FEDERAL COURT OF AUSTRALIA

MZACX v Minister for Immigration and Border Protection [2016] FCA 1212

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 1 and 2 of the Federal Circuit Court of Australia on 24 April 2015 be set aside and in place of those orders, order:

(a)    a writ of certiorari issue quashing the decision of the second respondent made on 1 April 2014 not to grant the applicant a Protection (Class XA) visa;

(b)    a writ of mandamus issue to the second respondent to hear and decide the application for a Protection (Class XA) visa made to the second respondent on 16 July 2013 according to law;

(c)    a writ of prohibition issue prohibiting the first respondent and his delegates, servants and agents from acting upon or giving effect to the decision referred to in paragraph (a) above;

(d)    the first respondent pay the costs of the applicant, as agreed or taxed.

3.    The first respondent pay the appellant’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, (the Tribunal) to affirm the decision of a delegate of the respondent Minister not to grant the appellant a protection visa.

2    The applicant in the FCCA and the Tribunal (referred to in this Court and generally in these reasons as the appellant) claims to be a person in respect of whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (the Convention) and to satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (the Migration Act) (as it was at the relevant time) or, alternatively, the complementary protection criterion in s 36(2)(aa). The appellant claimed that, if he returned to Pakistan in the reasonably foreseeable future, he would face a real chance of serious or significant harm at the hands of the Taliban and other Sunni Muslim groups.

3    The Tribunal accepted that the appellant faced a real chance of persecution for reasons of his religion and ethnicity if he were to return to his home region in Pakistan but did not accept that his fear of persecution was well-founded throughout Pakistan. Rather, the Tribunal found that it would be reasonable, in the sense of practicable, for the appellant to relocate to Islamabad or Rawalpindi. The principal issue raised on the appeal is whether the Tribunal fell into jurisdictional error in its application of the legal test for relocation.

4    For the reasons that follow, I would allow the appeal, with costs, set aside the orders of the FCCA, and make certain other orders.

SUMMARY OF BACKGROUND FACTS

5    The background facts are not in dispute. The following summary is drawn primarily from the Tribunal’s statement of reasons.

6    The appellant is a Shia Muslim and Turi. He lived in the Kurram Agency in the Federally Administered Tribal Areas (FATA) of Pakistan all his life until he left Pakistan in 2012. From 2007, in the Kurram Agency, there was violence between “the Turis, their Shia allies and some Banash clans and Sunni extremist groups from both Afghanistan and Pakistan”. Violent clashes led to the closure of the road between Peshawar and Parachinar between 2007 and 2011. The resulting restrictions impacted on the appellant on a daily basis, affecting his education, the opportunity to further his studies and to access medical treatment.

7    At the time the road to Peshawar was closed, the appellant’s stepfather had a business importing various items such as flour, fuel, oil, medicine and other basic necessities, through Afghanistan to Parachinar, to sell to shopkeepers in the area. His stepfather was killed in 2008 while travelling to Afghanistan to purchase supplies. Following his stepfather’s death, the appellant took over his business for a short time. He stopped running the business because he feared for his safety.

8    The appellant claimed that he left Pakistan for Thailand in 2012 and subsequently travelled to Malaysia and Indonesia, where he made contact with the United Nations High Commissioner for Refugees (UNHCR). He claimed to have boarded a boat in Indonesia that sunk while travelling to Australia. He was rescued by the Australian Navy.

9    The appellant arrived in Australia on 22 June 2012 and applied for a protection visa on 20 November 2012. The delegate refused to grant the appellant a protection visa on 8 July 2013 and on 16 July 2013 the appellant applied to the Tribunal for a review of the delegate’s decision.

Some relevant legislation

10    At the relevant time, s 36 of the Migration Act provided:

Protection visas

(1)    There is a class of visas to be known as protection visas.

Note:    See also Subdivision AL.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    A non-citizen in Australia in respect of whom the Minster is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

…

The Tribunal’s decision

11    In its reasons for decision, the Tribunal identified the primary issue in the review as whether the appellant satisfied the criteria in paragraphs (a) or (aa) of s 36(2). Having regard to the appellant’s evidence and country information, the Tribunal accepted that the appellant faced a real chance of serious harm on the basis of his Turi ethnicity and Shia religion if he was to return to his home region of Parachinar in the Kurram Agency in Pakistan, now or in the reasonably foreseeable future.

12    Having regard to s 36(2B), the Tribunal then identified two further issues: (1) whether there was a real chance that the appellant would face persecution for a Convention reason if he were to move to another area of Pakistan; and (2) whether, in his particular circumstances, it would be reasonable for him to do so. In this context, the Tribunal considered the possibility that the appellant might relocate to Lahore, Islamabad or the neighbouring city of Rawalpindi; and ultimately focussed on relocation to Islamabad and Rawalpindi.

13    After stating that it had considered the submissions made on the appellant’s behalf that there existed an appreciable risk of harm throughout Pakistan, including in the cities of Islamabad and Rawalpindi (referencing a sectarian clash in Rawalpindi in November 2013 resulting in up to ten deaths), the Tribunal continued:

However, the Tribunal has taken into consideration the DFAT Country [Information] Report [on Pakistan dated 29 November 2013], as it is required to do, which describes Islamabad as being relatively free of sectarian violence, as well as UNHCR’s Eligibility Guidelines ... which identifies the areas where attacks against Shia processions and religious gatherings and sites predominantly occur and finds that there have been few attacks on the Shia community, such as the recent incident in November 2013, in Rawalpindi. While there have been incidents of violence against Shia and there will be further attacks against Shia targets in various parts of the country as there have been for a long time in Pakistan, dating from the mid-1980s according to the UNHCR Eligibility Guidelines, the Tribunal does not accept on the country information before it, including the information provided by the applicant’s adviser, that all Shia in Pakistan are at risk of harm. The Tribunal notes, as it did in the hearing, according to the Pakistan Institute for Peace Studies, over 85 percent of the recorded incidents which included terrorist attacks and sectarian clashes occurred in Kurram Agency in FATA, Karachi, Quetta and Gilgit. Based on the information before it, the Tribunal does not accept that there is a real chance of the applicant being seriously harmed or subject to such attack for reason of his Shia identity in Islamabad or Rawalpindi.

