Federal Court of Australia

ETP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1309

ORDERS

THE COURT ORDERS THAT:

1.    Leave be refused to the appellant to rely on grounds 1 and 2 in the Notice of Appeal filed on 27 July 2020.

2.    The appeal be dismissed.

3.    The appellant pay the costs of the respondent, such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is a Notice of Appeal filed by the appellant on 27 July 2020. The appellant appeals from the whole of the judgment and all of the orders of the Federal Circuit Court in ETP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1825, in which the primary Judge dismissed an application for judicial review of a decision of a delegate of the respondent (Minister) to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa.

2    The Minister seeks an order that the appeal be dismissed, with costs.

Background

3    The appellant is a citizen of Pakistan who arrived on Christmas Island on 3 May 2021 as an unauthorised maritime arrival.

4    On 8 December 2016, the appellant made an application for a Safe Haven Enterprise visa. The appellant claimed to fear harm if returned to Pakistan on the basis that he had informed on members of the Taliban and because he belonged to the Awami National Party (ANP).

5    On 27 September 2018, the appellant was interviewed by a delegate of the Minister.

6    On 2 October 2018, the delegate invited the appellant to comment on adverse information pursuant to s 57 of the Migration Act 1958 (Cth) (Migration Act). In particular, this adverse information related to a previously-made refugee claim by the appellant at the Calgary office of the Department of Immigration of Canada, and the refusal of those claims by the Immigration and Refugee Board in Canada.

Decision of Delegate

7    On 6 November 2019, a delegate of the Minister refused to grant the appellant a protection visa. The delegate’s reasons for decision were comprehensively summarised in the primary Judge’s reasons for judgment at paras [4]-[17].

8    The delegate found, in summary, that the appellant had provided false and misleading information to the Department of Immigration and Border Protection in relation to his prior travel, including to Canada for the purposes of making a refugee claim. In relation to the appellant’s protection claims, the delegate was not satisfied that the appellant had a well-founded fear of persecution for being a supporter of the ANP, or in connection with the killing of his brother, or in connection with members of his family being members of the ANP. However, the delegate was satisfied that the appellant had a well-founded fear of harm in respect of his home area due to his fear of the Taliban.

9    The delegate was satisfied that the appellant’s risk of harm did not extend to all parts of Pakistan, and that he could lawfully and safely relocate to particular areas of Pakistan. Further, for the purposes of complementary protection, the delegate was satisfied that it would be reasonable for the appellant to relocate to one of those areas.

10    The delegate also undertook an assessment of whether the appellant was an “excluded fast track review applicant” as defined in s 5 of the Migration Act. The delegate found that the appellant was an excluded fast-track applicant on the basis that he had made a claim for protection in a country other than Australia and was refused by that country. The consequence of the delegate’s determination in this respect was that the delegate’s decision was not reviewable by the Immigration Assessment Authority (IAA) under s 473CC of the Migration Act.

11    On 2 December 2019, the appellant filed an application for judicial review of the delegate’s decision in the Federal Circuit Court of Australia.

Decision of the Federal Circuit Court

12    On 10 July 2020, the primary Judge dismissed the appellant’s application for judicial review and ordered the appellant to pay the Minister’s costs fixed in the amount of $7,000.

13    Before the primary Judge, the appellant advanced the following ground of review:

1.     In its assessment of whether the Applicant is a refugee and in need of protection for the reasons highlighted in his protection claim being active member of ANP, political activities and close family association with leaders and high profile members of ANP; and whether the Applicant life will be in significant danger or harm, the Respondent, Minister for Home Affairs:

a)     Failed to consider the claim and to give proper, genuine or realistic consideration to the relevant integer of the Applicant Claims and risks if he is returned; and or

b)     And engaged in a fact-finding or decision making in a manner which was unreasonable, illogical or irrational

c)     Concluded the claim Considering mistakes the Applicant made in his forms, or had fear to disclose or was it ill advised not to disclose

d)     Failed to consider and give proper, genuine and realistic consideration to the merits of the Applicant Claim, and consequently unfairly excluded from fast track review process by IAA or AAT

Particulars:

