FEDERAL COURT OF AUSTRALIA

BBO16 v Minister for Immigration and Border Protection [2017] FCA 212

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to amend ground 1 in the form of the proposed amended notice of appeal filed on 24 February 2017.

2.    Leave be refused to the appellant to add ground 5 in the form of the proposed amended notice of appeal filed on 24 February 2017.

3.    The appeal be dismissed.

4.    The appellant pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This is an appeal from orders of the Federal Circuit Court of Australia made on 30 September 2016 dismissing an amended application for judicial review of the decision of the Immigration Assessment Authority dated 1 April 2016. The appeal focuses on the issue of relocation within the meaning of s 36(2B)(a) in the application of the “complementary protection” criterion in s 36(2)(aa) of the Migration Act 1958 (Cth).

2    The essential argument on behalf of the appellant is that, first, the delegate’s interview process miscarried because the appellant was not given a reasonable opportunity to say to where he ought or ought not be relocated within Pakistan. Secondly, the Immigration Assessment Authority decided that it would be reasonable for the appellant to relocate to Islamabad, but did so without asking him why was it reasonable or not reasonable for him to be relocated to Islamabad specifically. Thirdly, because of the approach it took, the Immigration Assessment Authority was not able to be properly informed about the personal circumstances of the appellant for the purposes of s 36(2B)(a) of the Migration Act.

The facts in summary

3    As explained by the delegate, the appellant claimed that if he returned to Pakistan he would be “seriously harmed or killed” by the militant group Lashkari Jhangawi (LeJ) for the reason of his religion as a Shia Muslim. The appellant claimed he could not find protection in his country because “the government is complicit in the attacks and killings of Shia Moslems. Although paramilitaries… paid by the state have been posted around the Shia area of Quetta to protect the community, killings have continued.” He also claimed he would be unable to safely live in another part of Pakistan because “Shia Muslims cannot live safely anywhere in Pakistan. The Lashkari Jhangawi is killing Shia Muslims throughout the country…”

The procedure

4    On 7 July 2015 the appellant was sent a letter by the Department of Immigration and Border Protection which stated:

There have been changes to the laws about the protection application process for certain illegal maritime arrivals (IMAs). In December 2014, the Government passed the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. The department has now started considering protection claims under the new Fast Track Assessment process.

The Fast Track Assessment process is different from the previous process in the areas of review rights and timeframes for notification. This will allow protection claims to be assessed efficiently and ensure a more robust approach to protection assessments. It will be used for certain individuals such as certain IMAs who arrived and entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country.

You were previously invited to apply for a Temporary Protection visa (TPV) only. However, Safe Haven Enterprise visas (SHEV) are now also available. Therefore, you are invited to lodge an application for either a subclass 785 Temporary Protection visa (TPV) or a subclass 790 Safe Haven Enterprise visa (SHEV). It is up to you which visa you would like to apply for, but you cannot validly apply for both visas.

5    By application dated 14 August 2015, the appellant applied for a Safe Haven Enterprise visa.

The hearing before the delegate

6    Before the delegate, the appellant attended an interview in which, relevant to the present appeal, the following was asked and answered (transcript pages 21 and 22):

Delegate    OK. And is there anywhere that you could safely live in Pakistan?

Interpreter    No, Shia people don’t have any security in all of Pakistan.

Delegate    Is there any other reason why you think you couldn’t safely live anywhere else in Pakistan?

Interpreter    First of all I was born there in my area. I grew up in that area. I’m familiar with that area but to me to move from my own area to the other part of that country, so it will be very hard for me to settle myself first of all to the new area and secondly they will identify me as a new arrived people and they will recognise me and I will not be safe in the new area.

Delegate    Why wouldn’t you be safe in another area?

Interpreter    As I said Shia is not safe in any area.

Delegate    So did you ever consider moving to a different part of Pakistan before leaving the country such as Islamabad where there is also a Shia population?

Interpreter    How should we go there? As you probably aware that they are stopping the bus when the people travel into Iran and kill them all because of their religion so now how can I take my family and my belongings to the bus and go to other city?

Delegate    And is there any other reason besides your religion why someone would target you?

Interpreter    I was targeted because the reason that I belong to the Shia religion so what other reason are you looking for?

Delegate    Well I’m not looking for a particular reason, I’m just giving you the opportunity to let me know if there are any other reasons.

Interpreter    No I don’t have any other issue and my life is obviously at risk because of my religion.

Delegate    And why couldn’t the authorities protect you in any other part of Pakistan?

Interpreter    As I mentioned before they have influence through the police into the government authority. They have a really strong connection by them or wherever I go to start new life they will recognise me and they will recognise me that I belong to this religion and I will be targeted by them.

Delegate    So who would recognise you?

Interpreter    Lashkar-e.

Delegate    So if they weren’t able to find you in your own home, why would they be able to find you in another city?

Interpreter    So they are very active organisation and they are active in every city. While they know that I am living in that area for sure, they will find me but when I was inside of my home or when I’m outside of my home here, clearly they know that I’m not in that area.

Delegate    How would they know that?

Interpreter    They are very strong organisation and they a lot of people who working with them in this part for them, this intelligence information they are very active.

