Federal Court of Australia

CMP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 634

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to file the amended notice of appeal relied on at the hearing of the appeal on 23 May 2022.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The appellant appeals from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 10 May 2021 in a proceeding seeking judicial review of a decision of the Immigration Assessment Authority (the Authority). The decision under review by the Authority was the decision of a delegate of the Minister for Home Affairs refusing to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The Authority affirmed that decision.

2    As summarised by the primary judge, the appellant’s claim to protection is based on the following asserted facts:

(a)    The appellant worked as a primary school teacher in Pakistan (in a particular location referred to by the Authority as Location A) from 2004 onwards. In 2010, threatening letters were left at his school (apparently by the Taliban) warning teachers to leave. About four months later, a blast occurred at the school. The appellant continued to teach at the school and also helped with polio vaccinations. The Taliban continued to threaten the appellant.

(b)    If the appellant returns to Pakistan, the Taliban will kill him because they are against the education of women and the giving of vaccines.

(c)    If he returns to Pakistan, the appellant also faces harm because he has sought protection in Australia, and has resided in the West.

(d)    The appellant cannot relocate to other areas in Pakistan because of, amongst other things: the danger posed by militants throughout the country; his prospects of finding employment are remote; his wife is sick and he cannot afford to pay her medical costs or cover the living expenses of his six children; the difficulty in finding housing; and the high cost of living in cities such as Lahore.

3    The Authority was satisfied that the appellant faces a real chance of serious harm should he return to Pakistan and choose to return to his role as a teacher and as a worker assisting with polio vaccinations in Location A. The Authority noted, however, that the appellant:

(a)    had not been in Location A or worked as a teacher or assisted with polio vaccinations for more than six years;

(b)    had not suggested that he had any particular or compelling reason to return to such work;

(c)    had not worked as a teacher in Australia; and

(d)    had diverse employment experience and skills obtained in Australia and in Pakistan.

4    For a number of reasons, the Authority was satisfied that, if he were to return to Pakistan, the appellant would not resume teaching or assisting with polio vaccinations in the reasonably foreseeable future. The Authority was also satisfied that changing employment was a reasonable step that the appellant could take to modify his behaviour to avoid a real chance of persecution: see s 5J(3) of the Act. I will return to these findings later in these reasons.

5    The Authority then made the following findings in [31] of its Decision Record, which were central to the appellant’s application for judicial review:

31.     In addition to his diverse employment experience and skills, the applicant has completed higher education and demonstrated his ability to access employment including through his village union as claimed (to gain teaching employment in [Location A]) and through using different employment agencies while in Australia. He has referred to his wife being seriously ill and under medical treatment for the past few months, as well as the high costs of hospitalisation and medical treatment in Pakistan (against the context of relocation submissions). He has not provided any documentary evidence of his wife’s current medical condition or requisite treatment or any other credible evidence to indicate the extent of her medical costs or that he would be unable to bear the requisite expenses should he return to [Location A] in Pakistan (rather than relocate). For all these reasons, I am also not satisfied that he faces a real chance of any harm including threats to his subsistence in relation to his ability to access employment or earn a living, even taking into account his wife’s possible medical expenses, and having modified his employment in Pakistan.

The hearing for judicial review

6    The hearing before the Federal Circuit Court ultimately proceeded on an unfiled second amended application dated 25 February 2021, which contained a single ground of review to the effect that the Authority had made a jurisdictional error by acting unreasonably in (a) exercising its discretion, or (b) in failing to exercise its discretion, or (c) in failing to consider whether to exercise its discretion, under s 473DC of the Act to get information from the appellant.

7    Section 473DC of the Act provides:

Getting new information

(1)     Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)     the Authority considers may be relevant.

(2)     The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)     Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)     in writing; or

(b)     at an interview, whether conducted in person, by telephone or in any other way.

8    The appellant’s case was that the Authority did not have the necessary information to make the findings in [31] of its Decision Record. The information which, it was said, the Authority should have asked for, or considered asking for, was:

(a)    the medical expenses for the appellant’s wife;

(b)    the costs of living for the appellant’s big family of eight people;

(c)    the kind of employment, if any, the appellant would be able to get on return to Location A and the chances of the appellant getting such employment;

(d)    the income, if any, that the appellant could derive from such employment; and

(e)    whether the appellant could subsist in Location A without undertaking teaching.

9    According to the appellant, the Authority acted unreasonably in the exercise of its discretion or, alternatively, constructively failed to exercise its jurisdiction in failing to exercise, or failing to consider whether to exercise, its discretion under s 473DC to get this information from the appellant or his representative.

10    Based on the reasoning in ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at (ASB17) [48] – [49], the Minister submitted that there was no basis for the Court to infer that the Authority failed to consider exercising its discretion under s 473DC of the Act to obtain further information from the appellant. The Minister submitted that, in these circumstances, the appellant must establish that it was legally unreasonable for the Authority not to have obtained further information from him on these matters.

