BXN16 v Minister for Immigration & Anor [2019] FCCA 2820 (24 October 2019)

Last Updated: 24 October 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXN16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2820

Catchwords: MIGRATION – Protection visa application – where Taliban targets applicant because of his political activities – where Tribunal finds that applicant would face a real chance of serious harm now or in the future if he returned to the Khyber Pakhtunkhwa – whether applicant could relocate to another area – where Tribunal finds it would be reasonable for applicant to relocate to Lahore or another urban area outside the Khyber Pakhtunkhwa – where Tribunal correctly identifies the test to be applied for internal relocation – where Tribunal fails to apply that test – where Tribunal adopts an overly narrow focus – where Tribunal fails to properly assess past and present events relevant to the evaluation of the risk of harm – where Tribunal’s decision is affected by jurisdictional error – application allowed. PRACTICE AND PROCEDURE – where applicant seeks to raise grounds of review having submitted that it was unnecessary to make submissions to Tribunal on relevant aspect of test for internal relocation – whether having made such submission, applicant should be permitted to advance ground of judicial review – whether applicant should be granted leave to amend application for judicial review so as to raise ground not raised below – applicable principles – whether expedient and in interests of justice to allow amendment – where merit of the proposed ground is an important consideration – relevance of forensic decision not to make submissions where matter is remitted – application refused.

Legislation: Federal Circuit Court Rules 2001 (Cth), r 7.01 Migration Act 1958 (Cth), ss 36, 65, 91R, 430, 474, 476

Cases cited: AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106 AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 BHB16 v Minister for Immigration and Border Protection [2018] FCAFC 42 BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 BMR17 v Minister for Immigration [2018] FCA 1250 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 CDW18 v Minister for Home Affairs [2019] FCA 270 CED15 v Minister for Immigration and Border Protection [2018] FCA 451 CID15 v Minister for Immigration and Border Protection [2017] FCA 780 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 CRI026 v The Republic of Nauru [2018] HCA 19 CRI028 v The Republic of Nauru [2018] HCA 24 CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 DAK16 v Minister for Immigration and Border Protection [2019] FCA 683 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641 DWN027 v The Republic of Nauru [2018] HCA 20 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 Minister for Immigration and Citizenship v SZMDS (2010) 240 CRL 611 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100 MZANX v Minister for Immigration and Border Protection [2017] FCA 307 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Nguyen v Minister for Home Affairs [2019] FCAFC 128 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 SZUAL v Minister for Immigration & Anor [2016] FCCA 347 WET052 v The Republic of Nauru [2018] HCA 47

Applicant:

BXN16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 323 of 2016

Judgment of:

Judge A Kelly

Hearing date:

17 September 2019

Date of Last Submission:

7 October 2019

Delivered at:

Melbourne

Delivered on:

24 October 2019

REPRESENTATION

Counsel for the Applicant:

Dr A. McBeth

Solicitors for the Applicant:

Clothier Anderson Immigration Lawyers

Counsel for the Respondents:

Ms A. Staker

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
(2) The application for leave to amend the application for judicial review so as to add proposed Ground 4 be refused.
(3) The decision of the second respondent made on 28 June 2016 be quashed.
(4) The matter be remitted to the second respondent to be reconsidered according to law.
(5) The first respondent pay the costs of the applicant fixed at $3,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE

PEG 323 of 2016

BXN16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By further amended application dated 4 September 2019, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 28 June 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
2. For the reasons which follow I have concluded that the application should be allowed. In summary, I have concluded that the decision was affected by jurisdictional error by reason that, although the Tribunal correctly identified the test for internal relocation, it did not apply that test. The Tribunal did not adopt a forward looking approach in evaluating whether the applicant could reasonably expect to face harm in the future, nor did it take into account information that was before it in undertaking that assessment. The other grounds of review have been rejected and leave to further amend the application refused.

Background

3. The background facts and history of the application were not in dispute. The applicant, a male Pakistani citizen aged 26 years, first came to Australia on 2 October 2012 holding a Student visa which expired on 17 March 2013. The applicant is of Pasthun ethnicity and Sunni Muslim faith. He was born in the Swat district of Pakistan.