The applicant claimed he is a member of the ANP and his family is strongly involved in ANP struggle of its aims and objectives which are in opposition to the Taliban radical extremist movement’s aims, objectives and agendas. Being an active element of this struggle the Applicant and his family members had been sacrificed, harmed and threatened. The applicant provided evidence to verify his claims. The applicant highlighted the threat of harm if he is returned for the reason raised in his claim. The Responded failed to consider the protection claim and give proper, genuine realistic and fair consideration to the various elements of the claim and the risked of returned, but relied on the Applicant mistakes in the forms and the non-disclosure of some information which he had fear to disclose or was ill advised not to disclose at the various stages of the application process. However eventually after receiving legal advice from his legal team and truthfully disclosed everything he was required. The Responded ignored the factual claim but concluded his/her decision considering his mistakes of nondisclosure.

The Respondent failed to consider and give proper, genuine and realistic consideration to the merits of the Applicant claim and unfair excluded the Applicant’s application from merits review by the IAA or AAT.

(Errors in original).

14    The primary Judge held, inter alia:

    The Court had jurisdiction to hear and determine the appellant’s application for judicial review.

    The appellant’s claim that he was unfairly excluded from merits review by the Administrative Appeals Tribunal or the IAA did not have merit.

    The delegate gave proper, genuine and realistic consideration to the appellant’s claims.

    The adverse credibility findings by the delegate did not taint or adversely impact improperly on the delegate’s consideration of the appellant’s substantive protection claims.

    There was nothing unreasonable, illogical or irrational in the delegate’s findings. The findings were reasonably open to the delegate, based on the information provided by the appellant, together with country information that was before the delegate.

    No jurisdictional error was apparent on the pleaded ground in the Federal Circuit Court proceedings.

15    On 27 July 2020, the appellant appealed from the decision of the primary Judge.

Appeal before the Court

16    In his Notice of Appeal, the appellant sought the following three orders:

1.     An order that the decision of the Federal Circuit Court of Australia made on 10 July 2020 dismissing the Appeal and ordering cost against me, to be quashed/ set aside.

2.     An order that the decision of the delegate of Minister made on 06 November 2019 to be quashed/ set aside.

3.     A writ of mandamus directing the Minister to consider the Applicant's application in accordance with the law and be the reason of grounds of the application

17    In support of the orders sought, the appellant relied on the following two grounds of appeal:

1.     The Delegate of the Minister fell into jurisdictional error, by dealing with the matter dismissively which consequently led to failing to give proper, genuine and realistic consideration to the relevant integer of the Applicant's claim and risk of harm is he is returned home

Particulars

a)     In arriving at its ultimate decision the delegate, expressed doubts or concerns about the reliability, authenticity or credibility of the applicant claim after he was returned from Canada to Pakistan, for reason not relevant to the persecution he suffered after his return to Pakistan, and the risk of harm he will face if he is returned. The delegate failed to give proper, genuine and realistic consideration to the relevant integer of the Applicant claim and risk of harm if he is returned home.

b)     The delegate's treatment of the claim was not fair but dismissive because of the fact that he did not disclose anything his refugee application in Canada while he informed the delegate that he had fear his claim will be adversely affected by that and will be returned to his home country where he his life will be put at risk as this had occurred.

2.     The Delegate fell into jurisdictional error in failing to consider the merits of the claim being dismissive and excluded the applicant claim to be reviewed independently by AAT. In doing so the Delegate denied the applicant procedural fairness.

(Errors in original).

Submissions

18    In written submissions filed on 2 April 2021, the appellant submitted, inter alia:

    The delegate made findings in the absence of any probative evidence or in the absence of any evidence.

    The delegate failed to assess all aspects of the possible risk to the appellant, should the appellant be returned to Pakistan.

    The delegate’s findings were illogical, unreasonable and fell into jurisdictional error.

    In considering the reasonableness of the appellant relocating to other areas of Pakistan, the delegate failed to assess the risk and effects of the appellant recalling past persecutions and past trauma, and failed to consider the horrific incidents of past persecution that the appellant and his family had suffered.