Delegate    So there are some country information reports that support the ability of Shias to relocate within Pakistan to areas such as large cities where there is a mixture of ethnicities and low levels of religious violence. Do you have any comment about those particular reports?

Interpreter    So the danger or the risk is this, my life is in risk and danger whether I live in a small city or a big city. Because of this life risk I was afraid and flee from the country.

Delegate    And do you have any further comments about why you couldn't live in any other part of Pakistan?

Interpreter    So every part of Pakistan there is risk, there is life risk for the Shia people. The bomb blasting among ceremony or demonstration on the mosque or ?? that the Shia people going for praying and this sort of risk is everywhere in every corner of Pakistan. And just in the last ? ceremony there was a bomb blasting in the small town called ? inside of the mosque, Shia mosque.

The decision of the delegate

7    On 4 March 2016, the delegate of the Minister refused the application for a Safe Haven Enterprise visa. The application was refused because the appellant was said to not satisfy s 36(2) of the Migration Act which required the appellant to be a non-citizen in Australia in respect of whom Australia has protection obligations.

8    The delegate accepted that the appellant is a Shia Muslim. The delegate found that the LeJ did threaten the appellant because of his Shia religion. The delegate also found that the appellant had not sought to embellish his claims by suggesting the LeJ threatened him at his residence or have continued to pursue him following him selling his business. The delegate said this added to the credibility of the appellant’s claims that he was a Shia business owner who was targeted, like other Shia business owners who have been reportedly targeted by LeJ in Quetta. The delegate summarised her findings at [68].

9    The delegate said she was satisfied that the appellant feared persecution for reason of religion and she was satisfied that the reason of religion was the essential and significant reason for the feared persecution. The delegate was satisfied the feared persecution involved serious harm to the appellant and that the feared persecution involved systematic and discriminatory conduct applying ss 5J(1)(a), 5J (4)(a), 5J(4)(b) and 5J(4)(c) of the Migration Act.

10    The delegate then considered whether that persecution related to all areas of Pakistan: see s 5J(1)(c). The delegate referred to a 2015 country report by the Department of Foreign Affairs and Trade (DFAT) which referred to many large urban centres such as Lahore and Islamabad being home to mixed ethnic and religious communities and a higher level of state protection. The delegate considered the appellant’s answers to questions asking him if there was anywhere he could safely live in Pakistan. At [105], the delegate said that it was put to the appellant for comment that country information supported the ability of Shias to safely access and live in other areas of Pakistan such as large cities where there was a mixture of ethnicities and low levels of religious violence.

11    At [108], the delegate said:

While I acknowledge the presence of violence throughout Pakistan, on the balance of the information before me, I find there is not a real chance that the applicant will be persecuted on account of his Shia religion in all areas of the receiving country. Although the applicant may be reluctant to do so, on the evidence before me, I am satisfied that the applicant can safely and legally access another area within Pakistan such as Lahore.

12    The delegate then went on to consider the complementary protection criterion.

13    Section 36 of the Migration Act provided relevantly as follows:

36(2B)     … 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)    …; or

(c)    ….

14    The delegate found, at [126], that it would be reasonable for the appellant to relocate to another city such as Lahore where he would be supported by the Shia community. She found that it would be reasonable for the appellant to relocate as outlined in s 36(2B)(a) of the Migration Act.

The Immigration Assessment Authority

15    The appellant’s case was automatically referred to the Immigration Assessment Authority, an independent office within the Migration and Refugee Division of the Administrative Appeals Tribunal.

16    The then solicitors for the appellant made a written submission to the Immigration Assessment Authority dated 24 March 2016. The solicitors submitted that sectarian attacks and violence, albeit less serious, still constituted a real chance of persecution for Shias, including the appellant, in Lahore and throughout Pakistan. It was submitted that targeted violence, albeit unreported or underreported, still constituted a real chance of persecution for “low-profile” Shias, including the appellant, in Lahore and throughout Pakistan.

17    The solicitors submitted that the appellant, as a Shia who attended mosques and processions, was at heightened risk of being targeted and killed in Lahore and throughout Pakistan. The solicitors referred to a 2015 decision of the Administrative Appeals Tribunal in relation to a Hazara Shia from Quetta, the decision being that it would not be reasonable for that applicant to relocate because he would be recognised as a Hazara Shia on the basis of his appearance, his language, his accent, his identity documents and that he was likely to reside in a Hazara community.

18    The solicitors submitted that it would not be reasonable for the appellant to relocate because there was no evidence that he would be supported by the Shia community in Lahore or anywhere else in Pakistan. The solicitors submitted that the appellant, with a high school education, was unlikely to get a job in Lahore or anywhere else in Pakistan. The solicitors submitted that the delegate failed to consider the availability of family connections. In response to a DFAT statement that “in practical terms, internal relocation of Shias occurs with relative frequency due to family connections and employment opportunities in [Lahore and Islamabad]”, the solicitors said that the appellant had stated that his parents were dead and he was not in contact with his siblings; his wife’s mother was dead and her father was sick; and he had no real extended family in Pakistan. He had no family connections in Lahore or anywhere else in Pakistan. The solicitors submitted that it would not be reasonable for the appellant to relocate because he had limited funds, education, and work experience, and no family connections in Lahore or anywhere else in Pakistan.

