Federal Court of Australia

CBR19 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1392

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to the Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    The appellant is a citizen of Pakistan, born in Afghanistan. He is a Shi’a Muslim of Hazara ethnicity. He arrived in Australia on 27 June 2013 from Nazirabad, Quetta in the Balochistan province of Pakistan where members of his immediate family still live.

2    The appellant applied for a temporary protection visa on 28 July 2017. On 24 January 2019, the appellant was interviewed by a delegate of the first respondent, then the Minister for Home Affairs. On 4 February 2019, the appellant’s visa application was refused because the delegate was not satisfied that the appellant was owed protection obligations.

3    The delegate’s decision was referred to the Immigration Assessment Authority for review in accordance with Part 7AA of the Migration Act 1958 (Cth). On 7 May 2019, the Authority affirmed the delegate’s decision and provided reasons for that decision (hereafter “A”). The Authority summarised the protection claims made by the appellant in the following way at A[9]:

The applicant’s claims can be summarised as follows:

•    He was born in Afghanistan but migrated to Pakistan in the 1960s and became a citizen of Pakistan in 1975. He is from Nazirabad, Quetta in the Balochistan Province of Pakistan where his wife, three daughters, mother and sister still live.

•    He fears persecution upon return to Pakistan based on his Hazara ethnicity and Shi’a Muslim religion from Sunni Muslim insurgent groups such as Lashkar-e Jhangvi (LeJ), Sipah-e-Sahaba Pakistan (SSP) and their sympathisers.

•    In 2008, he was kidnapped in Quetta and tortured by members of the Taliban. He was released ten days later after his family paid a ransom of 1.6 million rupees. After he was released he never saw his kidnappers again and never had any correspondence from them.

•    Nowhere in Pakistan is safe for Hazaras as they can easily be identified by their facial features and Hazaragi language.

•    The Pakistani authorities are unwilling and unable to provide him with protection.

4    It was not suggested that these claims were inaccurately recorded.

5    The Authority was satisfied that the appellant faced a real chance of persecution should he return to Quetta because of “his religion and/or ethnicity” and that the harm he may face included death or serious injury: A[22]. However, the Authority was not satisfied that “the real chance of persecution relates to all areas of the receiving country”: A[23]. More specifically, the Authority considered that there were locations in Pakistan where Shi’a Hazaras do not face a real chance of persecution including Islamabad: A[24] to [37].

6    The appellant sought judicial review in what was then the Federal Circuit Court of Australia. His application for judicial review was dismissed on 14 February 2020: CBR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 285 (hereafter “J”). The appellant now appeals from the orders dismissing that application.

7    The appellant’s notice of appeal states in the footer that it was prepared by a named legal practitioner of “Stephen John Lawyers (Not instructed to appear)”. On the appeal, the appellant explained that he did not have sufficient funds to engage a lawyer to prepare submissions or, I infer, appear.

8    The notice of appeal contains a single ground of appeal, with four particulars:

The Federal Circuit Court erred in failing to find that the [Authority] did not consider the unique demographic and racial nature of the appellant’s claims.

Particulars

a)    The appellant claimed to be the member of Shia Hazara community which is accepted by the [Minister] and [the Authority]. However, both failed to give proper consideration to the appellant claims that member of Shia Hazara community cannot survive in Islamabad due to racial discrimination.

b)    There is a strong presence of radical organisations in Islamabad and the Government have failed to protect high calibre citizens like Tahir Khan Dawar who kidnapped from Islamabad and butchered in Afghanistan.

c)    [The Authority] failed to appreciate the level of risk to the appellant.

d)    In the circumstances, the [Authority] was required to address the unique social and racial position of the appellant and the danger the appellant being the Shia Hazara is exposed to everywhere in Pakistan particularly in Islamabad.

