appellant to relocate to Lahore and, on that basis, the complementary protection criteria were not satisfied.

10    There are two matters of significance to note in relation to the delegate’s decision. First, the appellant’s submissions (in interview) on whether it would be reasonable for him to relocate to Lahore were to the effect that it would not be reasonable because he would continue to face the risk of harm in Lahore. The appellant made no submission that it would be unreasonable to relocate because he would not have family or other support networks in Lahore and would be socially isolated. That submission was subsequently made to the Authority on review of the delegate’s decision and is central to this appeal. Second, and as noted above, the delegate relied upon the above cited DFAT reports which were therefore documents that were before the Minister and were not new information for the purposes of s 473DD of the Act in the review before the Authority. Those reports were relied upon by the appellant in a submission to the Authority on the issue of relocation which is central to this appeal.

Decision of the Authority

11    On 30 November 2016, the Authority wrote to the appellant advising that the delegate’s decision had been referred to the Authority for review. The letter stated that the Department had provided the Authority with all documents it considered relevant to the case and that the Authority would proceed to make a decision on the basis of that information unless it decided to consider new information. The Authority advised that it could only consider new information in limited circumstances which were explained in an attached Practice Direction.

12    The attached document, titled “Practice Direction for Applicants, Representatives and Authorised Recipients”, was issued pursuant to s 473FB of the Act and came into force on 24 October 2016. Relevantly, the Practice Direction provides:

Submissions and new information

20    For the purposes of the review, you may provide a written submission on the following:

•    why you disagree with the decision of the Department

•    any claim or matter that you presented to the Department that was overlooked.

21    Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.

22    We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.

23    If you want to give us new information, you must also provide an explanation as to why:

•    the information could not have been given to the Department before the decision was made, or

•    the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.

24    Your explanation should be no longer than 5 pages and must accompany any new information you give to us.

25    All documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided.

26    Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested, must also be given to us within 21 days of the referral.

13    On December 2016, a representative of the appellant provided a submission to the Authority. Under the heading “New Information”, the submission stated that the appellant wished to provide new information to the Authority and submitted that the information could not have been provided to the Minister before the Minister made the relevant decision and that the information was credible personal information that was not previously known and, had it been known, may have affected the consideration of its claims. The submission addressed various issues raised in the delegate’s decision including whether the appellant, as a Hazara and Shia Muslim, was safe anywhere in Pakistan. In relation to the prospect of relocating to Lahore, the submission stated that it was not safe for the appellant to relocate to the Punjab Province which included Lahore and Islamabad. Under a separate heading “Other Information”, the submission set out six dot points. The first four dot points referred to reports concerning terrorist organisations in Pakistan and violent events that occurred in Pakistan that are not relevant to this appeal. The appeal concerns the final two dot points in that part of the submission which were as follows (which we will refer to as the Submitted Relocation Material):

•    The applicant has no family or support networks anywhere in Pakistan outside Quetta. DFAT assesses that Shias can relocate with relative ease and frequency because of family and community networks throughout Pakistan and states that migrant communities provide a support network [a footnote referred to the DFAT Thematic Report - Shias in Pakistan – January 2016]. DFAT’s assessment that the broad Shia community is able to relocate easily because of family and tribal networks implies that without these, relocation would be difficult. Much of the information about the viability of relocation addresses the situation of Shias generally. Hazara Shias make up only 1% of the population of Pakistan, whereas Shias make up 20% [a footnote referenced the DFAT Thematic Report – Hazaras in Afghanistan and Pakistan – 26 March 2014].

•    Unlike Shias from other ethnic groups, Hazara Shias are readily identifiable because of their distinctive facial features. There is a Hazara Shia community of reasonable size (some 15,000) In [sic] Karachi, but there is no specific information before me [sic] about the size of the Hazara Shia communities in Lahore or Islamabad. DFAT describes them as “small” [a footnote referenced the DFAT Thematic Report – Shias in Pakistan – January 2016]. there [sic] is no information to indicate what level of support, if any, a Hazara Shia such as the applicant could expect to receive from the small Hazara Shia communities in Islamabad/Rawalpindi or Lahore; or whether he would receive any support from Shia communities made up of other ethnic groups.