    The primary Judge made a jurisdictional error by finding that the delegate gave proper, genuine and realistic consideration to the appellant’s claims, in the absence of any evidence.

19    In written submissions filed 9 April 2021, the Minister submitted, inter alia:

    Neither ground of appeal advanced by the appellant purported to identify any appealable error in the primary Judge’s reasons for judgment.

    The grounds of appeal challenged the delegate’s decision on the basis of asserted jurisdictional error which, in some respects, repeated, but in other respects, supplemented, the ground of review advanced before the primary Judge.

    The appellant required leave to advance grounds or arguments on appeal that were not raised before the primary Judge. Leave ought be refused.

    No explanation was given as to why the appellant now sought to run additional, or more developed, points on appeal.

    The Court’s appellate function would be subverted if the appellant, without good reason, was permitted to re-run trials or advance points that were not taken at first instance.

    Any ostensible merit in the new points sought to be raised on appeal was not determinative of the question of whether leave should be granted.

20    Further, the Minister submitted that:

    leave was required in circumstances where the appellant sought to advance arguments not raised before the primary Judge,

    the appellant had not sought leave, and

    leave should be refused.

21    At the hearing on 16 April 2021, the appellant made oral submissions in response to the Minister’s written submissions. In summary, the appellant submitted:

    The Minister’s argument that leave was required to advance new grounds of appeal was founded on a misinterpretation of the appellant’s Notice of Appeal.

    The arguments put forward by the appellant were all in issue before the primary Judge.

22    The Minister submitted orally in reply, in summary:

    The “elaboration” of the appellant’s grounds of appeal in his written submissions was, in effect, a new ground or a new series of grounds of challenge to the delegate’s decision.

    In circumstances where the solicitor for the appellant in the present appeal also represented the appellant before the primary Judge, there would need to be quite extraordinary circumstances to permit the appellant to run what was essentially a fresh trial before the Court in its appellate jurisdiction.

    If the Court was minded to grant the appellant leave to advance what are effectively new grounds of appeal, the grounds of appeal ought nonetheless be dismissed on their merits.

Consideration

23    Before the primary Judge the appellant claimed that the Minister erred by, inter alia, failing to consider the appellant’s claim and properly consider the merits of his claim, engaging in decision-making which was unreasonable, illogical or irrational, and concluding the claim by reference to mistakes the appellant made. Importantly, the ground of review was particularised by reference to the appellant’s claim of involvement with the ANP. In the Notice of Appeal, the appellant claimed jurisdictional error by the Minister in denying the appellant procedural fairness (ground of appeal 2), and in failing to give proper consideration to a relevant integer of the appellant’s claim, namely by reference to the appellant’s history in Canada.

24    As the Minister properly submitted, a threshold issue for determination is whether the appellant has raised grounds of appeal relating to matters not advanced before the primary Judge, thus requiring the leave of the Court. As the Full Court recently explained in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125:

13.    The decision in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (VUAX) has been regarded for many years as identifying the principles applicable to determining whether leave ought to be granted to an appellant to raise a new ground on appeal. The overriding rubric of whether leave to do so is in the interests of justice is well established. It is also well accepted that within the deliberative process of deciding that question certain, almost ubiquitous, issues arise for consideration. They include the following:

(1)    That in the ordinary operation of the court structure, the substantial issues between parties to litigation are decided at trial. Leave is not granted merely for the asking and hearings before courts at first instance are not to be regarded as provisional: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7 – 8.

(2)     Has the applicant for leave provided any adequate or acceptable explanation for why the ground was not raised below? This is a significant matter: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at 85 [166]. The fact that new counsel may have been engaged for the purposes of the appeal and has identified the new point is not, of itself, sufficient: BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 [31]; CSZ15 v Minister for Immigration and Border Protection [2017] FCA 706 [11]; DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 [31] (DKT16).

(3)     The making of a deliberate forensic decision in the hearing below not to take a point strongly militates against the granting of leave to advance it on appeal: DKT16 [31]; Singh v Minister for Immigration and Border Protection [2018] FCAFC 52; (2018) 261 FCR 556 at 574 [61]; Ye v Crown Limited [2004] FCAFC 8 [79]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 [38]. It may follow that, where the appellant demonstrates that the point was not taken below as a result of an oversight, the negative weight accorded to the omission will not be as great.