9    In considering whether this ground is made out, it is necessary to refer to some further background in relation to the Authority’s review. The Authority wrote to the appellant on 19 March 2019 and 2 April 2019 referring to a Department of Foreign Affairs and Trade Country Information Report: Pakistan dated 20 February 2019 (“2019 DFAT Country Report”). The Authority’s letter of 2 April 2019 noted that the 2019 DFAT Country Report could lead to a finding that there was not a real chance of persecution or real risk of significant harm to the appellant in Islamabad and it would be reasonable for him to relocate there.

10    The appellant’s then representative provided careful and detailed submissions in response by a letter dated 25 April 2019.

11    The Authority referred to these submissions in its reasons. At A[5] it stated:

On 25 April 2019 the applicant’s representative provided submissions to the IAA [the Authority] on the applicant’s behalf, in particular in relation to his ability to relocate within Pakistan and the applicant’s specific vulnerabilities. I have had regard to the applicant’s submissions in making this decision. The submission also included the applicant’s comments on the information contained in the 2019 DFAT report with reference to his ability to relocate to Islamabad. The IAA had sought these comments in from the applicant, and relies on information contained in the 2019 DFAT report in this decision. This report was not available before the delegate made the decision refusing the visa. I am satisfied there are exceptional circumstances to justify considering this new information.

12    After concluding that the appellant faced a real chance of persecution if returned to Quetta, the Authority considered the question of relocation. Its reasons included:

23.     [Section] 5J(l)(c) of the Act requires that the real chance of persecution relates to all areas of the receiving country. For the following reasons, I am not satisfied that it does.

24.     In his TPV [temporary protection visa] application and in his correspondence with the IAA [the Authority], the applicant made submissions about his ability to relocate within Pakistan. He claimed that Hazara Shi’a people are the target of extremist groups all over Pakistan, especially in Punjab where extremist groups have a very strong hold. He has submitted that he believes that even if he did move to another part of Pakistan this would not change anything and his life and the lives of his family members will always be in danger since these extremists groups are spread all over Pakistan and are constantly targeting the minorities especially Shi’a minorities.

25.     In his TPV interview the delegate asked the applicant if there was anywhere in Pakistan where he could relocate such as Islamabad, Rawalpindi or Lahore where there are Hazara and Shi’a communities living in large urban areas. In response, the applicant stated that if you relocate you have to take your family and if you are Shi’a you will face problems anywhere else. When asked why, he said that racism and anti-Shi’a attitudes are everywhere. When asked about why his family would have to relocate with him he responded that you will face a lot of problems without your family. He was unable to elucidate on this claim further. I note that the applicant is currently separated from his family in Australia and I consider that if he relocated within Pakistan that this situation would remain unchanged unless the applicant’s family chose to join him. The applicant has stated that one of his daughter’s currently travels outside of Quetta to Iran for her education.

26.     The applicant advised in his TPV interview that when he lived in Pakistan, in addition to travelling internationally, he also travelled regularly domestically. He advised that on his international trips he would fly out of Karachi. He also stated that he “always” used to go to Islamabad for business too. He stayed in Rawalpindi, adjacent to Islamabad, in Rajas Bazaar where he used to sell Iranian fabrics at the Raja Bazaar and at other places in Islamabad. It varied how often he travelled to Islamabad maybe every month, six monthly or yearly since 1985. The applicant was asked if he had a lot of business contacts in the area. He advised the he has a number of business contacts in Islamabad including Hazaras, Sayyids and Punjabi friends as Islamabad has very good people and he had no problem doing business there. The applicant added that he would sometimes stay in the area for up to three months at a time, presumably without his family and without family support. He stated that he was last there in 2013 to fly direct to Indonesia on the way to Australia. He also stated that he had travelled to Lahore for business in the markets about twice. He had no problem doing business in Lahore but did not have many contacts there as his contacts are in Rawalpindi. During the applicant’s TPV interview, he declared that he has a long history of travelling extensively to other countries including Iran, Iraq, Syria and Thailand for work. The applicant indicated that he mostly travelled alone, by plane, and that he had no communication problems in doing business in places outside of Quetta and outside of Pakistan.