14    The Authority made its decision on 6 July 2017. Under the heading “Information before the Authority”, the decision recorded that the Authority had had regard to the material referred to it by the Secretary under s 473CB of the Act (at [3] of its reasons). The Authority then referred to the submission received from the appellant on 22 December 2016 and stated:

4.    The applicant’s representative provided a submission to the Authority on 20 December 2016. The submission refers to the following new information:

•    Information about the religious composition of Pakistan and its provinces.

•    Media reports and other information about attacks on, and threats against, Shia Muslims in Pakistan, including in Punjab province.

•    Information about anti-Shia militant groups and the activities of anti-Shia political groups in Punjab province and Islamabad.

5.    The submission also includes the new claim that, if the applicant were to relocate to a city such as Islamabad, Rawalpindi or Lahore, there is no information to indicate what type of support, if any, the applicant might receive from the small Hazara communities in these cities.

15    The Authority then referred to the limitation on considering new information contained in s 473DD of the Act and noted the submission made on behalf of the appellant in respect of the elements of s 473DD. The Authority then continued as follows.

9.    The possibility of relocation to other areas in Pakistan including Lahore, Karachi, and Islamabad, was discussed with the applicant during the TPV interview. I note also that the applicant and his representative address the issue of relocation in separate statements accompanying the applicant's TPV application. I do not accept that the applicant did not previously have an opportunity to provide information about issues associated with the relocation in other areas of Pakistan.

10.    There is other credible and recent information before me regarding about [sic] attacks on, and threats against, Shia Muslims across Pakistan, and the activities of anti-Shia groups. Among the information before me is other information about attacks on Shia Muslims in Pakistan and the activities of Sunni extremist groups, referred to in a submission from the applicant's representative accompanying his TPV application.

11.    Having regard to the other information that is before me, and the opportunities given to the applicant to provide information regarding the possibility of relocation, I am not satisfied that exceptional circumstances exist to justify the consideration of this new claim and information.

16    It is clear from the Authority’s reasons that it identified certain new information provided by the submission dated 20 December 2016, which is summarised at [4] of its reasons, and what it described as a new claim, which is summarised at [5] of its reasons. The Authority considered that s 473DD was applicable to both the new information and the new claim and reached a decision, recorded at [11] of its reasons, that the Authority was not satisfied that exceptional circumstances existed to justify the consideration of the new information or the new claim. The initial question raised on the appeal is whether the Authority erred in concluding that s 473DD was applicable to the new claim (as opposed to the new information). That question also requires consideration of what was encompassed by the new claim that was disregarded by the Authority, and particularly whether it included all of the Submitted Relocation Material.

17    In relation to the refugee criteria and s 36(2)(a) of the Act, the Authority concluded that it was satisfied that the appellant faces a real chance of death or injury as a result of sectarian attacks against Hazaras and Shia Muslims in the province of Balochistan, the capital of which is Quetta, and was accordingly satisfied that there is a real chance of serious harm to the appellant as a Shia Hazara in Balochistan (at [22] of its reasons). Pursuant to s 5J(1)(c), however, in order for the appellant to be found to have a well-founded fear of persecution, the real chance of harm must relate to all areas of Pakistan. The Authority reached the conclusion that it was not satisfied that there is a real chance of harm to the appellant on the basis of his Hazara ethnicity and Shia faith in Lahore, or as a result of the security situation in Lahore (at [35] of its reasons). The Authority concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) and therefore did not satisfy the criterion in s 36(2)(a) for a protection visa. In its consideration of the refugee criteria, the Authority referred to the DFAT January 2016 Thematic Report (Shias in Pakistan) and noted that DFAT had reported that there is a Hazara community in Lahore, and also referred to the DFAT March 2014 Thematic Report (Hazaras in Afghanistan and Pakistan) and noted that DFAT had reported that there was a “small” Hazara community in Lahore. The Authority observed that the size of the Hazara community in Lahore is unclear, but the Authority accepted it may be relatively small (at [32] of its reasons).

