The applicant is a citizen of Pakistan. On 21 November 2016, he lodged an application for a SHEV. A delegate of the Minister refused to grant the SHEV on 18 October 2018.
The matter was referred to the Authority for merits review. On 4 February 2019, the Authority affirmed the decision not to grant the applicant a protection visa.
The applicant sought judicial review of the Authority's decision. On 24 March 2021, the Federal Circuit Court of Australia, as it was then, quashed the decision of the Authority and directed that the matter be determined according to law.
On 21 May 2021, a differently constituted Authority again affirmed the decision not to grant the applicant a SHEV. The applicant now seeks judicial review of the second Authority's decision.
[2]
The Authority noted the material it had before it, given by the Secretary under s 473CB of the Migration Act 1958 (Cth) ("the Act").
On 13 November 2018, the Authority received submissions comprising of a statement from the applicant, his then representatives, and his mental health social worker, submissions in the form of media articles, information regarding the unauthorised use of the applicant's photograph on the dating site Grindr, and the applicant's subsequent complaint to the police and Grindr.
The Authority had regard to the statements provided. It was satisfied that the statements were arguments about matters that were before the delegate and not new information. The statements were considered to the extent that they addressed the delegate's decision and findings.
The statements introduced new information about the claimed profile of the applicant's extended family and incidents of harm. The submission introduced media reports relating to the targeted killing of two relatives, Mr R and Dr S, and information from Minority Rights Group International regarding the killing of Shia professionals in Pakistan.
In regard to the media articles at [8], after considering the applicant's evidence and the circumstances regarding the family member's death, the Authority did not accept that the applicant would not have mentioned his associations with those two relatives in the protection visa interview, if they were his uncles, as he claimed to the Authority.
The Tribunal did not consider that exceptional circumstances existed that justified the consideration of new information about the two people the applicant claimed were from his extended family being attacked, or that the photographs submitted in the protection visa application are the applicant's cousin, or the country information submitted by the applicant.
The applicant provided the Authority with several police complaint documents that comprised seven pages. However, the applicant had only provided one page of this document to the delegate. It was noted that the applicant's current representative criticised the applicant's previous representative and the level of assistance provided to the applicant. The Authority found that exceptional circumstances existed for the police complaint documents to be considered.
The Authority did not consider whether exceptional circumstances existed for the new country information to be considered insofar as it did not add any substantive information to the reports before the Authority from the Department of Home Affairs (DFAT), the US Department of State, the UK Home Office, and other reports.
On 27 April 2021, the Authority wrote to the applicant, setting out potentially adverse information and inviting the applicant to comment and provide further information by 11 May 2021. The Authority sought information from the applicant concerning the Grindr claim and why the applicant could not relocate to another area in Pakistan where there was no real chance that he would experience harm.
On 4 May 2021, the Authority received an email from the applicant's representative communicating that he had been retained to act for the applicant. The Authority sent the representatives courtesy copies of the earlier correspondence to the applicant.
On 10 May 2021, the representative requested an extension of time of one week to submit a submission, citing that they had only recently received instructions and referencing other preoccupying matters.
The Authority advised the applicant's representative that there was no capacity for it to extend the deadline under the provisions of the Act. Further, the decision on the case would not be made before 14 May 2021, and any information received after that date but before the decision was made may be considered subject to it meeting the requirements of the Act. On 12 May 2021, the applicant's representative again sought an extension of time. The Authority advised them again as to the provisions that guide the Authority.
At [28]-[29], the Authority did not consider the circumstances of the applicant's matter warranted getting new information by way of an interview. They considered the new information, which updated information that was previously before the delegate and found that exceptional circumstances justified considering that new information.
At [30], the Authority summarised the applicant's claims for protection:
The applicant is a Shia from a tribal area who was born near town P in Kurram District, Pakistan.
Shias have been targeted for harm in Pakistan by the Taliban and other insurgent groups. The applicant provided information regarding attacks on Shias, including photographs of victims.
He belongs to the S family from Kurram, and many people are killed in the region. He provided a First Information Report relating to an attack on his father's home in 2010.
The applicant went to the UAE in 2008 to work and to escape the danger. Because of the danger and his fears, he did not return to Pakistan. In 2013, the applicant came to Australia from the UAE.
He fears returning to Pakistan as he will be harmed as a Shia. His fear extends to all of Pakistan, and he cannot obtain protection from the authorities.
He fears he will be imprisoned by the authorities because he has lived in a Western country.