14    The Tribunal addressed the appellant’s claim that his “profile as a Turi from Parachinar” would make him a target in other parts of Pakistan, particularly in urban areas such as Islamabad and Rawalpindi. It accepted that the appellant might be identified as a Shia Turi because of his accent, identity documents, the spelling of his name and the way he practises his religion, but held that there was “nothing in the country information before it to suggest that Turis are targeted for harm in Islamabad/Rawalpindi”. Although the Tribunal accepted that there “may have been some instances of Turis being kidnapped in Islamabad/Rawalpindi in 2011”, it did not accept that there was a real chance that the appellant would be the victim of such crime or that these past incidents made relocation unreasonable or impracticable for him, “taking into consideration the size of the population and the limited number of reports dating back several years now”. The Tribunal considered that it was “further supported in this finding on the basis of reports of Turi groups such as the Youths of Parachinar (YoP) routinely staging political rallies in Islamabad without incident”. The Tribunal stated that “[i]n light of this information”, it did not accept that the appellant’s “profile as a Turi from Parachinar or Turi Shia from Parachinar or Kurram Agency would lead to a real chance of serious harm away from his home region or that it would adversely impact on his ability to relocate”. The Tribunal rejected the appellant’s claims that he had an “elevated profile” by virtue of being a “renewed Turi shop keeper in Parachinar” and was not satisfied that the appellant would face “a real chance of serious harm for that reason”, noting that “he operated his step-father’s shop on his own for a very limited period of time, no more than two months”.

15    The Tribunal found that the appellant could live and work in an urban city such as Islamabad or Rawalpindi, given that he was “fluent in Pashtu and can read and speak the national language Urdu”. The Tribunal found that, notwithstanding his assertions that he was only educated to a very basic level, the appellant had “completed Year twelve in high school and has experience working in his step-father’s business, which will assist him in finding employment”.

16    The Tribunal accepted that the appellant had no “familial or friendship ties in Islamabad/Rawalpindi” but did not accept that the appellant had “no prospective opportunity of gaining employment outside of Parachinar”. It explained that:

[T]he Tribunal has had regard to the applicant’s capability and flexibility demonstrated by him travelling to Indonesia, a foreign country where he knew no-one, and was living for a period of time before coming to Australia, where he similarly has no familial or friendship connections. The applicant’s resourcefulness and youth, in addition to the presence of a Turi population in Islamabad and Rawalpindi, suggests that the applicant would be able to manage to find shelter and employment in these cities of Pakistan without the support of family, friends and contacts to rely on and that he is capable of supporting himself outside of Parachinar.

17    The Tribunal concluded that there was “not more than a remote chance” that the appellant “would face persecution on account of his Shia religion, his Turi ethnicity, being a former resident of Parachinar in Kurram Agency, a combination of these factors or any other reason now or in the reasonably foreseeable future if he were to return to live elsewhere in Pakistan, away from Parachinar, such as Islamabad or Rawalpindi”. The Tribunal stated that “[w]hile the Tribunal considers that there is less than a remote chance of the applicant being targeted on the basis of his Shia religion or as a member of the Turi tribe from Parachinar or being caught up in generalised or sporadic violence which may occur in the country including in Islamabad and Rawalpindi, the Tribunal finds it is reasonable for the applicant to relocate to these urban centres in these circumstances”. It concluded that:

Taking into consideration the independent information ... and an assessment of the applicant’s particular circumstances including his age, education, work experience, ability to find work, his lack of familial connections, tribal connections and demonstrated capability, the Tribunal finds that it will be reasonable, in the sense of practicable, for the applicant to relocate to Islamabad or Rawalpindi. Accordingly, the Tribunal is not satisfied that the applicant holds a well-founded fear of persecution.

18    Furthermore, since it would be reasonable for appellant to relocate to an area such as Islamabad or Rawalpindi, the Tribunal was not satisfied that the appellant met the alternative criterion under s 36(2)(aa). Accordingly, the Tribunal concluded that the decision of the delegate should be affirmed.

The decision of the FCCA

19    In the FCCA, the appellant challenged the Tribunal’s decision on the basis of jurisdictional error said to arise from the misconstruction or misapplication of the relevant legal test. While the appellant’s amended judicial review application indicated that this contention would be put on three bases, only two bases were ultimately pressed. The learned primary judge interpreted the first basis as raising the question “did the Tribunal misconstrue or misapply the relocation principle by failing to consider the risk that the applicant might suffer harm in Islamabad or Rawalpindi in relation to the reasonableness of relocation?” and the second, as raising the question “did the Tribunal misconstrue or misapply the relocation principle by failing to consider the personal circumstances of the applicant bearing upon the reasonableness of relocation?”. On appeal to this Court, no party took issue with his Honour’s understanding of the appellant’s case.

20    As to the first of the questions, the Federal Circuit Court judge stated:

I accept that, on a fair reading, the Tribunal considered the risk of harm facing the applicant outside his home region, both in terms of the risk of him facing persecution and in relation to the reasonableness of relocation. It is tolerably clear that the Tribunal preferred country information indicating that the applicant would not face a real chance of being persecuted for a claimed Convention reason in Islamabad or Rawalpindi. As the Minister notes in his submissions, that was a necessary part of the Tribunal’s consideration of the relocation principle. Secondly, and critically, the Tribunal also considered the risk of harm to the applicant in relation to considering whether it would be reasonable, in the sense of practicable, for him to relocate to those places. This is clear from the final two sentences of [43] of the Tribunal’s reasons. I accept the Minister’s submission that it was necessary for the Tribunal to consider the application of s 91R of the Migration Act in considering the risk of persecution in Pakistan as a whole and that the Tribunal did not fall into the error identified in MZYQU [v Minister for Immigration and Citizenship [2012] FCA 1032; 206 FCR 191], in considering the reasonableness of relocation.

The Tribunal concluded ... that a chance of harm that was less than a remote chance did not render it unreasonable for the applicant to relocate to Islamabad or Rawalpindi. That conclusion was open to the Tribunal on the material before it and I see no error in the Tribunal’s approach.

