DEO19 v Minister for Immigration, Citizenship, Multicultural Affairs and Migrant Services

Federal Court of Australia|2022-05-24|Before: Mr J, Cheeseman J

The appeal be allowed.
The orders made by the Federal Circuit Court on 14 December 2020 be set aside and, in their place, the following orders be made: (a) A writ of certiorari be issued quashing the purported decision of the Second Respondent dated 16 July 2019; (b) An order by way of mandamus that the Second Respondent reconsider the application for review in accordance with law.
The First Respondent pay the Appellant's costs of and incidental to the appeal and the proceedings in the Federal Circuit Court of Australia below. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The appellant is a citizen of Pakistan who arrived in Australia in June 2013 as an unauthorised maritime arrival. He left behind his wife and children. In 2016, the appellant applied for a safe haven enterprise visa (SHEV). A SHEV is a protection visa: s 35A of the Migration Act 1958 (Cth). To be granted a SHEV, an applicant must demonstrate that they satisfy either the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act. 2 This is an appeal from a decision of the Federal Circuit Court (now the Federal Circuit and Family Court of Australia) by which the primary judge dismissed an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority. The Authority affirmed the decision of the delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse to grant the appellant a SHEV. 3 The appellant raises two grounds of appeal which in substance raise a single issue. The issue is whether the Authority was required, when assessing the reasonableness of the appellant relocating within Pakistan for the purpose of s 36(2B)(a) of the Act, to consider the impact of relocating on the appellant's family. The issue arises in circumstances where the appellant accepts that he did not make an express submission to the effect that it was unreasonable for him to relocate because of the impact on his family but says that a claim to that effect arises squarely on the material before the Authority and in the context of the express findings otherwise made by the Authority. 4 For the reasons that follow, the appeal is allowed and the application for review will be remitted to the Authority to be determined in accordance with the law.

BACKGROUND 5 The nature of the present application and the grounds of review require some understanding of the geography as well as ethnic and religious composition of the receiving country, in this case, Pakistan. 6 Pakistan is a Muslim majority state comprising of four provinces; Baluchistan, Khyber Pakhtunkhwa, Punjab and Sindh. Quetta, Peshawar, Lahore and Karachi, respectively, are the capitals of each of the provinces. Islamabad is the national capital of Pakistan. 7 The country is ethnically and linguistically diverse. Punjabis form the largest ethnic group followed by Pashtuns. There are various other ethnic groups that compose the population including Sindhis, Muhajirs, Balochis and others. Hazaras are an ethnic minority in Pakistan, comprising less than one percent of the population. 8 There are a number of sub-groups which comprise the Muslim population of Pakistan. The majority of the Muslim population adhere to the Sunni branch of Islam. Shia Muslims are estimated to comprise between 10 to 15 percent of that population. There are a number of other sub-groups of Islam as well as other religious groups which are represented in the population however it is not necessary to identify those groups for present purposes. 9 The appellant is a member of the Pashtun ethnic group and the Yousufzay (also referred to as Yusufzai) sub-tribe. He was born in Quetta, the capital of the province of Baluchistan (also referred to as Balochistan) and lived there with his wife and two children. The appellant's wife is a member of the Hazara ethnic group. The appellant and his family are Shia Muslims. 10 The appellant's claims for protection in his application were made in: (1) a statutory declaration submitted with his application; (2) in an interview conducted with an officer of the Department of Immigration, Citizenship and Multicultural Affairs on 4 June 2019; and (3) in a post-interview written submission submitted by the appellant's migration agent to the Department on 12 June 2019. In essence, the appellant claimed to fear harm because of his religion as a Shia Muslim and, relatedly, because of his profession as a jeweller, based on alleged adverse attention from fundamentalist Sunni Muslims in Quetta, where the appellant lived. 11 On 17 June 2019, a delegate of the Minister refused the appellant's SHEV application on the basis that the appellant did not face a significant risk of harm in Pakistan as it was reasonable for him to relocate to Islamabad or Karachi. The appellant subsequently sought review of the delegate's decision by the Authority. 12 On 16 July 2019, the Authority affirmed the delegate's decision (R).

Authority's decision 13 The Authority summarised the appellant's claims for protection at R[5], relevantly noting that the appellant claimed to be "unable to relocate to another part of Pakistan for a number of given reasons".