19    Attached to the solicitors’ submission was a statutory declaration of the appellant. He stated that the Department rejected his protection claim, saying that he would not be persecuted on account of his Shia religion throughout Pakistan, and that he could safely, legally, and reasonably relocate to another area of Pakistan, such as Lahore. He stated, amongst other things, that he had never been to Lahore; that Shias were a religious minority in Lahore and throughout Pakistan; Sunni Muslim extremist groups had organised attacks against Shias and other religious minorities in Lahore and throughout Pakistan; if he moved to Lahore or elsewhere in Pakistan, he believed that Sunni Muslim extremist groups would identify him; even if he were able to survive in Lahore or elsewhere in Pakistan it will be very difficult for him to support himself and his family as he did not have enough qualifications to get a good job and he did not have enough money to start another business; he believed that Shias in Lahore and elsewhere in Pakistan were just struggling to survive and support themselves; and if he had believed that he and his family could live in Lahore or elsewhere in Pakistan he would not have come to Australia.

20    On 1 April 2016, the Immigration Assessment Authority decided to affirm the decision under review, meaning that the decision of the Department to refuse the appellant a protection visa remained in force.

21    The Immigration Assessment Authority noted the appellant’s claim that Shia Muslims cannot live safely anywhere in Pakistan.

22    Having considered and rejected, at [24], the proposition that LeJ, or any other Sunni Muslim extremist group, would be interested in the appellant personally or his whereabouts, the Immigration Assessment Authority said it did not accept that the appellant’s being a stranger, and a Shia, in an area of Pakistan outside of Quetta would result in his identification and pursuit by LeJ or another Sunni Muslim extremist group. He was not of interest to any such group personally.

23    The Immigration Assessment Authority then considered, at [25], the appellant’s claim that he would face harm as a consequence of more general attacks upon Shia Muslims. It said that available country information did not support the claim that the appellant would face a real chance of harm in Islamabad for reason of his Shia religion. The Immigration Assessment Authority said that mass casualty attacks upon the Shia community in Rawalpindi were infrequent and were rare in Islamabad itself. Islamabad was a city of over one million people with sizable Shia suburbs. The Immigration Assessment Authority said it was not satisfied that there was a real chance that the appellant would be harmed in an attack of this kind.

24    At [26], the Immigration Assessment Authority said that neither Islamabad nor Rawalpindi had seen the kind of opportunistic attacks perpetrated in Quetta by LeJ gunmen targeting the broader Shia Muslim community, regardless of profile. There was no indication that Shias who were strangers to Islamabad were targeted by LeJ or any other Sunni Muslim extremist group. There was no indication in DFAT’s reporting that Islamic State (IS; also known as ISIS) was a threat to the Shia population of lslamabad. The Authority was not satisfied that there was a real chance that the appellant would be harmed in an attack of this kind.

25    Having concluded that the appellant did not meet s 36(2)(a), the Immigration Assessment Authority then considered complementary protection. It concluded that it was not satisfied that the appellant would face a real risk of significant harm in Islamabad.

26    It then went on, at [33], to consider the question of whether it was reasonable for the appellant to relocate to Islamabad. It said, at [33]-[34]:

As for the question of whether it is reasonable for the applicant to relocate to Islamabad, I note that DFAT has reported that because of Pakistan’s size, there are options for members of most ethnic and religious minorities, including Shias, to relocate to areas of relative safety within Pakistan. The UN High Commissioner for Refugees has reported that whether relocation is reasonable in the context of Pakistan must be determined on a case-by-case basis, taking fully into account the security, human rights and humanitarian environment in the prospective area of relocation, as well as other elements like livelihood opportunities and the availability of traditional support mechanisms, such as relatives and friends. As is noted above, the applicant has indicated he would not be able to relocate to any other place in Pakistan because will be pursued by LeJ and because Shias are attacked everywhere in Pakistan. At the 2015 Protection visa interview he stated that moving to a new location would be hard because he was only familiar with Quetta. Asked about Islamabad as a possible area of relocation, he said that he would have concerns about relocating to Islamabad because he felt that his family could not make the journey between Quetta and Islamabad safely. He has stated that he has used up most of his savings to support his family and to finance his travel to Australia, and that he has no relatives or other support mechanisms outside of Quetta.

On the evidence before me I am satisfied that it would be reasonable for the applicant to relocate to Islamabad. DFAT reports that large urban centres such as Islamabad are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a higher level of state protection. I note also that DFAT reports that Islamabad is home to several Shia suburbs, including Shia Hazaras and Shia Turi Pashtuns, and that Islamabad offers a range of employment and accommodation options. I note that the IAA submission has argued that Shia organisations would not provide the applicant with assistance in relocating to an area outside of Quetta. I accept that support of this kind may not be available to the applicant. Nevertheless, given the applicant’s circumstances I am satisfied that he could establish himself in Islamabad without support from organisations of this kind. While the applicant has no family in Islamabad, he has extensive experience in owning and operating a cement business. He could obtain paid employment in Islamabad on the basis of the experience and skills he has obtained from running his former business. He has formerly resided in a Shia Hazara enclave in Quetta and there are suburbs of this kind in Islamabad. He speaks Pakistan's national language of Urdu as well as the related languages of Farsi, Dari and Hazaragi. At the Protection visa interview he demonstrated the ability to understand and conduct himself in English and also stated that his mother tongue was Khandahari (Pashto). It would be reasonable for the applicant to make arrangements that would permit his wife and two children in Quetta to travel and join him in Islamabad. I am satisfied that it would be reasonable for the applicant to relocate to Islamabad, an area of the country where there would not be a real risk that he will suffer significant harm.