Claims to protection

4. On 20 September 2013, the applicant lodged an application for a Protection (Class XA) visa. By written statement attached to his application, the applicant made the following claims in his application for protection:
   1. he was born in Kawdary, Swat district, Pakistan;
   2. in 2008, the applicant’s family was targeted by the Taliban because his father was vice president of the Awami National Party (ANP) in the Qalaqai area of the Swat District;
   100. in 2008, the applicant’s father received a letter from the Taliban warning him to discontinue his role with the ANP;
   4. after receiving the letter, in separate incidents, the applicant’s father was beaten by the commander of the local Taliban and later shot at and ambushed on his way to a local bazar;
   5. his father, who had worked in fashion in Saudi Arabia, died of a heart attack in 2008;
   6. after finishing high school, the applicant became involved with the Amman Lashkar and was appointed secretary general of the local branch of the ANP in his area;
   7. in about October 2011, the applicant also received a letter from the Taliban that threatened to target him in the same way as his father had been;
   8. the applicant subsequently received threatening phone calls, and in June 2012 he was shot at whilst walking in his village with two other members of the ANP; and
   9. he fears harm if he returns to Pakistan because the Taliban are networked throughout the country and the authorities are unable to protect him.
5. Attached to the applicant’s declaration were a series of documents, together with translations, said to be the letters containing the threats from the Taliban that had been made.

Delegate’s decision

6. On 11 March 2015, a delegate of the Minister refused to grant the application and gave reasons for so doing. The delegate accepted some of the applicant’s claims, but also had concerns in relation to others. In particular, the delegate was not satisfied that the applicant had served as secretary general of the local ANP branch or that he had been fired upon by the Taliban as claimed. The delegate also held concerns as to the applicant’s overall credibility by reason of the delay in lodging the application.
7. The delegate was satisfied of the applicant’s claim to fear harm on the ground of his political opinion, which was accepted as constituting serious harm and systemic and discriminatory conduct such as to amount to persecution within the meaning of s 91R(1)(b)-(c) of the Act.
8. The delegate then examined whether the applicant’s fear was well founded. The delegate accepted the applicant’s claims in relation to his former membership of the Defence Committee in his local village, Amman Lashkar and the ANP. The delegate also accepted that the applicant’s father had been vice president of the local branch of the ANP.
9. The delegate then examined the nature of the threat posed by the Taliban. The delegate considered that the risk of harm from the Taliban depended upon the profile of the particular visa applicant, the nature of the threat and how far it extended. The delegate examined country information in detail and found it to be clear that the focus of Taliban attacks had been on ANP leaders, as distinct from rank and file members.
10. Nonetheless, the delegate acknowledged that some rank and file members had also been killed. While expressing certain reservations as to the extent of the risk of serious harm faced by the applicant, the delegate found that he would be at risk of serious harm in the Swat district due to his ANP membership and that the applicant would not be able to seek adequate protection from Pakistani authorities.
11. The delegate examined the question of relocation in some detail, including by reference to the test as stated in SZATV v Minister for Immigration and Citizenship.^[1] The delegate had regard to the applicant’s written statement that he could not relocate to another part of Pakistan on the basis that the Taliban was networked throughout Pakistan and continued to target people, even if they moved away. The delegate considered the applicant’s statements that he did not have relatives outside his home area of Pakistan and that if he was to relocate to another area, he would not have any family support or employment prospects. The delegate also considered the applicant’s statements made in the course of his interviews as to why he could not relocate.
12. The delegate recognised that there were few legal obstacles to internal relocation within Pakistan. Further, the delegate concluded that the applicant would not be sought by the Taliban throughout Pakistan simply due to his former membership of a Defence Committee. In doing so, the delegate had regard to DFAT country information which observed that internal relocation offered a degree of anonymity and the opportunity to seek refuge from discrimination or violence by reason of Pakistan’s size and diversity. The delegate also had regard to a report, 2014 UK Home Office ‘Country Information and Guidance Pakistan Taliban’ (2014 UK report) that “persons perceived to be collaborating with Pakistani authorities or otherwise acting against the Taliban or other militant groups may be able to relocate to an area where that localised threat does not exist.”
13. The delegate concluded that having regard to the high numbers of displaced persons within Pakistan, and in particular those from the applicant’s home region, the applicant would not stand out in a large city any more than the thousands of other displaced persons from Federally Administered Tribal Areas (FATA) and Khyber Pakhtunkhwa (KPK).
14. Notably, the delegate relied on country information including that DFAT considered the current security situation in Islamabad and Lahore to be relatively free from politically motivated terrorism and sectarian violence. The delegate observed that the applicant could enter Pakistan through the international airport in Islamabad and further that the applicant had previously lived away from home, having established himself in Australia since 2012 where he had held various employment positions. The delegate also had regard to the applicant’s educational achievements and concluded that it was reasonable for the applicant to relocate to another part of Pakistan.
15. Having considered whether the applicant could relocate to an area in Pakistan where he would not have a real chance of being persecuted for a Refugee Convention reason and whether it was reasonable, in the sense of practicable, for him to safely relocate. The delegate concluded that:

