Federal Court of Australia

GAW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 867

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent's costs of the appeal, fixed at $5,000.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia (as it then was). That Court dismissed an application by the appellant for judicial review of a decision of the Immigration Assessment Authority. The Authority had affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a protection visa.

2    The appellant was unrepresented before the Circuit Court, and raised generic and unparticularised grounds of review. But he obtained legal representation in this Court, and sought leave to rely on grounds that were not raised in the Circuit Court. At the hearing, the Minister agreed that leave should be given and on that basis it was granted. This appeal therefore addresses the new grounds in substance. Since the new grounds do not concern anything raised before the primary judge and engage directly with the decision of the Authority, it is not necessary to refer to the primary judge's decision any further.

3    For the following reasons, the appeal will be dismissed.

The application for a protection visa

4    The appellant is a citizen of Pakistan. He arrived in Australia as an unauthorised maritime arrival in 2013. He applied for a protection visa in 2017 (after the Minister had lifted the bar preventing such an application).

5    The appellant relevantly claimed to fear harm on account of being a Shia Muslim from the Parachinar province. He claimed that he was present at or knew about various incidents of violence against Shias in Parachinar between 2008 and 2011, at least some of which were perpetrated by the Taliban. He said he left for Australia to escape the danger.

6    Relevantly, in a document entitled 'Statement of Protection Claims', the appellant said:

24.    I left Pakistan because I did not feel safe. I felt unsafe because there is a conflict between the Taliban and other militant groups and Shia Muslims (and I am a Shia Muslim). There are sects of Muslims which target Shia Muslims because they think we are not Muslims. Sunni Muslims form a bigger sect than Shia Muslims. Sunni Muslims believe that if they kill Shia Muslims, they will be rewarded in the afterlife.

25.    If anyone finds out I am Shia Muslim, I am not safe.

26.    A majority of the people who live in Parachinar are Shia Muslims so they are easily targeted.

…

32.    In 2011, when I was studying and living in a hostel in Rawalpindi, I travelled from Parachinar to Rawalpindi and to Islamabad. I heard from friends that the hostel I was living in at the time had been targeted, and people from Parachinar who were Shia Muslims were kidnapped and killed. After this attack, the Principal at my school received a specific threat saying that I was not safe in my school. This message was passed onto my uncle. I do not know how the message was passed on. I had participated in a protest and the hostel I was staying in was attacked 3 days before the principal received this.

33.    Sometimes the Taliban take responsibility for a particular incident, but no one can go and arrest them because the central government is corrupt and is associated with the Taliban.

34.    Protests by people in Parachinar against the Taliban are not effective because the central government is corrupt. I participated in one protest at the hostel when I was studying in the 3 days between the attack and the Principal receiving the threat. The protest involved about 500-600 Shia Muslims from all parts of Pakistan, and involved students and other people. We were protesting to say that Shia Muslims are not safe in Pakistan.

35.    The presence of security persons or vehicles does not prevent Shia Muslims being kidnapped and killed. Sometimes the police will assist the Taliban in organising attacks on Shia Muslims.

36.    There are people who record the incidents, but the police, army and security guards do not intervene and help.

7    A little later, the appellant's statement said:

State Protection

39.    I am unable to rely on the Pakistan government for protection from the Taliban because the government is corrupt and associated with the Taliban. I do not know why the government is associated with the Taliban.

40.    If you protest against the Taliban, you will not be protected by the government.

41.    I have not tried to access protection. If I tried to get protection from the Pakistan government, they would ignore me because the government is corrupt.

42.    The government is weak and has not been organised in stopping the Taliban.

43.    If the government were able to protect me, I would not have come here.

8    In July 2018, the delegate decided to refuse to grant the protection visa. That decision was referred to the Authority for review under Pt 7AA of the Migration Act 1958 (Cth). The Authority affirmed the delegate's decision on 26 October 2018.

The Authority's decision

9    As will be seen, the grounds of appeal concern two matters: a political opinion the appellant is said to have expressed, and the appellant's ability to obtain a Computerised National Identity Card (CNIC) in Pakistan, which bore upon his ability to relocate within Pakistan to a place where he would not face significant or serious harm. The following account of the Authority's decision will focus on those matters.