(4)    Whether there exists any prejudice to the respondent in permitting the new ground to be agitated? Necessarily, where the new ground sought to be raised might have been met by evidence at trial, the need to accord the respondent procedural fairness will usually prevent leave being granted: SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 [136]. Conversely, where the new point sought to be raised turns on a question of law or construction, or where the facts are not in controversy, leave is more likely to be given. Even then, if leave is granted, the consequence for the respondent is the removal of a right of appeal on the point with the remaining avenue for redress being the limited prospects of obtaining special leave to the High Court: Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 (Leota) [44]; AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at 455 [14].

(5)    The nature and extent of the prejudice which will be suffered by the appellant if leave is not granted will also usually be relevant. In migration appeals, this consideration can extend to persons associated with the appellant who might be affected as a result of an appeal being dismissed.

(6)    The criterion of whether the proposed new ground has merit has been referred to as “an important consideration”: Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; (2017) 258 FCR 1 at 10 [33]; Leota [43]. In NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30, the Full Court observed (at [31]) that, in common with the approach adopted in determining whether an extension of time in which to appeal should be granted, the determination of whether any proposed new ground of appeal has merit is assessed at a relatively impressionistic level, and the Court should not descend into a fuller consideration of arguments for and against each proposed new ground.

14.    Although the above represent criteria which often fall for consideration in the determination of an application for leave to raise a new ground, the broadness of the overriding question of whether it is in the interests of justice to grant leave should not be overlooked…

25    In my view, in the Notice of Appeal the appellant has advanced grounds or arguments which were not raised in the Court below. I have formed this view for the following reasons.

26    First, there is overlap in the grounds argued at first instance and on appeal to the extent that before the primary Judge and on appeal the appellant claimed that the delegate failed to give proper, genuine and realistic consideration to the relevant integer of the appellant’s claims. However the particularisation of the relevant integer at first instance (namely, the appellant’s relationship with the ANP) clearly raised different issues from that in ground 1 of the appeal (namely, the appellant’s history in Canada).

27    Second, in the appeal the appellant claimed (in ground of appeal 2) that he had been denied procedural fairness. Insofar as I am aware, no such argument was advanced at first instance.

28    Third, in both grounds of appeal the appellant claimed that the delegate had been “dismissive” in the delegate’s consideration of the appellant’s case. Insofar as I can identify, this argument was not put at first instance.

29    The appellant requires leave to raise on appeal new matters not argued at first instance: Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158, Tohi. Having regard to the issues to which the Court should turn its mind in deciding whether to grant leave, I note that:

    No explanation has been advanced by the appellant as to why, before the primary Judge, the appellant did not raise the issue of the view the delegate took about the appellant’s history in Canada, or the alleged absence of procedural fairness before the delegate, or the alleged dismissive approach of the delegate. I understand that the same lawyers represented the appellant at first instance as did in the appeal before me. The absence of any explanation by the appellant militates against the grant of leave to appeal.

    No prejudice was identified by the Minister in permitting new arguments and issues to be agitated in the appeal. On the other hand, the appellant has not identified any prejudice he would suffer if leave to raise new issues were refused. I consider that the issue of prejudice is a neutral factor in considering whether the Court should presently grant leave to the appellant.

30    A key issue remaining is whether the grounds advanced by the appellant in the Notice of Appeal have merit. As the Full Court reiterated in Tohi, this issue should be assessed at a relatively impressionistic level. However in this case the parties made detailed submissions concerning the merits of the grounds of appeal. To that extent, I understand that the parties have argued the appeal fully, both orally and in writing, rather than simply address the merits of the grounds of appeal at an impressionistic level. Certainly this was the approach of the appellant, who refuted the suggestion that leave was required to raise new grounds. Further, insofar as I understand it, Counsel for the Minister was able to properly address the grounds of appeal on which the appellant sought to rely.