11    In this connection, the Minister submitted that the test of legal unreasonableness is necessarily stringent. The question was not whether the Authority could or might have exercised its discretion under s 473DC to obtain new information, or whether the court undertaking judicial review would have done so. The question was whether a decision-maker could reasonably come to the conclusion it reached: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [21].

12    The Minister submitted, further, that, in the present case, the question of legal unreasonableness must be approached through the lens of the specific statutory scheme under Pt 7AA of the Act dealing with the fast track review process undertaken by the Authority, and not through the lens of the principles of natural justice: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [45]; APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [54] – [55] and [60].

13    The Minister drew attention to s 473FA(1) of the Act:

(1)     The Immigration Assessment Authority, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).

Note:    Under section 473DB the Immigration Assessment Authority is generally required to undertake a review on the papers.

14    The Minister also emphasised that s 473DC(2) of the Act provides that the Authority does not have a duty to get, request or accept, any “new information”.

15    The Minister submitted, therefore, that there was nothing unreasonable about the Authority not obtaining “new information” in the present case. A reasonable and rational Authority could have decided not to obtain the information which, the appellant said, it should have obtained. The Minister submitted that there was a range of evidence, provided by the appellant himself, as to his past employment and skillset, which was ample for the Authority to form its view about the appellant’s prospects of employment in another field.

16    With regard to the wife’s medical expenses, the Minister submitted that it was for the appellant to advance sufficiently detailed claims, and supporting evidence, to satisfy the Authority of his case. The Minister submitted that this was a case where the appellant simply failed to give sufficient evidence to satisfy the Authority of his claims.

17    After having set out the appellant’s submissions, and the Minister’s submissions, in considerable detail, the primary judge stated his preference for the Minister’s submissions. It is clear that, in expressing his conclusion in that way, the primary judge was signifying his acceptance of the Minister’s submissions, and his non-acceptance of the appellant’s submissions.

18    The primary judge commented (at J[66]) that the present case was not one where the Authority decided the review on an entirely different basis to the delegate, which the appellant could not have anticipated. This comment by the primary judge was an express rejection of the appellant’s submission to the contrary, summarised at J[28] – [31]. The primary judge also remarked (at J[66]) that the present case is not one where the conclusions reached by the Authority were not open to it on the material before it.

19    After noting that the essential issue was the appellant’s capacity to subsist, the primary judge found (at [69] – [70]):

69.    The applicant was on notice from the decision of the delegate, as well as the interview with the delegate, that his work experience in various roles outside of teaching in a variety of industries (shopkeeping, wholesale trading, logistics and distribution and food delivery) in Pakistan and Australia over a period of some 11 years, was an issue of significance. It is true that for the delegate, that experience bore on the delegate's conclusions concerning the capacity of the applicant to seek alternative employment elsewhere in Pakistan. The Authority deployed the same information to reach a conclusion on the capacity of the applicant to sustain himself and his family while seeking alternative employment in Location A.

70.    The applicant was invited to make a submission to the Authority about the delegate's decision. He provided nothing. In my view, the applicant, having failed to provide detailed information about the burdens of supporting his family, despite having an opportunity to do so, cannot now complain that it was unreasonable for the Authority not to seek further details from him before making its decision.

(Citations omitted.)

The appeal

20    The appellant relied on an amended notice of appeal which contains two grounds:

Ground 1

1.     The learned primary judge erred by not finding, that the Authority fell into jurisdictional error in that it acted unreasonably by failing to exercise, or failing to consider whether to exercise, its discretion under s 473DC to get information from the appellant or his representative.

Particulars

(a)     It was erroneous for his Honour to find at [66] that this was not a case where the Authority decided the review on an entirely different basis to that to the delegate which the appellant could not have anticipated, because:

(i)     contrary to his Honour’s finding at [69] the appellant was not on notice from the decision of the delegate of the critical issue determinative of the case on which the s473DC issue was based;

(ii)     The essential difference between the delegate’s decision and the Authority’s decision was that the delegate focused on the applicant as a former teacher and held that he would not be persecuted as a former teacher. The authority held that he will be persecuted if he engages in teaching in KP and that he should not engage in teaching in KP;

(iii)     the delegate’s decision is based on the consideration of firstly whether the appellant will be persecuted as a former teacher and secondly whether teaching was an immutable characteristic, but the Authority’s decision was based on whether teaching was an immutable characteristic and secondly the appellant could survive financially in KP without engaging in teaching;

(iv)     the determining issue was whether the appellant could survive in KP without engaging in teaching and with his unique dire family and financial circumstances (large family & wife’s medical issues), which issue the delegate did not consider; and

(v)     thus, although the appellant was on notice from CB250 that the delegate considered that teaching was not an immutable characteristic of the appellant, that was not an issue in the proceeding at the FCC;

(vi)     The consideration of immutable characteristic could not have alerted the appellant to the issue about his survival in KP as stated at (iv) above.