Refugee assessment - well-founded fear of persecution 14 The Authority first considered whether the appellant satisfied the requirements of the definition of a refugee in s 5H(1) of the Act and by extension, whether he had a well-founded fear of persecution: s 5J(1). 15 The Authority accepted that the appellant was a Shia Muslim who was born in a Hazara dominated area of Quetta (R[10]) and had resided there for most of his life prior to arriving in Australia. The Authority also accepted that the appellant's wife was Hazara and that the appellant's wife and children have the physical appearance of being Hazara: R[13] and [24]. 16 The appellant claimed, and the Authority accepted on the basis of country information including from the Department of Foreign Affairs and Trade (DFAT) and the South Asian Terrorism Portal, that the security situation in Quetta had deteriorated over time, including for Hazara Shias, and Shias generally: R[15]. The Authority appeared to accept that the risk in Pakistan to Hazaras is higher than the risk to other Shias as a result of Hazaras being more easily identifiable as Shias by their ethnicity: R[24]. However, the Authority was not satisfied that the appellant was ever adversely targeted or was of interest to anti-Shia militant groups or anybody else due to being mistaken as Hazara or being seen to be affiliated with Hazaras: R[24]. 17 The Authority found, based on country information, that the security conditions across Pakistan had improved such that there was a decline in the number of attacks on Shias across Pakistan, and in Islamabad and Karachi, in particular: R[23], [25] - [28]. Although the Authority accepted that the appellant would face a real risk of significant harm in his home city of Quetta (R[17], [19]), it determined that the appellant would not face a real chance of any harm in Islamabad or Karachi, and that he could safely and lawfully access Islamabad and Karachi through the international airports in those cities: R[36]. 18 In considering the possibility of the appellant operating his jewellery business in another city, the Authority said R[33] (emphasis added): The applicant also claimed he would be unable to operate a business in another city and that this is because he is not aware of members of his very small community of Yusufzai jewellers living in other cities. It was submitted that only Yusufzai in Quetta are Shia and Yusufzai elsewhere are Sunnis. DFAT information indicates that Shias do not suffer any greater economic disadvantage than other groups in Pakistan and that migrant Shia groups in cities such as Islamabad are known to have often owned or worked for small businesses. DFAT in 2019 indicated it had no evidence of systematic discrimination against Shias in gaining employment and overall assessed that Shias who were not Hazara or Turi generally did not face discrimination based on their religious affiliation when seeking employment. DFAT has in recent years suggested that Hazaras in Pakistan may face low level societal discrimination that reflects individual prejudice. However, the country information including from DFAT does not indicate that Hazara affiliates may face any such discrimination in cities such as Islamabad or Karachi. Large urban centres such as Karachi and Islamabad are home to mixed ethnic and religious communities and offer better opportunities for employment, access to services and state protection than rural or smaller urban areas. DFAT has indicated that there are large Shia communities in Islamabad and Karachi. On the evidence, including the applicant's employment history and experiences including his proven ability to engage in business transactions in Karachi despite the absence of community support, I do not accept that he would be unable to operate a business in another city, for this reason. There is no credible evidence before me to suggest he would otherwise face problems with accessing employment, setting up a business, or sourcing accommodation in Karachi or Islamabad. I have extracted this paragraph in full and added emphasis to that part of it that the primary judge relied on to find that the Authority had not erred because it had relevantly considered the impact on the appellant's family. 19 The Authority was not satisfied that the real chance of persecution, in respect of which it had made findings, related to all areas of Pakistan and was therefore not satisfied that the appellant had established a well-founded risk of persecution in Pakistan: R[37] - [38].

Refugee - conclusion 20 The Authority was not satisfied that the appellant faced, in the reasonably foreseeable future, a real chance of any harm in Islamabad or Karachi and therefore was not satisfied that the appellant met the requirements of s 36(2)(a) of the Act (R[39]) which requires that the real chance of persecution relates to all areas of the receiving country: s 5J(1)(c). That is, the Authority was not satisfied that the appellant met the definition of refugee in s 5H(1) of the Act.