27.     Because of Pakistan’s size and diversity, the country information before me indicates that there are locations in Pakistan where Shi’a Hazaras do not face a real chance of persecution including Islamabad where the applicant had Hazara contacts and other business contacts. The UK Home Office opined that where the Hazara person’s fear is of persecution or serious harm at the hands of non-state actors, in general they will be able to relocate to escape that risk. There are a significant number of Hazara communities across Pakistan and relocation will normally be a viable option. DFAT reports that outside Balochistan, Hazaras report finding it safer to live separately amongst the general community than to relocate to live near other Hazaras, where they can be easily profiled and targeted. Hazaras’ preferred options for internal relocation are, in order, Lahore, Karachi and Islamabad. Many large urban centres such as Lahore and Islamabad are home to mixed ethnic and religious communities and offer a greater degree of anonymity and better opportunities for employment, access to services and state protection than rural or smaller urban areas.

28.    Section 15 of the Pakistan Constitution guarantees the right to freedom of movement in Pakistan. There are no legal impediments to relocation and this applies equally to Shi’a and other religious sects, however, the security situation varies between Pakistan’s provinces. There is no information before me to indicate that the applicant would not be safe flying into Islamabad from Australia and country information indicates that Islamabad has a particularly unblemished security record as set out below.

29.     I accept that the applicant displays the physical characteristics of a Hazara and as a consequence, he may be identified as a Shi’a and/or a Hazara in Pakistan wherever he lives. He will also display other evidence of identity including through his documentation and accent. DFAT reports that there are Hazara communities in large urban areas of Pakistan including Karachi (Sindh Province} (up to 15,000), Lahore (Punjab Province), and Islamabad. Shi’a and Sunni communities in cities are much more integrated. I do not consider that the applicant’s apparent identity would be an impediment to living and working in Islamabad. I also consider that the applicant’s previous regular travel to Islamabad and own personal experiences in Islamabad support this view.

30.     DFAT reports that credible sources have said Islamabad is one of the safest places in Pakistan for Shi’a and that the Shi’a and Sunni communities are more integrated there. Islamabad has a population of around two million people, including a large number of internal migrants from all parts of the country. While violence can occur in any part of Punjab, DFAT assesses that Shi’a in Lahore and Islamabad face a low risk of sectarian violence. In 2017 DFAT reported that there is a strong security presence in Islamabad, including checkpoints throughout the city and its entry points, as well as patrols conducted by the paramilitary Rangers. These security measures were assessed as providing a strong deterrent to militant groups planning attacks in Islamabad, and as a result large-scale militant sectarian attacks in Islamabad have been rare. Such violence had more often taken the form of targeted killings (such as drive-by shootings) of high-profile community leaders. DFAT had no reporting that Hazaras generally have been targeted by sectarian violence in Islamabad in recent years or that the situation for Hazaras had been deteriorating in that city. DFAT has not assessed that generalised violence, including violent crime, to be a significant issue in Islamabad, nor has it been for a sustained period of time. The information before me does not indicate that Shi’a or Shi’a Hazaras have been targeted or impacted by these issues in Islamabad, or that there is a real chance they will be targeted or impacted in the future.

31.     The applicant has made submissions to the IAA relying on the broad assessments made in the 2019 DFAT report that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. The applicant noted that Hazaras face a higher risk than other Shi’a due to their distinct appearance and to segregation and that this is a result of a deteriorating security situation. This broad assessment does not take into account the specific situation in Islamabad in which there have been no recent incidents targeting Hazara Shi’a and there is no evidence of a deteriorating security situation. The applicant also relied on DFAT’s assessment that the overall security situation outside of Quetta is more severe than within Quetta. However, it would appear this assessment refers specifically to violence in Balochistan. The applicant has noted DFAT’s assessment of Pakistan as having an unstable, complex and volatile security situation given the cycles of violence experienced throughout the country, which it is predicted will continue to occur in 2019. There is no evidence in that report or anywhere else before me that Islamabad is experiencing cycles of violence that are likely to impact Shi’a Hazaras in the foreseeable future. DFAT assesses that overall Shi’a in Islamabad face a low risk of sectarian violence.