. . . the applicant’s profile as a village defence committee/Amman Lashkar member and ANP member represents a localised threat only and that the applicant’s risk of serious harm would be significantly reduced if he were to relocate to another region within Pakistan.

Given the circumstances of the applicant and the available country information, I find that it would be reasonable for the applicant to consider relocation to a city such as Islamabad where I find he would face a remote rather than a real chance of persecution. I am satisfied the applicant can safely access a relocation option within Pakistan.

For those reasons, the delegate was not satisfied the applicant had a real chance of being persecuted for a Refugees Convention reason and was therefore not satisfied that his stated fear was well-founded.

16. The delegate concluded that the applicant was not a person in respect of whom Australia owed protection obligations, either as a refugee under s 36(2)(a) or by way of complementary protection under s 36(2)(aa).

Tribunal’s decision

17. On 8 April 2015, the applicant applied to the Tribunal for a review of the delegate’s decision. On 17 June 2015, the applicant appointed a migration agent to act on his behalf. On 8 March 2016, the Tribunal invited the applicant to a hearing to give evidence and present arguments relating to the issues arising on the decision under review.
18. On 30 March 2016,^[2] the applicant’s migration agent lodged a detailed submission which addressed, in detail, the question of relocation at [42]-[70]. First, it was submitted that the Tribunal should find that the Islamabad Capital Territory was not a region of Pakistan where there was no appreciable risk of the applicant’s feared harm. Secondly, it was submitted that in those circumstances it was not necessary to consider whether it was reasonable, in the sense of practicable, to expect the applicant to be sent to another region.^[3] The first of those submissions is relevant to Grounds 1 and 2 while the second is relevant to Grounds 3 and proposed Ground 4 and is considered further below.
19. On 31 March 2016, the applicant attended a hearing before the Tribunal, doing so with the assistance of his migration agent.
20. On 29 June 2016, the Tribunal notified the applicant’s migration agent of a decision made on 28 June 2016 to affirm the delegate’s decision. The Tribunal provided a statement of its reasons for doing so (Reasons).
21. The Reasons provided a statement of the background to the application including the applicant’s claims for protection, the delegate’s decision, the application for review and of the matters which transpired in the course of the Tribunal hearing: [1]-[40]. No criticism was made of these aspects of the Reasons.
22. The Tribunal identified and provided by way of annexure a statement of the independent country information that had been before it: Reasons, [41], [117]-[127]. The Tribunal’s consideration of country information is of particular relevance to proposed Ground 4.
23. The Tribunal then provided a statement of the relevant law: Reasons, [42]-[59]. Again, no criticism of that statement was made.
24. In its consideration of the applicant’s claims and evidence, the Tribunal found that the applicant would face a real chance of serious harm now or in the reasonably foreseeable future if he returned to the Kawdary area, or to the Swat or KPK generally. The Tribunal was not satisfied that the applicant would be able to avail himself of police protection in the KPK: Reasons, [69]-[70]. For those reasons, the Tribunal proceeded to address the question of relocation, which it did in detail: Reasons, [71]-[110]. I address those issues below.
25. The Tribunal ultimately found that it was reasonable for the applicant to relocate to Lahore or another urban area outside KPK and the FATA: Reasons, [109]. Accordingly, it concluded that the applicant was not a person to whom Australia owed protection obligations, and affirmed the decision to refuse to grant the visa: Reasons, [110], [114].

