FEDERAL COURT OF AUSTRALIA

DAB16 v Minister for Home Affairs [2019] FCA 2114

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The first respondent’s application for costs be adjourned to a date to be fixed.

3.    The issue raised on the Court’s motion under s 486F of the Migration Act 1958 (Cth) be set down for hearing at a date to be fixed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This appeal was dismissed by an order made on 11 December 2019. Oral reasons for dismissing the appeal were delivered on that day. What follows is a written record of the reasons for judgment to substantively the same effect as the oral reasons.

2    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA): DAB16 v Minister for Immigration & Anor [2018] FCCA 3957.

3    The appellant is a citizen of Pakistan of Hazara ethnicity. He arrived in Australia on 23 September 2012 as an “unauthorised maritime arrival”. On 2 September 2015 the appellant applied for a Protection (Class XA) visa. The criteria for the grant of the visa included the alternate criteria in s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth). I will refer to them respectively as the Refugee Criterion and the Complementary Protection Criterion. They are expressed as follows:

(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 Minister is satisfied Australia has protection obligations because the person is a refugee; 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 …

4    The word “refugee” is defined in s 5H of the Act, as follows:

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

5    For the purposes of s 5H(1)(a) of the Act, a person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country. …

6    Under the Complementary Protection Criterion, 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: s 36(2B)(a).

7    The delegate of the Minister for Immigration and Border Protection was satisfied that there was a real chance that the appellant would be persecuted by reason of his Shia religion and Hazara ethnicity if returned to his home province in Pakistan. However, the delegate concluded that the real chance of persecution did not relate to all areas of Pakistan. The delegate said that the appellant was able to relocate to Lahore in the province of Punjab. On the basis of a country report prepared by the Department of Foreign Affairs and Trade (DFAT), the delegate said that there were large Shia communities residing in Lahore and that the appellant could safely reside there.

8    By reason of those findings, the prospect of the appellant relocating to Lahore was a live issue before the Authority in the exercise of its review functions under the Pt 7AA of the Act.

9    The Authority had before it the material referred to by the Department under s 473CB of the Act, including a record of interview in which the appellant had asserted before the delegate that there were no Shia Hazaras residing in Lahore. The Authority also had before it a report prepared by DFAT titled “DFAT Thematic Report Shias in Pakistan 15 January 2016”. Paragraph [2.9] states:

Shias are represented across most of Pakistan’s ethnic, linguistic and tribal groups. Of these, Hazaras are a predominantly Shia ethnic group, mostly of the Twelver Sect. Hazaras are believed to have settled in Afghanistan’s central highlands in the 13th century and have successively migrated to Pakistan. There are up to 900,000 Hazaras in Pakistan. Approximately 700,000 Hazaras live in and around Quetta, mostly in their own communities in Hazara Town (also known as Brewery Road) and along Alamdar Road towards Mehrabad. An estimated 1200-1500 Hazaras are integrated with the broader Shia community in Parachinar, Kurram Agency. There are also Hazara communities in large urban areas including Karachi (up to 15,000), Lahore, Multan, Islamabad and Peshawar.

10    Like the delegate, the Authority was satisfied that if returned to his hometown, the appellant would face a real chance of serious harm from anti-Shia militia “for the combined essential and significant reasons of his race as a Hazara and his religion as a Shia”. The Authority then turned to consider whether the real chance of persecution applied in all areas of Pakistan.

11    The Authority noted that the appellant had claimed that he would not be safe anywhere in Pakistan as a Hazara Shia because the militant groups were operating everywhere in the country. The Authority said:

29.    According to the most recent DFAT thematic report, Sunnis and Shias are generally more integrated in Lahore and that the level of generalised and sectarian violence is lower in Punjab than other parts of Pakistan. No Shia deaths from sectarian violence were reported in Lahore during 2015. The latest DFAT reports states too under the Pakistan Constitution, Pakistani citizens are free to live anywhere in the country. I am satisfied the applicant could travel to and reside in Lahore.