10    Before considering the appellant's claims, the Authority considered whether to accept certain material as new information under s 473DD of the Migration Act. Included in this was a reference to information about CNIC applications which had been made in submissions from the appellant's representative. But no source material was provided in relation to CNIC applications, and the Authority was not satisfied that either of the criteria in s 473DD(b) had been met for receiving, as new information, the information that had been referred to in the submission.

11    The Authority then summarised the appellant's claims, as set out in the preceding section. It found the appellant to be generally credible. It accepted that in 2011, he participated in a protest in Rawalpindi with 500-600 other Shias to raise awareness about the security situation for Shias in Parachinar, although the protest was peaceful and the Authority found that the appellant's participation in it did not give him any profile as a political activist in Pakistan. The Authority's reasons make no mention, however, of his claims that the government was corrupt.

12    The Authority accepted the appellant's claims that he was a Shia from Parachinar and that Pakistan was the receiving country. Based on country information, it accepted his claims to have been affected by violence in Parachinar, although he did not claim to have been physically harmed himself. The Authority also summarised a couple of other aspects of the appellant's claims, which need not be described here.

13    In assessing the appellant's claims, the Authority canvassed country information which indicated that there was a real and not remote chance that the appellant may suffer serious harm in sectarian violence in Parachinar, because of his religion. The Authority noted, however, that s 5J(1)(c) of the Migration Act requires that the real chance of persecution relates to all areas of the receiving country, so it went on to consider the prospects of the appellant relocating within Pakistan to a place where he would be safe. Specifically, the Authority's assessment of country information about Islamabad was as follows (para 30, footnotes removed):

… Islamabad has a population of around two million people, including a large number of internal migrants from all parts of the country, and can be accessed directly. Islamabad is home to a large community of Shias and DFAT states that credible sources have said Islamabad is one of the safest places in Pakistan for Shias, and that Shia and Sunni communities tend to be more integrated here. There have been no deaths from sectarian violence in Islamabad reported since 2015. DFAT notes that there is a strong security presence in Islamabad, including checkpoints throughout the city and its entry points, and patrols by the paramilitary Rangers. These security measures provide a strong deterrent to militant groups planning attacks in the capital, and large-scale militant or sectarian attacks in Islamabad are rare. Such violence more often takes the form of targeted killings (such as drive-by shootings) of high-profile community leaders. Overall, DFAT has assessed that Shias face a low risk of sectarian violence in Islamabad. Other information in the review material corroborates DFAT's reporting that no Shias have been killed in sectarian violence in Islamabad in recent years.

14    The Authority then found (at para 31) that the appellant was 'not a high profile Shia and has expressed no specific political opinions aside from his concerns about the security situation in Parachinar. He has not been involved in any activities in Australia which would attract the adverse attention of extremists in Pakistan.'

15    The Authority also noted that the appellant had submitted that his ability to find work and accommodation outside Parachinar would be impacted by the fact that he did not possess a CNIC and could only obtain one by travelling to Parachinar, where he would not be safe. At paragraph 35, which is central to the second and third grounds of the appeal, the Authority said:

The applicant has advised that he cannot safely relocate to Pakistan as he does not hold a CNIC and cannot safely obtain one. He submits that he has held a juvenile identity card but, as an adult from Parachinar and never having previously held a CNIC, he will be required to attend a National Database and Registration Authority (NADRA) office in Parachinar in order to process his application. He cannot safely return to Parachinar. I have considered advice on the NADRA website. It would appear that in the case of a first time application he can commence the process with a National Identity Card for Overseas Pakistanis (NICOP) which can be obtained in Australia. He can also apply using the attestation [of] any blood or immediate relative or using their original identity document and attestation. The website notes that applicants from the Federally Administered Tribal Areas (FATA) are eligible to process their application from anywhere in Pakistan. It is only if their parents do not have their identity registered then countersign[ature] by a Political Agent will be mandatory. The applicant has not indicated that his parents are not registered or that they would be prevented from travelling to Islamabad or another major city if needed to support his application. I am satisfied that the applicant can apply for a new CNIC from anywhere in Pakistan and I do not accept that he has to return to Parachinar to apply for a CNIC. The applicant has the option of obtaining a NICOP in Australia and then using that document to obtain a CNIC or using his parent's registration information. I am therefore satisfied that he would be able to safely renew his CNIC in any major centre such as Islamabad.