Complimentary protection assessment 21 The Authority then moved to consider whether the appellant satisfied the complementary protection criterion set out in s 36(2)(aa) of the Act. The Authority outlined the criteria for satisfaction that Australia owes protection obligations, namely that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia, there is a real risk that the person will suffer significant harm: R[40].

Real risk of significant harm 22 After setting out the relevant provisions in respect of "significant harm" (s 36(2A)) and reasonableness of relocation (s 36(2B)(a)), the Authority referred to its finding that there was not a real chance of harm for the appellant in Islamabad or Karachi and made a similar finding in its assessment of whether there was a real risk that the appellant would suffer "significant harm" for the purpose of s 36(2)(aa): R[43]. 23 Having found that the appellant would not face a real risk of significant harm in either Islamabad or Karachi, the Authority then turned to consider the reasonableness of relocation in accordance with s 36(2B)(a). As noted by the Authority at the outset, the appellant claimed to be "unable to relocate to another part of Pakistan for a number of given reasons": R[5]. 24 The appellant submitted, amongst other things, that it would be difficult for him to relocate within Pakistan due to his lack of any family outside of Quetta. The Authority concluded that it would be reasonable for the appellant to relocate to Karachi or Islamabad. 25 The Authority stated in respect of the appellant's family at R[47] (emphasis added): [The appellant's] agent seemed to separately suggest that having lived away from his family for many years while in Australia, it would not be reasonable for the [appellant] to be expected to relocate elsewhere without his family members in Pakistan, given also that in Pakistan one must have their community around them. I note his long term separation from his family members was indicated as an underlying factor for his mental health conditions and therefore this arrangement would also likely be conducive to improving those symptoms. There is no credible evidence before me to suggest that the [appellant's] family would be precluded from joining him, either immediately or after he has established himself in Islamabad or Karachi. and at R[49]: The [appellant] claimed that travelling between cities is dangerous and Shias can never feel safe on buses as their identity cards are checked to see if they are Shia. I consider the [appellant] can safely travel by plane to Islamabad or Karachi noting he has used this mode of transport in the past, as could his family if required. 26 I interpolate to note that the submission that it was unreasonable for the appellant to relocate elsewhere in Pakistan without his family carries with it, an implicit submission that there is an impediment to his family relocating outside of Quetta. The Authority's consideration of this issue is confined to whether the appellant's family would be "precluded" from joining him and the mode of transport available to his family to join him. The Authority does not, in the context of its consideration of the reasonableness of relocating, consider the impact of relocation on the appellant's family, who, unlike the appellant, are Hazaras and are identifiable as Hazaras, physically and by their language. 27 In conclusion, the Authority, relying on s 36(2B)(a) of the Act, was satisfied that it was reasonable for the appellant to relocate to Islamabad or Karachi where he would not face a real risk of significant harm: R[50]. 28 On 18 August 2019, the appellant filed an application in the Circuit Court seeking judicial review of the Authority's decision.

The primary judge's reasons 29 The grounds of review before the Circuit Court were substantially similar to the grounds of appeal in this Court. In reasons for judgment delivered ex tempore on 14 December 2020, the primary judge first recounted the reasons of the Authority in some detail before moving to consider the grounds of review. 30 The primary judge accepted the Minister's submission that no claim was made, or otherwise arose, to the effect that it would be unreasonable for the appellant to relocate within Pakistan due to the risk of violence or societal discrimination his wife and children may face (J[67]). The primary judge found instead that the Authority's reasons reflected a real and meaningful engagement with the appellant's claims and evidence: J[60]. The primary judge concluded that the Authority did take into account the practical reasonableness for the appellant and his family to relocate to Islamabad or Karachi (J[61] - [63]) and that this was apparent from the Authority's reference to "Hazara affiliates" at R[33], J[64]. The primary judge referred to the Authority's consideration of the appellant's separation from his family for an extended period of time in the context of finding that it was reasonably practical for the appellant to relocate in those circumstances: J[65]. 31 Ultimately, the primary judge held that there was no basis to find that the Authority failed to consider whether the appellant's family would, if they relocated, face any risk of violence or would suffer societal discrimination arising from the fact that they were Hazara and had the physical appearance of being Hazara: J[69]. The primary judge dismissed the application.