21    As to the second question that arose for determination, his Honour first affirmed that it was “reasonable” for the Tribunal to find that the appellant’s language skills and education would be sufficient to support his relocation to Islamabad or Rawalpindi. His Honour observed that the Tribunal’s reference to the appellant’s “employment history in his step-father’s business was based on limited information about a brief period of employment but it was open to the Tribunal to place some weight on that information”. His Honour noted that it was open to the Tribunal to refer to his youth; and that it had also mentioned his lack of a family or friendship network in Islamabad or Rawalpindi. His Honour continued:

The Tribunal’s reference to resourcefulness in relation to his travel to Australia might seem misplaced in circumstances where he travelled with family and friends who died on the voyage to Australia and where the applicant himself would also have died had he not have been rescued by the Australian Navy. From the point of rescue onwards, the applicant has had no need or opportunity to demonstrate any resourcefulness. Whether it was he or others who arranged for the subsistence of the group or individuals within it in Indonesia is a matter of conjecture. If the mere fact of journeying from one’s home country to Australia (even in difficult circumstances) was sufficient to demonstrate skills necessary to relocate internally in that country of origin, then the Tribunal would have an easy task. More is required. It is necessary for the Tribunal to look at the actual circumstances in the proposed place to which the applicant would be expected to relocate. That the Tribunal did. Read in context, in my opinion the Tribunal, in referring to the applicant’s resourcefulness, was merely noting that the applicant appeared to have demonstrated some resourcefulness prior to coming to Australia and recognised that he would need to be resourceful in order to find shelter and sustenance and employment after the relocation.

In my opinion, the Tribunal in this case fulfilled the task explained by the High Court in SZATV [v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18] in considering the applicant’s personal circumstances in order to decide whether it is reasonable, in the sense of practicable, that he relocate. I do not think that the recent decision of the High Court in [Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317] assists the applicant. The Tribunal was not expecting the applicant to give up a profession or calling for the purposes of relocation. Given the applicant’s limited skills and employment background, he would be starting afresh. The Tribunal reasoned that the applicant would find something to sustain him because of his youth, his language skills and education level and his resourcefulness. Bearing in mind the country information considered by the Tribunal concerning the opportunities available in Islamabad and Rawalpindi, it cannot be said that the conclusions reached by the Tribunal were not open to it on the material before it. Neither, in my opinion, did the Tribunal misconstrue or misapply the relevant legal test. There is necessarily an element of speculation in the Tribunal’s reasoning but that element of speculation is not, in my opinion, inconsistent with the proper consideration of the relocation principle.

22    Accordingly, the primary judge dismissed the appellant’s challenge to the Tribunal’s decision. The appellant appeals to this Court against that judgment.

Grounds of appeal

23    The appellant relied on an amended notice of appeal dated 6 November 2015. Leave to do so was granted at the hearing, there being no opposition. This amended notice of appeal set forth the following grounds of appeal:

1.    The Tribunal erred in its application of the relocation test by failing to give proper consideration to the risk of harm established to the Tribunal's satisfaction, and conflating the two limbs of the relocation test.

Particulars

The Tribunal made a jurisdictional error in its application of the relocation test at [42], [43] and [47] of its reasons for decision.

2.    Further or alternatively to ground 1, the Tribunal's findings at [44] and [46] of its decision reveal of [sic] jurisdictional error constituted by:

2.1.    making a finding unsupported by evidence; or

2.2.    making a finding of jurisdictional fact that no rational or logical decision-maker could have reached: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; or

2.3.    making a finding without considering all relevant claims and integers of claims.

Particulars

a.    At [44] of its decision the Tribunal found the applicant completed year 12 in high school and has experience working in his step-father's business, which would assist him in finding employment. This finding was arrived at in the absence of any consciousness or consideration:

i.    of the appellant's claims that his education was of a poor quality and had been disrupted by civil war, and

iii.    his employment was of 2 months duration and terminated because he was too scared to continue that line of work. Furthermore, the appellant's work experience was undertaken in an exclusively Turi Shi'a area, the Tribunal gave no consideration to how that experience would translate in an "urban centre".

b.    At [46] of its decision, the Tribunal found the appellant was capable and flexible and resourceful, by reference to his travel to Indonesia and his having lived in Indonesia. This finding was arrived at in the absence of any consciousness or consideration of material before the Tribunal to the effect that:

i.    the appellant travelled to and lived in Indonesia (for 17 days) with the assistance of family and friends,

ii.    had little knowledge of his travel arrangements,

iii.    was housed in accommodation provided by others and subsisted on food provided by his family.

Principles governing relocation

24    The requirement that a “fear” be “well-founded” in Art 1A(2) of the Convention “incorporates a consideration as to whether a claimant for refugee status can relocate within the country of his nationality so as to avoid persecution”: see MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [8], citing SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [19]-[22]. A person is not a refugee within the meaning of the Convention if he or she could obtain real protection in his or her country of nationality by relocating to another part of the country. The “factum upon which the principle of relocation operates is that there is an area in the visa applicant’s country of nationality where he or she may be safe from harm”: Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [25] (French CJ, Hayne, Kiefel and Keane JJ). Further, it “may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”: SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; 233 CLR 51 at [14] (Gummow, Hayne and Crennan JJ). This analysis is taken up by Australian law in s 36(2) of the Migration Act, set out above.

25    The issue of relocation does, however, raise the separate and distinct issue of reasonableness since “[w]hat is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”: SZATV 233 CLR 18 at [24]; see also SZFDV 233 CLR 51 at [14]; and SZSCA 254 CLR 317 at [25].

26    Clearly enough, whether relocation to a particular place is reasonable can raise different issues to those raised by the question whether a visa applicant faces a “fear of persecution”. Unlike fear of persecution, the reasonableness of relocation imports a question of practicability, the boundaries of which are different from fear of persecution for a Convention reason and in the Convention sense, even though the question of persecution in the Convention sense remains: see SZFDV 233 CLR 51 at [14]; SZATV 233 CLR 18 at [24] and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; 52 FCR 437 at 443 (Black CJ, Whitlam J agreeing).