The reference to the NADRA website was footnoted with the address of that website as well as a Department of Foreign Affairs and Trade country information report for Pakistan from September 2017.

16    The Authority thus concluded (paras 36-37):

Having regard to all of the above, while I accept that … areas of Pakistan [continue] to suffer from sectarian violence, the large population of Islamabad, strong security presence and low number of sectarian incidents lead me to conclude that the applicant will face only a remote, and therefore not a real chance of being harmed in Islamabad.

I am not satisfied that the applicant will face a real chance of harm because of his ethnicity, religion, or from sectarian or generalised violence, or for any other reason, including those discussed below, in Islamabad.

17    After considering and rejecting another basis of his claim for protection, the Authority concluded that the appellant did not meet the refugee criterion in s 36(2)(a) of the Migration Act. For similar reasons, it concluded that he did not meet the complementary protection criterion in s 36(2)(aa).

Ground 1 - the appellant's claimed political opinion

18    It is convenient to consider ground 1 first, and then grounds 2 and 3 together.

19    Ground 1 is:

The IAA erred by failing to consider an essential integer of his claim, being that he claimed to fear harm on the basis that he held a political opinion and that his political opinion would manifest in his participation in protests, as a result of which he faced a real and not remote chance of serious harm in Islamabad.

Particulars

1.    The appellant raised a claim to fear harm on the basis of holding, and manifesting, a political opinion: see statement of protection claims: [34]-[36]; [39]-[42]. This was a distinct and separate integer of the appellant's claim.

2.    Despite this, the IAA found that the appellant 'is not a high profile Shia and has expressed no political opinions aside from his concerns about the security situation in Parachinar': [31].

3.    To the extent that this finding concerned the appellant's expression of political opinions, it was wrong. The appellant had, in fact, expressed the political opinion described at paragraphs [34]-[36] and [39]-[42] of this statement of protection claims.

4.    By failing to identify, and address, this integer of the appellant's claim, the IAA constructively failed to exercise its jurisdiction.

20    The particulars identify the asserted political opinion by reference to the appellant's Statement of Protection Claims, but do not say what the opinion was. In the appellant's written submissions to this Court, the opinion is said to have been that 'Shia Muslims are not safe in Pakistan because the central government is corrupt and colludes with the Taliban, and the police will not provide protection' (appellant's submissions (AS) para 20(a)).

21    According to the appellant, he also claimed before the delegate that he had in the past and would in the future manifest that political opinion by participating in public protests. He also submits that he had further claimed that a consequence of his holding and manifesting that political opinion was that he would not be protected by the government, because it was corrupt and colluded with the Taliban. He says further that he claimed that he would not be protected by the police.

22    The appellant submits that all of this was a 'distinct integer' of his claim (AS para 22), which was not addressed by the Authority. To the contrary, the Authority found that he had expressed no specific political opinions aside from his concerns about the security situation in Parachinar. That, he submits, was wrong, as he had expressed the political opinion described above.

23    The sole factual basis of the submissions that the appellant held a political opinion, had expressed that opinion and would manifest it in future is the passages from his Statement of Protection Claims set out at [6] and [7] above. I accept that, by stating that the government is corrupt and associated with the Taliban, that document indicates that the appellant holds a political opinion. But, crucially, I do not accept that the document says that he ever expressed that opinion in Pakistan, or that he would ever express or otherwise manifest it if he returned (or, for completeness, that he had ever expressed it while in Australia other than in his application for protection - no sur place claim of that kind is raised).

24    The only opinion said to have been manifested by the appellant in Pakistan was the opinion he expressed by taking part in the protest, 'that Shia Muslims are not safe in Pakistan' (Statement of Protection Claims para 34). Save to that extent, I do not accept that the appellant claimed before the delegate that he feared harm because he held, expressed or manifested a political opinion, or that he would manifest any political opinion on return to Pakistan.