Procedural history

26. On 21 July 2016, the applicant filed an application in the Perth Registry of this court seeking judicial review of the Tribunal’s decision together with an affidavit to which he exhibited a copy of the Reasons. His affidavit adduced no further evidence in support of the application.
27. By a Response filed on 4 August 2016, the Minister opposed the application on the stated basis that the decision under review was not affected by jurisdictional error.
28. On 27 February 2018, orders were made transferring the matter to the Melbourne Registry of this court.
29. On 27 August 2019, the applicant filed an amended application.
30. On 4 September 2019, the applicant filed a proposed further amended application together with an affidavit deposed by his representative to which was exhibited certain country information. The affidavit and exhibits were relied upon in relation to a proposed further ground of review; namely, that the Tribunal had failed to consider the current country information in its determination of the question of relocation.

Consideration

31. The present application arises in the context that if the Tribunal’s decision was a privative clause decision^[4], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.^[5] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.^[6]
32. The applicant advanced four grounds of review, submitting that each ground was directed to error in the Tribunal’s finding that the applicant could reasonably relocate. The applicable principles were not in dispute.
33. In the context of complementary protection, the internal relocation principle is expressly prescribed by s 36(2B)(a) of the Act and provides that an applicant is not eligible for a protection visa under s 36(2B)(a) of the Act where “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.”^[7] Similarly, the reasonable relocation test under the Refugee Convention applied for the purpose of s 36(2)(a) of the Act.^[8]
34. In Minister for Immigration and Border Protection v SZSCA,^[9] the plurality described the internal relocation principle as being well-established. French CJ, Hayne, Kiefel and Keane JJ stated:

According to this principle, a person is not a refugee within the meaning of the Convention if he could avail himself of the real protection of his country of nationality by relocating to another part of that country. The connection of the principle to the definition of a refugee in the Convention, and the conditions for the principle’s application, were explained by this Court in SZATV. In that case the Tribunal refused to grant a protection visa because it determined that the visa applicant, a Ukrainian journalist who had suffered persecution for his political opinions, could relocate to another region of Ukraine, even though he might not be able to continue to work there as a journalist. The Tribunal failed to consider what might reasonably be expected of the applicant with respect to relocation, which this Court held was an error of law.

35. In CRI028 v Republic of Nauru,^[10] Gordon and Bell JJ examined the principles of internal relocation and stated:^[11]

. . . , the assessment of whether a person can relocate is not answered only by reference to the risk of harm. The assessment also requires consideration of the individual circumstances of the person, and what is practicable and reasonable for that person. As this Court said in SZATV v Minister for Immigration and Citizenship, ‘[w]hat is 'reasonable', in the sense of 'practicable', must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality’. The practical realities must be carefully considered. And, as will be explained, the particular circumstances may include the person's family situation.
As their Honours emphasised,^[12] the need to focus on whether a person could reasonably be expected to relocate to a particular location requires consideration of the applicant’s particular circumstances.

36. Accordingly, internal relocation requires consideration of whether relocation is reasonably practicable, which brings attention to the circumstances of the individual applicant and the impact which it may have upon him or her or their family.^[13] For those reasons, how a decision maker should approach the relocation will depend in part on the framework set by an applicant’s claims about why it is not safe and/or reasonable for him or her to relocate to a particular location.^[14]
37. As the parties accepted, there are essentially two limbs to the test for internal relocation: (1) is there a place within the person’s country of residence to which that person can safely relocate; (2) if so, is it reasonably practicable for him or her to do so having regard to their particular and individual circumstances.

Ground 1 – incorrect application of relocation test

38. Ground 1 reads:

The decision of the Tribunal was affected by jurisdictional error in that the Tribunal applied the incorrect test for whether it was reasonable for the applicant to relocate to another area within Pakistan.

Particulars

(a) The proper test under s36(2B) was whether the applicant faced a real risk of significant harm over and above the general population in the future if he was to relocate to Lahore.
(b) The applicant was a member, former office bearer and presumed future activist of the secular political party the Awami National Party (ANP).
(c) In focusing only on whether members of the ANP had recently been harmed in Lahore, and not on whether the applicant’s involvement in a secular political party would expose him to a real risk of significant harm in Lahore, the Tribunal applied the incorrect test.
(d) The Tribunal erred in failing to assess the risk of future harm in its relocation assessment, by relying on information that members of the ANP had not recently been harmed in Lahore, rather than assessing the risk of future harm in light of information that members of other secular political parties had recently been harmed in Lahore and that members of the ANP had been the most targeted of all the secular parties throughout Pakistan.

Ground 1 concerned the first limb of the relocation test.