30.    On the basis of the evidence before me, I am not satisfied the applicant has a well-founded fear of persecution from [anti-Shia groups] or from the Pakistan authorities for any of the reasons in s 5J(1)(a), now or in the reasonably foreseeable future if he relocated to live in Lahore.

12    To similar effect, the Authority said in relation to the Complementary Protection Criterion (at [42]):

I am mindful of the country information discussed above regarding the general security situation in Lahore and the applicant’s acknowledgement that the TPB interview that Lahore is generally safe, because it is the home city of the Prime Minister of Pakistan. I accept the applicant will be identifiable as a Hazara Shia because of his physical features, but the country information quoted above that there is a population of Hazaras in Lahore does not support his claim no Hazaras live in that city. Having regard to that country information and the personal circumstances of the applicant and his fiancée, I’m satisfied it is reasonable for the applicant relocate to Lahore for the purposes of s 36(2B).

13    The appellant was legally represented in the proceedings before the primary judge as he was on this appeal. The grounds for judicial review took issue with the findings of the Authority in relation to the security situation in Lahore, particularly its finding that there was a population of Hazara Shias living there.

14    The amended originating application recited several pages of “grounds” taking the form of submissions on the facts and law. Under the heading “Introduction of New Evidence”, the amended originating application stated:

The grounds relied upon in this amended application seek to introduce some new evidence in addition to the evidence which was before the Respondents. We are not seeking a review of the merits but to establish that the critical facts, upon which the decision was based, did not exist.

15    It was the appellant’s case in the Court below, as on this appeal, that the critical fact that there was a population of Hazara Shias residing in Lahore did not exist and that, accordingly, the DFAT Thematic Report upon which the Authority had relied was factually incorrect. Counsel for the appellant submitted that it was not open to the Authority to rely on the DFAT Thematic Report because it was not “probative”. The DFAT Thematic Report was said to lack the quality of probative evidence both because it was factually incorrect and because the source of the information recited at [2.9] of the Report extracted earlier in these reasons was not identified. On appeal, it was submitted that the primary judge erred in failing to recognise that the first respondent bore an evidentiary burden in respect of the question of whether there was a population of Hazara Shias living in Lahore. It was submitted that the primary judge ought to have compelled the first respondent to adduce evidence disclosing the sources of information on which the DFAT Thematic Report was based or that otherwise the primary judge ought to have made his own findings of fact having regard to the absence of evidence adduced by the first respondent on that topic.

16    On appeal, Counsel for the appellant invited this Court to read an affidavit adduced on his behalf in the proceedings before the primary judge. It was submitted that it formed a part of this Court’s role on the appeal to consider evidence that might tend to show that the DFAT Thematic Report was factually wrong.

17    It is not necessary to extract the 11 grounds of appeal here. The parties’ submissions addressed the grounds by reference to three issues.

18    The first issue is whether the “veracity” of the DFAT Thematic Report was relevant to the performance of the task of the primary judge on the application for judicial review of the Authority’s decision and if so, what factual findings ought to have been made in that regard.

19    The second is whether the primary judge erred in failing to determine that the first respondent bore an evidentiary burden in connection with any critical fact upon which the application for judicial review might turn.

20    The third is whether the primary judge erred in failing to find that the Authority had failed to have regard to the appellant’s Shia religion and Hazara ethnicity when concluding that it was reasonable for him to relocate to another part of Pakistan.

21    The grounds also involve a proposition that the primary judge engaged in reasoning that was legally unreasonable in relation to the attribution of the meaning of the word “community” as it appears in a report to which the appellant had referred.