31    Turning then to the merits of the grounds of appeal on which the appellant seeks to rely, I find as follows.

32    First, the grounds of appeal identify no error on the part of the primary Judge as distinct from the delegate. The Minister submitted that the practice of fresh grounds of review against an administrative decision being advanced on an appeal from a primary judgment is contrary to the legislative scheme under the Migration Act limiting the Court’s jurisdiction, and risks the appellate Court becoming the initial supervisory court in relation to the delegate’s decision: AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452; [2015] FCA 804 at [14], Minister for immigration and Border Protection v Aulakh (2018) 265 FCR 143; [2018] FCAFC 91 at [107]. I agree with this submission. What appears to be attempt by the appellant to conduct a new trial at an appellate level is, in itself, reason to refuse leave.

33    Second, however, I note that in his submissions the appellant claimed that the primary Judge erred at paras 30 and 31 of the primary judgment. In those paragraphs his Honour found that the delegate gave proper, genuine and realistic consideration to claims of the appellant concerning his ANP associations, including by reference to relevant country information (para 30) and that the delegate found that the appellant would be able to reasonably relocate within Pakistan (para 31). More specifically his Honour’s findings were as follows:

30.    As set out by the first respondent, the delegate gave careful consideration to each of the applicant’s claims. The Court is reasonably satisfied that the delegate did give proper genuine and realistic consideration to the applicants claims of being an active member of the ANP, his political activities and close family association with leaders in high profile members of the ANP and based on relevant country information and a reasonable evaluation of the applicants claims, that his life would not be in significant danger or harm if returned to Pakistan.

31.    The delegate accepted that the applicant would be unable to return to his home region, due to a previous incident where he had informed the local authorities about members of the Taliban stealing petrol. The delegate found however, that the applicant would be able to reasonably relocate within Pakistan, specifically to Karachi or Lahore, without suffering serious harm (see SZATU v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18).

34    To the extent that, in his submissions, the appellant claimed error on the part of the primary Judge, for present purposes I will treat those submissions as further particularisation of the grounds of appeal.

35    Relevantly in his submissions the appellant criticised the findings of the delegate referable to the issues identified by the primary Judge at [30]-[31] of the primary decision, in the following terms:

16.    The applicant claimed his brother was member of high office in the ANP and was killed by Taliban. The Minister at paragraph 98 of the Minister’s decision admit that he was not able to find any information to support the applicant claim but found the Applicant brother was killed through an act of violence by unidentified persons firing at a car. This finding is made by the Minister in the absence of any probative evidence or no evidence. As admitted by the Minister that he/ she was not able to find any information to support the applicant’s claim, how come the Minister made this assertion that the applicant brother was killed by unidentified persons. What evidence the Minister based his assertion upon to reach this conclusion. (AB399 of the Court book).

17.    The Applicant claim that he has fear of harm as a result of members of the applicant’s family being members of the ANP. He claimed that in addition to his cousin and father’s cousin, another cousin was injured by Taliban in a blast in 2012. In Paragraph 102 – 108 of the Minister decision, the Minister noted that the applicant’s assertion as claimed. In Paragraph 106 of the decision, the Minister notes they are unable to find any commentary specifically, in regards to any risk of harm, due to familial association with the ANP but concluded that the risk to the applicant would be low given that the Minister found that the applicant had not been a political official or party activist in the ANP. In addition to the Minister’s failure assessing all aspects of possible risk if the applicant is returned, based on what evidence the Minister made this assessment that the risk to the applicant will be low. It is irrational and unreasonable to come make this crucial finding in the absence of any evidence.

18.    The applicant claims fear of return to Pakistan and his fears are objective due to the persecution and the suffering and the trauma he received from the killing of his family members including his brother, father’s cousin and his cousin and the injured cousin in 2012. The Minister in paragraph 109 to 120 accept the claim and concluded the applicant would face a real chance of serious harm from local people, if he is returned to his home region but concluded that the applicant does have safe and lawful access to other areas of Pakistan and could safely relocate to Islamabad, Lahore or Karachi. Accordingly the Minister found that a real chance of persecution does not relate to all areas of the receiving country being Pakistan. Accordingly, the applicant did not meet the protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. (AB 399 and 400 of the court book). The Minister made this finding in the absence of any probative evidence to be able to assess this conclusion objectively and reasonably.