In 2017 in Australia, the applicant's photograph was posted by an unknown person on the gay dating site Grindr. Although this profile has since been removed at his request, this information has become known by "people in Pakistan", his family and the family of his fiancée. As a result, his family and fiancée have disowned him, and he has received threats to his life from his family, the family of his fiancée, and others. The applicant complained about this unauthorised use of his photograph to the police and Grindr. He fears he will be killed by his family or others in Pakistan because of the shame and stigma associated with homosexual activity.
The applicant was referred to a mental health social worker in 2018 to address his "severe depressive symptoms, anxiety, abandonment, rejection and fear".
In submissions to the IAA, it is advanced the applicant would be harmed on the basis of his race/ethnicity as a Pashtun from the S tribe, from Parachinar, a tribal area, Upper Kurram Agency; as a Shia; for an actual and imputed political opinion of being opposed to Sunni extremist militia groups; and as an imputed homosexual which is a criminal offence in Pakistan. It is also advanced he fears harm as a member of a particular social group: targeted by his family for an honour killing for bringing shame to them by having his profile posted on the gay dating site.
At [33]- [35], the Authority accepted the applicant's identity and nationality, that he is of the Shia faith and a member of a particular tribe from the Kurram District of Pakistan.
As to the First Information Report (FIR) provided by the applicant in relation to claimed attacks on the applicant's family home in 2010, the Authority had doubts that the document was genuine and took into account caution from the DFAT as to the prevalence of fraudulent FIR's. The Authority nevertheless accepted it was plausible that the applicant's family home was attacked in 2010 as country information revealed that violent attacks on property in Shia areas were widespread at that time.
At [41], the Authority considered various sources of country information and noted that, despite DFAT reporting an overall reduction in the level of violence, a 2019 report commented that the terrorist groups had gained significant ground in former FATA areas, killing many Shias, especially in the region of Parachinar, making the Turi and Shia tribes the most vulnerable in Pakistan.
When considered overall, the Authority was not satisfied the applicant would face harm in Parachinar on the basis of his race/ethnicity, religion, or for an actual and imputed political opinion, as the influence of extremist groups has been significantly lowered by government counter-terrorism measures. The Authority also took into account information from the 2020 Center for Research and Security Studies Annual Report and a FATA Research Centre report released in 2021.
Although the applicant claims to fear harm in Pakistan because of the posts made on Grindr, the Authority noted that the applicant denied being homosexual in his protection visa interview and submission to the Authority. The Authority was not satisfied that there was a real chance he would be harmed by the authorities in Pakistan on this basis.
The applicant further clams however that he would be harmed by his family and the family of his former fiancée because of the Grindr profile.
In considering the applicant's evidence for this claim and having concerns about aspects of the applicant's explanation of the details of this claim, the Authority accepted that photographs of the applicant had been posted on Grindr, and he made complaints to Grindr and the police.
In making these factual findings, the Authority at [54] did not find the accounts made by the applicant to be plausible as to how he became aware of the Grindr profile matter at the protection visa interview and in his statement to the Authority. Both of these claims were not accepted.
The Authority did not accept the applicant's evidence in relation to how he or his family became aware of the Grindr profile and posts. As to his family's knowledge of the Grindr profile, the Authority considered that the applicant's family and his fiancée were aware of the matter and had disowned him and threatened him with harm. For this harm to amount to persecution, the real chance of the harm must relate to all areas of a receiving country. The Authority found that it did not relate to all areas of Pakistan. It was satisfied that the applicant could avoid the families by returning to the urban areas of Pakistan.
At [60] the Authority found that it was not satisfied there was a real chance the applicant would be harmed by his family or fiancée's family in the three urban centres of Karachi, Islamabad or Lahor, and would not face persecution in Pakistan based on the Grindr posts which have been removed.
As to why the applicant could not relocate to Pakistan, as he may be targeted for harm as a Shia from Parachinar, the Authority was not satisfied that the chances that he would be harmed were more than remote, nor would he be harmed by militants or extremists groups in areas in Pakistan.
As to the applicant's mental health condition, the Authority took into account country information about the basic health care available to all Pakistanis and accepted there were limited medical resources outside the major population centres. However, the Authority was ultimately not satisfied that the applicant would be denied access to any medical care for a reason, pursuant to s 5J of the Act. The Authority was not satisfied that the applicant faced a real chance of persecution on the basis claimed.
In making complementary protection assessments, the Authority considered whether the applicant might experience generalised violence in Karachi, Islamabad, and Lahore, but was not satisfied that there was a real risk, noting that the security situation in Pakistan had improved. The Authority was not satisfied that the applicant's personal circumstances, mental health concerns, education, employment, ability to gain employment and his language were barriers to him relocating to one of those centres.