Ground 1

27    The appellant submitted that the Tribunal had, in his case, made an error of the type identified in MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; 206 FCR 191. The appellant also relied on the decision of Davies J in MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394, especially [21]. Counsel for the appellant contended that, by its findings, the Tribunal accepted that there existed some residual risk in respect of politically motivated terrorist and sectarian violence in various areas across Pakistan, including the putative relocation areas. Accepting, as the Tribunal found, that there was no appreciable risk of the persecution feared by the appellant in Islamabad or Rawalpindi, the Tribunal was required, in the appellant’s submission, to consider the whole of the appellant’s claims in relation to relocation, including the other risks for him when considering the practicability of relocation. The appellant argued that the Tribunal had failed to consider the practicability of relocation for him, by reference to sectarian and generalised violence that it found existed; and had wrongly conflated the question whether there was an appreciable risk of the feared persecution in the putative safe havens of Islamabad and Rawalpindi with the question whether relocation to those places was reasonable, in the sense of practicable, given his particular circumstances. In this context, the appellant drew particular attention to paragraphs [40], [42] and [43] of the Tribunal’s reasons.

28    The Minister submitted that the Tribunal had addressed the appellant’s claims in support of his submission that it would not be reasonable for him to relocate within Pakistan, including to Islamabad or Rawalpindi. The Minister submitted that, in relation to his safety in Islamabad or Rawalpindi, the appellant had claimed to face a risk of harm as a result of ethnically and religiously motivated attacks, not some other risk of harm, and the Tribunal found that the prospect of the appellant suffering any claimed harm in those cities was less than remote. The Minister submitted that the Tribunal’s findings were not confined to the risk of serious harm that the appellant claimed to face in those cities and that it did not exclude from consideration any claimed risk of harm that did not amount to serious harm. Accordingly, so the Minister submitted, the circumstances of the present case were distinguishable from the circumstances considered by Dodds-Streeton J in MZYQU 206 FCR 191.

29    The Minister submitted that the Tribunal had not wrongly conflated the two aspects of the relocation test. That is, according to the Minister, the Tribunal had looked at the risk of serious harm or of the feared persecution, and also looked at the chance of any harm in the putative relocation areas. This was demonstrated, the Minister submitted, by the Tribunal setting out the proper principles at [38]-[39] of its reasons; and by separating its discussion into the two aspects of the test at the “critical summing up of its consideration of all the materials” at [47].

Ground 2

30    The appellant submitted that the Tribunal had determined that relocation in Pakistan was a reasonable option for him on the basis that: (1) he had completed year 12 and had experience working in his stepfather’s business; and (2) was “capable” and “resourceful” and thus would manage to find employment and shelter without the support of family, friends and contacts. The appellant further submitted that the Tribunal had made these findings “without any consciousness or consideration of the claims and evidence” that:

    the appellant's education was of poor quality, having been interrupted by civil war;

    the appellant had only worked as a trader for two months, and had been unable to maintain the business on his own by reason of his fear;

    the appellant's work experience arose from farming his family’s land for subsistence only (not commercially) and his work as a trader was gained in an exclusively Shia Turi environment. The Tribunal made no findings or analysis as to how this experience translated to employment in a city; and

    the appellant left Pakistan for Australia with three family members and a friend who were lost at sea, had little knowledge of the arrangements by which he came to be in Australia and spent 17 days in Indonesia in accommodation provided for him, eating the food his cousin obtained for him.

31    In consequence, so the appellant contended, the challenged findings revealed: (1) a failure to consider relevant considerations, being the claims and evidence set out in the preceding paragraph; (2) a failure to perform the task mandated by s 65 of the Migration Act; and (3) findings made in the absence of evidence, or findings reached on an illogical basis.

32    The Minister responded that the reasonableness of relocation was ultimately a question of fact for the Tribunal and the appellant had not shown any failure on the Tribunal’s part to consider his claimed circumstances. The Minister submitted that the Tribunal had taken account of the appellant’s claims about his past education and employment, but had found, and had been entitled to find, that his education and work experience would “assist him in finding employment”. The Minister further submitted that it was also open to the Tribunal “to have regard to the appellant’s travel to Australia, via Thailand, Malaysia and Indonesia, and find that this travel demonstrated a degree of resourcefulness, flexibility and capability on the part of the appellant”. The Minister contended that, in so finding, the Tribunal did not fail to take into account a relevant consideration and it could not be said that there was no evidence to support those findings. Further, the Minister maintained that the appellant had not established that the Tribunal’s decision was illogical or irrational so as to amount to jurisdictional error.

33    The Minister submitted that it was sufficient in the discharge of the Tribunal’s statutory functions for the Tribunal to identify, actively engage with, and take into account the appellant’s claimed circumstances, which were relevant considerations in assessing the reasonableness of relocation. The Minister submitted that the Tribunal had taken into account the appellant’s particular characteristics as required, including age, education, work experience, ability to find work, his lack of familial connections, tribal connections and demonstrated capability, referring to [47] of the Tribunal’s decision, and had thereby discharged the statutory task.

CONSIDERATION

34    The nature of the inquiry as to the reasonableness of relocation depends on the particular objections raised by the visa applicant to relocation: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415 at [124], citing Randhawa 52 FCR 437 at 442-443. These objections set the parameters for the Tribunal’s inquiry: MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352 at [61]. The Tribunal’s task is to assess the reasonableness of relocation as regards the applicant by reference to the issues raised by him and on the other material before the Tribunal: AZAEH v Minister for Immigration and Border Protection [2015] FCA 414 at [21]; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58], [60]-[61], [68].

Ground 1

35    In considering the possibility of relocation within a visa applicant’s country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk, then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is “reasonable”, in the sense of “practicable”, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus. Jurisdictional error may arise where a Tribunal conflates the two stages of the inquiry, as MZYQU 206 FCR 191 and MZZJY [2014] FCA 1394 illustrate.