(Emphasis in original).

36    Manifestly the appellant claimed errors in the decision of the delegate by reference to:

    the alleged killing of the appellant’s brother by the Taliban;

    the appellant’s claim that he had a fear of harm as a result of members of his family being members of the ANP; and

    the appellant’s claim that he feared relocation within Pakistan.

37    Turning to these issues I find as follows.

38    In relation to the alleged killing of the appellant’s brother by the Taliban I note the following findings of the delegate:

Assessment – his brother [R], killed by Taliban, for being a member of high-office in the ANP.

94.    The applicant has claimed that his brother [R] was killed by the Taliban. In his written statement of claims, the applicant said:

‘The problems for me personally started in about 2008 when my brother [R] was shot. My brother was shot by the Taliban because he was deeply involved with the Awami National Party. [R] was a councillor with the ANP and the Taliban did not like the ANP at all. That was because the ANP were against the policies of the Taliban.’

‘[R] went to Mingora and he was shot by the Taliban there. [R] went to Mingora to do some shopping and three men targeted him while he was sitting in a car. He was dead on the spot.’

‘The three men were seen by my cousin, [A], who was sitting with [R] in the car ([A] saw three men target [R], but there were also many more men surrounding the car who were further away than the three men.).’

95.    In support of this claim, the applicant’s agent submitted a news article from an English Language news service in Pakistan, Dawn News. Dawn reported … [detail redacted]

96.    The article goes on with speculative opinion as to who the unidentified persons may have been representing, in firing at the car, quoting local police as an information source, and suggesting that the unidentified persons may have been militants.

97.    Other than the speculative news article, no evidence has been submitted to substantiate any motive for the incident of unidentified persons firing at a car and elsewhere, resulting in the death of the applicant’s brother.

Finding – his brother [R], killed by Taliban, for being a member of high-office in the ANP.

98.    I find that the applicant’s brother, [R], was killed, caused through an act of violence by unidentified persons, firing at a car in which he was in.

99.    As there is only inconclusive information and speculative opinion in regards to who fired shots at the car and elsewhere, I am unable to support the applicant’s claim that his brother was specifically targeted by the Taliban and killed for being a member of high office in the ANP.

100.    An alternate view can readily be taken that due to the high levels of generalised violence that was occurring at that time in 2008, the applicant’s brother was a civilian casualty in an incident caused by unidentified persons.

101.    On balance, I am not satisfied there is a real chance that, if the applicant were to return to Pakistan now or in the reasonably foreseeable future, he would be persecuted for the reason claimed in regards to the death of his brother [R] 11 years ago. I am therefore satisfied the applicant does not hold a well-founded fear of persecution for this reason.

(Footnotes omitted).

39    To the extent that in his submissions the appellant attacked the findings of the delegate concerning the death of the appellant’s brother, as lacking an evidentiary basis, I consider that criticism has no merit. Rather, the delegate plainly identified the evidence before him (essentially provided by the appellant), and concluded that that evidence did not support the appellant’s claim that his brother was specifically targeted by the Taliban and killed for being a member of high office in the ANP.

40    In those circumstances it cannot be said that there was no evidence before the delegate on which to base that finding, or that the delegate failed to give proper, genuine and realistic consideration to this aspect of the appellant’s claim, or that the delegate did not afford the appellant the opportunity to advance evidence supporting his claims. Rather, the delegate was simply not satisfied of the appellant’s argument concerning his brother, referable to the evidence before the delegate.

41    In relation to the appellant’s claim that he had a fear of harm as a result of members of his family being members of the ANP, the delegate relevantly found as follows:

Assessment – fear of harm from the Taliban – members of family being members of the ANP.

102.    In his IMA Induction Interview, in response to question in regards to political involvement, the applicant stated; ‘we are all supporters of the ANP Political party, my father was a member of the party.’ No further information was provided about his father’s involvement with the ANP. I note that in his IMA Induction Interview, the applicant stated that his father had died of natural causes.