THE DFAT THEMATIC REPORT

22    As Counsel for the appellant acknowledged, it is well-established that, subject to the principles of legal unreasonableness, it is for the Authority to determine which country information to take into account and the weight to be attributed to it: NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [81] (Young J; Gyles and Stone JJ agreeing); Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] (Gleeson CJ); SZUEP v Minister for Immigration and Border Protection (2017) 160 ALD 35 at [27] (Perram, Robertson and Wigney JJ).

23    As the Full Court said in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (at [11]):

The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

24    To establish jurisdictional error it is not sufficient to express emphatic disagreement with the merits of a factual conclusion: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [30] (French CJ). An administrative decision-maker may, however, commit jurisdictional error in determining a question of fact if, for example, there is no evidence bearing on the question before the decision-maker. As Deane J said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (at 367):

If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of ‘proportionality’ (cf. the C.C.S.U. Case). When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.

25    Proceeding from that passage in Bond that the appellant in this case submits that there was jurisdictional error affecting the Authority’s decision because the decision was not based on material that was probative in the relevant sense.

26    In the present case, the findings of the Authority were entirely consistent with information contained in the DFAT Thematic Report.

27    The submission that the Report was not “probative” was articulated in different ways. It was firstly suggested that it was not open to the Authority to rely on the Report because the sources of the information contained in it were not identified. Standing unqualified, that statement is simply incorrect. Paragraph [1.4] of the Report sets out the sources upon which it is based in the following terms:

This report is based on DFAT’s on-the-ground knowledge and discussions with Government, non-government, community and international sources in Pakistan, including in Islamabad, Lahore and Peshawar. It takes into account relevant and credible open source reports, including the World Bank, United States Central Intelligence Agency, United Nations Development Program, United Nations High Commissioner for Refugees, United Nations Office for the Coordination of Humanitarian Affairs, United Nations Office on Drugs and Crime, Centre for Research and Security Studies, South Asian Terrorism Portal, International Crisis Group, Pakistan Institute for Peace studies, FATA Research Centre, Human Rights Commission Pakistan, Pakistani Government departments, non-government organisations and media organisations. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.

28    Counsel for the appellant did not go so far as to submit that this recitation of sources was incorrect. The submission, as I understand it, was that the identity of the particular person from whom the information at [2.9] of the Report was sourced was unknown.

29    The suggestion that it was not open for the Authority to rely on the Report at all because of a lack of more specific identification of that source is wholly unmeritorious. To the extent that the particular individual or organisation from whom the specific information was sourced is not specifically identified, that is a matter that may affect the weight that the Authority may attribute to it. It cannot, on any reasonable view, deprive the Report of the character of probative material.

30    It is then said that the DFAT Thematic Report is not factually correct and, therefore, not probative. On this aspect of the appeal, Counsel for the appellant asserted, with some degree of repetition, that there were no Hazaras living in Lahore. Counsel submissions were to the effect that reliance by the Authority on an incorrect report would, in his words, “100 percent mean” that the Authority had committed an error of law, not an error of fact. That submission must also be soundly rejected.

31    The question of whether there is presently a population of people of Hazara ethnicity residing in Lahore is a question of fact, and incontrovertibly so. The appellant cannot succeed in demonstrating jurisdictional error merely by demonstrating that the Authority relied on country information that misstated a fact. When prompted by the Court to articulate with more precision how such an error could constitute jurisdictional error, Counsel returned again and again to his assertion that the DFAT Thematic Report was incorrect. The submissions amounted to no more than an emphatic disagreement with the Authority’s factual conclusion.

32    It was then submitted that it was open to the appellant on judicial review (and so in this Court) to adduce evidence to show that a fact upon which the Authority’s decision was based did not exist. Reliance was placed on the decision of the Full Court in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (Black CJ, Spender and Gummow JJ). That case turned on the proper construction of s 5(1)(h) and s 5(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The principles discussed in that case do not apply to the exercise of the jurisdiction conferred on the FCCA under s 476(1) of the Act.

33    It has not been demonstrated that it was not open to the Authority to rely upon the information contained in the Report and to prefer that information over the information that had been proffered by the appellant on the same subject matter.