18    In relation to the complementary protection assessment and s 36(2)(aa) of the Act, the Authority similarly concluded that it was satisfied that there is a real risk that the appellant would suffer serious harm in Balochistan, including possible loss of life, on the basis of his Hazara ethnicity and Shia faith. However, s 36(2B)(a) of the Act provides that there is taken not to be a real risk that a person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm. The Authority concluded that it was satisfied that the appellant would not face a real risk of significant harm in Lahore (at [46] of its reasons). The Authority also concluded that it was satisfied that it would be reasonable for the appellant to relocate to Lahore (at [53] of its reasons). The reasons that the Authority reached that latter conclusion are multifaceted and were set out in paragraphs 46-52 which are reproduced below:

46.    I have concluded that there would not be a real chance of harm to applicant [sic] as a Hazara Shia who will be returning to Lahore having sought asylum and live in Australian [sic] for approximately four and a half years, as a result of discriminatory treatment, as a result of the security situation in Lahore, or any combination of these matters. As ‘real risk’ and ‘real chance’ involve the application of the same standard, I am also satisfied that the applicant would not face a real risk of significant harm in Lahore for these reasons.

47.     The applicant has approximately 11 years of education. He claims, and I accept, that he speaks, reads and writes Hazaragi, Urdu, Dari, Pashto and English. He has worked as a clothing salesman, a labourer on construction, and possibly mining, sites, and as a tiler. He has demonstrated a degree of resourcefulness and adaptability by travelling to, and living and securing employment in, Iran and Australia.

48.     According to DFAT, large urban centres such as Lahore are reported to be home to mixed ethnic and religious communities and to offer a greater degree of anonymity and better opportunities for employment, access to services and state protection than rural or smaller urban areas [a footnote referenced the DFAT Thematic Report – Shias in Pakistan – January 2016]. DFAT reports that transportation costs and the higher costs of living in larger cities can operate as a barrier to internal relocation in Pakistan, but these costs can be offset by higher wages typically received in these locations. DFAT reports that there are a range of accommodation options in cities like Karachi, Lahore and Islamabad and no evidence to indicate any accommodation shortages [a footnote again referenced the DFAT Thematic Report – Shias in Pakistan – January 2016]. Having regard to the applicant’s skills and experience, and his evident resourcefulness, I am satisfied that he will be able to find employment and accommodation in Lahore.

49.     I accept that that [sic] the applicant does not have any family members in Lahore. He is a relatively young man who is currently employed as a tiler. He has not claimed that he has any health problems or other characteristics that might render him vulnerable and in particular need of familial or other support in a new city. I am satisfied that the existence of a small community of other Hazaras in the city, the potential for interaction with other Shias, and the relative integration of the Sunni and Shia communities in the city mitigate the risk that the applicant will be socially isolated in Lahore.

50.     The applicant has demonstrated an ability to live independently from his family for an extended period of time and a willingness to continue to live apart from his family in Australia if he was successful in obtaining a Temporary Protection Visa. I note that in the past, he travelled to Iran for employment for periods of up to six months at a time, while his family remained in Quetta.

51.    With regard to the applicant’s claims regarding his heightened visibility and vulnerability as a Hazara in Lahore, I have previously found that there is no real chance of harm to the applicant on the basis of his Hazara ethnicity and Shia faith in Lahore, including as the member of a possibly small Hazara community.

52.     I have accepted that violent incidents occur in Lahore from time to time. Nevertheless, DFAT has identified Lahore as a potentially viable relocation option for members of most ethnic and religious minorities, referring to opportunities for employment, access to services and state protection, and to the security situation in Lahore, which DFAT reports remains better than many other places in Pakistan, with lower levels of generalised and sectarian violence than many other major population centres [a footnote again referenced the DFAT Thematic Report – Shias in Pakistan – January 2016].

19    On the basis of the foregoing, the Authority concluded that there were not substantial grounds for believing that the appellant satisfied the complementary protection criterion in s 36(2)(aa) of the Act (at [54] of its reasons).

20    The Authority affirmed the decision of the delegate not to grant the appellant a protection visa.

The decision of the Federal Circuit Court

21    As noted earlier, on 3 August 2017, the appellant sought judicial review of the Authority’s decision in the Federal Circuit Court. On 18 June 2018, the appellant filed an amended application which substituted the previous grounds of review with a single ground of review: that the Authority had failed to consider a submission of substance. The ground was particularised in the appellant’s written submissions to the Federal Circuit Court. The argument advanced before the Federal Circuit Court is the same as the argument advanced before this Court on appeal and contains the following integers:

(a)    The Authority had an inherent or implied obligation to consider all submissions of substance made by the appellant as part of its review function.