Resolution

39. The applicant submitted that as part of the process of analysing relocation, the Tribunal was required to assess whether the applicant, given his profile and attributes, would face a real chance of serious harm or a real risk of significant harm in the place to which relocation was being contemplated. It was submitted that the enquiry involved a forward looking test; that is, whether the applicant could reasonably expect to face harm if he relocated to that place in the future. In this respect, counsel for the applicant correctly submitted that the question may be informed, in part, by events which had occurred in the past.^[15]
40. The focus of the applicant’s criticism under Ground 1 was that while the Tribunal accepted the applicant had been an office bearer and activist within the ANP (described as a prominent secular political party), and that he may involve himself in ANP activities upon return to Pakistan, it had found that the applicant would not face a real chance of serious harm if relocated to Lahore by reason that it had “not identified information that ANP members in Lahore are being harmed”: Reasons [86]-[87]. On that basis it was submitted that the Tribunal’s enquiry had been too narrow as the Tribunal had asked, but failed to answer, “the forward-looking question of whether the applicant may face harm in Lahore in the reasonably foreseeable future, based on information before the Tribunal that there was a pattern of violence by the Taliban throughout Pakistan towards secular parties, including the ANP, and that such violence towards secular parties had been occurring in Lahore.” The applicant identified information before the Tribunal that the Taliban was actively targeting members and supporters of secular parties, including the ANP, throughout Pakistan, including in Lahore.^[16]
41. Ms Staker of counsel for the Minister accepted that the first limb of the internal relocation test required a forward-looking test and proceeded to demonstrate that the Tribunal had, at the least, correctly posed that test in its consideration of the issue. The Tribunal had reasoned at [52]:

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

42. And upon its review of the issue of relocation the Tribunal concluded at [110] that the applicant did not face a real chance of harm whether “now or in the reasonably foreseeable future, in another part of Pakistan, such as Lahore or another urban area outside KPK and the FATA.”
43. As submissions developed before me, it became clear that Ground 1 was not concerned with whether the Tribunal had identified the correct test but rather whether it had properly applied that test. More precisely, Ground 1 concerned whether, in light of the evidence before it, the Tribunal had failed to apply the test correctly by properly informing itself of the risk of harm (by reference to past and present events), and assessing the risk of harm in the reasonably foreseeable future.
44. As described in Particular (b) of Ground 1, the applicant “was a member, former office bearer and presumed future activist of the secular political party [the ANP]”. Again, counsel for the Minister demonstrated that the Tribunal had recognised as much, including that some rank and file ANP members had been targeted by the Taliban: Reasons, [64], [87].
45. The applicant pointed to the evidence which was before the Tribunal, including the country information identified in the Reasons at [41] and the country information as summarised in the Appendix thereto. The Reasons at [41] indicate that it had paid regard to the country information that was before the delegate together with that which had been identified in the applicant’s written submission and also the country information as summarised in the Appendix to those Reasons.
46. Attention was also drawn to the country information contained in the Pakistan Institute for Peace Studies, Pakistan Security Report 2013 January 2014, (2014 PIPS report) to which the Tribunal referred. In that report, in section 3 on p. 10, Major Actors of Instability in 2013, it was stated that the Taliban was identified as being the major actor of instability which had either claimed responsibility for, or reportedly been involved in, 34 suicide attacks (out of a total of 46 such attacks) in the country in 2013, together with 117 attacks on:

. . . political leaders and workers and election related targets in 2013, killing one hundred and 84 people and injuring another 716. Such attacks by the TTP increased significantly in April and May 2013, badly affecting the election campaign of moderate and secular political parties, especially . . . ANP. . . The TTP expanded the range of its targets from security forces to political and sectarian killings, as it was found directly involved in 16 sectarian related terrorist attacks in 2013 . . .