36    In MZYQU 206 FCR 191, Dodds-Streeton J held (at [61]) that there was jurisdictional error in treating a risk of serious harm (within s 91R(1)(b) of the Migration Act) as the only kind of harm that could affect the reasonableness of relocation. Her Honour explained (at [55] and [60]):

Consistently with SZATV, factors such as “other and different risks in the propounded place of internal relocation” ... may be relevant, albeit not mandatory, considerations when determining the reasonableness of a proposed relocation.

...

The I[ndependent] M[erits] R[eviewer] did not consider the impact of the risk of harm in the form of generalised violence or harm (of an unspecified nature or level) due to personal circumstances on the reasonableness of the appellant’s relocation. By inference, the IMR proceeded on the basis that unless the harm were serious within the meaning of s 91R(1)(b), it was unnecessary to do so.

37    In MZZJY [2014] FCA 1394 Davies J held that the Tribunal had erred in considering whether the applicant in that case could relocate within Pakistan to avoid persecution. Her Honour said (at [16] and [21]):

The applicant’s primary contention in support of the proposed ground of appeal is that the FCC erred in not finding that the Tribunal, in assessing the reasonableness of the applicant relocating to Karachi, was obliged, but failed, to consider the risk of the applicant suffering harm having regard to the particular circumstances of the applicant. It was argued that the Tribunal wrongly conflated the two limbs of the relocation test, namely “appreciable risk” and “reasonableness”, by failing to address the personal circumstances of the applicant in addressing the question whether it was reasonable, in the sense of practicable, for the applicant to relocate to Karachi in the face of a risk of the applicant suffering sectarian and generalised violence, however remote...

I accept the submission for the applicant that the Tribunal conflated the two limbs of the relocation test, namely “appreciable risk” and “reasonableness”, by finding that the applicant could be reasonably expected to relocate to Karachi “where there is not an appreciable risk of the occurrence of the feared persecution”. In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 Gummow, Hayne and Crennan JJ stated that what is “reasonable” in the sense of practicable must depend upon the particular circumstances of the visa applicant and the impact upon that person of relocation of the place of residence within the country of nationality. This criterion was recently affirmed by the High Court in Minister for Immigration and Citizenship v SZSCA [2014] HCA 2014. In the present case, the Tribunal dealt with the position of Shias generally in Karachi but did not consider the practical realities facing the applicant, as a person at risk of attack in Karachi because of his religion. In so doing, the Tribunal wrongly elided the question posed by the “reasonableness” criterion with the inquiry, is there a lack of “appreciable risk” of harm? The conclusion that the chance of harm is not more than remote dealt only with the consideration as to whether objectively there is an appreciable risk of persecution for a Convention reason in Karachi, but did not deal with the question as to whether it is reasonable, in the sense of practical, to expect the applicant to live there faced with a risk of violence and where he would lack protection from the authorities, as the Tribunal accepted. The same considerations do not necessarily apply to both limbs. The fact that the risk of harm may be remote does not necessarily answer the question whether it is reasonable, having regard to the personal circumstances of the applicant, to expect the applicant to face that risk. The Tribunal was obliged to consider the practical realities for the applicant in determining whether it is reasonable to expect him to relocate. It did not do so, and in failing to do so fell into jurisdictional error.

38    While the present case is different from both MZYQU 206 FCR 191 and MZZJY [2014] FCA 1394 in some respects, these decisions illuminate the argument that the appellant makes in this case. I note that in MZZZA v Minister for Immigration and Border Protection [2015] FCA 594, Mortimer J held that the Tribunal’s reasoning in that case did not lead to the same conclusion as in MZZJY [2014] FCA 1394, but, as Mortimer J noted in MZZZA at [42], there is nothing in MZZZA that is inconsistent with MZZJY.

39    Whether or not the primary judge erred, as alleged, in finding that no jurisdictional error was disclosed in the Tribunal’s reasons therefore depends, at least in part, on the claims made by the appellant before the Tribunal concerning the reasonableness of his relocation to Islamabad or Rawalpindi, including the harm he claimed to face there.

40    Before the Tribunal, the appellant claimed that:

(a)    throughout Pakistan, there had been attacks on Shia Muslims and, specifically, on Shia Muslims who were members of the Turi tribe;

(b)    he would face a risk of harm as a result of such attacks, particularly during attendance at Shia Muslim mosques or participation in religious festivals; and

(c)    in Islamabad and Rawalpindi, he would face a heightened risk because of his status as a Turi Shia Muslim and his “profile as a renewed Turi shopkeeper”.

41    The appellant’s migration agents made post-hearing written submissions to the Tribunal dated 31 January 2014 and filed on 11 February 2014, in which the appellant had maintained that it would be unreasonable to relocate to another part of Pakistan. In these submissions, it was said:

[T]here is growing speculation amongst credible news outlets that the level of sectarian fuelled violence throughout Lahore and Islamabad/Rawalpindi is expected to dramatically increase in the near future. Of particular concern was a recent sectarian clash that occurred in Islamabad/Rawalpindi on 22/11/2013 resulting in the deaths of at least 10 people.

42    In substance, the appellant claimed that he would face a risk of harm as a result of ethnically and religiously motivated attacks if he were to relocate to Islamabad, Rawalpindi or Lahore and that this circumstance was relevant to the reasonableness of his relocation to those places. I interpolate here that the Tribunal made no finding about relocation to Lahore. The appellant’s post-hearing submissions referred to a report by the Immigration and Refugee Board of Canada in 2014 that contained a reference to Lahore as a “new flashpoint” for sectarian violence against Shia Muslims. The Tribunal did not specifically discuss this information. The Tribunal indicated only that it had considered the submission and that the submission “cites information from various sources about sectarian violence in Lahore”. I note at this point too that the appellant also claimed that relocation was unreasonable on account of his youth, and his lack of education, employment experience and skills that would enable him to support himself in a new place where he had no family or tribal links. I return to these matters in relation to Ground 2.

43    Counsel for the Minister submitted that the Tribunal dealt separately with the issues (1) whether there was no appreciable risk of the occurrence of the feared persecution in Islamabad or Rawalpindi; and (2) whether the risk of harm as a result of attacks by reason of his Shia Muslim and Turi identity (alone or in combination with his identity as a renewed Turi shopkeeper) militated against relocation in all the circumstances of his case. Counsel for the Minister relied on the Tribunal’s statement at the end of paragraph [42] of its reasons that:

Based on the information before it, the Tribunal does not accept that there is a real chance of the applicant being seriously harmed or subject to such attack for reason of his Shia identity.