(b)    At [5] of its reasons, the Authority identified that the appellant had made a “new claim” to the effect that there was no information to indicate what type of support, if any, the appellant might receive from the small Hazara communities in the contemplated places of relocation, including Lahore.

(c)    The Authority erred in characterising the “new claim” as new information for the purposes of s 473DD of the Act and in disregarding the claim. The claim was not new information but a submission of substance which the Authority was required to consider.

(d)    In failing to consider the “new claim” (as a submission), the Authority failed to perform a review as required by the Act and fell into jurisdictional error.

22    The primary judge referred to three legal principles relevant to the ground of review before him, with respect correctly.

23    First, the primary judge referred to the observations of the Full Federal Court in Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482 at [35] (CLV16), in which the Full Court noted that s 473DD did not prevent the Authority from considering a submission directed to information already before the Authority.

24    Second, the primary judge referred to the observations of Mortimer J in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [42] (CPE15) that assessing whether a submission was substantial, and what the decision-maker did or did not do in its reasons in terms of considering it, will be “highly fact dependant”, and the observations of Griffiths J in SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150at [79] and [81(a)] (SZSSC) that a potentially relevant factor that may affect whether a submission is “substantial” is whether it relied on an “established fact”.

25    Third, the primary judge referred to the further observation of Griffiths J in SZSSC at [81(b)] that “merely because the Tribunal fails to deal with a submission does not necessarily amount to jurisdictional error”.

26    Applying the foregoing principles, the primary judge came to the view that the Authority was correct to find that the Submitted Relocation Material was new information for the purposes of s 473DD (at [32] and [33]). The primary judge also concluded that, even if the Submitted Relocation Material was to be characterised as submission rather than new information, and was not considered by the Authority, the submission was not of significance to the appellant’s claim, nor was it significant in respect of the Authority’s reasoning process (at [34] and [35]). The primary judge concluded that, on both bases, no jurisdictional error attended the decision of the Authority (at [36]).

27    For the reasons explained below, we agree with the primary judge that the Authority’s decision did not involve jurisdictional error. Our reasoning differs marginally from that of the primary judge.

Issues raised by the appeal

28    The appeal raises 3 issues for consideration:

(a)    Did the Authority err in characterising all or part of the Submitted Relocation Material as “new information” within the meaning of s 473DD of the Act?

(b)    If the answer to (a) is yes, did the Authority err in failing to have regard to a submission of substance made by the appellant?

(c)    If the answer to (b) is yes, was the error material to the Authority’s decision and thereby a jurisdictional error?

29    It is convenient to consider each issue in turn.

First issue: was the Submitted Relocation Material new information?

30    Section 473DD of the Act provides as follows:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

31    In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, the High Court determined that the expression “new information” in s 473DD is limited to “information” in the ordinary sense of a communication of knowledge about some particular fact, subject or event (at [24] per Gageler, Keane and Nettle JJ, with whom Gordon J agreed at [78] and Edelman J agreed at [100]).

32    As noted by the primary judge, in CLV16, the Full Federal Court observed that the Authority is not precluded by either s 473DC or s 473DD from considering a submission from a visa applicant directed to such matters as the information already made available to the Authority and the consequences which are said to flow from that already established pool of factual information (at [35]).

33    There was no disagreement between the parties as to the foregoing principles. The disagreement concerned their application in this case.

Appellant’s contentions

34    The appellant contends that the Submitted Relocation Material comprised only information that was before the Minister and submission, neither of which was new information within the meaning of s 473DD. The appellant categorised the statements contained in the Submitted Relocation Material as follows:

(a)    The first sentence of the first dot point (The applicant has no family or support networks anywhere in Pakistan outside Quetta) was a combination of information that was before the Minister and submission. The appellant submitted that the delegate had found that the appellant’s family resided in Quetta and it followed that the appellant had no family outside Quetta. The appellant also argued that it was a matter of inference from that fact, or it was submission, that the appellant had no support networks outside Quetta.

(b)    The remainder of the first dot point comprised information drawn from the DFAT March 2014 and January 2016 reports, which were before the Minister. Accordingly, nothing drawn from those reports was new information under s 473DD. The first dot point contained a further submission concerning the limitations of those reports (Much of the information about the viability of relocation addresses the situation of Shias generally).