47. Further, in section 4.4 of the 2014 PIPS report at pp. 21-22, Punjab, it was stated that as many as 38 terrorist attacks had occurred in Punjab in 2013 (being an increase from 17 in 2012). After noting that the lives of 47 persons had been claimed and that 142 others were injured, it was further stated that 15 of the attacks were “sectarian in nature” with the majority (20) of the attacks in Punjab being carried out by the Taliban and its associates. It was also reported that “Lahore and Rawalpindi witness the highest number of attacks with seven attacks reported in each city” and that the “[m]ajority of the attacks in Lahore were of sectarian nature.” The 2014 PIPS report described 81 incidents of violence in Punjab “with an alarming 170% rise compared to . . . the previous year.”
48. The 2014 PIPS report thus indicated that the Taliban’s focus had expanded beyond the military and security forces to also include political and sectarian killings. The Tribunal had relied upon that report in some respects but did not address the matters at [46]-[47] above.
49. The applicant also pointed to his written submissions as filed with the Tribunal which addressed the question of internal relocation. Attention was drawn to “the 27 March 2016 Easter Sunday bombing in Lahore – the capital of the Punjab province – which killed 70 people and wounded 300 others”. The submission proceeded to state that the day immediately after that bombing, a Taliban offshoot with cells throughout Punjab had claimed responsibility by stating that the Easter Sunday bombing “was calculated to show that they still retain the ability to strike deep into Pakistan’s heartlands, particularly Lahore.” The submission provided country information dated 28 March 2016 as supporting these propositions. Concerning the Easter Sunday bombing, the Tribunal addressed this issue at [96] and recorded its impression that the bombing had been targeted at Christians, stating:

While it accepts that the attack does suggest that the Taliban have the capacity to strike as they did, it does not accept, for the reasons already discussed, that the applicant faces a real chance of being pursued and targeted the serious harm into a large city such a (sic) Lahore, having regard to all of the circumstances and to all of the country information.

50. The applicant submitted that the Tribunal had failed to “put all of that information together” and in so failing, had adopted an overly narrow focus of the question of whether the applicant faced a risk of harm, particularly in the future. It was said that the Tribunal was, in effect, preoccupied with whether the Taliban from the Swat Valley would continue to target the applicant and pursue him to other parts of Pakistan. This focus was submitted to be too narrow as the Tribunal had to assess harm from many perspectives. The Tribunal had focussed only on harm from the perspective of Taliban from the Swat Valley tracing and pursuing the applicant, and not the broad risk of harm to him as a political activist who would resume that activity and be at risk in Lahore; which the evidence before the Tribunal indicated may occur.
51. Counsel for the Minister placed emphasis upon the Reasons at [78] where the Tribunal had stated:

. . . there is a significant population of Pashtuns in Lahore, that state protection is more available, and Taliban or other militant Sunni activities are less prevalent in Lahore. The Tribunal notes that the country information indicates that the Taliban were most active in KPK and the FATA, that urban areas in other parts of Pakistan saw relatively few attacks, and that the attacks that did occur were targeted against military or other authorities or minorities. The Tribunal is satisfied that the applicant would not be characterised in either of these categories.
While the implications of these findings are considered further below, it can be seen that the Tribunal considered the country information before it indicated that the Taliban’s targets were confined to the “military or other authorities or minorities”. This statement was at odds with the content of the 2014 PIPS report as referred to at [46]-[47] above.