Counsel for the Minister submitted that:

[I]f the tribunal had only considered serious harm there, there might be some difficulties for my client by way of what was said in MZYQU. But it has gone further than that and indicated that the applicant will not be subject to an attack in the nature of what is discussed earlier, that is, a religiously motivated attack.

44    There are difficulties with the Minister’s characterisation of the Tribunal’s reasons. What the Tribunal meant by the expression “or subject to such attack” in paragraph [42] is unclear. The use of the word “such” suggests that the Tribunal meant “attacks involving serious harm”. The balance of the paragraph does not shed a great deal of light on the intended significance of the expression. To judge from the first few lines, the paragraph was principally devoted to the appellant’s submission that “there exists an appreciable risk of harm throughout Pakistan, including the cities of Islamabad/Rawalpindi” and in that context the Tribunal mentioned the appellant’s reference to a sectarian clash in Rawalpindi on 22 November 2013 and made its own “findings” (if that is what they were) about the prevalence of “attacks on the Shia community” in Rawalpindi and “incidents of violence” and “further attacks against Shia targets in various parts of the country”, as well as the prevalence of “terrorist and sectarian clashes” in “Kurram Agency in FATA, Karachi, Quetta and Gilgit”. There is little here to show that, in this paragraph, the Tribunal did more than address the primary issue, whether there was no appreciable risk of the occurrence of the feared persecution in Islamabad or Rawalpindi, and determined that there was not. This left the further question whether there was nonetheless a different level of risk of harm on account of his Shia Muslim and Turi identity that militated against his relocation, when all the circumstances of his case were considered.

45    Paragraph [47] of the Tribunal’s reasons set forth the Tribunal’s conclusion about relocation to Islamabad or Rawalpindi. The paragraph commences with the statement that the Tribunal considered that “there is not more than a remote chance” that the appellant would “face persecution on account of his Shia religion, his Turi ethnicity, being a former resident of Parachinar in Kurram Agency” if he returned to Islamabad or Rawalpindi. This statement also addressed the issue whether there was an appreciable risk of the feared persecution in these cities.

46    There is only one statement in paragraph [47] that touches on the second issue of whether, given some level of risk, it was reasonable in his circumstances to relocate to one of the cities. This is the stated conclusion that:

While the Tribunal considers that there is less than a remote chance of the applicant being targeted on the basis of his Shia religion or as a member of the Turi tribe from Parachinar or being caught up in generalised or sporadic violence which may occur in the country including in Islamabad and Rawalpindi, the Tribunal finds it is reasonable for the applicant to relocate to these urban centres in these circumstances.

47    There is, however, no prior acknowledgement in the Tribunal’s reasons that a risk of harm as a result of ethnically and religiously motivated violence might, as the appellant claimed, militate against relocation, bearing in mind all the circumstances of his particular case. It is true that the Tribunal in fact stated that it did not accept that, in Islamabad or Rawalpindi, the appellant would face a heightened risk because of his status as a “renewed Turi shopkeeper in Parachinar”. As noted above, however, the appellant relevantly claimed that he would face a risk of harm as a result of ethnically and religiously motivated attacks if he were to relocate to Islamabad or Rawalpindi and that this circumstance was relevant to the reasonableness of his relocation to those places. It will be recalled that the Tribunal accepted that: (1) the appellant faced “a real chance of persecution” in his home area of Pakistan because of his religion and ethnicity (and thus had a well-founded fear of persecution on those grounds in that area); (2) the appellant’s religion, ethnicity, tribal identity and origins were identifiable from his accent, identity documents, spelling of his name and the way he practised his religion; (3) there had been attacks, including in November 2013, on Shias in Rawalpindi; (4) there may have been some instances of the kidnapping of Turis in Islamabad and Rawalpindi in 2011; and (5) there had been incidents of violence against Shias and there will be further attacks against Shia targets in various parts of the country. As to (4), the Tribunal stated that it did not accept that there was a “real chance” that the appellant would be the victim of such crime, having regard to the size of the population and the limited number of reports over time. The Tribunal also referred to the existence of Turi political rallies as the basis for not accepting that the appellant’s profile as a Turi or Turi Shia would lead to a “real chance” of serious harm away from his home region or “adversely impact on his ability to relocate”.

48    The fact that a risk of serious harm, or that a person may be the victim of ethnically motivated crime, is remote does not answer the question whether it is reasonable, having regard to all the circumstances of a visa applicant, that the applicant face that risk. Further, the Tribunal did not directly address the appellant’s claim that he would face a risk of harm, particularly during attendance at Shia Muslim mosques or participation in religious festivals. In considering whether or not it was reasonable for the appellant to relocate to Islamabad or Rawalpindi, the Tribunal was obliged, as Davies J said in MZZJY [2014] FCA 1394 at [21], to consider the practical realities for him.

49    Instead, in this case, the Tribunal’s analysis persistently confused the issue of whether there was no appreciable risk of the occurrence of the feared persecution in Islamabad or Rawalpindi with the different issue of whether the risk of harm by reason of his Shia Muslim or Turi identity militated against relocation in all the circumstances of his case. The conclusion in paragraph [47] cannot be untied from this confusion. Indeed, the extent of the confusion is emphasised by the fact that the statement set out in [17] above (that there is less than a remote chance of the appellant being targeted on the basis of his Shia religion or as a member of the Turi tribe from Parachinar or being caught up in the generalised or sporadic violence which may occur in the country including in Islamabad and Rawalpindi) does not appear to flow out of the Tribunal’s preceding analysis. Instead, this further confusion only emphasises the Tribunal’s failure to consider whether relocation was reasonable, having regard to all the circumstances of the appellant’s case, including whether the appellant faced a risk of harm in these cities by reason of his religion or ethnicity. The failure to address this question resulted in jurisdictional error.