(c)    The first few sentences of the second dot point (that Hazara Shias are readily identifiable because of their distinctive facial features and that the size of the Hazara Shia communities in Lahore and Islamabad is small) were findings made by the delegate and accordingly were not new information.

(d)    The last sentence of the second dot point (there is no information to indicate what level of support, if any, a Hazara Shia such as the applicant could expect to receive from the small Hazara Shia communities in Islamabad/Rawalpindi or Lahore, or whether he would receive any support from Shia communities made up of other ethnic groups) is a submission.

35    On that analysis, the appellant submitted that the Authority erred in concluding that any part of the Submitted Relocation Material was new information for the purposes of s 473DD. The appellant’s submission proceeded on the basis that the Authority treated the whole of the Submitted Relocation Material as the “new claim” (as summarised at [5] of its reasons) and disregarded the whole of that material.

Minister’s contentions

36    The Minister submitted that, to determine whether the “claim” summarised by the Authority at [5] of its reasons was new information within the meaning of s 473DD or submission, it is necessary to consider the claim in the context of claims previously made by the appellant about relocation in Pakistan. The Minister observed that the appellant had not made any claim to the delegate that location within Pakistan was not possible because of a lack of family or other support. The appellant’s claim referred to at [5] of the Authority’s reasons, and which is the concluding passage in the Submitted Relocation Material, was based on the other factual matters raised in the submission, namely:

(a)    the appellant had no family or support networks anywhere in Pakistan outside Quetta;

(b)    a DFAT report implied that it is difficult to relocate without family and tribal networks;

(c)    much of the information about the viability of relocation that the delegate had referred to addressed the situation of Shia's generally (who make up 20% of the population), whereas Hazara Shias make up only 1% of the population; and

(d)    DFAT described the Hazara Shia communities in Lahore or Islamabad as “small”.

37    The Minister submitted that each of those matters seeks to add to the existing factual information before the Authority and that the Authority was correct to treat the “new claim” as new information within the meaning of s 473DD.

Resolution of the first issue

38    As the Full Federal Court observed in CLV16 at [74], while difficulties may be encountered in applying s 473DD to a written submission provided by an applicant to the Authority which contains a mixture of arguments as to the consequences flowing from established facts and interwoven new factual material, it is nevertheless for the Authority to “sort the wheat from the chaff”. That was required by the Authority in the present case.

39    It is appropriate to state at the outset that it was unhelpful for the Authority to have described what was summarised at [5] of its reasons as a “new claim”. In the context of an application for a protection visa, that term has a conventional and well understood meaning – it is the assertion of a claim as would or might engage with Australia's protection obligations originally under international law and now statutorily codified. The matters raised in the Submitted Relocation Material were not a new claim in that sense; overall, they were a new argument or contention in support of an integer of the appellant’s claim which may or may not have been based on new information.

40    Save in one respect, we agree with the appellant’s categorisation of the statements contained in the Submitted Relocation Material. The propositions drawn from the two DFAT reports were not new information for the purposes of s 473DD because the reports were before the delegate when making the original decision. By elaborating upon those reports and advancing arguments as to their limitations or proper meaning, the appellant was not providing new information to the Authority but was making submissions. The last sentence of the second dot point (there is no information to indicate what level of support, if any, a Hazara Shia such as the applicant could expect to receive from the small Hazara Shia communities in Islamabad/Rawalpindi or Lahore) is the proposition expressly referred to by the Authority at [5] of its reasons (which we will refer to as the “no information” proposition). The “no information” proposition did not communicate new facts or knowledge; rather, it was an argument or contention that there was an absence of factual information before the Authority to indicate the type of support available to the appellant in Lahore or Islamabad. As such, the proposition was not new information within the meaning of s 473DD.

41    We disagree with one aspect of the appellant’s categorisation. In our view, the first sentence of the first dot point was a combination of information that was before the Minister (the appellant’s family resided in Quetta) and new information (the appellant had no support networks other than in Quetta). The appellant submitted that the latter aspect, the absence of support networks, should be understood as a submission that there was no evidence to suggest that the appellant had support networks other than in Quetta. We disagree. The statement conveyed a fact which was new and the Authority was entitled to disregard it under s 473DD. In any event, in so far as the appellant wished to convey to the Authority that there was no evidence to suggest that the appellant had support networks other than in Quetta, that was conveyed through the last sentence of the second dot point (the “no information” proposition).