(Footnotes omitted.)

The application to the Federal Circuit Court of Australia

27    That amended application for judicial review in the Federal Circuit Court was in the following terms, omitting particulars:

3A.    The Applicant was denied procedural fairness in consequence of which the Decision was affected by jurisdictional error in that the Delegate failed to properly apply the reasonableness test in section 36 (2B) (a) of the Migration Act.

3B.    In consequence of the matters referred to in paragraphs 3A (a) to (f) herein, the Applicant was misled as to the proposed place of relocation and was denied an opportunity to properly address the reasonableness of the proposed place of relocation.

3C.    Had the Applicant been properly informed that the Minister considered it appropriate to return the Applicant to Islamabad, as opposed to Lahore, the Applicant would have specifically addressed the following facts, issues and matters including:

5.    Further or in the alternative, the Respondent failed to apply the internal relocation test properly by failing to consider the “reasonableness” of requiring the Applicant to relocate to Islamabad and whether by relocating him in that manner the Applicant would suffer significant psychological harm by not being able to reunite with his family.

6.    Further or in the alternative to paragraph 5, in making the Decision the Respondent improperly exercise the power conferred by the Act in pursuance of which it was purported to be made because the Respondent failed to take into account, or in the alternative, the Respondent failed to give adequate weight to the following objections (which are relevant and significant factors) raised by the Applicant including that:

10.    Further or in the alternative, the making of the Decision involved a breach of the rules of natural justice and a denial of procedural fairness in circumstances where:

11.    That the making of the Decision involved a breach of the rules of natural justice in that the Respondent gave consideration to information in respect of Islamabad, when the Applicant was not given:

(a)    Any proper notice of the likely change in the relocation destination from Lahore to Islamabad; or

(b)    A proper opportunity to put forward any objection specific to relocation to Islamabad such as safe transit for his family from Quetta to Islamabad in respect of relocation;

before the Decision was made.

The decision of the Federal Circuit Court

28    The primary judge noted, at [1], that the judicial review application before the Federal Circuit Court of Australia was in respect of the decision of the Immigration Assessment Authority.

29    The primary judge then, at [2], set out at some length parts of the interview with the delegate which raised the issue of whether the appellant could relocate in Pakistan. Those parts included the question: “And do you have any further comments about why you couldn’t live in any other part of Pakistan?”

30    At [4], the primary judge noted that the delegate’s decision identified the appellant’s claims and evidence and referred to country information with regard to the location of Shias throughout Pakistan, which relevantly included a reference from a 2015 DFAT report that referred to both Lahore and Islamabad as well as other areas. The delegate also referred to a DFAT thematic report dated 15 January 2016 in the course of its assessment of the country information in relation to the appellant’s claims.

31    At [7], the primary judge said that the Immigration Assessment Authority received submissions from the migration representative on behalf of the appellant that relevantly took issue with whether it was reasonable for the appellant to relocate, referring both to Lahore and Islamabad as well as Rawalpindi.

32    At [15], the primary judge said that on a fair reading of the interview with the delegate it was apparent that the delegate had raised the issue of relocation with the appellant, including relocation to Islamabad. It was also apparent that the delegate’s decision in referring to the ability of the appellant to relocate said “another city in Pakistan, such as…”. Further, it was apparent from the delegate’s decision that there was information identified by the delegate suggesting an ability to relocate to other places that relevantly included Islamabad.

33    More significantly, the primary judge said at [16], the submissions advanced by the appellant after the determination of the delegate clearly recognised that the relocation issue related to more than just Lahore. Those submissions expressly addressed Islamabad. The Immigration Assessment Authority, the primary judge said, expressly considered in relation to complementary protection whether it would be reasonable for the appellant to relocate. Paragraphs 3A to 3C of the application were in substance an impermissible challenge to the adverse findings by the Immigration Assessment Authority. The Immigration Assessment Authority correctly identified the relevant considerations and made adverse findings that were open to it.

34    The primary judge rejected, at [17], the submission that the appellant was not on notice as a result of the interview of the issue of relocation relevantly to major cities including Islamabad.

35    The primary judge held, at [18], there was no denial of procedural fairness in the adverse finding about the ability of the appellant to relocate to Islamabad, and no application by the Immigration Assessment Authority of an erroneous test. Nor was the primary judge persuaded that the appellant was misled in the conduct of that interview.

36    In relation to ground 5, the primary judge held, at [19], it was apparent that the Immigration Assessment Authority did address the question of reasonableness.

37    In relation to ground 6, the primary judge held, at [20], it was apparent that the Immigration Assessment Authority took into account the ability of the appellant to sustain himself in the relocated location as well as the ability of his family to join him in that location.