The Authority found that on an individual or cumulative basis, the applicant would not face a real chance of persecution in Pakistan. It did not conclude that as a consequence of being returned from Australia to his receiving country that he would suffer significant harm.
The applicant advances three grounds of judicial review contained in an Originating Application filed on 16 June 2021. They are as follows (less particulars):
The Immigration Assessment Authority (IAA) fell into jurisdictional error in refusing the applicant's adjournment.
The IAA fell into jurisdictional error in refusing the applicant's request for a further interview.
The IAA fell into jurisdictional error at [75] in finding that the applicant's personal circumstances presented practical barriers to him relocating to Karachi, Islamabad or Lahore.
[4]
Ground one is a complaint that the Authority erred by refusing the applicant's adjournment request made on 10 May 2021 to the invitation sent by the Authority to the applicant on 27 April 2021, inviting comments on potentially adverse information.
The applicant submits that the Authority acted under ss 473DC and 473DE of the Act in sending the applicant an invitation to comment and provide further information and must act reasonably in exercising their discretion under s 473DF(4) of the Act. That provision is as follows:
[5]
473DF Invitation to give new information or comments in writing or at interview
...
[6]
(4) If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:
(a) without taking any further action to get the information or the referred applicant's comments on the information; or
(b) without taking any further action to allow or enable the referred applicant to take part in a further interview.
[7]
Reliance was placed on CAK19 v Minister for Home Affairs[2020] FCCA 1251; a decision of Judge Riethmuller (as he was then). The Court at [19] found that the Authority, in that matter, should have acted in a "legally reasonable manner", the task of which extended to providing the applicant with a reasonable opportunity to make submissions and provide new information for consideration. This was in circumstances where the time limits provided by the President of the Immigration Assessment Authority provided for a time frame of 21 days for submissions and new information to be received after referral of the delegate's decision to the Authority. The Court found that despite this Direction, it did not provide that the Authority cannot receive material outside of the time frame nor prescribe the process with respect to cases that require more than six weeks for completion.
The applicant notes that a similar error was found in CGW18 v Minister for Immigration, Citizenship and Multicultural Affairs[2022] FedCFamC2G 759.
On this basis, there was no evident or intelligible reason why the Authority did not proscribe a further period of time to enable receipt of further information and submissions from the Applicant.
Ground two is a complaint that the Authority erred by refusing the applicant's request for a second interview. The applicant contends that this decision was legally unreasonable in circumstances where the applicant had been provided advice by an unregistered migration agent who advised him to attend the protection visa interview and dissuaded him from providing further information.
As a result, the Authority had regard to the incomplete evidence given by the applicant at the protection visa interview at [50] of the decision record.
The applicant presses that, due to the applicant's representative being unregistered, it was unclear whether the applicant appreciated the need for more information to be provided in the SHEV interview or afterwards. A "reasonable" interviewer, taking into account these circumstances, would have provided the applicant with a further interview opportunity.
By ground three, the applicant complains that the Authority erred by making a finding at [75] that the applicant's personal circumstances did not present as a practical barrier to him relocating to the areas of Karachi, Islamabad or Lahore.
The applicant alleges that by finding that the applicant could relocate, the Authority did not properly engage with the claims made by the applicant, specifically that he could not relocate to the areas due to his "mental health impairments of severe depressive symptoms, anxiety, abandonment, rejection and fear".
The Authority took into account at [75] that the applicant relocating to these areas in Pakistan without a support network may be difficult. However, it acknowledged evidence that the applicant had moved to the United Arab Emirates and lived independently away from his family for five years. The applicant contends that the Authority's reliance on this evidence is illogical and unreasonable.
At [64] of the decision record, the Authority made findings in relation to the applicant's refugee claim as it pertains to the mental health concerns noted. It states at [64]:
[8]
I accept that establishing himself in Karachi, Islamabad or Lahore without a support network may present difficulties, and I note the mental health concerns. But I note the applicant moved to the UAE where he lived independently of his family for five years. He has also worked in Australia in construction and driving. I am not satisfied that the applicant's personal circumstances, including being a Shia from the tribal area Parachinar, the mental health concerns, his education, employment and ability to gain employment or his language present as practical barriers to him relocating in one of these centres.
[9]
The applicant submits that in making a complementary protection assessment, the Authority must consider whether relocation to that place is reasonable, in the sense of "practicable". The Authority should make this assessment having regard to the particular circumstances of the applicant and the impact of relocation (citing: SZATV v Minister for Immigration and Citizenship[2007] HCA 40 at [23]- [24] per Gummow, Hayne and Crennan JJ; Minister for Immigration and Border Protection v SZSCA & Anor[2014] HCA 45 per French CJ, Hayne, Keifel and Keane JJ at [27]).