32.     I have also considered the applicant’s claim that he would face harm as a result of discrimination outside of Quetta as a Hazara Shi’a. The Government recognised the Hazara tribe as ‘local’ in 1962 and Hazara residents at that time became citizens of Pakistan. The applicant has not claimed to have faced discrimination in the past in Quetta or in other cities where he has worked such as Islamabad. He has not claimed that he was ever denied the right [to] own property, run a business or to access healthcare and the applicant has not claimed that he was denied the opportunity to practise his religion. He described Islamabad as being a place with good people where he had contacts from a range of ethnic backgrounds.

33.     The UK Home Offices assesses that there are no discriminatory laws, policies or action by the authorities against Hazaras in Pakistan, either on account of their ethnicity or religion. DFAT reports that with respect to health services, health care in Pakistan is generally free and accessible to all Pakistanis. I do not accept that there is a real chance the applicant would be discriminated against in terms of accessing health services in Pakistan as a result of his ethnicity or religion in Islamabad.

34.     The applicant has claimed that the Pakistani authorities are unwilling and unable to provide him with protection. The UK Home Office reported that capacity constraints and a lack of resources may hamper the state’s ability to protect Hazaras. However there is evidence that the Pakistan authorities provide a degree of protection to Hazaras. For example, during the Islamic sacred month of Muharram law enforcement agencies provide security for participants in Ashura processions. Outside of Quetta the Pakistan authorities continue to implement counter-terrorism strategies across the country to protect civilians. I do not accept that there is a real chance the applicant would be denied access to police services on the basis of his ethnicity and/or religion.

35.     DFAT also reports that Article 20 of Pakistan’s Constitution provides for freedom of religion. No laws or government policies discriminate against Shi’a Muslims on the basis of religion. Broadly speaking, there is also little community prejudice against Shi’as: societal discrimination is largely confined to local nepotism, favouritism or patronage. The greatest threats for Shi’a in Pakistan are from militant groups and, at times, sectarian violence. The Pakistani military provides escort services for Shi’a pilgrims to protect them from attacks, significantly mitigating the risk of violence. I am satisfied that the applicant would be able to freely practise Shi’a Islam in Islamabad.

36.     DFAT assesses that outside the Hazara enclaves in Quetta, Hazaras face a moderate risk of societal discrimination, including by government officials and security forces, in the form of obstruction at checkpoints, denial of or delay in access to identity documentation, employment and services. DFAT assesses that this reflects individual prejudice rather than systematic and/or formal official discrimination. The applicant has not claimed that he has faced discrimination in the past in terms of obtaining documentation such as his NIC and passport and he was able to travel around Pakistan without hindrance and successfully conduct business in Islamabad. I do not accept that the applicant would face a real chance of societal discrimination in Islamabad. Having regard to all of the above, I am not satisfied that the applicant faces a real chance of harm as a Shi’a, a Hazara, or a Shi’a Hazara from state and non-state actors in Islamabad. The applicant has not claimed to fear harm on any other basis.

37.     I am not satisfied that the applicant has a well-founded fear of persecution from anyone in in Islamabad on the basis of his Hazara ethnicity and Shi’a faith or for any other reason.

13    Particular (a) of the ground of appeal refers specifically to the appellant’s claims concerning discrimination. In this regard, the appellant’s submissions of 25 April 2019 included, for example (emphasis in original; footnotes omitted):

Any suggestion that [the appellant] could relocate to a Hazara enclave outside of Quetta is also refuted by DFAT’s 2019 finding that:

“Hazaras in urban centres other than Quetta tend not to live in enclaves, to reduce the risk of ethnic profiling, discrimination and attack”.

However, “Hazaras moving out of the enclaves, within and outside of Balochistan, face a high risk of societal discrimination and violence.”