Ground 2

50    As noted above, in support of Ground 2, the appellant contended that the Tribunal’s decision disclosed jurisdictional error on a number of bases, including a failure to perform the task mandated by s 65 of the Migration Act. Section 65 provides that the Minister is to grant a protection visa if he or she is “satisfied” that the relevant criteria have been met and refuse to grant the visa if he or she is “not so satisfied”. However, the Minister (or the Tribunal: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [37]) is only empowered to make a determination regarding the relevant state of satisfaction where that determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds: see SGLB 207 ALR 12 at [37]-[38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [37]-[42], [51]-[52] (Gummow ACJ and Kiefel J, dissenting as to the application of law to facts), [102]-[105], [121]-[131] (Crennan and Bell JJ), citing, amongst other authorities, Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360 (Dixon J).

51    As stated by Gummow and Hayne JJ in SGLB 207 ALR at [37]-[38]:

The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned. ...

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.

(Footnotes omitted.)

52    For present purposes, it may be assumed, as Rares J noted in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 at [15], that:

The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.

53    Where the Tribunal’s determination regarding the state of satisfaction turns on its assessment of the reasonableness of relocation within a protection visa applicant’s country of nationality, and that assessment is not based on findings or inferences of fact that are grounded upon probative material and logical grounds, there will be no jurisdictional foundation for the Tribunal’s decision. As Gummow ACJ and Kiefel J observed in SZMDS 240 CLR 611 at [40], the conclusion that a Tribunal’s decision was irrational in the requisite sense should not be reached lightly: see also SZMDS 240 CLR 611 at [130] (Crennan and Bell JJ). At the same time, however, apprehension of merits review must not operate to shield decisions which have been reached without the necessary jurisdictional foundation: see SZMDS 240 CLR 611 at [42] (Gummow ACJ and Kiefel J).

54    As noted above (see [42]), the appellant claimed before the Tribunal, that relocation was unreasonable on account of his youth, and his lack of education and employment experiences or skills that would enable him to support himself in a new place where he had no family or tribal links. In the appellant’s post-hearing submissions of 31 January 2014, his migration agent also wrote:

The Applicant instructs that the perception he is able to start afresh in either of Lahore and Islamabad/Rawalpindi due to his “resourceful” profile is misguided for a number of reasons. Firstly, the Applicant instructs that he is only educated at a very basic level. Secondly he instructs that he is destitute and would have no support network by way of family or friends to subsist. Thirdly, he instructs that the DFAT report “Shias in Pakistan” does not address the difficulties that Turi Shias (as opposed to Shias from other areas) may encounter when relocating to these areas. He instructs that Turi Shias are discriminated against by all other groups in Pakistan including non-Turi Shias. He instructs this is because no one wishes to associate with Turi Shias, out of fear that they themselves, will attract adverse attention from religious extremist groups.

The DFAT report states in relation to internal relocation that:

DFAT has observed, in practical terms, internal relocation of Shias occurs with relative frequency due to family connections and employment opportunities.

In the context of the Applicant’s claims, it would appear he doesn’t fit the reports [sic] profile of someone who could relocate within Pakistan, as he has no family connections, no support network and no prospective opportunity of gaining employment outside of Parachinar.

55    The Tribunal rejected the appellant’s claims in this regard, saying:

The Tribunal finds that a person such as the applicant, who is fluent in Pashtu and can read and speak the national language Urdu, could live and work in an urban city such as Islamabad or Rawalpindi. Despite the applicant’s assertions that he is only educated to a very basic level, the Tribunal finds the applicant completed Year twelve in high school and has experience working in his step-father’s business, which will assist him in finding employment. …

The Tribunal accepts that the applicant does not have any familial or friendship ties in Islamabad/Rawalpindi. However, the Tribunal has had regard to the applicant’s capability and flexibility demonstrated by him travelling to Indonesia, a foreign country where he knew no-one, and was living for a period of time before coming to Australia, where he similarly has no familial or friendship connections. The applicant’s resourcefulness and youth, in addition to the presence of a Turi population in Islamabad and Rawalpindi, suggests that the applicant would be able to manage to find shelter and employment in these cities of Pakistan without the support of family, friends and contacts to rely on and that he is capable of supporting himself outside of Parachinar. The Tribunal does not accept the applicant’s adviser’s contention that the applicant has no prospective opportunity of gaining employment outside of Parachinar.

56    Reference to the transcript of the Tribunal hearing indicated that, although there was evidence that the appellant could read and speak Urdu, writing in Urdu was “a bit hard” for him. If there were any related error on the Tribunal’s part, which is not immediately apparent, it is immaterial. The appellant’s counsel did not contend that any associated error of fact affected the jurisdiction of the Tribunal. Rather, the focus of the appellant’s case was on the Tribunal’s findings about his education, the utility of his experience in his stepfather’s business and that he had the capacity and resourcefulness to find employment and accommodation in Islamabad or Rawalpindi even though he did not have the support of family or friends.

57    The Tribunal found that the appellant had completed year 12 at high school before he left Kurram Agency “[d]espite [his] assertions that he is only educated to a very basic level”. In relation to this finding, it must be borne in mind, however, that the Tribunal had also accepted that the circumstances in the Kurram Agency between 2007 and 2011 had affected the appellant’s education and, in this context, had referred to country information about the destruction of education infrastructure during this period in that region. This latter circumstance might be thought to raise the real possibility that the deficiencies in the appellant’s education might be relevant to finding employment in Islamabad or Rawalpindi, as the appellant claimed, and in turn the reasonableness of his relocation there. In the circumstances as found by the Tribunal, the finding that the appellant had completed year 12 did not directly address this aspect of the appellant’s claim. The Tribunal went on to find that “[g]iven the applicant’s own assertions that he has acquired only a basic level of education, the Tribunal does not accept that the applicant has the characteristics of those he identified as being at risk of harm” (referring to “well-educated people ... and students”). It might be thought that it was not logically open to the Tribunal to rely on the appellant’s assertion that his education was only to a basic level at this point, given that the Tribunal had apparently rejected or discounted this assertion some few lines earlier in its reasons.