42    Having regard to the foregoing analysis, in our view the Authority misapplied s 473DD when it disregarded the “no information” proposition stated in [5] of its reasons. That proposition was a submission and was not new information. The Authority erred in that respect.

43    As already observed, the “no information” proposition is drawn from the last sentence of the second dot point of the Submitted Relocation Material. A question arises whether the Authority only disregarded that proposition or also implicitly disregarded the remainder of the Submitted Relocation Material.

44    The Authority’s reasons show that it had regard to the following aspects of the Submitted Relocation Material and closely related matters:

(a)    The appellant’s family lived in Quetta (at [12] and [16]) and the appellant does not have any family members in Lahore (at [49]).

(b)    Shia Pakistanis are dispersed throughout Punjab, including in the capital Lahore, and in larger cities such as Lahore, Sunnis and Shias are reported to be generally more integrated (relying on the DFAT January 2016 Report) (at [25]). Large Shia communities are reported to exist in Lahore (at [26]).

(c)    The appellant may be easily identified as a Hazara and a Shia anywhere in Pakistan due to his distinctive facial features (at [30]).

(d)    The DFAT January 2016 Report states that there is a Hazara community in Lahore and the DFAT March 2014 Report states that there is a “small” Hazara community in Lahore. The Authority accepted that the Hazara community in Lahore may be relatively small (at [32]).

(e)    The appellant had stated that he had not experienced discriminatory treatment in respect of property ownership, employment, education and healthcare in the past and there was no credible evidence before the Authority to suggest that the appellant was more likely to experience discriminatory treatment of that type in the future (at [33]).

(f)    The existence of a small community of other Hazaras in Lahore, the potential for interaction with other Shias, and the relative integration of the Sunni and Shia communities in the city would mitigate the risk that the appellant will be socially isolated in Lahore (at [49]).

(g)    The appellant has demonstrated an ability to live independently from his family for an extended period of time, including in Australia and Iran (at [50]).

45    Having regard to the above findings and the Submitted Relocation Material, it is our view that the Authority’s error was confined to the “no information” proposition stated at [5] of its reasons: it failed to consider the submission of the appellant that there is no information to indicate what type of support, if any, the appellant might receive from the small Hazara community in, relevantly, Lahore. Otherwise, the Authority took into account the fact that the appellant did not have family outside Quetta, and also took into account the information in the DFAT reports that there was a small Hazara Shia community in Lahore of unknown size.

Second issue: did the Authority fail to consider a submission of substance?

46    In the context of a review of a migration decision by the Administrative Appeals Tribunal under s 476 of the Act, the failure by the Tribunal to respond to a substantial, clearly articulated argument relying on established facts is a failure to accord natural justice and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24] and [32] per Gummow and Callinan JJ, [88] per Kirby J and [95] per Hayne J (Dranichnikov).

47    The Minister did not submit that the principles stated in Dranichnikov were inapplicable to a review conducted by the Authority under Part 7AA of the Act. While a review under Part 7AA is largely conducted “on the papers” (as per s 473DB), the Authority is empowered to get any documents or information that were not before the Minister when the underlying decision was made but the Authority considers may be relevant, or invite a person to provide new information (see s 473DC). Further, under s 473FB the President of the Administrative Appeals Tribunal is empowered to issue directions as to the conduct of reviews by the Authority and the Authority is required, as far as practicable, to comply with such directions. As noted earlier, a Practice Direction has been issued under s 473FB. The Practice Directions inform applicants that they may provide a written submission to the Authority. In CLV16, the Full Federal Court rejected an argument that a visa applicant could not make a submission to the Authority in relation to a review under Part 7AA. Referring to the Practice Direction issued by the Authority, the Full Court observed (at [42]):

…The relevance of the guidance provided in the “Information Sheet” and the Practice Direction for present purposes is to lend support to an expectation on the part of visa applicants that submissions would in fact be taken into account. Having provided visa applicants with that guidance, it would be contrary to good administrative decision-making for the Authority to invite the submission, receive the submission but to fail to take the submission into account. The reference to “good administrative decision-making” is of course subject to the observations of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Lam [2003] HCA 6 (2003) 214 CLR 1 and Attorney-General (NSW) v Quinn (1990) 170 CLR 1.