(vii)     Contrary to the finding at [70] by his Honour the general invitation to make a submissions could not have made the appellant aware of the fact that ultimately he was being asked not to engage in teaching

(b)     It was erroneous to find that this is not a case where the relevant conclusions reached by the Authority were not open to it on the material before it and this is because:

(i)     the essential issue was not “the applicant’s capacity to find a job or any job” but his capacity to subsist where (i) he was asked not to engage in KP in his primary occupation which was teaching (ii) specific factual circumstances in the sense of a large family and high medical costs associated with his wife’s hospitalisation on which there was no information before the Authority;

(ii)     no information was available about the wife’s medical expenses which the Authority acknowledged and the contradictory statement from the Authority in relation to this issue which seems to assume information that it did not have; and

(iii)     the Authority erred in the way it assessed his capacity to get new employment based on his employment experience as a whole which was unreasonable the way it was assessed.

Ground 2

The learned primary judge erred by not dealing with one of the two parts of Ground 1, which is that the Authority acted unreasonably in failing to consider whether to exercise its discretion under s473DC to get information from the applicant.

Particulars

His Honour’s reasons at AB392-395 [66]-[71] only dealt with failure to exercise discretion but did not deal with failure to consider whether to exercise its discretion.

21    The notice of appeal, as originally filed, did not include Ground 2. The Minister formally opposed leave being granted to the appellant to rely on the amended notice of appeal containing the additional ground. At the hearing, I informed the parties that they should address Ground 2 and that I would then consider the question of leave in these reasons.

22    As the appeal was developed in oral argument, it became clear that Ground 2 is no more than an iteration of one aspect of Ground 1. At the conclusion of the hearing, counsel for the Minister properly conceded that the Minister is not prejudiced by the appellant relying on Ground 2 now. I am satisfied that, in substance, Ground 2 does not raise any matter not already covered substantially by Ground 1. I will grant leave to the appellant to file and rely on his amended notice of appeal.

The appellant’s submissions

23    The appellant framed his appeal around four questions:

(a)    Did the Authority know that it did not have relevant information on the appellant’s particular circumstances, which the appellant was likely to have?

(b)    If the answer is yes, did the Authority fail to consider whether it should exercise its discretion to get that information?

(c)    If it failed to consider whether it should exercise its discretion to get that information, was it unreasonable?

(d)    Was it unreasonable for the Authority not to exercise its discretion to get that information from the appellant?

24    As the appellant pointed out in oral submissions, the first three questions are directed to the issue of whether the Authority failed to consider whether it should exercise its discretion under s 473DC(1) to obtain new information. The third question recognises that, in the present case, a failure by the Authority to consider that matter will only bespeak jurisdictional error if that failure is unreasonable (in the requisite legal sense).

25    As to the first question, the appellant submitted that it is apparent from the Authority’s reference to his wife’s medical expenses at [31] of its Decision Record that the Authority considered this to be “a significant issue”. The appellant submitted that, in the normal course of hospitalisation, in anticipation of surgery, his wife’s medical expenses would have included costs for various medical tests and procedures, costs for surgery and for room charges, associated expenses, and post-surgery expenses. The appellant submitted that there was no means by which the Authority could obtain that information without getting it from the appellant himself. The appellant submitted that the only reasonable conclusion that can be drawn safely is that the Authority knew that it did not have relevant information of his wife’s medical expenses.

26    The appellant commenced his submissions on the second question by seeking to distinguish the decision in ASB17 from the present case.

27    In ASB17, when addressing whether the Authority failed to consider whether or not to exercise the power in s 473DC(1), the Full Court recorded that it had been asked to infer that there had been a failure to consider “from the absence of anything in the Authority’s reasons which referred to consideration of the exercise of power”. In response, the Full Court remarked that the Authority’s reasons were not entirely silent on this question because, by recording in its Decision Record that “(n)o further information was obtained or received”, the Authority had indicated that it may well have considered whether to exercise the power. The Full Court reasoned (at [49]):

49        The use of the word “obtained” may suggest the Authority member turned her mind to whether or not to exercise the power in s 473DC. In the absence of any other evidence to support the inference for which the appellant contends, and in the absence of concession by the Minister, we consider the way in which [3] is expressed is a sufficient basis to conclude the appellant has failed to prove it is more likely than not that the Authority did not give any consideration to whether or not to exercise the power in s 473DC.

28    In its Decision Record in the present case, the Authority made the same statement: “No further information has been obtained or received”. As I have noted, in the proceeding below the Minister relied on the reasoning in ASB17 to submit that there was no basis for the Court to infer, in the present case, that the Authority failed to consider exercising its discretion under s 473DC(1) of the Act to obtain further information from the appellant.

29    The appellant submitted that, unlike ASB17, there is positive evidence in the present case that the Authority did not consider whether or not to exercise the power under s 473DC(1). According to the appellant, the positive evidence is found in [31] of the Decision Record. The appellant submitted that while, in [31], the Authority referred to an absence of evidence about his wife’s medical expenses, it “did not state anything about considering whether to exercise its discretion to get that information”. The appellant submitted:

If there was a place in the Authority’s decision it is at … [31] that it would have appeared. The Court was not asked to infer the failure from the absence of anything in the Authority’s reasons related to this issue.