25    In his Statement of Protection Claims, the appellant made no claim to have ever expressed, on any occasion, the opinion that the Pakistani government was corrupt (other than on the occasion of his protection visa application to the Australian government). He made no claim that he would express or manifest that opinion on return to Pakistan. The point of putting the opinion in his Statement of Protection Claims was evidently to persuade the Minister that he would receive no protection from the harm he claimed to fear because of his religion.

26    In her oral submissions, counsel for the appellant sought to draw something out of the Statement of Protection Claims which was not highlighted in her written submissions. She submitted that where, at paragraph 34 of the statement, the appellant says, 'We were protesting to say that Shia Muslims are not safe in Pakistan', he was referring not only to protesting about attacks by the Taliban or others, but also to protesting the lack of government protection from those attacks because of corruption.

27    I do not accept that submission. The first sentence of paragraph 34 says, 'Protests by people in Parachinar against the Taliban are not effective because the central government is corrupt.' That sentence provides the immediate context for the subject matter of the protest in which the appellant took part: it was a protest against the Taliban, not against the government.

28    If I am wrong about that, the characterisation of the appellant's protection claims now put by his counsel does not emerge with sufficient clarity from the material he put to mean that the Authority fell into jurisdictional error by not addressing it. It was not expressly articulated and it did not arise squarely on the materials before the Authority: cf. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58], [60] (Black CJ, French and Selway JJ).

29    And if I am wrong about that, to the extent that the appellant claimed to fear harm on return to Pakistan because he had expressed any political opinion at the protest, the Authority did deal with that. It found that his participation in the protest did not give him any profile as a political activist in Pakistan, as discussed above at [12]. The claim was therefore subsumed in a wider finding: see e.g. Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47].

30    The changes in the appellant's case at the hearing were such that the Minister was permitted to file supplementary written submissions. Understandably, those submissions posited (tentatively) yet another way that counsel for the appellant may have described her client's claim, namely that he feared harm at the hands of the government itself. It is true that there is one sentence in the Statement of Protection Claims which says that 'Sometimes the police will assist the Taliban in organising attacks on Shia Muslims' (para 35, at [6] above). However a passing reference of that kind is insufficient to constitute an 'integer' of the appellant's claim, nor in any event is it so prominent in the materials that the Authority would fall into jurisdictional error by failing to mention it. The fear the appellant expressed was a fear of the Taliban and, possibly, other Sunni militant groups, who were likely to attack him because he is a Shia Muslim. His repeated mentions of the government in connection with his fears of suffering harm are references to the government's unwillingness to protect him from harm at the hands of militant groups. The appellant evidently had assistance in the preparation of his protection visa application, and he was represented before the Authority. If he had feared harm at the hands of the government, he could have been expected to say so clearly, somewhere.

31    Counsel for the appellant also submitted that the relevant 'integer' of the claim could be understood as being that his fear of harm was 'heightened, amplified or magnified' by the asserted corruption of the Pakistani government and/or its association with the Taliban. But a claim to that effect is simply not present in the materials before the Authority. In the appellant's supplementary written submissions, it was asserted that the claim was 'woven through his statement of claims' (para 8), referring to the excerpts from that document that are set out above at [6]. Read fairly, however, and with the lone exception of the sentence about the police assisting the Taliban, the claims go no further than an absence of government protection. With or without that sentence, the implication that the appellant's counsel now seeks to draw out does not amount to a separate 'integer' of his claims. The submission adds nothing to the analysis of ground 1 conducted above.

32    Counsel for the appellant submitted orally, yet further, that the references to government corruption in the Statement of Protection Claims could be understood, alternatively, as 'an essential component' of the claim that he feared harm because he was a Shia Muslim. I accept that they were, in the sense that the appellant's claims to fear harm at the hands of the Taliban and other non-government actors would not have been well founded if the government were to offer a satisfactory level of protection against that harm.

33    But this too adds nothing to the analysis in the present case. The Authority accepted that the appellant faced a real risk of serious and significant harm in Parachinar. That is what the appellant was claiming. It follows that the Authority did not hold the opinion that the government provided an adequate level of protection to Shia Muslims in Parachinar. The Authority then went on to reject the protection claims on the basis that the appellant could relocate to Islamabad. Since the Authority made the unchallenged finding that the appellant would not be at risk of harm there, any relevance of the asserted government corruption falls away.