38    In relation to ground 10, the primary judge held, at [21], that there was no denial of procedural fairness by the delegate taking into account the most recent country information. While it was apparent that the appellant was provided with the delegate’s decision that referred to the DFAT report, there was no denial of procedural fairness in the conduct of the review before the Immigration Assessment Authority arising from the “DFAT Thematic Report”.

39    In relation to ground 11, the primary judge held, at [22], amongst other things, that it was apparent that the appellant was on notice of the issue of the relocation to Islamabad and was given a proper opportunity in the course of the interview to address that issue. The issue of relocation to another city such as Lahore, identified in the delegate’s decision, put the appellant on notice that there could be another city as identified in the reasons of the delegate’s decision, being Islamabad, which had been raised in the interview. Moreover, the migration representative for the appellant addressed that very topic in the submissions for the appellant.

The appeal to this Court

40    The grounds of appeal to this Court were as follows:

1.    The learned trial judge erred in concluding that the relocation test in section 36(2)(aa) had been correctly applied and finding that the appellant had been given a sufficient opportunity by the delegate to say why it would not be reasonable in the sense of practicable for him to relocate to Islamabad as opposed to Lahore.

2.    The learned trial judge erred in concluding that the relocation test in section 36(2)(aa) was correctly applied and that the delegate had provided sufficient notice in the interview conducted with the appellant on 16 November 2015 that he could safely relocate to Islamabad.

3.    The learned trial judge erred in failing to find that there was an inherent unfairness in the way the delegate conducted the interview on 16 November 2016 in that the appellant was misled as to where he should direct submissions concerning his relocation.

4.    The learned trial judge erred in concluding that the relocation test in section 36(2)(aa) was correctly applied by the delegate in that it was reasonable for the appellant to relocate to Lahore, given his particular circumstances.

The parties’ submissions

41    The appellant submitted that the notice of appeal asserted error in the application of the “complementary protection” criterion for a protection visa in s 36(2)(aa) of the Migration Act.

42    The appellant submitted, at [15], that the Immigration Assessment Authority appeared to have considered the appellant’s further submission as to the appropriateness of the return to Lahore, and without notice thereafter identified Islamabad as a reasonable alternative.

43    The appellant submitted that his primary complaint was that he was induced to assume that he ought to direct his mind to the reasonableness or otherwise of returning to Lahore as a safe place for the purposes of the complementary protection criterion. The Immigration Assessment Authority was seemingly persuaded that a return to Lahore was not desirable but that Islamabad was suitable. Because of the way the matter proceeded both before the delegate and the Immigration Assessment Authority the appellant has been denied a sensible opportunity to properly advance reasons as to why Islamabad was neither practicable nor reasonable in the circumstances peculiar to his case. Support for this proposition was found in the delegate’s questions in the interview.

44    The appellant submitted there was no challenge to the general proposition that the delegate was entitled to approach the consideration of the reasonableness of relocation in one of two ways, depending on the circumstances. The first approach was to identify particular safe localities and the second was to identify a confined area of risk which results in the conclusion that the rest of the country is safe.

45    The appellant referred to SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [23] and [24], as follows:

[23]    The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a hypothetical assumption, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a safe area within the country of nationality as determinative of the existence of a well-founded fear of persecution.

[24]    However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What 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.

46    The appellant referred to his being asked whether he ever considered, before leaving the country, moving to a different part of Pakistan such as Islamabad. The appellant submitted that this was fundamentally different to asking why it was unreasonable or reasonable to relocate to Islamabad. The Immigration Assessment Authority was not in a position to make a proper assessment of the reasonableness of relocation to Islamabad. There was simply insufficient information to satisfy the subjective reasonableness test, which gave rise to jurisdictional error.

47    The Immigration Assessment Authority failed to appreciate that the appellant had not been afforded a sufficient opportunity to comment on relocation to Islamabad. It should have appreciated that the appellant had been denied a proper opportunity to say why it was unreasonable for him to relocate to Islamabad. The error in the approach was further compounded by the Immigration Assessment Authority also relying on important material in the form of a DFAT report.

48    The appellant should have been asked in a more fulsome manner why, in light of his personal circumstances, it would be unreasonable, alternatively reasonable, for him to relocate to Islamabad. That did not occur and was a failure to properly apply the relocation test for the purposes of s 36.

49    The only material available to the Immigration Assessment Authority concerning Islamabad was the limited exchange in the 26 November 2015 interview. This was insufficient.

50    Curtailing the appellant’s freedom of movement was a serious step and should have been put to the appellant with a more pronounced invitation for comment.

51    The appellant submitted that under s 57(2)(b) the Minister must ensure that an appellant understood how certain information was to be used and the potential effect of it. This did not happen.

52    Section 57 provided as follows:

57    Certain information must be given to applicant

(1)    In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or part of the reason:

(i)    for refusing to grant a visa; or

(ii)    for deciding that the applicant is an excluded fast track review applicant; and

(b)    is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c)    was not given by the applicant for the purpose of the application.

Note:    Excluded fast track review applicant is defined in subsection 5(1).