(Emphasis in original.)

30    The appellant also submitted that the Full Court in ASB17 reached the wrong view on the facts in that case and that, as a result, ASB17 had been decided incorrectly. He submitted that, when stating “[n]o further information has been obtained or received”, the Authority, in that case, was simply stating a fact for the purposes of s 473DD, which provides that the Authority must not consider new information unless certain requirements are met. The appellant submitted that if the statement had been made for the purposes of s 473DC, the Authority would have been more specific—such as, for example, by stating that no new information had been obtained in relation to “relocation” or “some other critical issue”. Indeed, the appellant went so far as to suggest that, in ASB17, the Full Court was “not fully comfortable with its own finding on this issue”.

31    As to the third question, the appellant commenced with the primary judge’s finding at J[66] that the present case is not one where the Authority decided the review on an entirely different basis to the delegate, which the appellant could not have anticipated. The appellant challenged this finding. He referred to the primary judge’s observation at J[68] that the essential issue before the Authority was the appellant’s capacity to subsist. The appellant submitted that, in fact, the authority decided the case on a much narrower basis; it was the appellant’s capacity to subsist in Location A without engaging in teaching, in the “particularly difficult financial circumstances that the appellant found himself in at the time”. The appellant submitted that the delegate, on the other hand, decided the case on the basis that the appellant would be persecuted as a former teacher. In considering that question, the delegate was not satisfied that teaching or the appellant’s work in vaccinating children, was an “immutable characteristic”. The appellant submitted that, although the delegate briefly referred to his employment capacity when exploring whether the appellant had an ideological commitment to teaching, the delegate did not refer to the appellant’s capacity to find other employment, much less employment that would give him a capacity to subsist. Thus, the appellant submitted, the delegate’s decision and the Authority’s decision were arrived at on different bases.

32    Further, the appellant submitted that he could not have anticipated the basis of the Authority’s decision from the delegate’s decision. According to the appellant, the delegate’s consideration of employment (in finding that teaching was not an immutable characteristic) could only have alerted him to the issue of whether he had an ideological commitment to teaching. Further, the recitation by the delegate of the appellant’s financial circumstances, without more, indicated that there was no need to make a submission to the Authority on that matter.

33    These submissions are, in substance, a repetition of the submissions made below by the appellant, which the primary judge rejected.

34    As to the fourth question, the appellant commenced with the primary judge’s observation at J[70] that, although invited to make a submission to the Authority about the delegate’s decision, the appellant “provided nothing”. The appellant submitted that, contrary to the primary judge’s finding, a general invitation to make a submission could not have made the appellant aware of the fact that the Authority was considering that “he could survive financially with his unique circumstances simply by his capacity to seek … other employment”. The appellant submitted that the Authority’s invitation could not have alerted him to provide information about the burdens of supporting his family.

35    Thus, the appellant submitted, in assessing his capacity to subsist, the Authority should have considered asking for, and should have asked for, the information addressing the matters identified in [8] above.

36    The appellant also drew attention to the primary judge’s finding at J[66] that the present case is not one where the relevant conclusions reached by the Authority were not open to it on the material before it. The appellant submitted that this reveals error because the question of whether or not the Authority’s conclusions were open to it on the material was not an issue on the application for judicial review. The issue was whether a correct process had been followed by the Authority in arriving at its decision. The appellant submitted that this finding by the primary judge shows, therefore, that his Honour was focusing on the wrong issue.

37    The appellant also submitted that the Authority acted unreasonably in the way it assessed his capacity to seek new employment. The appellant submitted that the information he provided to the delegate in this regard showed that his employment experience outside teaching was “patchy”. I observe that the primary judge summarised the appellant’s submissions on that very matter at J[32] – [35]. The appellant submitted that the “unreasonableness” in the way the Authority assessed his employment skills “flowed into the unreasonableness in not exercising its discretion to seek information, as well as its discretion not to consider whether to seek information”.

38    The appellant submitted that it is not possible to comprehend how the Authority came to the conclusion that, without engaging in teaching, he could subsist in Location A, while there was a significant information gap about his financial circumstances and employment opportunities.

Analysis

39    As I have noted, this appeal is focused on [31] of the Authority’s Decision Record. As the primary judge correctly remarked (at J[68]), this paragraph must be read in the context of the preceding paragraphs of the Authority’s reasons. It must also be understood in the context of the material that was before the delegate and, subsequently, the Authority under s 473CB(1) of the Act. This material included a transcript of the appellant’s interview with the delegate, at which the appellant was assisted by his migration agent. The material also included a post-interview written submission provided by the same migration agent.

40    I commence with the transcript of the interview. At the start of the interview, the appellant was informed that it was his responsibility to raise all his claims for protection and to provide the evidence to support those claims. The appellant was warned that if his application for a protection visa was refused, he might not have another chance to provide further information to support his claims.