The Authority's finding at [64] is legally unreasonable as it based its findings on the period of time that the applicant spent in the UAE, noting that there was mental health concerns raised; however, he had managed to live in the UAE for five years independent of his family. The applicant submits that there was no evidence before the Authority to suggest the applicant was suffering a mental health condition while living in the UAE. This circumstance alone was not probative of whether he could live in cities in Pakistan independently, without a support network, whilst suffering from mental health conditions.
The applicant's ability to live in the UAE and Australia does not make it practicable for him to live in cities in Pakistan. The Authority identified the limited capacity of the health system in Pakistan, which differs from the health systems in Australia, which do not suffer from equivalent limitations. The Authority should have considered the practicalities of the applicant living without a support network where there was difficulty in obtaining treatment for his mental health condition. The applicant submits that it should be inferred that the Authority did not properly engage with the applicant's case as to why he could not relocate to cities in Pakistan.
[10]
As to ground one, the first respondent submits that any claim for legal unreasonableness must meet the high threshold and have regard to the statutory context: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020)271 CLR 550 ("DUA16") at [26-27], [34]. This is in reference to the time-frames provided by s 473DF(2) of the Act and reg 4.42(b)(iii) of the Migration Regulations1994 (Cth) ("the Regulations"), in which the applicant had to respond to the Authority's invitation to comment.
The Authority provided intelligible reasons as to why it exercised its power to make a decision pursuant to s 473FB(4) of the Act if the applicant did not comply with s 473DF(2) of the Act. There is a requirement that the power be exercised reasonably, however Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [15] is authority for the proposition that the exercise of this decision does not have to be advantageous to the applicant.
As to ground two the first respondent submits that, similarly to ground one, a high threshold must be met to substantiate the claim that the Authority unreasonably failed to exercise its power under s 473DC(1) of the Act to get new information, including interviewing the applicant: DUA16 at [26-27], [34]; DXG17 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 302 FCR 313 at [52].
The Authority had been aware that the applicant was assisted by an unregistered Migration Agent at the interview with the Applicant and acknowledged at [26] of the decision record that the applicant should be interviewed by the Authority because of the advice he had relied upon. However, the Authority did not consider that those circumstances justified interviewing the applicant at [27]-[28].
The first respondent differentiates the current case from DUA16, which was "extreme" in the sense that the Authority was provided with submissions concerning a different applicant. Additionally, the applicant's current circumstances are set apart from the decision in ABT17 v Minister for Immigration and Border Protection[2020] HCA 34; (2020) 269 CLR 439 ("ABT17"), where jurisdictional error was found due to the Authority's rejection of an important claim that had been wholly or partly accepted by the delegate on the basis of the applicant's demeanour and their failure to invite the applicant to an interview.
The Court in ABT17 claimed that ordinarily, the Authority could come to a conclusion on the applicant's credit without holding an interview ([23]-[24]). The applicant did not put forward a claim that he had never been able to put his claims at the interview with the delegate and posited at CB 602, [7] that he had, in fact, had a fair opportunity to present his case. Further, the applicant did not explain why he would need an interview as opposed to presenting the new information in writing, as noted by the Authority at [27]. The second ground of judicial review must fall on the basis that the Authority's decision to not interview the applicant was not legally unreasonable.
With regard to ground three, the first respondent submits that the applicant did not squarely raise the claim that his mental health would be an impediment to relocation and that he stated he would not be safe anywhere in Pakistan. The Authority's reliance on evidence that the applicant lived in the UAE for a period of five years without familial support was plainly relevant to their assessment of the reasonableness of relocation.
The Authority did not equate the level of Pakistani health services with those available in Australia. The issue under consideration was whether it was reasonable, under s 36(2B)(a) of the Act, for the applicant to relocate within Pakistan and did not fail to consider the applicant's mental health circumstances within this assessment, despite the fact that the applicant had not specifically relied upon this claim as affecting any relocation.
Even if reasonable minds differed concerning the findings of the Tribunal at [75], this would not be enough to establish legal unreasonableness: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78], [130-131]. On this basis, ground three of the judicial review application fails.
[11]
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:
[12]
... An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
[13]
It is well established the Authority is not required to accept uncritically any and all claims made by an applicant_: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs_ [1994] FCA 1253; (1994) 52 FCR 437 at 451.
Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs(1994) 34 ALD 347 at 348.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li ("Li")[2013] HCA 18; (2013) 297 ALR 225 at [28], or where a decision has been made that lacks an "evident and intelligible justification": Li at [76]. The test for unreasonableness is "stringent" and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton[2016] FCAFC 11 at [11], Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
[14]
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
[15]
Ground one is a complaint of legal unreasonableness based on the fact that the Authority did not provide more time for the applicant to provide information that had been requested from him. The Court accepts the submission of the respondent that although additional time was requested by the applicant's then-legal representative, who had come into the matter late, the Authority had no discretion to extend the 14-day time period under s 473DF(2) of the Act. The Court notes that the Authority advised the legal representative on 10 May 2021 that it would not make a decision until 14 May 2021 and any information received before that date may be considered subject to meeting the requirements of the Act. No further information was received. The Authority determined to make its decision based on the information that was before it.
The Court does not accept that the decision was legally unreasonable. The 14-day time period was proscribed in s 473DF(2) of the Act and reg 4.42(b)(ii) of the Regulations. The Authority had no power to extend that time frame. The Court accepts that the power to proceed under s 473DF(4) of the Act is subject to legal reasonableness, however the Authority specifically indicated that it would consider material received after the expiry of the 14 day time limit as it would not make a decision until 14 May, some 3 days after the 14 day time limit expired. The Court accepts the first respondent's submission that acting in a legally reasonable way does not require the Authority to act in a manner favourable to the applicant. Ground one has no merit.
[16]
Ground two is a complaint that the Authority acted in a legally unreasonable manner in not interviewing the applicant.
The relevant statutory scheme the Authority operated under is set out in Division 3 of Part 7AA of the Act. Section 473DB of the Act stipulates that the Authority must conduct a review without accepting or requesting new information (s 473DB(1)(a)) and without interviewing the applicant (s 473DB (1)(b)). Any new information can only be received if the requirements of s 473DD of the Act are met, including a finding of exceptional circumstances.
The complaint in this case is the claim that the applicant was advised by an unregistered migration agent prior to attending the SHEV interview, who dissuaded the applicant from providing further information after the interview. It is asserted that given the unregistered status of the representative, it is unclear if the applicant appreciated the need to provide more detail in the SHEV interview or afterwards.
At CB 197, there is a copy of a file note of a telephone conversation with the applicant and a member of the Department dated 21 September 2018. That file note records that the applicant was advised that his agent was unregistered. He was advised that the SHEV interview could be rescheduled, but the applicant confirmed he wished to proceed anyway and that his lawyer would be unable to provide assistance with the interview.
In circumstances where the applicant could have sought to reschedule his SHEV interview but determined not to, the Court is not satisfied there was any requirement on the Authority to interview the applicant.
In coming to this conclusion, the Court is mindful of the exhortation contained within s 473DB of the Act not to interview applicants and for the review to take place on the papers. The applicant was invited in writing to provide further information but did not do so. The Court considers there to be nothing unreasonable in these circumstances for the Authority to proceed to finalise the review, noting it gave the applicant the opportunity to provide further information up until 14 May 2021 on the basis of the information before it. Ground 2 has no merit.
[17]
Ground three is a complaint that, during the complementary protection phase of consideration, the Authority did not properly engage with the applicant's circumstances when it found he could relocate within Pakistan. The applicant claims his mental health issues were not properly considered in the context of what is 'reasonable' in the sense of 'practicable'.
The Authority noted that the applicant had successfully spent five years in the UAE prior to coming to Australia in 2013. However, the Court accepts this was before the applicant's documented mental health issues and is not necessarily determinative of the applicant's capacity to live independently, without family support, in Pakistan.
The Court notes the Tribunal did identify that the health system in Pakistan is not equivalent to that of Australia. The Authority concluded that within one of the large cities, such as Islamabad, the applicant would be able to live without a real risk that he would suffer 'significant harm' as defined in s 36(2A) of the Act.
The Court is satisfied that the Authority was aware of and engaged with the applicant's mental health concerns, the fact he received treatment in Australia and that the health system was not as good in Pakistan. Nonetheless, in the Court's view, it was open to the Authority, based on the evidence before it, and for the reasons it gave to find that the applicant did not meet the threshold for significant harm as required by s 36(2A) of the Act. The applicant would not be subject to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. These are high thresholds to meet.
The Authority considered if the applicant would be at risk from his family or the family of his former fiancée and properly, in the Court's view, considered he was not. Ground three has no merit.
[18]
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.
Parties
Applicant/Plaintiff:
BQL21
Respondent/Defendant:
Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 540
Legislation Cited (1)
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021