(2)    The Minister must:

(a)    give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c)    invite the applicant to comment on it.

53    The appellant submitted that it would seem readily apparent that the Immigration Assessment Authority, in its application of the reasonableness of relocation test, had relied almost entirely on the Departmental interview and on the DFAT report.

54    The Minister submitted that the primary judge noted at [2] and [15]-[17] that the delegate explicitly raised the possibility of the appellant relocating to Islamabad as part of a general discussion of whether there was anywhere the appellant could safely live in Pakistan. That provided the appellant with an adequate opportunity to explain why he could not relocate within Pakistan, including to Islamabad.

55    Further, as noted by the primary judge at [15]-[16], the delegate’s decision at [104]-[108] was not limited to Lahore and the appellant’s submissions to the Immigration Assessment Authority on the question of relocation were also not limited to Lahore.

56    In any case, the Minister submitted, even if there was some denial of procedural fairness before the delegate, that would provide no basis to find jurisdictional error by the Immigration Assessment Authority. Section 473DA(1) provided that Div 3 was an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority. No breach of Pt 7AA Div 3 was pleaded or established. To the extent that the appellant alleged that the Immigration Assessment Authority should have identified with him the issue of relocation, the appellant had failed to identify any power by which the Immigration Assessment Authority could have identified to him the issue of relocation. Further, to the extent that the appellant’s argument was one of procedural unfairness by the Immigration Assessment Authority, it overlooked the Authority’s limited procedural fairness obligations under Part 7AA of the Migration Act. The Immigration Assessment Authority was required to review the delegate’s decision without accepting or requesting new information and without interviewing the appellant: s 473DB(1). The fact that the Immigration Assessment Authority is under no obligation to request or accept new information was confirmed by s 473DC(2). The primary judge did not deal with this argument but it was put to him and maintained on appeal and a notice of contention had been filed by the Minister accordingly.

57    As to ground 1 in the notice of appeal, the Minister submitted that the delegate specifically raised the possibility of the appellant relocating to Islamabad or elsewhere in Pakistan. The discussion quoted by the primary judge at [2] reveals the appellant being asked generally about why he could not relocate within Pakistan. The delegate’s questioning was perfectly “fulsome”, repeatedly asking the appellant why he could not relocate and the appellant was given a perfectly adequate opportunity to address the question and say whatever he wished. As stated in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415 at [124], the stated objections to relocation formed the framework for its consideration. Here the appellant’s objection related to his safety. In any case, the appellant’s submissions before the Immigration Assessment Authority dealt at length with relocation to Lahore “or elsewhere in Pakistan”. In any event, the Minister submitted, the ground failed because any denial of procedural fairness by the delegate would not invalidate the Authority’s decision in any case.

58    As to ground 2 in the notice of appeal, the Minister submitted it was essentially the same as ground 1 and failed for the same reasons. The appellant’s submissions referred to s 57(2)(b) but this was not a matter relied on before the primary judge and in any case did not apply as it concerned information specifically about the appellant: s 57(1)(b).

59    As to ground 3 in the notice of appeal, the Minister submitted the appellant was asked generally about relocation within Pakistan and given a perfectly adequate opportunity to say whatever he wished. He was not “misled” in any way by what the delegate asked. This ground failed for the same reason as ground 1.

60    As to ground 4 in the notice of appeal, the Minister submitted that this was not argued before the primary judge, was not addressed in the appellant’s submissions and was of no relevance given that the Immigration Assessment Authority’s decision was under review, not the delegate’s. If the reference was intended to be to the Immigration Assessment Authority, it failed for the reason that it simply argued with the Authority’s finding that it would be reasonable for the appellant to relocate. In any case the Court does not have jurisdiction to review the delegate’s decision as it is a “primary decision” within s 476(4)(c).

Application to amend

61    The appellant applied to amend ground 1 of his notice of appeal so that it read as follows:

1.    The learned trial judge erred in concluding that the relocation test in section 36(2)(aa) had been correctly applied and finding that the appellant had been given a sufficient opportunity by the delegate and/or the Immigration Assessment Authority to say why it would not be reasonable in the sense of practicable for him to relocate to Islamabad as opposed to Lahore.

62    The appellant also applied to amend his notice of appeal to add a new ground 5, as follows:

5.    The learned trial judge erred in failing to find that the IAA reviewer’s application of section 36(2B(a) of the Migration Act 1958 gave rise to jurisdictional error when the appellant was denied a sufficient opportunity to say why a return to Islamabad, as opposed to Lahore, was subjectively unreasonable, and the IAA reviewer failed to exercise his discretion and engage section 473DC(3) of the Migration Act 1958 in the circumstances of the case.

63    The application to amend was opposed by the Minister, both in respect of ground 1 and the proposed ground 5.

64    The appellant submitted that the reference to s 473DC(3) was to show that there was no impediment to the Immigration Assessment Authority engaging that provision and thereby affording the appellant a proper or ‘fulsome’ opportunity to comment on the reasonableness or otherwise of relocation to Islamabad. The appellant contended that: given the notice of contention; the Minister’s written submissions; the importance of the argument to the parties; and the fact that Div 3 of the Migration Act was addressed in argument before the primary judge, the interests of justice were best served by a grant of leave.