41    When the appellant’s migration agent was asked whether there were any “updates” that needed to be provided to the Department, the agent stated that the appellant’s wife, who is in Pakistan, is “really seriously sick”. Further questioning elicited that the appellant’s wife has “some problems with her bigger intestines”, including bleeding. When asked whether the appellant’s wife was receiving treatment, the agent informed the delegate that “she’s being hospitalised and has been to hospital”. The appellant added that his wife was “still under examination”, that she was trying to “get an operation”, and that she may be given “tablets or some other medications”.

42    The appellant was asked a number of questions about his education and work history. This part of the interview is recorded over a number of pages of the transcript. At the end of the questions on this topic, the delegate said:

Okay. It seems to me that you could easily transfer your skills to another – your teaching skills, anyway, to another school or related institution in another part of Pakistan. But I am also conscious of the fact that you have worked in other industries and that if you didn’t decide to pursue a career in education that you could pursue a career in an industry which you have had prior experience. Okay, so I’m going to give you 10 minutes now to speak to [your migration agent] whilst I’m out of the room. Take this time to make sure we’ve covered everything you wish to talk about.

43    When the interview recommenced, the appellant addressed the risks he said he would face if he returned to Pakistan. He made the following comment:

… If you are thinking about my relocation to another part of Pakistan, financially it will be very difficult for me to relocate myself there. It will be so hard to find accommodation and to find a job, and also there is a difference between skills and job transfer, or skill transfer. I might be able to transfer my skill but would not be able to find a job. Job finding is so difficult, unfamiliar with the area and with the people.

44    At the end of the interview, the appellant’s migration agent made oral submissions, which included the following submission:

In terms of having six children, feeding those in a family, or having a sick wife, you know, access to hospital and all that, and not having suitable employment to find, it would be really unreasonable for my client to relocate in addition to being in danger from the side of the Taliban. ...

45    Following the interview, the appellant’s migration agent provided a four-page written submission, which included the following:

… [the appellant’s] prospects of finding employment are very low and remote. Hence, having a sick wife and six children and no employment to feed them and to pay for medical costs of his sick wife, it would be unreasonable for my client to relocate.

…

My client advises that in major cities like Islamabad, Lahore etc. the basic living costs, are extremely high. Thus, even if he is able to find some kind of employment, the costs of even basic living would far exceed his income, should my client relocate to other areas.

…

As mentioned during the interview, my client’s wife is seriously ill and has been under medical treatment for the past few months. The costs of hospitalisation and medical treatment are high in Pakistan, and that would be an extra burden on my client, he advises. As he would not be able to afford the medical costs for the treatment of his wife, it is much possible that he could lose her, may God forbid, my client advises.

Thus, being in danger from the side of the militants, as well as, having no prospect of finding a shelter and employment, and high living costs, it would be impracticable and unreasonable for my client and his family to relocate to other areas in Pakistan.

…

46    In his Decision Record, the delegate noted that the appellant had provided post-interview submissions. The delegate’s summary of those submissions included the following:

Relocation to another part of Pakistan would not be reasonable or practical due to a range of factors. These include his history with the Taliban and their widespread network. Also, his prospects of finding employment are very low due to being a Pashtun in [Location A]. His ongoing expenses (sick wife and six children) would make it unreasonable for him to relocate.

…

Furthermore, the cost of living in other parts of Pakistan is significantly higher than his home area. He would not be able to finance his life elsewhere as well as provide for his family’s ongoing expenses (including his wife’s medical bills).

47    The delegate found:

As discussed in his interview, the applicant has worked in various roles outside of teaching in a variety of industries (shopkeeping, wholesale trading, logistics & distribution, food delivery) in Pakistan and Australia from 2007 to now. The applicant revealed that prior to teaching, he opened his own shop in his home area and operated it for three years. As discussed in his interview, he has completed educational courses in Pakistan and Australia that are not related to teaching. I am therefore not satisfied that teaching is an immutable characteristic of the applicant. …

(Footnotes omitted.)

48    This finding was made in the context of the delegate considering whether the appellant satisfied the refugee criteria in s 36(2)(a) of the Act. The delegate’s statement of non-satisfaction that “teaching is an immutable characteristic of the applicant” was directed to s 5J(3)(b) of the Act, which provides:

(3)     A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

…

(b)     conceal an innate or immutable characteristic of the person; …

49    Overall, the delegate was not satisfied that the appellant faced a real chance of persecution in Pakistan if he were to return on the basis of being a former teacher who was obligated to assist with polio vaccinations.

50    In its Decision Record, the Authority noted that the appellant’s main reason for leaving Pakistan was because of threats by the Taliban that related to his role as a teacher. The Authority dealt with this claim in considerable detail at [9] – [27] of the Decision Record, finding (as I have said) that the appellant faces a real chance of serious harm should he choose to return to his role as a teacher/polio worker in Location A.