103.    In his written statement of claims, the applicant also alleges that his cousin [RK] had been killed by the Taliban, stating that;

‘In January 2011, he was shot because of his familial association with the ANP. There are news reports that say that [RK] was a leader of the ANP and a member of a peace committee’. He also said that: ‘in about July 2012, [SAK] was shot dead in Karachi when he came out of his residence. [SAK] was my father’s cousin (although I called him uncle) because that is what we say in Pakistan. He was shot because he was a leader of the ANP.

‘Also in 2012, sometime after [SAK] was killed, my cousin (my auntie’s son) [KUH] was going for a walk in Kanju and some unknown men threw a hand grenade at him and [KUH] was seriously injured. [KUH] was a Nazim of Kanju Union Council and he was an active member of the ANP and was in the Peace Committee.

104.    The applicant has asserted that his cousin [RK] (in 2011) and his father’s cousin [SAK] (in 2012) were both killed by the Taliban, due to either holding high-office or having been imputed to have been holding high-office, in the ANP. He has also asserted that his cousin, [KUH], was seriously injured from hand grenade blast in 2012.

105.    As previously mentioned, the cumulative information above supports a conclusion that violence against members of political parties can and does occur, predominantly against political ‘officials and activists’. Country information also records that high levels of generalised violence was occurring throughout the country at the time, with high levels of civilian casualties.

106.    The country information I researched deals with the ANP, officials and activists of the ANP and with members of the ANP. I was unable to find any commentary specifically in regards to any risk of harm due to familial association between members of the ANP.

Finding – fear of harm from the Taliban – members of family being members of the ANP

107.    Again, as I have found that the applicant by his own admission, had not been a political official or party activists of the ANP, I conclude similarly, that without evidence to the contrary, that the risk to the applicant would be low, in regards to any risk of harm due familial association between members of the ANP.

108.    On balance, I am not satisfied there is a real chance that, if the applicant were to return to Pakistan now or in the reasonably foreseeable future, he would be persecuted for the reason claimed in regards to any familial association due to members of the family, including extended family, being supporters of the ANP. I am therefore satisfied the applicant does not hold a well-founded fear of persecution for this reason.

(Footnotes omitted).

42    To the extent that the appellant criticised as irrational, unreasonable and lacking evidence the delegate’s finding that the risk to the appellant returning to Pakistan would be low, I consider that criticism lacks merit. This is because:

    the delegate clearly had regard to such evidence referable to the appellant’s family’s involvement in the ANP as was adduced by the appellant and was before the delegate;

    it was not for the delegate to seek out probative evidence supporting arguments advanced by the appellant;

    to the extent that the delegate had regard to a Country Information Report produced by the Department of Foreign Affairs and Trade (DFAT) from 20 February 2019, this was appropriate: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; and

    on such evidence as was identified by the delegate in his reasons, the findings of the delegate appeared to be open to the delegate.

43    In relation to the appellant’s claim that it was unreasonable for the delegate to find that the appellant could successfully relocate within Pakistan, the delegate at [112]-[120] carefully examined this issue. The delegate accepted that the appellant would face a real chance of serious harm if he returned to his home region (at [112]). The delegate further noted that the appellant had previously resided in Karachi on a number of occasions but claimed it was not safe (at [113]).

44    The delegate had regard to the DFAT Country Information Report, specifically in regards to residing in areas away from a citizen’s home area. The delegate continued:

114.    … The report states that:

115.    DFAT 5.31 – Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common.

116.    DFAT 5.32 – Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors. DFAT assesses that groups facing official discrimination [as opposed to societal discrimination] will face discrimination in all parts of the country.

117.    DFAT 5.15 – [from DFAT 01 September 2017 Report) Lahore has a population of around 10 million people…. Representatives of the Pashtun community told DFAT that Lahore was safer for Pashtuns than other parts of the country.

118.    The applicant claimed at his PV interview that he could not relocate to another area of Pakistan because: ‘the Taliban are present in every part of Pakistan and they will harm me anywhere they find me.’

119.    In regards to internal relocation, I have also considered the alternate country information contained in the post interview material. On balance, I place more weight on the DFAT information above and therefore, I find the applicant does have safe and lawful access to other areas of Pakistan such as Islamabad, Lahore, or Karachi. The applicant can therefore lawfully and safely relocate.

