DAB16 v Minister for Home Affairs

1. The appeal is dismissed.
2. The first respondent's application for costs be adjourned to a date to be fixed.
3. The issue raised on the Court's motion under s 486F of the Migration Act 1958 (Cth) be set down for hearing at a date to be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 This appeal was dismissed by an order made on 11 December 2019. Oral reasons for dismissing the appeal were delivered on that day. What follows is a written record of the reasons for judgment to substantively the same effect as the oral reasons. 2 This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA): DAB16 v Minister for Immigration & Anor [2018] FCCA 3957. 3 The appellant is a citizen of Pakistan of Hazara ethnicity. He arrived in Australia on 23 September 2012 as an "unauthorised maritime arrival". On 2 September 2015 the appellant applied for a Protection (Class XA) visa. The criteria for the grant of the visa included the alternate criteria in s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth). I will refer to them respectively as the Refugee Criterion and the Complementary Protection Criterion. They are expressed as follows: (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or … 4 The word "refugee" is defined in s 5H of the Act, as follows: (1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person: (a) in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or (b) in a case where the person does not have a nationality - is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it. 5 For the purposes of s 5H(1)(a) of the Act, a person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c) the real chance of persecution relates to all areas of a receiving country. … 6 Under the Complementary Protection Criterion, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm: s 36(2B)(a). 7 The delegate of the Minister for Immigration and Border Protection was satisfied that there was a real chance that the appellant would be persecuted by reason of his Shia religion and Hazara ethnicity if returned to his home province in Pakistan. However, the delegate concluded that the real chance of persecution did not relate to all areas of Pakistan. The delegate said that the appellant was able to relocate to Lahore in the province of Punjab. On the basis of a country report prepared by the Department of Foreign Affairs and Trade (DFAT), the delegate said that there were large Shia communities residing in Lahore and that the appellant could safely reside there. 8 By reason of those findings, the prospect of the appellant relocating to Lahore was a live issue before the Authority in the exercise of its review functions under the Pt 7AA of the Act. 9 The Authority had before it the material referred to by the Department under s 473CB of the Act, including a record of interview in which the appellant had asserted before the delegate that there were no Shia Hazaras residing in Lahore. The Authority also had before it a report prepared by DFAT titled "DFAT Thematic Report Shias in Pakistan 15 January 2016". Paragraph [2.9] states: Shias are represented across most of Pakistan's ethnic, linguistic and tribal groups. Of these, Hazaras are a predominantly Shia ethnic group, mostly of the Twelver Sect. Hazaras are believed to have settled in Afghanistan's central highlands in the 13th century and have successively migrated to Pakistan. There are up to 900,000 Hazaras in Pakistan. Approximately 700,000 Hazaras live in and around Quetta, mostly in their own communities in Hazara Town (also known as Brewery Road) and along Alamdar Road towards Mehrabad. An estimated 1200-1500 Hazaras are integrated with the broader Shia community in Parachinar, Kurram Agency. There are also Hazara communities in large urban areas including Karachi (up to 15,000), Lahore, Multan, Islamabad and Peshawar. 10 Like the delegate, the Authority was satisfied that if returned to his hometown, the appellant would face a real chance of serious harm from anti-Shia militia "for the combined essential and significant reasons of his race as a Hazara and his religion as a Shia". The Authority then turned to consider whether the real chance of persecution applied in all areas of Pakistan. 11 The Authority noted that the appellant had claimed that he would not be safe anywhere in Pakistan as a Hazara Shia because the militant groups were operating everywhere in the country. The Authority said: 29. According to the most recent DFAT thematic report, Sunnis and Shias are generally more integrated in Lahore and that the level of generalised and sectarian violence is lower in Punjab than other parts of Pakistan. No Shia deaths from sectarian violence were reported in Lahore during 2015. The latest DFAT reports states too under the Pakistan Constitution, Pakistani citizens are free to live anywhere in the country. I am satisfied the applicant could travel to and reside in Lahore. 30. On the basis of the evidence before me, I am not satisfied the applicant has a well-founded fear of persecution from [anti-Shia groups] or from the Pakistan authorities for any of the reasons in s 5J(1)(a), now or in the reasonably foreseeable future if he relocated to live in Lahore. 12 To similar effect, the Authority said in relation to the Complementary Protection Criterion (at [42]): I am mindful of the country information discussed above regarding the general security situation in Lahore and the applicant's acknowledgement that the TPB interview that Lahore is generally safe, because it is the home city of the Prime Minister of Pakistan. I accept the applicant will be identifiable as a Hazara Shia because of his physical features, but the country information quoted above that there is a population of Hazaras in Lahore does not support his claim no Hazaras live in that city. Having regard to that country information and the personal circumstances of the applicant and his fiancée, I'm satisfied it is reasonable for the applicant relocate to Lahore for the purposes of s 36(2B). 13 The appellant was legally represented in the proceedings before the primary judge as he was on this appeal. The grounds for judicial review took issue with the findings of the Authority in relation to the security situation in Lahore, particularly its finding that there was a population of Hazara Shias living there. 14 The amended originating application recited several pages of "grounds" taking the form of submissions on the facts and law. Under the heading "Introduction of New Evidence", the amended originating application stated: The grounds relied upon in this amended application seek to introduce some new evidence in addition to the evidence which was before the Respondents. We are not seeking a review of the merits but to establish that the critical facts, upon which the decision was based, did not exist. 15 It was the appellant's case in the Court below, as on this appeal, that the critical fact that there was a population of Hazara Shias residing in Lahore did not exist and that, accordingly, the DFAT Thematic Report upon which the Authority had relied was factually incorrect. Counsel for the appellant submitted that it was not open to the Authority to rely on the DFAT Thematic Report because it was not "probative". The DFAT Thematic Report was said to lack the quality of probative evidence both because it was factually incorrect and because the source of the information recited at [2.9] of the Report extracted earlier in these reasons was not identified. On appeal, it was submitted that the primary judge erred in failing to recognise that the first respondent bore an evidentiary burden in respect of the question of whether there was a population of Hazara Shias living in Lahore. It was submitted that the primary judge ought to have compelled the first respondent to adduce evidence disclosing the sources of information on which the DFAT Thematic Report was based or that otherwise the primary judge ought to have made his own findings of fact having regard to the absence of evidence adduced by the first respondent on that topic. 16 On appeal, Counsel for the appellant invited this Court to read an affidavit adduced on his behalf in the proceedings before the primary judge. It was submitted that it formed a part of this Court's role on the appeal to consider evidence that might tend to show that the DFAT Thematic Report was factually wrong. 17 It is not necessary to extract the 11 grounds of appeal here. The parties' submissions addressed the grounds by reference to three issues. 18 The first issue is whether the "veracity" of the DFAT Thematic Report was relevant to the performance of the task of the primary judge on the application for judicial review of the Authority's decision and if so, what factual findings ought to have been made in that regard. 19 The second is whether the primary judge erred in failing to determine that the first respondent bore an evidentiary burden in connection with any critical fact upon which the application for judicial review might turn. 20 The third is whether the primary judge erred in failing to find that the Authority had failed to have regard to the appellant's Shia religion and Hazara ethnicity when concluding that it was reasonable for him to relocate to another part of Pakistan. 21 The grounds also involve a proposition that the primary judge engaged in reasoning that was legally unreasonable in relation to the attribution of the meaning of the word "community" as it appears in a report to which the appellant had referred.