34    Counsel for the appellant submitted, in effect, that it did not fall away, because it would have been open to the Authority to reason that, while there was a low level of violence in the major cities, the consequences of that violence, when it occurred, were serious, so that if the central government were to fail to protect Shia Muslims as victims of that violence, the appellant would face a risk of serious harm.

35    This seems to be put as a point about materiality and, while I have not found there to be any error capable of being either material or not, it is appropriate to consider the point through that prism. In my respectful view, it fails to pay attention to the Authority's actual path of reasoning, in at least two respects. First, the Authority's finding was that there was a low level of sectarian violence in Islamabad. Second, it noted with evident acceptance country information that there was a strong security presence in the city which provided a strong deterrent to militant groups, so that large scale attacks were rare (see [13] above). The appellant does not impugn that finding. Thus, the Authority's overall conclusion was that matters including the strong security presence and low number of sectarian incidents meant that the appellant would face only a remote chance of being harmed in Islamabad (see [16] above).

36    Subject to the issues about to be considered under grounds 2 and 3, it necessarily followed that the appellant did not meet either the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa). In the face of those conclusions, the path of reasoning posited by counsel for the appellant does not meet the standard of 'reasonable conjecture' as described by Kiefel CJ, Gageler, Keane and Gleeson JJ in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [38].

37    Ground 1 is not upheld.

Grounds 2 and 3 - the appellant's ability to obtain a CNIC

38    Grounds 2 and 3 are:

2.    The IAA erred by:

(a)    engaging in an illogical, irrational, or unreasonable process of reasoning about whether the appellant could safely renew his Computerised National Identity Card (CNIC); and/or

(b)    failing to comply with s 473DE of the Act and thereby constructively failing to exercise its jurisdiction.

Particulars

1.    One aspect of the appellant's contentions was that he could not safely relocate in Pakistan because he did not hold a CNIC and could not [safely] obtain one (by reason that he would be required to travel to Parachinar, where he faced a real risk of serious harm).

2.    The IAA found that the appellant could safely renew his CNIC without returning to Parachinar.

3.    A central aspect of its reasoning was its acceptance that the appellant's parents were registered and were able to travel to provide the appellant with a necessary attestation: see [35].

4.    That reasoning was illogical, irrational or unreasonable because there was no evidence to support that finding.

5.    Further, the information relied on by the IAA (being that the appellant's parents were registered and could travel to provide the appellant [with] a necessary attestation) was new information obtained by the IAA.

6.    The IAA failed to comply with s 473DE by failing to explain to the appellant why the new information was relevant to the review and invite him to give comment on the new information.

3.    The IAA erred because its decision not to exercise discretion under s 473DC to obtain new information from the appellant was legally unreasonable.

Particulars

1.    The power conferred by s 473DC must be exercised reasonably: M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600; Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16).

2.    The IAA knew that its conclusion on whether or not the appellant could safely obtain a CNIC without travelling to Parachinar was material to the disposition of his claim.

3.    Having reviewed the NADRA website and certain DFAT country information, the IAA understood that the question of whether the appellant could safely obtain a CNIC depended in large part on the question of whether his parents were registered and able to travel to a major centre to provide the necessary attestation. As explained above, the IAA chose to infer that they could, in circumstances where there was no evidence before it about those matters. It did so with the knowledge that the appellant had asked it to consider new information on the question of whether he could obtain a CNIC.

4.    In those circumstances, it was legally unreasonable for the IAA not to exercise the power in s 473DC to obtain new information from the appellant about whether his parents were registered and were able to travel to provide him with the required attestation. By failing to exercise the power under s 473DC to obtain that information, the IAA erred.

39    Before the Authority, the appellant sought to resist the conclusion that he could safely relocate to Islamabad by contending that, in order to do so, he needed a CNIC, and he could not safely obtain one because to do that, he would need to travel to Parachinar, a place where he faced a real risk of serious or significant harm.