Statutory framework and principles 32 The focus of this appeal is on the principles to be applied when considering whether relocation within the country to which the non-citizen is to be returned is reasonable for the purpose of s 36(2B)(a) of the Act. 33 An applicant for a protection visa will not satisfy the complementary protection criterion if, relevantly, it would be reasonable for that person to relocate to an area within their country of origin where they would not face a real risk of significant harm: s 36(2B)(a). This enquiry involves a two-step test: DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177; (2018) 265 FCR 57 at 62 [27] (Reeves, Rangiah and Colvin JJ). First, it must be determined whether there is a location within the country of reference where an applicant will not face a real risk of significant harm. Second, if there is no real risk, it must be determined whether it would be reasonable for that applicant to relocate to the proposed site of relocation. 34 The first step and the second step involve separate inquiries. 'Reasonableness' is not confined by the same factors which govern whether there is a real risk of significant harm. Even if a decision-maker finds that a risk of harm at a site of prospective relocation is not sufficient to give rise to a real risk of significant harm in the sense required by s 36(2A) of the Act, the Authority may still be required to consider whether that risk means that it would be unreasonable for an applicant to relocate to that place: MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 at [48] - [49] (Kenny J). This means that potential risks which do not rise to the level of a "real" risk, or potential harms which do not rise to the level of potential "significant" harm, may nonetheless inform the decision-maker's task in determining whether relocation would be "reasonable" in all the circumstances. 35 The principles applicable to the approach to be adopted when considering whether relocation is reasonable in the context of a complementary protection claim are well established and may be summarised as follows: (1) reasonableness is referable to what is practicable for the appellant to relocate to a region where, objectively, "there is no appreciable risk of the occurrence of the feared persecution": SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at 26 - 27 [23] (Gummow, Hayne and Crennan JJ); (2) the enquiry is fact dependent and will turn on the particular circumstances of the applicant and the impact of relocation within the receiving country: SZATV, 27 [24] (Gummow, Hayne and Crennan JJ); Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 at 328 [27] (French CJ, Hayne, Kiefel and Keane JJ); (3) a "broad brush approach" typified by general statements will be insufficient. Detailed consideration of the circumstances "on the ground" in the area proposed for relocation will be required. Likewise the circumstances of the individual taking into account the individual's strengths and weaknesses; skills; and material and family support will need to be considered in some detail: MZANX v Minister for Immigration and Border Protection [2017] FCA 307, [55] (Mortimer J); (4) assessing reasonableness is an inquisitorial task that is informed by what the applicant puts forward but is not necessarily confined to those matters: CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 156 at [10] (Jagot, Charleswroth and Snaden JJ); MZANX, [58] (Mortimer J); (5) a decision-maker is not obliged to deal with claims that do not clearly arise from the material (in the sense understood in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (Black CJ, French and Selway JJ): BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131 at [10] (Jackson J). The task is not limited to the material submitted by the applicant and extends to claims arising clearly on the decision-maker's own findings: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [26] (Collier, McKerracher and Banks-Smith JJ); (6) there are no mandatory relevant considerations applicable to the question of whether it is reasonable to relocate. Minute examination of every circumstance of the proposed relocation is not required: BDA17 at [15] (Jackson J); see also SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 at [22] (Allsop J, as his Honour then was); and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 at [110] (Robertson, Murphy and Kerr JJ); (7) a failure to consider a relevant matter going to the reasonableness of relocation can be a jurisdictional error: MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 289 ALR 541 at [19] - [20] (Flick and Jagot JJ), [38] (Yates J).

Grounds of appeal 36 The appellant raises the following grounds of appeal: 1. The primary judge erred in his Honour's construction of the reasons for the decision of the Second Respondent (Authority) dated 16 July 2019 (Decision), and in his Honour's construction of the material before the Authority, in finding that: a. the Authority was not required to consider whether the Appellant's family would be at risk of harm from violence or discrimination as an integer of whether it would be reasonable for the Appellant to relocate within Pakistan; b. the Authority's reasons reflected a real and meaningful consideration of the practicalities of relocation for the Appellant in his individual circumstances; c. the Authority's finding that Hazara 'affiliates' would not face discrimination in cities such as Islamabad and Karachi was a reference to the circumstances of the Appellant's family; and d. there was no basis to find that the Authority failed to consider whether the Appellant's family would, upon relocation, face risks of violence or societal discrimination because of being, or appearing to be, Hazara. 2. The primary judge ought to have found that: a. the Authority was required to consider whether the Appellant's family would be at risk of harm from violence or discrimination as an integer of whether it would be reasonable for the Applicant to relocate within Pakistan; b. the Authority failed to consider whether the Appellant's family would be at risk of harm from violence or discrimination as an integer of whether it would be reasonable for the Appellant to relocate within Pakistan; and c. consequently, the Decision was affected by jurisdictional error.