120.    I am not satisfied that there is a real chance he would incur serious harm from the Taliban or from family members of the Taliban coming from his home region, now or in the reasonably foreseeable future, if he were to reside in areas of Pakistan such as Islamabad or Lahore.

(Footnotes omitted).

45    Later in the reasons for decision the delegate said:

145.    I am required under s36(2B)(a) of the Act to consider whether it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they would suffer significant harm. In SZATV v Minister for Immigration and Citizenship (2007) the High Court determined that the test for reasonableness for the purposes of s36(2B)(a) is whether the relocation would be ‘reasonable in the sense of practicable’, taking into account the individual circumstances of the applicant.

146.    Circumstances such as the applicant’s education, employment background and ability to gain employment, language barriers and access to family networks ‘may’ be taken into account for these purposes (SZFDV v Minister for Immigration and Citizenship (2007).

46    The delegate set out the appellant’s written statement as to why he would be unable to relocate to another area of Pakistan and continued:

148.    I found above that the applicant does have safe and lawful access to other areas of Pakistan such as Islamabad and Lahore. I have considered that the applicant would need to reapply for a Computerised National Identity Card (CNIC)….

149.    DFAT has advised that applicants do not have to return to their home area in order to renew their CNIC. Whilst the National Database and Registration Authority (NADRA) would prefer that they renew their CNICs in person, online renewal is nevertheless allowed.

150.    This is further supported by information on NADRA’s website which suggests that applicants only need to return to their home area where there is ‘no previous registration document’, which includes previous national identity cards, is in evidence. The applicant has raised concerns about Pashtuns being able to renew their CNIC.

151.    This concern is not supported by the country information. All indications are that the applicant would be able to renew his CNIC in Lahore, Islamabad or Rawalpindi, or indeed, renew on-line.

152.    The applicant is an able-bodied male of [redacted] years of age. He had demonstrated his resourcefulness in travelling to, living and working in foreign countries, namely Canada and Australia.

153.    Whilst I accept that living conditions in Lahore or Islamabad would not be without difficulties, and he may face challenges in re-establishing himself without initial family support, I do not accept that the applicant would not be able to find work, reside and live, in another area of Pakistan such as Lahore or Islamabad.

154.    …

155.    At date of interview being 27 September 2018, the applicant advised that he had been working as a cleaner.

156.    Taking into account the efforts made by the applicant to date to support himself and his family, it is reasonable to accept that the applicant may have some funds available to him to assist him in firstly establishing himself in another area of Pakistan such as Lahore or Islamabad, with the choice of his family being able to join him at a later time.

157.    Having carefully considered the applicant’s particular circumstances, I am satisfied that it is reasonable for him to locate to Lahore or Islamabad…

(Footnotes omitted).

47    The appellant submitted that the delegate “failed to consider the horrific incidents of past persecution that the applicant and his family had suffered”. However, against the background of findings by the delegate referable to the appellant’s involvement with the ANP, including his family connections, it is evident that the delegate was satisfied that the appellant could reasonably relocate elsewhere in Pakistan, and that he would not be at risk of persecution in larger cities in that country. In particular, the delegate had detailed regard to country information, and the personal circumstances of the appellant.

48    In my view the submission of the appellant that the findings of the delegate in respect of relocation were without an evidentiary basis, lacks merit.

49    Finally, ground of appeal 2 lacks merit in circumstances where:

    it is evident from examination of the delegate’s reasons that the delegate engaged with the arguments and evidence advanced by the appellant;

    findings of fact by the delegate were by reference to evidence identified by the delegate;

    it is not in dispute that the delegate invited the appellant to comment on adverse information under s 57 of the Migration Act; and

    it is not in dispute that the delegate invited the appellant to an interview under s 56 of the Migration Act.

Conclusion

50    Leave to raise grounds 1 and 2 of the appeal is refused. I can identify no appealable error in the decision of the primary Judge. It follows that the appeal is also dismissed.

51    The Minister has sought costs. In my view costs ought follow the event.

Associate:

Dated:    27 October 2021