40    The entire extent of the Authority's reasoning about that contention is set out at [15] above, although it will also be recalled that it rejected what might have been an attempt to rely on new information about CNIC applications (see [10] above).

41    The Authority relied on information it found on a Pakistani government website which, it said, indicated that there were two ways the appellant could apply for a CNIC. Its summary of what it found could have been clearer. It says that the appellant could apply for a National Identity Card for Overseas Pakistanis (NICOP). But the nature of the connection between that card and a CNIC is not made clear.

42    The Authority also says that the appellant could 'apply using the attestation [of] any blood or immediate relative or using their original identity document and attestation'. This seems to be speaking of an application for a CNIC that is direct, rather than based on a NICOP. But, once again, that is not made clear.

43    The Authority goes on to say that applicants from the Federally Administered Tribal Areas (FATA) may process (presumably meaning submit) their application from anywhere in Pakistan. It seems that this is referring to an application for a CNIC, as it would appear that by definition an application for a NICOP is made overseas. The Authority appears to have been proceeding on the basis that Parachinar was in the FATA.

44    But then, the Authority goes on to say that it is only if the appellant's parents do not have their identity registered that 'countersign[ature] by a Political Agent will be mandatory'. Who a Political Agent is or where they may be located is not explained.

45    The Authority then says that the appellant has not indicated that his parents are not registered or that they would be prevented from travelling to Islamabad or another major city to support his application. That seems to imply that being registered, and travelling to a major city to support the appellant's application for an identity card, are alternatives. In any event, why his parents would need to travel to Islamabad if they are registered, or why travel to a major city would help if they are not registered, are not explained.

46    From this reasoning the Authority concludes that the appellant could, as his first option, apply for a CNIC from anywhere within Pakistan, so that he would not need to return to Parachinar. Alternatively, it concludes that he could, as a second option, obtain a NICOP in Australia. He could then use 'that document to obtain a CNIC or using his parent's registration information' (emphasis added). This seems to be saying that, if on return to Pakistan the appellant is located in Islamabad, he could use the NICOP to obtain a CNIC (the second option), or he could use his parent's registration information to obtain the CNIC (the first option). The Authority was therefore satisfied that the appellant would be able to 'renew' (strictly, obtain) a CNIC in Islamabad.

47    Therefore, despite the lack of clarity in the Authority's description of the process or processes that were available to the appellant to obtain a CNIC, the Authority's conclusions are clear enough: either by way of a NICOP obtained in Australia, or by way of his parent's registration information, he can obtain a CNIC while in Islamabad without needing to travel to Parachinar.

48    Turning first to ground 2, there are in truth two different points disclosed by the particulars to the ground, although both concern the question of the registration and ability to travel of the appellant's parents. The appellant submits that the only basis on which the Authority could have been satisfied that he could apply for a CNIC from anywhere in Pakistan was if it found that his parents were registered and could travel to Islamabad or another major city to provide the required attestation. The first point (at particulars 2-4) is based on what is said to be an absence of evidence. The appellant submits that the lack of any evidence that the parents were not registered, and the lack of any evidence that they could not travel to Islamabad, does not establish that they were registered and that they could travel there. So, he says, the Authority made findings that had no factual basis, and therefore were not open.

49    The second point arises because the appellant submits (under particulars 5 and 6) that the 'information' on which the Authority thus relied - that his parents were registered and could travel to Islamabad - was 'new information' within the meaning of s 473DC(1) of the Migration Act, that is information, in broad terms, that was not before the delegate and which the Authority considered may have been relevant. If so, s 473DE(1)(a) required the Authority to give to the appellant particulars of that information if it had been, or was to be, considered by the Authority under s 473DD (that is, received under the discretion to accept new information), and would be the reason, or a part of the reason, for affirming the delegate's decision. The appellant submits that the Authority failed to give him particulars of the new information and so fell into jurisdictional error.

50    Then, under ground 3, the appellant submits that in view of the Authority's reasoning as just described, information about the two matters of the registration status of the appellant's parents and their ability to travel to Islamabad was central to the question of whether he could safely obtain a CNIC. The appellant had asked the Authority to consider new information on the question of whether he could obtain a CNIC. In those circumstances, it was unreasonable for the Authority to fail to exercise its power under s 473DC of the Migration Act to get new information about those two matters.