51    Having reached that finding, the Authority turned to consider (at [28] – [30] of the Decision Record) the appellant’s prospects of other employment in Pakistan, based on information which the appellant, himself, had provided:

28.     However, the applicant has not been in his area or worked as a teacher or in relation to polio since approximately March 2013, a period of over six years. He has not suggested he has any particular or compelling interest to return to such work. He has not suggested he has attempted to engage in teaching or similar employment while in Australia. Moreover, he has diverse employment experience and skills obtained in both Australia (including in baking/as a process worker, food packing, at a chicken factory, as a Uber Eats driver, and having obtained a forklift licence and a security license), and Pakistan (including as the owner of a convenience store and as a sales person). I am satisfied he has acquired diverse transferable employment skills based on these experiences. …

29.    In the context of considering the applicant’s employment experience, the delegate considered whether the applicant’s role as a teacher or in polio work was an immutable characteristic, which is relevant to the assessment of s.5J(3). The overall evidence including that outlined above satisfies me that the applicant would not resume his teaching/polio work role on return to Pakistan in the reasonably foreseeable future and that this is for a number of reasons. Given the continued targeting of teachers/polio workers which the applicant indicated his awareness of and the applicant’s decision to stop this employment while in Pakistan due to his fear of harm at that time, I accept that part of the reason he would not resume this role on return to Pakistan would be due to his fear of harm. Moreover, the applicant has not indicated his wish to continue such work or similar work currently in Australia or any attempt to do so while in Australia. Nor does the evidence indicate that he has attempted to acquire further studies or skills while in Australia for six years that would support his return to teaching/polio work or advance his skillset in those roles. The outlined evidence indicates he does not have any particularly strong commitment to being an educator or polio worker. He has diverse employment experience and skills arising since his time in Pakistan including in Australia and this, along with the evidence on the nature of his past employment and the evidence that he has not solely relied on teaching/polio work for subsistence previously therefore indicates that the applicant would be able to support himself and his family through alternative employment. Such work has not been and is not currently central to his survival nor does the evidence indicate it would be on his return to Pakistan. The applicant ceased the role over six years ago and his evidence was that he previously acquired the teaching role through a favour through the village union. His obligation to perform the polio role in the past was premised on his role as a teacher. The evidence does not indicate that the applicant continues to hold any teaching role or that one would become available to him in the reasonably foreseeable future. Considering all of these factors, I find that the applicant would not resume teaching or associated polio work in Pakistan.

30.    For the same above reasons including the lack of any credible claims or evidence that teaching/polio work are fundamental to the applicant, that he has not sought to engage in any similar work or related study in Australia, that he has not solely relied on teaching/polio work previously in Pakistan for his subsistence or committed to the role as his sole career path, that the applicant has diverse employment experience and skills which he could rely on to attain alternate employment that would enable him to subsist in Pakistan and because in any event the evidence does not suggest the role would currently be vacant to him or become available to him in Pakistan in the reasonably foreseeable future, it not apparent that taking steps to become employed in non-teaching/polio associated work in Pakistan and no longer working in those fields, would conflict with a characteristic that is fundamental to the applicant’s identity or conscience, or require him to conceal or alter a religious or political belief, his nationality, country of origin or ethnicity, or an innate or immutable characteristic, or fall within one of the other modifications prohibited by s.5J(3). I am satisfied that due to the combination of the factors raised above, changing his employment is a reasonable step the applicant could take to modify his behaviour so as to avoid a real chance of harm and I am also satisfied that this would not amount to an impermissible modification of behaviour under s. 5J(3) of the Act.

52    These paragraphs provide the setting in which the Authority made its finding, and accompanying comments, in [31] of the Decision Record.

53    It is apparent that, when seen in this setting, [31] continues with the Authority’s observations on the appellant’s employment prospects in Pakistan. The paragraph notes the fact that the appellant referred to his wife being seriously ill—a reference, plainly, to the information given during the appellant’s interview with the delegate and, later, in the post-interview submission. The paragraph notes that the appellant did not provide documentary evidence of his wife’s current medical condition or treatment, and that he did not provide evidence to indicate the extent of her medical costs or that he would be unable to bear those costs should he return to Pakistan.

54    The essential finding in [31] is that the Authority was not satisfied that the appellant faces a real chance of harm if he returned to Pakistan. In reaching that finding, the Authority made clear—by referring to the appellant’s subsistence—that it was taking into consideration s 5J(5)(d) of the Act which stipulates that significant economic hardship that threatens a person’s capacity to subsist is a form of “serious harm” relevant to the grant of a protection visa.

55    Thus, [31] of the Decision Record includes a finding that, on the information provided by the appellant, the Authority was not satisfied that, if he did return to Pakistan, the appellant would face significant economic hardship that would threaten his capacity to subsist. This was because, on the Authority’s assessment of the known facts, the appellant had the ability to access employment in Pakistan other than as a teacher, and earn a living, even taking into account his wife’s medical expenses, whatever they might be. It is to be understood that the appellant’s wife was already in Pakistan, receiving medical attention and, no doubt, already incurring, and facing the future costs of, that attention, regardless of whether the appellant returned to Pakistan.