48    In our view, the principle stated in Dranichnikov is applicable in circumstances where the Authority has invited and received submissions in conducting a review under Part 7AA.

Appellant’s contentions

49    The appellant submitted that where, as here, the Authority stated in its reasons that it would not take a particular submission into account, it should be accepted that that is what the Authority did. The appellant further submitted that the submission referred to at [5] of the Authority’s reasons was a submission of substance. If accepted, it might have caused the Authority to change its conclusion expressed at [49] of its reasons: the existence of a small community of other Hazaras in Lahore, the potential for interaction with other Shias and the relative integration of the Sunni and Shia communities in the city mitigate the risk that the appellant would be socially isolated in Lahore. That finding was one of the bases upon which the Authority concluded that it would be reasonable for the appellant to relocate to Lahore. The appellant submitted that, if that finding was altered, the Authority’s conclusion on the question of relocation may have altered.

Minister’s contentions

50    The Minister submitted that the Authority had, in fact, considered the substance of the submission made by the appellant as summarised at [5] of the Authority’s reasons. The Minister observed that the Authority considered relocation at [48]-[51] of its reasons and made the following findings:

(a)    The appellant did not have any family members in Lahore. However, the appellant had not claimed that he had any health problems or other characteristics that might render him vulnerable and in particular need of familial or other support in the city (at [49]).

(b)    The existence of the small community of other Hazaras in the city, the potential for interaction with other Shias, and the relative integration of the Sunni and Shia communities in the city, mitigated the risk that the appellant would be socially isolated in Lahore (at [49]).

(c)    The appellant had demonstrated an ability to live independently from his family for an extended period and a willingness to continue to live apart from his family in Australia if he had obtained a protection visa. The appellant had travelled to Iran for employment for periods of six months at a time, while his family remained in Quetta (at [50]).

(d)    The Minister submitted that the Authority had considered what level of support the appellant would have in Lahore, and whether any lack of support would affect the reasonableness of relocation.

Resolution of the second issue

51    The application of the principle stated in Dranichnikov has been considered in many cases involving the review by the Administrative Appeals Tribunal of decisions made under the Act.

52    In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Federal Court stated (at [46] and [47]):

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason…

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

53     In CPE15, Mortimer J referred to Griffiths J’s summary of the authorities in SZSSC and stated (at [40]):

The kind of argument which must have been articulated by an applicant in order for the Tribunal to exceed its jurisdiction by failing to consider it was described by Griffiths J in SZSSC as “a substantial and clearly articulated argument”. In other words, the Tribunal as the decision-maker on the merits must have clearly been put on notice by an applicant of a contention, submission or argument the applicant wished to make in support of a decision in her or his favour on the review. Unless the argument has been “clearly articulated”, the Tribunal would not be put on notice. Unless the argument is “substantial”, a reviewing court cannot be confident or sufficiently confident that the Tribunal’s failure to deal with the argument may have affected or been material to the conclusion it reached. Ultimately the argument put by an applicant in these circumstances must be characterised as capable of affecting the formation of the state of satisfaction required by section 65 of the Migration Act. If it is not so capable, then the Tribunal will not exceed or fail to exercise its jurisdiction in not considering such an argument.

54    As the above passage makes clear, the failure to consider an argument will only constitute a constructive failure to exercise jurisdiction, and thereby jurisdictional error, if the argument is substantial in the sense that it is capable of altering the decision. In that sense, the requirement of substantiality is equivalent to considering whether the failure is material to the outcome. As the Full Federal Court recently observed in Singh v Minister for Home Affairs [2019] FCAFC 3 at [35]-[37], the ultimate concern is with the identification of jurisdictional error: the review body not performing the function entrusted to it or not performing it in an authorised way. The degree of consideration which is necessary for jurisdiction to have been exercised is affected by the significance of the submission made to the decision-maker. In that regard, it is necessary to have regard to the whole of the decision-maker’s reasons and the issues considered.

55    For the following reasons, we do not consider that the Authority failed to exercise jurisdiction by failing to consider the “no information” proposition referred to by the Authority at [5] of its reasons.