34    The primary judge did not err in rejecting those grounds of review founded on the argument that the DFAT Thematic Report was incorrect or otherwise not probative. The grounds of appeal asserting otherwise cannot succeed.

EVIDENTIARY BURDEN

35    As has been said, at the hearing of the appeal, as in the proceedings below, Counsel for the appellant invited the Court to make a factual finding to the effect that no people of Hazara ethnicity resided in Lahore. Counsel acknowledged that he was in no position to adduce evidence to prove that factual proposition, including because it was difficult to prove a negative. Counsel submitted that the lack of identification of the source of the information contained in the DFAT Thematic Report was itself circumstantial evidence that the Report was incorrect. The lack of named sources was sufficient to shift an evidentiary burden to the first respondent to prove that the Report was correct, so it was submitted.

36    Determination of the question of whether the DFAT Thematic Report was correct or not formed no part of the task of the primary judge on the application for judicial review, nor does determination of that question form any part of the task of this Court in the exercise of its appellate jurisdiction. As has been said, the appellant could not succeed on the application for judicial review by adducing evidence, being evidence not before the Authority, to contradict the information contained in the Report.

37    It was, of course, open to the appellant to put evidence of that kind before the delegate. Further, in light of the delegate’s reasons in relation to the security situation in Lahore, it was clearly open to the appellant to submit new information to the Authority, including information that contradicted the proposition that the appellant’s well-founded fear of persecution applied to all parts of Pakistan (including Lahore) and that it was otherwise unreasonable for him to relocate there. The appellant’s representatives adduced no such evidence before the Authority. Counsel’s attempts to adduce evidence on this appeal and in the proceedings below amounted to no more than an attempt to have this Court interfere with the decision of the Authority on the factual merits.

38    The question on the application for judicial review was whether the Authority committed jurisdictional error on the basis of the material before it. Such an error cannot be established by showing that a different decision-maker might arrive at a different conclusion on a critical fact on the basis of additional or different material. The first respondent could not bear any burden (whether described as an evidentiary burden or otherwise) in relation to a factual question that did not legitimately arise for consideration in the proceedings below.

39    It was then submitted that the first respondent ought to have been compelled to produce evidence identifying the sources of information contained in the DFAT Thematic Report because that information was exclusively in the possession of the Executive Government of which the first respondent formed a part. Even if the factual question of whether persons of Hazara ethnicity resided in Lahore had legitimately arisen in the proceedings below, an evidentiary burden would not arise merely because of the exclusive possession of evidentiary material in the hands of one party and not another. If the factual question arose for determination, it would have been open to the appellant, by his representatives, to invoke compulsive processes of the FCCA for its production so that the appellant could adduce the material as part of his own case. That was not done. In any event, as I have said, jurisdictional error could not be established merely by succeeding in a de novo contest in respect of a question previously determined by the Authority on the material before it.

40    This aspect of the appeal also included a complaint that the primary judge had not adequately dealt with the evidentiary implications of material that was adduced by the appellant on his application for judicial review. The material is annexed to an affidavit sworn by the appellant’s Counsel on 23 November 2018. Of that material, the primary judge said:

32.    Ground two really proceeds on the basis that the information in the DFAT reports was incorrect. The main part of the DFAT reports that were incorrect, according to the Applicant, are the ones that talk about there being a population of Hazaras in Lahore. The Applicant says that there are no Hazaras in Lahore, and the DFAT report is wrong.

33.    To this end, he has sought to adduce other evidence that is contained in an affidavit of the counsel of the Applicant filed in this court on 23 November 2018. That information was not before the IAA, and a lot of it does postdate the decision of the IAA.

34.    Notwithstanding that, the Applicant says that such evidence is admissible for this purpose and that is to show that the factual basis upon which the DFAT reports are based do not exist; therefore, in relying upon the factual basis of the DFAT report to say that there are Hazaras, or a Hazara community in Lahore, was a jurisdictional error because such is not correct. However, the Applicant has produced neither in that material, nor anywhere else, anything that would show that the DFAT report was incorrect.