Submissions 37 As noted at the outset, the issue on the appeal is narrow and discrete. It may be addressed by posing two questions: (1) whether the Authority was required to consider risks of violence or discrimination faced by the appellant's family as a part of its assessment of the reasonableness of the appellant relocating in Pakistan based upon the material before the Authority and the other findings made by the Authority; and (2) if so required, whether the Authority undertook the relevant consideration. 38 In relation to first question, the appellant accepts that while he did not expressly make a claim that it would be unreasonable for his family to relocate within Pakistan due to a risk of violence or societal discrimination owing to their Hazara ethnicity, he submits that he was not required to do so, as those claims clearly arose on the material before the Authority. The appellant relies on NABE at [58] (Black CJ, French and Selway JJ), MZANX at [58] (Mortimer J) and BDA17 at [10] (Jackson J), to contend that the decision-maker's task in assessing reasonableness of relocation is an inquisitorial one, informed by what an applicant puts forward but not necessarily confined to those matters. 39 The appellant submits that, contrary to the primary judge's findings, the need to consider the impact of relocation on his family when assessing reasonableness for the purpose of s 36(2B)(a) of the Act arose in two different ways. First, from the Authority's own findings in respect of the risk posed to the appellant's wife and children by virtue of their Hazara ethnicity. Secondly, from the country information which was before the Authority. As to the first, the Authority accepted that the appellant's wife and children were Hazaras and that their physical appearance made them identifiable as Hazaras. As to the second, the appellant relies on extracts from a report of DFAT titled "Country Information Report - Pakistan (20 February 2019)" (DFAT Report) which stated that: (1) Hazaras moving out of the enclaves in which they lived faced higher risks of discrimination and violence than other Shia Muslims; (2) Hazaras outside Baluchistan tended not to live in enclaves for security reasons; (3) there were few Hazara enclaves in Karachi; and (4) Hazaras living in ethnically diverse areas still experienced discrimination and security threats. 40 Accordingly, the appellant submits that in circumstances where the Authority found that the appellant's family were Hazaras, had the physical appearance of being Hazaras and lived in a Hazara enclave, and given the DFAT Report identified societal discrimination and violence experienced by Hazaras, the Authority was required to consider the risks posed to the appellant's family when assessing the reasonableness of relocation within Pakistan. The appellant contends that no further "constructive or creative activity" was required on the Authority's part to identify this issue as one to be considered in determining the reasonableness of his relocation with his family for the purpose of s 36(2B)(a) of the Act: NABE at [58] (Black CJ, French and Selway JJ). 41 In relation to the second question, the appellant submits that the primary judge erred in not finding that the Authority had failed to consider the impact of relocation on the appellant's family. The appellant's submission is framed in two ways. 42 First, the appellant submits that, contrary to the conclusion drawn by the primary judge, the phrase "Hazara affiliates" at R[33] cannot be inferred to be a reference to the appellant's "family affiliates". To draw that inference would be, in the appellant's submission, inconsistent with the balance of the Authority's reasons. On this point, the appellant refers to the Authority's language at R[14] where it accepted that the appellant "may have been viewed as affiliated with the Hazara community to locals" and at R[24] where the Authority found that it was not satisfied that the appellant was ever targeted "due to be being mistaken as Hazara or seen as affiliated with Hazaras" or that he would be at risk because he was "perceived as affiliated with a Hazara community". On that basis, the appellant submits that the Authority's reasons, read as a whole, demonstrate that when the Authority spoke about "affiliation" with Hazaras, it consistently spoke to risks to non-Hazaras affiliated or associated with Hazaras, rather than to the risk occasioned by being Hazara. 