56    First, the “no information” proposition concerned one factor that had some bearing on the statutory question of the reasonableness of relocation within the returning country: social isolation. The question of social isolation was not itself a determinative issue. It was a factor to be considered alongside a range of other security, economic and social factors considered by the Authority in assessing the reasonableness of relocation.

57    Second, the “no information” proposition was extremely limited in its scope. Not only was it directed to one factor (social isolation) bearing upon the reasonableness of relocation, the proposition was only directed to one matter that might have affected social isolation: the extent to which the appellant might receive support from the Hazara Shia community in Lahore. Indeed, there was no submission from the appellant that he would be socially isolated in Lahore; nor was there a submission that the appellant would not or could not receive social support from the wider Shia community in Lahore; nor was there a submission that he would not receive support from the Hazara Shia community in Lahore. The submission went no further than communicating that there was no information concerning the extent of support the appellant would receive from the Hazara Shia community.

58    Third, despite the Authority stating at [11] that it would not have regard to the “no information” proposition, it is plain that the Authority had regard to the security, economic and social implications for the appellant relocating to Lahore. The Authority concluded that there would not be a real chance of harm to the appellant in Lahore (at [46]). The Authority concluded that the appellant was educated, multilingual, had work experience in a range of industries and had demonstrated resourcefulness and adaptability, all of which supported the conclusion that the appellant would find employment in Lahore (at [47] and [48]). As to social matters, the Authority concluded that the appellant would find accommodation in Lahore (at [48]). The Authority also concluded that while the appellant did not have family members in Lahore, he did not have any health problems or other characteristics that might render him vulnerable and in particular need of familial or other support. The Authority had regard to social isolation and concluded that the risk of such isolation was mitigated by the existence of a small Hazara community in Lahore as well as the potential for interaction with other Shias and the relative integration of the Sunni and Shia communities in Lahore (at [49]). All of those findings were open on the evidence before the Authority.

59    Having regard to the findings made by the Authority, we do not accept the submission of the appellant that the Authority failed to exercise jurisdiction in the sense described in Dranichnikov. The Authority gave proper consideration to the factor of social isolation as part of its consideration of the statutory question of reasonableness of relocation. Having regard to the Authority’s findings, the appellant’s “no information” proposition could not have altered the Authority’s decision, had it taken that proposition into account.

Third issue: was the error material to the decision?

60    As discussed at paragraphs 52 to 54 above, the failure to consider a submission advanced before the decision maker will constitute a constructive failure to exercise jurisdiction if the submission is substantial in the sense that it is capable of altering the decision. The requirement of substantiality is equivalent to considering whether the failure is material to the outcome in the sense of depriving the appellant of the possibility of a different outcome: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [29]-[31] per Kiefel CJ, Gageler and Keane JJ (Hossain); Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38 at [45] per Bell, Gageler and Keane JJ (SZMTA).

61    If there be any difference between the question whether a decision maker failed to consider a submission of substance and the question whether the failure was material to the decision in the sense explained in Hossain and SZMTA, in this case we do not consider that any failure by the Authority to consider the “no information” proposition was material to the Authority’s decision. We note in that regard that the onus is on the appellant to satisfy the Court of jurisdictional error including that the error was material in the relevant sense: SZMTA at [4], [41] and [46] per Bell, Gageler and Keane JJ. Speculation as to how taking into account the appellant’s submission “may” have affected the decision is not enough to discharge the onus of demonstrating materiality. The Court must decide whether the failure to consider the submission has operated to deprive the appellant of the possibility of a successful outcome; i.e. whether the Authority’s decision could realistically have been different: SZMTA at [68], [69] and [71] per Bell, Gageler and Keane JJ.

62    For the reasons expressed in connection with the second issue, in our view the Authority gave proper consideration to the issue of social isolation as one matter bearing upon the reasonableness of relocation. In doing so, the Authority properly considered the available evidence and made findings consistent with that evidence. In our view, the “no information” proposition could not realistically have altered the Authority’s findings with respect to social isolation, and far less with respect to the overall issue of the reasonableness of relocation. We accept the Minister’s submission that, having regard to the whole of the Authority’s reasons, there was no realistic possibility of a different decision being made.

Conclusion

63    In conclusion, we do not consider that the Authority’s decision is affected by jurisdictional error. We dismiss the appeal and order that the appellant pay the Minister’s costs, as agreed or taxed.

Associate:

Dated:    30 August 2019