52. Counsel for the Minister further submitted that when read fairly and as a whole, it was plain that the Tribunal had not focussed “only on whether members of the ANP had recently been harmed in Lahore”, but rather that the Tribunal had made a number of findings relevant to the risk of future harm to the applicant if he were to relocate to an area outside his home area, including Lahore. This conclusion was said to be supported by the Tribunal’s findings, including that:
    1. the applicant’s activities were largely confined to the local level and did not extend beyond KPK and were not at a high-profile level: Reasons, [79];
    2. it had not accepted the applicant or his family were persons of such distinction in the local Peace Committee that the Taliban would seek to harm him by pursuing him in other locations within Pakistan: Reasons, [79];
    100. the Taliban was a network of Sunni militant organisations which did not have the level of cohesion and integration to target locally known activists like the applicant outside their home regions: Reasons, [77];
    4. there was not a real chance that the Taliban would pursue the applicant outside of his general home area, or KPK, for reasons of his or his family’s activities with the ANP: Reasons, [79];
    5. country information in relation to Peace Committees demonstrated that acts of violence against committee members were limited to the locations in which they operated within the KPK region: Reasons, [80];
    6. it had not identified information demonstrating Peace Committee activists had been targeted in locations such as Lahore: Reasons, [80];
    7. it had not accepted that the Taliban would devote resources, even if they had such resources, to trace the applicant to certain large urban cities: Reasons, [83]; and
    8. it had not found the applicant would be of interest to the Taliban in other locations in Pakistan: Reasons, [88].
53. Counsel for the Minister noted that while the applicant had focussed upon the Tribunal’s statement at [87] that it had “not identified information that ANP members in Lahore are being harmed”, this statement, contrary to the applicant’s contention, did not indicate that the Tribunal had focused on a narrow enquiry of whether ANP members had been or were being harmed in the past and the present in Lahore. This was said to be so because, after stating that it had not identified information that ANP members in Lahore were being harmed, the Tribunal had found that “the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason.” The phrased so emphasised was said to contra-indicate that this had been the only reason why the Tribunal found that the applicant would not face a real risk of significant harm in Lahore: Reasons, [88]. Counsel for the Minister further submitted it was clear from a plain reading of the Reasons that, in considering internal relocation, the Tribunal had assessed the risk of future harm to the applicant.
54. I do not accept the submission that there was no indication that the Tribunal had failed properly to assess risk of future harm. Where a Tribunal has correctly identified the applicable test, the mere use of “reasonably foreseeable future” does not immunise a decision from error: SZGHS v Minister for Immigration and Citizenship;^[17] AIE15 v Minister for Immigration and Border Protection;^[18] CDW18 v Minister for Home Affairs.^[19] Nor do I accept that it is artificial to read into, or infer from, the Reasons at [87] the absence or failure by the Tribunal to consider the risk of harm in the reasonably foreseeable future. In my view, upon a fair reading of the Reasons as a whole, while it correctly identified the test to be applied, the Tribunal framed its enquiry as to the risk of harm which the applicant might face too narrowly. It addressed itself to a consideration of historical and present events without undertaking in any adequate way, the essential, predictive and forward looking, analysis of the risk which the applicant might face in the future. While the Tribunal plainly recognised that the relocation test did require consideration of the future risk of harm, in my view the Reasons confirm that this was not adequately considered.
55. I agree in the submission of counsel for the applicant that the reasoning at [78] demonstrates both the narrowness of the Tribunal’s focus and its failure to apply properly the first limb of the test of relocation by failing to have regard to the country information that was before it in assessing whether the applicant could safely relocate to Lahore. In particular, part of the reasoning at [78] was confined to the attacks upon the military (and others) and relied upon to supporting a conclusion that the Tribunal was satisfied the applicant would not be characterised as falling within these categories. To have said as much was only to exclude the applicant from categories into which he plainly did not fall. It did not entail consideration of the risks to which he might be exposed by reason of his secular and political affiliations. The available country information provided ample support for a conclusion that there had been an escalation in the incidence of violence in Lahore in which the Taliban had expanded its range of targets (i.e., beyond the military and security forces) to both political and sectarian killings.
56. The Tribunal’s failure to take account of those matters and, instead to confine itself to the identified risks of harm to the military, coupled with its conclusion that it had “not identified information that ANP members in Lahore are being harmed” supports a conclusion that it failed to properly assess past and present events that were relevant to the evaluation of a risk of harm to the applicant and to sufficiently undertake the predictive, or forward-looking, task of assessing whether the applicant was at risk of harm in the reasonably foreseeable future.
57. In my opinion, Ground 1 is made out.

Ground 2 – failure to take account of information

58. Ground 2, which was pressed as an alternative formulation of Ground 1 reads:

The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to take into account the material before it in reaching the finding that the applicant, as a member, former office bearer and presumed future activist of the secular political party the Awami National Party, did not face a real chance of serious harm or a real risk of significant harm in Lahore, or alternatively, that finding was irrational in that there was no logical connection between the evidence before the Tribunal and the inferences drawn.

Particulars

(a) The Tribunal failed to take into account information that members of other secular political parties had recently been harmed in Lahore and that members of the ANP had been the most targeted of all the secular parties throughout Pakistan.
(b) Alternatively, the finding that the applicant did not face a real chance of serious harm or real risk of significant harm in Lahore was irrational in that there was no logical connection between that finding and the evidence that members of other secular political parties had recently been harmed in Lahore and that members of the ANP had been the most targeted of all the secular parties throughout Pakistan.

By Ground 2 the applicant contended that the Tribunal failed to pay proper regard to information that was before it in finding that the applicant did not face a real chance of serious harm or a real risk of significant harm in Lahore. In particular, reliance was placed upon the information detailed at [43]-[48] above, including that ANP members had been the most targeted of all secular parties throughout Pakistan.