56    As to the questions around which the appellant has framed his appeal, I do not accept the starting point for his first question, which is that the Authority considered his wife’s medical expenses to be a “significant” issue. In [31] of the Decision Record, the Authority was doing no more than recording, in a summary way, the information which the appellant chose to advance to support his claim that he is a person in respect of whom Australia has protection obligations as a refugee. As the Minister submitted below (J[62] – [63]), and as the primary judge accepted (J[66]), it was for the appellant to advance sufficiently detailed claims, and supporting evidence, to satisfy the Authority of his case.

57    It can be readily accepted that the Authority did not know the appellant’s wife’s actual medical expenses, or her likely future medical expenses, in Pakistan. However, this is because the appellant advanced his claim, in that regard, at a high level of generality. The Authority dealt with this aspect of the appellant’s claim with commensurate generality. Thus, the appellant’s submission that the Authority knew that it did not have actual information of the appellant’s wife’s medical expenses does not advance the appellant’s case that there is appealable error in the judgment below.

58    As to the second question, it can be accepted, also, that, at [31] of its Decision Record, the Authority did not state, expressly, that it had considered whether it should exercise its power to obtain “new information” in relation to the matters noted at [8] above. However, contrary to the appellant’s submission, I do not accept that this fact stands as “positive evidence” that the Authority did not turn its mind to whether it should seek to obtain this “new information”.

59    Further, the appellant has called into question the correctness of the Full Court’s reasoning in ASB17. I am not persuaded that this reasoning should not be followed. I accept that the Authority’s statement that “[n]o further information has been obtained or received” might be addressing the injunction in s 473DD of the Act. But it does not follow that the statement is not also one that indicates that the Authority did turn its mind as to whether, pursuant to s 473DC(1) of the Act, it should get “new information”. I am persuaded that the statement does provide some indication that the Authority turned its mind to that question: see, in this connection, the similar finding in CMC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1358 at [94] – [95].

60    In this appeal, the Minister submitted that [28] of the Authority’s Decision Record also suggests that the Authority turned its mind to whether further information should be obtained from the appellant. This is a reference to the Authority recording its satisfaction that the appellant had been given an opportunity to discuss his beliefs on education and polio work. The appellant submitted that, by exclusion, this reference indicates that the Authority did not turn its mind to seeking “new information” on the matters noted at [8] above.

61    I do not think that much can be made of [28] of the Authority’s Decision Record on this question. What is more important is the fact that, in giving its decision on the review, the Authority was not required to give reasons for the exercise or non-exercise of a procedural power, such as that conferred by s 473DC(1). It follows that the mere failure of the Authority to mention the discretion conferred by s 473DC(1) cannot support the drawing of an inference that the exercise of the discretion was not considered: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 (BVD17) at [16] and [40]; EAT17 v Minister for Home Affairs [2021] FCA 68 at [59] – [62].

62    I am not satisfied that the appellant has established that the Authority failed to consider whether it should exercise its discretion under s 473DC(1) of the Act to get new information either generally or in relation to the matters noted at [8] above. To this extent, Ground 1 of the appeal fails.

63    It is convenient, at this point, to direct attention to Ground 2 of the appeal, which is that the primary judge erred by not dealing with this aspect of the appellant’s case. I do not accept that contention, for the following reasons.

64    At J[25] – [40], the primary judge summarised the appellant’s submissions concerning the Authority’s finding that it was not satisfied that there would be a threat to the appellant’s subsistence if he returned to Pakistan and modified his employment. At J[42], the primary judge noted that the appellant’s case before him was, essentially, the failure of the Authority to consider asking for “vital information” which the Authority deemed relevant but did not have, and which the appellant could have easily provided.

65    At J[57] – [58], the primary judge recorded the Minister’s submission that the appellant could not discharge his onus of establishing that the Authority failed to consider exercising the discretion in s 473DC(1) of the Act and that, as a consequence, it fell to the appellant to establish that it was legally unreasonable for the Authority not to have obtained further information from him. At J[59] – [65], the primary judge recorded the Minister’s submission that the appellant had not demonstrated that it was legally unreasonable for the Authority not to obtain “new information” from the appellant in relation to the matters noted at [31] of the Decision Record.

66    At J[66], the primary judge stated that he preferred the Minister’s submissions in relation to the single ground of review that had been raised. By that statement, I understand the primary judge to have accepted all of the Minister’s submissions referred to above. In other words, the primary judge’s preference for the Minister’s submissions included acceptance of the submission that the appellant had not discharged his onus of establishing that the Authority failed to consider exercising the discretion in s 473DC(1). If that understanding of the primary judge’s reasons be correct, then Ground 2 of the appeal fails.

67    The Minister advanced a different understanding of J[66]. While maintaining the position that the appellant had not discharged his onus of establishing that the Authority failed to consider exercising the discretion in s 473DC(1), the Minister submitted that the primary judge’s reasoning did not turn on that fact. The Minister submitted that, even if the Authority did fail to consider exercising the discretion in s 473DC(1), there could only be jurisdictional error if such failure was unreasonable. The Minister submitted that the primary judge dealt with this aspect of the appellant’s case by finding that it was not unreasonable for the Authority not to seek the further information identified by the appellant.