No basis to find parents were registered and could travel

51    The first point under ground 2 appears to be a submission that there was no probative basis in the material before the Authority that permitted it to conclude that the appellant's parents were registered or were capable of travelling to Islamabad to support the appellant's application for a CNIC.

52    It is well established that a mere insufficiency of evidence or other material will not sustain a ground of that kind; there must be no evidence or other material to justify the finding made: Australian Postal Corporation v D'Rozario [2014] FCAFC 89; (2014) 222 FCR 303 at [118]. Another way of putting it is that the reviewing court must be satisfied that the evidence relied upon achieves at least a threshold probative value, and beyond that is not concerned with the sufficiency or quality, including cogency of the evidence: see Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 at [48] (Mortimer J, Moshinsky J agreeing). It is also important to appreciate that the ground requires a comparison between the material available to the decision maker and the conclusions that the decision maker has drawn: Splendido ibid; L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] (Basten JA, McColl and Whealy JJA agreeing).

53    On the basis of those principles, I consider that the point has not been made out. As the Minister submits, there was material before the Authority that at least met the low threshold of probative value required. Specifically, the appellant's representative told the Authority in his written submission that the appellant 'arrived in Australia as an unaccompanied minor and held only a Pakistani Passport that was issued to him on the basis of his parents IDs not on his CNIC as he was under 18 years of age at the time of issue of a passport.' This implies that the appellant's parents held Pakistani identity documents, quite possibly CNICs. Also, the appellant's birth certificate, which was before the Authority, gave a CNIC number for his mother. Submissions by his counsel that these matters are not probative because they do not say that the parents hold registration now does not avail him. The threshold for judging material to be probative in relation to this ground is low and a logical path of reasoning open to the Authority was that if the parents were registered at a time in the past, they remained so in 2018 when the Authority made its decision.

54    But even if the Authority had erred in the way contended for under the first point of ground 2, I would have found the error not to be material and so not a jurisdictional error. Such an error would not be an error of the kind where materiality is inherent because it is not, for example, unreasonableness in the final result: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [6]. That is because, on the Authority's reasoning as explained above, it concluded that the appellant could obtain a CNIC by first obtaining a NICOP in Australia, as a complete alternative to the path that relied on his parents having registration and being able to travel. There was thus no realistic possibility that the decision could have been different had the Authority not made the posited error, that is, had it not found that the appellant could rely on his parents' registration to obtain a CNIC. The Authority would still have found that he could obtain a CNIC by way of obtaining a NICOP.

55    Counsel for the appellant appeared to seek to neutralise this by submitting that the Authority's observation that it 'would appear that' the appellant could commence the process with a NICOP was 'well short of' a finding that he could do so. In my view, that is putting too much weight on the (only slightly) tentative manner in which the Authority expressed itself at that point. It is merely a turn of phrase used by a busy administrative decision maker. As analysed above, the Authority's view emerging from paragraph 35 of its reasons read as a whole is clear: the appellant could obtain a NICOP while in Australia, and he could use that to obtain a CNIC without having to return to Parachinar.

56    Counsel also speculated that the fact that there was a NICOP process does not meant that the appellant had the documents needed to access that process. But the Authority looked at the NADRA website and concluded that the appellant could obtain a NICOP and use that to obtain a CNIC without having to go to Parachinar. It was not required to set out its reasoning on every possible aspect of the process, and no aspect of its reasoning as set out can be criticised as illogical or without foundation. The appellant has failed to demonstrate that this path of reasoning was not open to the Authority.

57    Counsel for the appellant nevertheless submitted that there was no evidence before the Authority that permitted it to conclude that the appellant was able to use the NICOP process. With respect, that is to take the submission too far. The onus of demonstrating jurisdictional error is on the appellant. The Authority had the NADRA website, and it also cited DFAT information in support. If the appellant wished to submit that those sources provided no support for the Authority's conclusions about the NICOP to CNIC process, he should have put the sources into evidence (while the website was as at a point in time in the past, the courts are now accustomed to using sources such as the Wayback Machine to capture the state of websites over time).