35.    The DFAT reports, he claims, do not show any source material so that the source material could be looked at. That is a matter for the report writers. They are official documents, and it is then for the IAA to decide whether or not to accept those matters. For this ground to have any chance of success, the Applicant really needed to show me conclusive proof that there were no Hazaras in Lahore. He has annexed a UK report and also another report, amongst other things, simply to tell me that these reports are also wrong, and they are wrong because they do not have any source material that is able to be verified.

36.    The first report is a report titled ‘A tough life for the displaced Hazaras in twin cities’ written on 9 March 2014 and the other is a UK Home Office report titled ‘Country Policy and Information Note, Pakistan: Hazaras’ dated November 2016. In those reports, there is talk of the Hazara population. In the UK Home Office report, at 5.2.3, the report quotes an official at the Pak Institute for Peace Studies stating that:

…  Many families migrated to different parts of the country, especially Karachi, which already has a sizeable Hazara population, estimated 25,000 families live there. They are concentrated in areas of Hussain Hazara Goth and Mughal Hazara Goth of the city. Those who afford the expensive living of Islamabad also relocated in the capital, but their numbers are small. Reportedly, [a] few families have also migrated to Lahore and [are] living among the Shia population.

37.    The Applicant says that even though he has produced this report, that that this [sic] information is wrong because it does not quote any other source of information.

38.    The first report from 2014 said this at paragraph 5.2.2:

…Of the 600,000 Hazara community members, 100,000 have left their hometown [Quetta]…  Around 80,000 people migrated from Quetta to Islamabad, Rawalpindi, Lahore and Karachi.

39.    The Applicant says that that report, as well, is wrong. I asked the Applicant to show me any report that he says is actually right. He claims that none of these reports could be considered as right because none of them have the methodology he says that are needed to make the statements that they have. However, it is a claim that he makes, and it is for him to prove it.

41    There is no appealable error disclosed in that reasoning. To the extent that Counsel sought to rely on the UK Home Office report in argument before me, his submissions are rejected for the same reasons articulated by the primary judge. The annexures to his affidavit cannot establish any factual proposition on which the outcome of this appeal might legitimately turn.

THE APPELLANT’S ETHNICITY

42    The final category of grounds of appeal concern the appellant’s ethnicity as a Hazara and an allegation that the Authority either failed to have regard at all to his Hazara ethnicity or failed to afford his ethnicity sufficient weight. No oral submissions were advanced specifically in relation to that category of appeal over and above what has already been the subject of my reasons thus far.

43    It cannot reasonably be argued that the Authority did not have regard to the appellant’s Hazara ethnicity. A substantial part of the reasons of the Authority were devoted to that question, including on the topic of whether, by reason of his Hazara ethnicity, the appellant might be exposed to a risk of harm even if he were to locate to Lahore. Questions of weight were questions exclusively for the Authority and it has not been shown that the attribution of weight to any issue arising before it is affected by legal unreasonableness.

44    Finally, there is one class of grounds of appeal in which complaint is made about the use that the primary judge put the word “community” and his interpretation of the word “community” as it appeared in the Report. I have some difficulty identifying where in the reasons for judgment his Honour is said to have erred in that respect. It is unclear to me that the primary judge has made any finding as to the meaning of the word “community”, nor has his Honour made any finding of fact as to whether or not there is a Hazara population living in Lahore. It formed no part of his task to make any such finding.

CONCLUSION

45    The grounds of appeal are unmeritorious and the appeal should accordingly be dismissed.

46    For the purposes of s 486F(2) of the Act I find that the migration litigation constituted by this appeal had no reasonable prospects of success.

47    The parties will be heard as to costs.

Associate:

Dated:    11 December 2019