65    On the application to amend, the Minister submitted that both amendments sought to suggest that there was some denial of an opportunity by the Immigration Assessment Authority to the appellant. The new fifth ground and the appellant’s submissions in support of the amendment asserted some obligation on the Immigration Assessment Authority to exercise its discretion under s 473DC(3).

66    In relation to the proposed amendment to ground 1, the Minister submitted the appellant was on notice from the Minister’s written and oral submissions before the primary judge that the Minister relied on s 473DA(1) and the absence of any alleged breach of Pt 7AA Div 3 being pleaded or established by the appellant as a complete answer to the grounds of the Amended Application relying on procedural fairness. Despite this, the appellant made no submission before the primary judge suggesting any breach of any part of Pt 7AA Div 3 by the Immigration Assessment Authority. Nor did the appellant’s Notice of Appeal or his written submissions on appeal seek to raise any new ground alleging such a breach, despite the Minister’s Notice of Contention again relying on s 473DA(1). And despite the Minister’s written submissions on the appeal again stating that no breach of Pt 7AA Div 3 was pleaded or established, no such breach was alleged in the appellant’s oral submissions in chief. It was only suggested for the first time in his submissions in reply.

67    In relation to the proposed amendment to add ground 5, the Minister submitted that the suggestion that there was a miscarrying in some way of the Immigration Assessment Authority’s discretion under s 473DC(3) was a new ground not raised before the primary judge, or even in the appeal until the end of the hearing. It required leave to be raised. No such leave should be granted given the appellant was represented by two counsel and solicitors both before the primary judge and on appeal, and there was no explanation in the appellant’s submissions on the amendment as to why it was not raised earlier, both before the primary judge and in the appeal. In the circumstances the appellant had clearly made a forensic decision not to raise any such ground both below and in his preparation for the appeal. He should not be allowed to now resile from that decision by raising a new ground at the conclusion of the hearing of the appeal. The Minister referred to Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [88]-[92].

68    I allow the amendment to ground 1 as it attempts to respond to an implication in the original notice of appeal which I drew to counsel’s attention. It was not clear to me why the grounds of appeal focused on what the delegate did or did not do or on the application of the relocation test by the delegate. It was the decision of the Immigration Assessment Authority which was the decision the subject of the judicial review application before the primary judge. The relief sought in the notice of appeal was, first, for a writ of certiorari to issue quashing the decision of the Immigration Assessment Authority. In my opinion it is preferable to have the implication in the original notice of appeal made explicit. The point may then be dealt with on its merits rather than going off on an unintended technicality.

69    I do not allow the proposed amendment to add ground 5 because, as framed, it seeks to raise for the first time a freestanding error of law on the part of the Immigration Assessment Authority, that is, that it failed to exercise the statutory discretion in s 473DC(3) of the Migration Act. It is one thing to submit that such a discretion is available, as part of the statutory scheme, but it is quite another to contend for the first time in reply on appeal that the Immigration Assessment Authority erred in not exercising that discretion. I permit the appellant to submit, as he did at transcript page 35, lines 10 to 15, that the Immigration Assessment Authority could have invited further evidence, but I reject the fresh proposed ground 5 that it was a jurisdictional error on the part of the Immigration Assessment Authority to fail to exercise the power in s 473DC(3). In my opinion to permit that amendment would be to undermine the appellate process in circumstances where no adequate explanation was proffered as to why the ground was not raised before the primary judge or earlier in the conduct of the appeal, the appellant having legal representation before the primary judge, in the preparation of the appeal and in the running of the appeal: see Sun at [92].

Consideration

70    I note that the appeal to this Court is limited to complementary protection and thus to s 36(2)(aa) and s 36(2B)(a). Unlike the position in SZATV, it is not necessary to distil any “principle” respecting “internal relocation” from the text of the Convention definition, which is applied by s 36(2) of the Act as a criterion for the grant of a protection visa. This is because s 36, set out at [13] above, provides that 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 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. I shall adopt for present purposes however what appeared to be the common position of the parties which was that what has been said by the courts about “internal relocation” in relation to the Convention applies to s 36(2B)(a).

71    In my opinion the claims of procedural unfairness fail on the facts. At the interview the delegate did not focus on Lahore but asked questions about “anywhere else in Pakistan”: see the transcript set out at [6] above. The delegate considered, at [95], whether the persecution she had found related to all areas of Pakistan and found that it did not. This was taken up in the paragraphs dealing particularly with the complementary protection criterion at [120] and following. There the delegate said that she had considered that it would be safe for the appellant to access another city in Pakistan, such as Lahore, without a real chance of persecution. The delegate then explored whether it was also reasonable in the sense of practicable for the appellant to relocate to another area of Pakistan. She considered the appellant’s age, education, religion, employment experience, financial situation and location of family members. She referred to the 2015 DFAT country report to the effect that many large urban centres in Pakistan, such as Lahore and Islamabad, offer greater opportunities for employment, access to services and a higher level of state protection. At [125], the delegate referred to large Shia populations in Lahore and Islamabad/Rawalpindi that were integrated and supported by Shia community organisations.