58    The Tribunal also found that the appellant “has experience working in his step-father’s business, which will assist him in finding employment”. The Tribunal’s description of that experience did not, however, disclose that this finding was grounded in the evidence before it. The Tribunal found that “on the basis of the applicant’s evidence ... he operated his step-father’s shop on his own for a very limited period of time, no more than two months” after his stepfather’s death and stopped because he feared for his safety (emphasis added). Without more, it is difficult to discern how this supported the Tribunal’s finding that the appellant’s very short experience in his stepfather’s business would, practically speaking, assist him in finding employment. In this context, it has also to be borne in mind that the appellant had described his occupation before leaving Pakistan as that of “farmer”. In addition to working very briefly in his stepfather’s business, the appellant told the Tribunal at the hearing that he had “done some farming”, but “purely for my family’s use”. This was also reflected in his application for a protection visa where the appellant had stated, “I would work as a farmer on my family’s farm but everything we harvested from this farm was only enough for my family’s own needs”. The Tribunal’s reasons did not address this latter matter at all.

59    The Tribunal accepted that the appellant did not have “any familial or friendship ties” in Islamabad or Rawalpindi. The significance of the absence of a support network was apparent from the DFAT report, which was quoted in the post-hearing submissions of the appellant’s migration agent (see [54] above) and apparently referred to in the Tribunal’s reasons. According to those submissions, the report included a statement that:

DFAT has observed, in practical terms, internal relocation of Shias occurs with relative frequency due to family connections and employment opportunities.

60    With this in mind, the appellant’s migration agent had submitted that the appellant did not fit the profile of a person who “could relocate within Pakistan, as he has no family connections, no support network and no prospective opportunity of gaining employment outside of Parachinar”. The Tribunal did not directly address this undeniably important part of the appellant’s claim, by, for example, stating that there was other information to indicate that family connections were insignificant for employment opportunities in Islamabad or Rawalpindi. Instead, the Tribunal discounted the importance of family and friendship ties in the appellant’s case on the basis of his “capability and flexibility demonstrated by him travelling to Indonesia, a foreign country where he knew no-one, and was living for a period of time before coming to Australia, where he similarly had no familial or friendship connections”. The Tribunal continued:

The applicant’s resourcefulness and youth, in addition to the presence of a Turi population in Islamabad and Rawalpindi, suggests that the applicant would be able to manage to find shelter and employment in these cities of Pakistan without the support of family, friends and contacts to rely on and that he is capable of supporting himself outside of Parachinar. The Tribunal does not accept the applicant’s adviser’s contention that the applicant has no prospective opportunity of gaining employment outside of Parachinar.

61    As counsel for the appellant noted, however, the information before the Tribunal (in the records of initial interview and the Irregular Maritime Arrival Entry Interview) was that the appellant had travelled to Indonesia with three family members (two cousins and another relative said to be a cousin’s husband) and a friend. Most, if not all, the travellers were male. The record of the Irregular Maritime Arrival Entry Interview indicated that a relative was already in Indonesia at the time of the appellant’s arrival there and that the appellant stayed with this person and his other relatives in a flat in Indonesia. The record indicated the food was organised and travel arrangements made by a significantly older and apparently middle-aged cousin. The appellant also gave evidence about his trip by boat to Indonesia at the Tribunal hearing and his trip by boat to Christmas Island, including that “when I was coming to Australia, my boat sank”. He later added, “[w]hen the boat sank in Australian waters obviously I had my cousins with me”. He had, plainly enough, planned to have a number of members of his family with him on his arrival in Australia, although it seems that they and a friend had, sadly, perished at sea.

62    The Tribunal’s finding that the appellant was capable, flexible and resourceful was groundless, when account is taken of the information before the Tribunal about the circumstances surrounding the appellant’s departure from Pakistan and arrival in Australia. This information may have supported a finding that the appellant was desperate to flee Pakistan, although only in the company of relatives; and that he may have been naïve or ill-informed about the risks involved in such a trip. The Tribunal did not otherwise address the appellant’s claim that relocation to Islamabad or Rawalpindi was not reasonable, in the sense of practicable, in the absence of a support network of family or friends.

63    It may be accepted that the reasons of the Tribunal are not to be scrutinised with an over-zealous eye for error and that it is not necessary for the Tribunal to refer in its written reasons to every item of evidence and every contention made by a visa applicant: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272; and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47]. Nonetheless, the Tribunal’s reasons must enable the identification of the reasons that the Tribunal had for reaching its conclusion, and the findings that the Tribunal made in reaching the conclusion it did: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323. Considering the various matters raised by the appellant both individually and in combination, I conclude that the Tribunal failed to perform the task mandated by s 65 of the Migration Act, in that it did not make a determination regarding the relevant state of satisfaction based on findings or inferences of fact that were grounded upon probative material and logical grounds.

64    Another way of identifying jurisdictional error in the Tribunal’s decision can be seen in the Tribunal’s failure to address all of the appellant’s claims, including significant integers arising clearly on the material before the Tribunal: see NABE 144 FCR 1 at [58], [60]-[61], [68]. Thus, the Tribunal’s statement that the appellant had shown “capability and flexibility” did not engage with the actual circumstances of the appellant and did not address the appellant’s claim that, without a support network of family and friends, relocation to Islamabad or Rawalpindi would not be reasonable since this network was important for employment opportunities. Since the finding about his resourcefulness, capability and flexibility was critical to the Tribunal’s conclusion that it would be reasonable for him to relocate to either of these cities, it follows that the Tribunal did not fulfil its statutory task and exceeded its jurisdiction.

disposition

65    For the foregoing reasons, I would allow the appeal with costs, set aside the orders of the FCCA and, in place of those orders, order:

(a)    a writ of certiorari issue quashing the decision of the second respondent made on 1 April 2014 not to grant the applicant a Protection (Class XA) visa;

(b)    a writ of mandamus issue to the second respondent to hear and decide the application for a Protection (Class XA) visa made to the second respondent on 16 July 2013 according to law;

(c)    a writ of prohibition issue prohibiting the first respondent and his delegates, servants and agents from acting upon or giving effect to the decision referred to in paragraph (a) above;

(d)    the first respondent pay the costs of the applicant, as agreed or taxed.

Associate:

Dated:    12 October 2016