43 Next, the appellant argues that the references to the DFAT country information in the context of other aspects of the Authority's review should not be taken to suggest that the Authority understood that it was required to consider the impact of violence or discrimination on the appellant's family as a relevant aspect of its consideration of reasonableness for the purpose of s 36(2B)(a) of the Act. The appellant points to the absence of any reference in the Authority's reasons which would indicate that it understood that the sections of the DFAT Report concerning Hazaras were relevant to its assessment of whether the appellant's family could reasonably relocate to join him in either Islamabad or Karachi. In support of this proposition the appellant relies on BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6; (2019) 268 FCR 114 at [63] (Griffiths, Gleeson and Colvin JJ); AWG18 v Minister for Home Affairs [2020] FCA 744 at [123] and [130] (Greenwood J), which provide that merely considering country information in a particular context does not mean that it has been considered for all purposes to which it was relevant. The appellant further submits that if the Authority had in fact taken this factor into account, it would have expressly referred to and considered the risks to Hazaras - even if it had then proceeded to find that those risks did not render relocation unreasonable: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [52] (Kenny, Griffiths and Mortimer JJ); AWG18 at [144] (Greenwood J). 44 The Minister opposes the appellant's application on three bases. First, the Minister contends that the appellant's case before the Authority was based upon risks arising by reason of his being a Shia Muslim and a jeweller. The Minister submits that the appellant's failure to mention his family's Hazara connections, except by reference to his ability to integrate with Hazara communities, sits uneasily with the formulation presented on appeal which suggests that the ethnicity of the appellant's wife and children formed an identifiable and necessary element of his case. Secondly, the Minister argues that at no point did the appellant expressly make a claim that he could not relocate because his family may be exposed to societal discrimination or violence by reason of their ethnicity. The Minister submits that the appellant's focus throughout was on the difficulties that he personally would face. Thirdly, the Minister submits that, in any event, the Authority did consider the potential difficulties that may arise for Hazaras. The Minister refers to three findings in this respect: (1) that Shia Muslims, (which the Minister submits would include Hazaras) were living in mixed ethnic and religious communities (and Shia and Sunni Muslims were generally well integrated); (2) that being perceived to be affiliated with Hazara family members would not pose problems in cities such as Karachi or Islamabad; and (3) that the Authority accepted that Hazaras might face some individual discrimination, but not any discrimination beyond individual prejudice. 45 The Minister submits that the Authority's reasons, fairly read, addressed the issue of the appellant's Hazara connections in the appropriate context in which they arose and by reference to the appellant's own claims. As to the appellant's submissions regarding the DFAT country information, the Minister argues that the DFAT Report is consistent with the nature of the Authority's findings and that most of the information contained in the report related to the analysis of risks that arose for Hazaras in Quetta and Baluchistan more generally. The Minister submits the report makes clear "that although risks remained for Hazara[s], urban centres in other parts of the country were relatively safe, [and] were places that the Hazara[s] sought to relocate to and when there the Hazara[s] faced at best individual rather than systematic discrimination."