This supports a finding that Hazara enclaves outside of Quetta tend not to exist and that Hazaras still face a high risk of discrimination and violence outside of Hazara enclaves. In the event that Hazara enclaves do exist (ie such as in Karachi), this makes ethnic Hazaras, such as [the appellant], easier to target as they are part of an identifiable Hazara group.

…

Although Hazaras may find it safer to live outside of enclaves, DFAT still reports that:

“Hazaras moving out of the enclaves, within and outside of Balochistan, face a high risk of societal discrimination and violence.”

“While living in ethnically diverse locations such as Karachi affords increased security, Hazaras still experience societal discrimination and security threats.”

The dispersal of the Hazara community in an area such as Islamabad due to the lack of enclaves would also reduce the support which a Hazara, such as [the appellant], may be able to draw on from other Hazaras (eg support to find accommodation and employment in a new city where he has no pre-existing meaningful connections).

14    The Authority specifically addressed the submissions concerning discrimination and the potential forms of harm which might result from discrimination at A[32] and [33], set out above. This included discrimination in Islamabad. It is clear from its reference to the submission of 25 April 2019 and its reasons that the Authority considered the submissions which had been made by the appellant concerning relocation to Islamabad generally and the question of discrimination in particular. It did so in a manner sufficient to discharge its obligation to conduct the Part 7AA review, including giving consideration to the case put by the appellant.

15    As to particular (b), the appellant did not argue that he was a “high calibre citizen” before the Authority. Nor did the appellant make a specific claim about there existing “a strong presence of radical organisations in Islamabad” (as opposed to the more general claim recorded in the second bullet point at A[9] set out at [3] above) or raise any specific claim connected in any way with Tahir Khan Dawar. The Authority expressly did not accept that the appellant “was targeted for reasons beyond being a successful Hazara businessman”; or that he was of any personal adverse interest to anyone in Quetta; or that he had a “raised profile in Pakistan with … militant Sunni group[s] or person[s]”; or that there had been any targeted campaign specifically against the appellant or his family: A[16], [18]. The Authority was not required to address a claim which was not made or which did not clearly arise on the material before the Authority. The Authority dealt with the situation in Islamabad in a manner which was open on the material before it.

16    Particular (c) is best seen as a contention made by the appellant about the merit of the Authority’s decision. The task of the Federal Circuit Court on judicial review was confined to an examination of the legality of the decision of the Authority, not the merit of it. The task of this Court on appeal is confined to whether the Federal Circuit Court erred, which ultimately devolves to a question as to whether it should have concluded, but erroneously did not, that the Authority’s decision was affected by jurisdictional error on or other of the grounds of review advanced.

17    As to particular (d), and the ground of appeal itself, the Authority addressed the claims which had been made by the appellant and considered the appellant’s submissions. More specifically, the Authority considered the appellant’s social and racial position and the danger to which the appellant, being a Shi’a Hazara, would be exposed in Pakistan, including in Islamabad. The Authority’s consideration of the appellant’s claims in this regard was not shown to be insufficient or erroneous.

18    There was no particular claim or submission drawn to the Court’s attention by the Minister or the appellant which the Authority should have considered but did not consider. None was apparent on a review of the material before this Court. The Authority reviewed the decision referred to it in a manner which was not shown to be outside of the powers conferred by the statutory scheme or such that it failed to perform the review contemplated by Part 7AA. The Authority considered the claims and submissions which had been made by the appellant and did so in a way which was not shown to involve jurisdictional error.

19    In oral submissions on the appeal, the appellant referred to certain events in Pakistan which had occurred after the Authority’s decision. As was explained to the appellant during the course of argument, the issues for this Court require focus on the material which was before the Authority. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; 289 FCR 164 at [28], the Full Court observed:

The question whether the IAA’s decision was made in accordance with the authority conferred by the statute, or whether it exceeded the limits of the decision-making authority, or whether it failed to comply with an express or implied condition of conferral of statutory decision-making authority, is answered by reference to the circumstances as they existed at the time the decision-making authority was exercised. The question is not answered by reference to circumstances which did not exist at the time of the decision…

20    For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    24 November 2022