New information

58    As to the second point under ground 2, the issue is whether the relevant facts about the registration status of the appellant's parents and their ability to travel to Islamabad comprised 'information' within the meaning of the definition of 'new information' found in s 473DC(1) of the Migration Act.

59    Section 473DC(1) provides:

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.

60    This says nothing explicit about the meaning of 'information', other than to make it clear that it includes 'documents'. The NADRA website was probably a document, but counsel for the appellant correctly accepted that the information on that website was not the subject of the requirement in s 473DE(1)(a). It comes within the exception in s 473DE(3)(a) which, broadly, pertains to country information. So the 'information' on which this aspect of ground 2 relies must be something else.

61    The appellant did not refer to any other specific document or record about the appellant's parents' registration status or ability to travel. To the contrary, the appellant's argument as to the first point under ground 2 was that there was no document or record to support the impugned finding. So on the appellant's case, to the extent that the Authority proceeded on the basis that the appellant's parents were registered or that they could travel, it must have done so by making an assumption or by making an inference based on other evidence.

62    I do not consider that either an assumption or an inference is capable of constituting 'information' for the purposes of s 473DC. The intention of the new information provisions in Pt 7AA Div 3 Subdiv C of the Migration Act cannot be to exclude the ability of the Authority to make assumptions, or to make inferences based on materials that are properly before it. Of course, the assumptions or inferences might sometimes be subject to challenge as illogical, or irrational, or baseless, but that is not anything that Subdiv C addresses. Or they might themselves be based on new information that needs to be drawn to the appellant's attention, but that is not the complaint of the appellant here.

63    This understanding of Subdiv C is consistent with AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 at [3], where the High Court held (in the context of a different question) that 'information' within the meaning of s 473DC is simply a communication of knowledge of facts or circumstances of an evidentiary nature. The appellant has identified no communication that the Authority relied on that was not before the delegate. He has therefore not established that any facts the Authority proceeded on in connection with its findings about the way the appellant could rely on his parent's registration status to obtain a CNIC in Islamabad, were 'new information' that was the subject of the requirement in s 473DE(1)(a).

64    Ultimately, counsel for the appellant accepted that understanding of the meaning of 'information', and she appeared to submit that the two points in ground 2 were put in the alternative. In any event, I do not accept that the second point has been made good.

65    I do not uphold ground 2.

Not unreasonable for Authority not to seek new information

66    Like ground 2, ground 3 concerns the findings about the registration status and ability to travel of the appellant's parents, so the materiality point at [54] is an answer to it as well. Even if the Authority had obtained more information about those matters, and even if (as a matter of complete conjecture) that information had shown that the parents were not registered or could not travel, that could not have realistically affected the Authority's reasoning about the NICOP.

67    In any event, I do not accept that it was unreasonable of the Authority not to have sought that information. To the extent that it did not exercise the discretion to get information of that kind, the decision did not lack an evident and intelligible justification: cf. Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 at [82] (Robertson, Murphy and Kerr JJ). As indicated above, there was information suggesting that the appellant's parents were registered. And it cannot be said that the appellant was likely to be able to shed more light on their registration status; whether he was aware of it is simply unknown. Also, as a person who was 21 years old at the time of the Authority's decision, there was no reason to think that his parents were so old as to mean that they were infirm and unable to travel.

68    The fact that the Authority considered and rejected what might have been an application for it to accept information about CNIC applications (at [10] above) does not change the position. The nature and content of that information was unclear, and the Authority rejected it because it was unsupported by source information. None of that gives any reason to think that it was unreasonable of the Authority not to seek specific information about the appellant's parents' registration status or ability to travel.

69    Ground 3 is not upheld.

Conclusion

70    The appeal is dismissed.

71    The Minister indicated that he would seek $5,000 in costs if successful, and counsel for the appellant made no submission in opposition to that amount. I accept that is a reasonable amount, being less than the $8,323 for which item 15.2 of Schedule 3 to the Federal Court Rules 2011 (Cth) provides. That is all the more so since the changes in the appellant's case on ground 1 which his counsel made at the hearing required the Minister to provide supplementary written submissions. An order fixing the Minister's costs at $5,000 will be made.

Associate:

Dated:    5 August 2024