Consideration 46 The appellant's grounds of appeal raise in effect two questions in relation to a single issue, being: (1) Whether a claim arose squarely on the material before the Authority to the effect that the appellant's wife and children faced a risk of societal discrimination and violence if required to relocate within Pakistan? (2) If a claim in the nature of (1) above arose, did the Authority fail to consider the risk to the appellant's family in the context of its assessment of reasonableness of relocation for the purpose of s 36(2B)(a) of the Act. 47 I am satisfied that each of these questions should be answered in the affirmative for the reasons that follow. I am satisfied that the primary judge erred in finding to the contrary. 48 The issue arises in respect of the second of the steps necessary for the evaluation required under s 36(2B)(a) of the Act, namely, if there is no real risk for the appellant, is it reasonable for the appellant to relocate as proposed: DFE16 at [27] (Reeves, Rangiah and Colvin JJ). 49 The authorities establish that the Authority is required to assess in a real and practical sense what will happen to an individual and his or her family if they were to relocate within the country of origin. The task is, in the statutory context, an inquisitorial one: NABE at [58] (Black CJ, French and Selway JJ); MZANX at [58] (Mortimer J); BDA17 at [10] (Jackson J). It requires the decision-maker to form a state of satisfaction on the basis of all the material before them, informed by what the appellant put forward but not necessarily confined to those matters: MZANX at [58] (Mortimer J); AYY17 at [26] (Collier, McKerracher and Banks-Smith JJ); CSZ16 at [10] (Jagot, Charlesworth and Snaden JJ). 50 The difference between the parties in the appeal was nuanced. The appellant's counsel accepted unequivocally from the outset that the appellant never stated in terms that risks of violence or discrimination faced by his family were a reason, or part of the reason, why it would be unreasonable for him to relocate within Pakistan. The question on appeal was whether nonetheless, the Authority was required to consider the impact of relocating to Karachi or Islamabad on the appellant's wife and children in circumstances where that issue clearly arose from the material before the Authority and in light of its other findings. In my view, there was credible evidence that was accepted and relied on by the Authority that required it to consider if the appellant's wife and children would be at risk of harm from societal discrimination and violence as a material consideration in determining the reasonableness of the appellant relocating to Karachi or Islamabad, for the purpose of s 36(2B)(a) of the Act. I am satisfied that the primary judge erred in finding to the contrary. 51 The Authority found that the appellant's wife and his children were of Hazara appearance. The fact that Hazaras have a Eurasian appearance and are visibly distinct from other ethnic groups in Pakistan is confirmed by the DFAT Report. The delegate records the appellant's submission that his wife is a Hazara and only speaks Hazaragi and Farsi and that his children look like other Hazara children and only speak Farsi. 52 The Authority also found that the appellant came from a Hazara dominated area in Quetta, where his wife and children continued to reside. The Authority had before it the DFAT Report that contained the following salient points relating to the Hazara from that area, and more generally. First, most Hazaras live in enclaves in Quetta as a result of the adverse security situation in Balochistan. Second, smaller but significant populations of Hazaras reside in major urban centres such as Lahore, Karachi and Islamabad, where they tend not to live in enclaves to reduce the risk of ethnic profiling, discrimination and attack. Third, whilst living in ethnically diverse locations such as Karachi increases security, Hazaras still experience societal discrimination and security threats. Fourth, DFAT assessed that outside of the Quetta enclaves, Hazaras faced a moderate risk of societal discrimination, arising from individual prejudice rather than systematic and/or formal official discrimination. Fifth, DFAT assessed that Hazaras faced a high risk of violence from sectarian militants because of their religious beliefs and were at a higher risk than other Shia due to their distinct appearance and segregation. Sixth, security measures taken in enclaves mitigated the risk of violence, but Hazaras moving out of the enclaves, both in and out of Balochistan, face a high risk of societal discrimination and violence. 53 In assessing the reasonableness of relocation for the purpose of s 36(2B)(a) of the Act, the Authority repeatedly focussed on the appellant personally and did not consider whether the impact of relocating with his family who unlike him were Hazara, and identifiable as such, rendered it unreasonable for him to relocate. That is particularly evident in the following parts of the Authority's reasons. 54 The Authority accepted that it was possible the appellant's language, place of residence, religion, activities as well as his wife and children's ethnicity made him appear in the local community as a "Hazara affiliate", but was not satisfied that he was ever targeted by any anti-Shia groups or anyone on the basis that he was mistakenly identified as Hazara or because he was affiliated with the Hazara community: R[24]. 