68    Whilst I accept that the primary judge certainly reached that conclusion at J[70], I nevertheless remain of the view that, by expressing his preference at J[66] for the Minister’s submissions, his Honour also accepted the submission that the appellant had not discharged his onus of establishing that the Authority failed to consider exercising the discretion in s 473DC(1) of the Act.

69    This then leads to the third question—namely, if the Authority did fail to consider whether it should exercise its discretion under s 473DC(1) of the Act, was its failure unreasonable. It seems to me that this question, and the fourth question—whether it was unreasonable for the Authority not to exercise its discretion—raise, in substance, the same question of unreasonableness.

70    In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217, Gageler, Keane and Nettle JJ said (at [21]):

21    There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration & Citizenship v Li, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review.

(Footnotes omitted.)

71    The appellant’s submissions in relation to the third and fourth questions focus on what he says are the different bases on which the delegate, on the one hand, and the Authority, on the other hand, reached their respective decisions. They also focus on the sequential proposition that he could not have anticipated the Authority’s decision from the delegate’s decision, and therefore should not be criticised for not providing more information to the Authority in support of his claim to protection.

72    This focus does not directly engage with the appellant’s contention that the Authority acted unreasonably in failing to consider whether to exercise the discretion in s 473DC(1) to get new information (the third question), or the alternative contention that the Authority acted unreasonably in not exercising its discretion to get new information (the fourth question). Indeed, the appellant’s submissions on the third question and the fourth question tend to direct attention away from the way in which the appellant advanced his claims before the delegate.

73    Returning to the matters I have summarised at [40] – [45] above, it is clear that, at the interview, the delegate had formed the provisional view that the appellant could deploy his teaching skills in another part of Pakistan. He also formed the provisional view that the appellant could deploy his acquired skills in pursuing other employment, outside teaching. The appellant was invited to comment on these provisional views, and given time to do so.

74    After taking that opportunity, the appellant’s response was that, if the delegate was thinking that the appellant could relocate to another area of Pakistan, it would be financially difficult for him to do so. Further, insofar as the delegate had contemplated that the appellant could transfer his skills to other employment, it would be difficult for the appellant to find another job. The appellant, through his migration agent, submitted that it would be unreasonable to think that the appellant could do these things (relocate and pursue employment outside teaching) having regard to the need to look after his family, including his sick wife.

75    These matters were repeated in the written submissions provided to the delegate after the interview—in substance: it would be difficult for him to find employment; he would face significant living costs (including his wife’s medical costs) if he were to relocate; and, if the appellant were to relocate and find other employment, his costs would exceed his income. These matters were accurately summarised in the delegate’s Decision Record: see [46] above.

76    It is clear that the appellant was contending that he would not be able to subsist if he relocated to another part of Pakistan and attempted to pursue alternative employment. This was how the Authority, in undertaking its review, understood this aspect of the appellant’s claim to protection. Unfortunately for the appellant, the Authority did not accept that the appellant would not be able to relocate and pursue alternative employment. At a more general level, the Authority did not accept that the appellant would face significant economic hardship that would threaten his capacity to subsist.

77    There can be no doubt that it was for the appellant to advance sufficiently detailed claims, and supporting evidence, to satisfy the Authority of his case: s 5AAA of the Act; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; 201 ALR 437 at [57]. As I have previously remarked in relation to the question of the appellant’s wife’s medical costs, the appellant advanced his claim, in that regard, at a high level of generality, which the Authority considered with commensurate generality. The same is true of the appellant’s representations concerning the difficulty facing him in relocating and pursuing alternative employment, and his representations concerning his living expenses generally, including the need to look after his family (including his sick wife).

78    The issue raised by the third question and the fourth question is not whether it was open to the Authority to seek further information, or whether it would have been reasonable for the Authority to do so. The question is whether it was legally unreasonable for the Authority not to seek the information noted at [8] above in all the circumstances of the case bearing in mind the nature of its review function under Part 7AA of the Act. In other words, in not exercising the discretionary power under s 473DC(1) of the Act to seek that information, was the Authority acting unreasonably in the sense that, for example, its conduct lacked a rational foundation or an evident or intelligible justification, or was plainly unjust, arbitrary, capricious, or lacking in common sense?: CCQ17 at [51]. I am not persuaded that the Authority’s non-exercise of that power was of that character. It follows that I am not satisfied that the primary judge erred in coming to the same conclusion and in holding that the appellant had not established jurisdictional error in the Authority’s decision.

79    Further, and for completeness, I do not accept that the appellant could not have anticipated the Authority’s decision from the delegate’s decision. That is because the Authority dealt with the appellant’s claim to protection precisely in the way in which the appellant advanced that claim before the delegate.

Disposition

80    Grounds 1 and 2 of the appeal fail. As the appellant has not demonstrated error in the judgment below, the appeal will be dismissed, with costs.

Associate:

Dated:    1 June 2022