72    Thereafter, at [126], the delegate found it would be reasonable for the appellant to relocate to another city “such as Lahore” where he would be supported by the Shia community. The delegate found it would be “reasonable for the appellant to live in an area outside of his home area, such as Lahore, Pakistan where there would not be a real risk of significant harm.”

73    In my opinion, it is clear from the submission dated 24 March 2016 by the appellant’s solicitors to the Immigration Assessment Authority that there was no misunderstanding that the delegate’s decision about relocation was limited to Lahore. That submission on many occasions put the point about relocation not only about Lahore but “throughout Pakistan”. I make the same finding in relation to the appellant’s statutory declaration which accompanied that submission. The appellant therefore was not misled and had the opportunity, and took the opportunity, by his solicitors, to contend that it would not be reasonable for him to relocate anywhere in Pakistan.

74    If the correct question is whether the appellant was given a sufficient opportunity by the delegate, I refer in particular to pages 20 and 21 of the transcript of the hearing before the delegate, set out at [6] above. It is correct to say that the specific reference to Islamabad was with reference to “before leaving the country” but I do not accept the submission on behalf of the appellant that he was misled into thinking that the only question was whether he could relocate to Lahore. The surrounding questions were about relocation anywhere in Pakistan.

75    I do not discern any contrary approach in SZATV, relied on by the appellant. At [10], Gummow, Hayne and Crennan JJ cited with approval what Black CJ had said in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1990) 52 FCR 437 at 440-441 to the effect that the focus of the Convention definition was not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. At [24] their Honours referred to “relocation of the place of residence within the country of nationality.”

76    The submission that there was any compounding of error in approach by the Immigration Assessment Authority relying on a DFAT report was not pressed.

77    In my opinion, ground 1 fails as there was no error in the primary judge concluding that the appellant had been given a sufficient opportunity by the delegate to say why it would not be reasonable for him to relocate to any part of Pakistan other than Quetta. I accept the relevance of what the Full Court said in SZMCD at [124] as follows:

The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR 437 at 442–443, especially at 443C-D.

78    As I have indicated, I do not accept the submission that the delegate was required, in the circumstances of the present case, to draw to the appellant’s attention relocation specifically to Islamabad. The questions of the delegate and the opportunity to be heard given by the delegate to the appellant invited him to say whatever he wished. I note that appellant did not submit that there was a general obligation on a decision-maker to draw to the attention of an applicant relocation to a specific place, town or city. Instead, the present appellant submitted that it was the circumstances of the case that led to that result in this case, the circumstances being the conduct of the interview by the delegate. I have rejected that submission.

79    In relation to the appellant’s affidavit sworn 4 August 2016, which was before the primary judge, in my opinion the further information the appellant says he would have considered providing to the delegate if he had been given “proper notice that I may be relocated to Islamabad, as opposed to Lahore” does not establish that there was a breach of procedural fairness. What the appellant says in that affidavit does not establish that in the circumstances of this case the Immigration Assessment Authority had a duty to put to him what became its conclusion: that it would be reasonable for him to relocate to an area of Pakistan where there would not be a real risk that he would suffer significant harm, being Islamabad. See generally Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [59]-[60] per Gageler and Gordon JJ.

80    Part of ground 1 refers to whether the relocation test was “correctly applied”. Counsel for the appellant explained that it was because of the claimed denial of procedural fairness that the delegate or the Immigration Assessment Authority disabled themselves from properly considering the question of reasonableness of relocation. As I have said, I do not accept that there was a denial of procedural fairness. I therefore do not accept that that denial disabled the delegate or the Immigration Assessment Authority from correctly applying the relocation test. Neither do I accept that the Immigration Assessment Authority failed to correctly apply the relocation test if that matter was put by the appellant as a proposition that did not depend on the denial of procedural fairness. I refer in this respect to what was said by the Immigration Assessment Authority and which I have set out at [25] above.

81    In my opinion, ground 2 fails as there was no error in the primary judge concluding that the delegate had provided sufficient notice in relation to relocation. As I have said, the relocation was considered with reference to any part of Pakistan other than Quetta. As to the part of ground 2 that refers to whether the relocation test was “correctly applied”, I repeat what I have said in the immediately preceding paragraph.

82    In my opinion, ground 3 fails as there was no error on the part of the primary judge in failing to find that there was an inherent unfairness in the way the delegate conducted the interview. The delegate considered the question of relocation by reference to “any other part of Pakistan” and made her decision by reference to “another area within Pakistan, such as Lahore”.

83    I do not understand that ground 4 was the subject of the appellant’s written submissions and I take it that that ground was not pressed.

84    No error in the judgment of the primary judge has been made out.

85    In light of these conclusions I have not found it necessary or appropriate to consider the terms of s 473DA, the subject of the Minister’s notice of contention. That section provides as follows:

Division 3—Conduct of review

Subdivision A—Natural justice requirements

473DA Exhaustive statement of natural justice hearing rule

1.    This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

The matter was not argued on behalf of the appellant. I note however that no breach of Div 3 was relied on by the appellant, apart from in his application to amend to add new ground 5, which amendment I have not allowed.

Conclusion and orders

86    The appeal is dismissed, with costs.

Associate:

Dated:    9 March 2017