55 On the issue of relocation, the Authority was also not satisfied that, if returned and thereafter relocated to Islamabad or Karachi, the appellant would be targeted on the basis that he was mistakenly identified as Hazara or because he was affiliated with the Hazara community. The Authority continued at R[24]: Although his wife is Hazara and his children have Hazara features, the evidence before me does not suggest that he, as a Qandhari Pashtun Yusufzai, would face a real chance of any harm due to his family members' ethnicity or for living among other Hazaras, in Karachi or Islamabad. I also note that in 2019 DFAT indicated Hazaras in urban centres outside Quetta tended not to live in enclaves and that there are few such enclaves in Karachi nor did the applicant claim to reside or affiliate with other Hazaras on his multiple trips to Karachi previously. DFAT indicates that large Shi'a communities live in urban centres and ethnically and religiously diverse populations which offer a degree of anonymity. This includes Islamabad, which has a population of around two million people and Karachi, which has a population of over 20 million people. The country information does not support that the fact that the applicant being from Quetta or having a Farsi or Hazara accent or perceived as affiliated with a Hazara community members in those cities, would pose any problems to him in Islamabad or Karachi and I am not satisfied this would be the case. 56 The Authority continued in the context of assessing the appellant's employment prospects in Karachi or Islamabad at R[33]: DFAT in 2019 indicated it had no evidence of systematic discrimination against Shias in gaining employment and overall assessed that Shias who were not Hazara or Turi generally did not face discrimination based on their religious affiliation when seeking employment. DFAT has in recent years suggested that Hazaras in Pakistan may face low level societal discrimination that reflects individual prejudice. However, the country information including from DFAT does not indicate that Hazara affiliates may face any such discrimination in cities such as Islamabad or Karachi. 57 The primary judge was wrong to conclude at J[64] that the reference to "Hazara affiliates" (at R[33]) was "clearly" a reference that included "the [appellant's] family affiliates" for the following reasons. First, as a matter of textual analysis the appellant's family are Hazara - they are not Hazara affiliates as that phrase was used in context by the Authority. Secondly, the phrase "Hazara affiliates" as it was used by the Authority, when read in context, is a reference to persons such as the appellant, who are not Hazara but are affiliated with Hazaras. In the appellant's case, his affiliation manifests through his familial connection with his wife and children; his fluency in the languages used by the Hazara; the fact that he lived among the Hazara in a known enclave, shared the religious beliefs of the Hazara and consorted with Hazaras. 58 Bearing in mind that the Authority's decision must be read fairly and in context and not with an eye keenly attuned to the detection of error, it is clear that the Authority was concerned, when dealing with the issue of the reasonableness of relocation, with the potential for discrimination against the appellant as a person who might be mistaken as a Hazara because he was a Hazara affiliate. The Authority did not have regard to the reasonableness of the appellant relocating with his wife and children who were readily recognisable as Hazara, and as such, according to DFAT, faced a high risk of societal discrimination and violence if they moved out of the Quetta enclave, including by relocating to Karachi or Islamabad. That was so notwithstanding that the Authority clearly acted on the assumption that it was reasonable for the appellant to relocate with his family. The Authority found that there was no credible evidence that the appellant's family would be precluded from joining him in Islamabad or Karachi and could safely travel by plane if required: R[47], R[49]. The Authority's reasons, read fairly and as a whole, do not address the impact on the appellant's family of relocating notwithstanding that the Authority assumes that the family will likely relocate and implicitly recognises that different considerations apply to the family as Hazaras, who are recognisable as such, than apply to the appellant. Insofar as the primary judge found that the Authority's reasons reflected the requisite real and meaningful consideration of this issue, I am satisfied that the primary judge erred. 59 An active intellectual engagement with the question of the reasonableness of the appellant's relocation within Pakistan required the Authority to consider the impact of its own specific findings as to the Hazara ethnicity of the appellant's wife and children (including those features of appearance and language which made them recognisable as Hazaras) in the context of the DFAT Report as to the treatment of Hazaras in Pakistan and how that would affect the reasonableness of relocation for the purpose of the evaluation required by s 36(2B)(a) of the Act. Put simply, the Authority failed to consider if the appellant's relocation with his family to Karachi or Islamabad was reasonable in light of their likely exposure to a "high risk of societal discrimination and violence", as referred to in the DFAT Report. This was a matter that was capable of having a real and practical impact on whether it was reasonable for the appellant to relocate to Karachi or Islamabad. That is particularly so in circumstances where the Authority's assessment of the reasonableness of the appellant relocating proceeded upon the basis that his family would likely accompany him and there was nothing to preclude them from joining him: R[47] and R[49]. In failing to take into account this matter in reaching a conclusion on the reasonableness of the appellant's relocation to Karachi or Islamabad, in the particular circumstances of the Authority's own findings and the materials before it, and having regard to the nature of the inquiry required by s 36(2B)(a) of the Act, I am satisfied that the Authority committed jurisdictional error: MZYPW at [19] - [20] (Flick and Jagot JJ), [38] Yates J. 60 For these reasons, the appeal should be allowed. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.

Migration Act 1958(Cth)ss 5J, 5H, 35A, 36(2), 36(2B)

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (24)