Resolution

59. Relevantly to Ground 2, the Tribunal found at [87] that:

. . . [it] accepts as plausible that the applicant may involve himself in ANP activities on return to Pakistan. The ANP exist across Pakistan, including in Karachi, Islamabad and Lahore. The Tribunal accepts that while there have been some killing of members of the ANP in Karachi recently, at the same time the ANP had an active branch in Lahore. Based on country information, such as that in the DFAT country reports, the tribunal considers that the applicant would be able to participate in the ANP should he choose to do so. The Tribunal has not identified information that ANP members in Lahore are being harmed, the Tribunal finds the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason. (Emphasis added)

60. By par 430(1)(b)-(d) of the Act, the Tribunal was obliged to furnish a written statement that set out its reasons for the decision, the findings made on any material questions of fact and to refer to the evidence or any other material on which those findings were based.
61. The Minister submitted that a number of well-settled principles were to be applied in relation to the complaint made under Ground 2, being that:
    1. the Tribunal is not obliged to “give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal”;^[20]
    2. the inference that the Tribunal failed to consider material may not be drawn too readily, especially where its reasons are generally comprehensive and the issue to which the relevant material goes “has at least been identified at some point”;^[21]
    100. the applicant has the onus of demonstrating that evidence has not been considered and in so doing, must not merely point to material capable of supporting that inference, but must show that this is the appropriate inference to draw having regard to all the evidence and other material before the Court;^[22]
    4. even if it can be shown that particular material was overlooked, that will not amount to jurisdictional error so long as it does not mean that the Tribunal “has not considered the applicant’s claim”’^[23]
    5. the selection of, and weight given to, country information are matters for the Tribunal.^[24]
62. Those principles were correctly identified as applying to the determination of Ground 2. To those principles may be added that jurisdictional error is not always established by demonstrating a failure to refer to relevant material.^[25] The fundamental question is the relative importance of the material to the exercise of the Tribunal’s core function of review and the seriousness of the error.^[26]
63. It was said that Ground 2 was without merit and that the applicant had not discharged the onus of demonstrating a failure to consider the evidence in circumstances where the Tribunal had relevantly:
    1. accepted that ANP leaders, as well as some rank and file members, have been targeted by the Taliban: Reasons, [65];
    2. noted that the DFAT County Information Report for Pakistan, 2016 (2016 DFAT report) indicated that the Taliban had attacked targets throughout Pakistan, including “political rivals”: Reasons, [77];
    100. had regard to information in the 2016 DFAT report that the ANP “suffered more attacks than any other political party in 2013”: Reasons, [125];
    4. accepted that the bombing in Lahore “does suggest that the Taliban have the capacity to strike as they did” and in doing so, thereby referred expressly to the applicant’s submission: Reasons, [96];
    5. more generally, had cited the 2014 PIPS report, the failure to refer to which formed the main subject of the applicant’s complaint: Reasons, [125].
64. The Minister submitted that despite those various findings, the Tribunal had not been satisfied that the applicant would face a real chance or risk of serious or significant harm if he were to relocate to Lahore, or other urban areas outside KPK or FATA. It was further submitted that the Tribunal’s reasons for this conclusion were extensive and careful. It was said that the fact that some of the material before the Tribunal might have supported a different finding from that reached was of no consequence, and that a misapprehension or failure to consider the applicant’s claims was not disclosed by the Reasons. In conclusion, the Minister submitted that the applicant had not discharged the onus of demonstrating that it should be inferred the Tribunal had failed to consider the information upon which the applicant relied.^[27]
65. The court is to adopt a cautious approach in determining whether there has been a proper, genuine or realistic consideration of a claim: BZD17 v Minister for Immigration and Border Protection.^[28] At the same time, mere advertence to a matter will not suffice, especially where there has been no, or insufficient, analysis of the matter relied upon.^[29]
66. The applicant correctly submitted that the court is entitled to take the Reasons as setting out the findings of fact which the Tribunal itself considered to be material to its decision and, by extension, that the absence of reference to relevant information may enable a court to find jurisdictional error in a given case: Minister for Immigration and Border Protection v MZYTS.^[30]
67. While country information was considered in the Reasons, in my view the finding at [87] that the applicant did not face a real chance of serious harm or a real risk of significant harm in Lahore, demonstrated the Tribunal had not considered country information such as the risk faced by members of the ANP in Lahore and in Pakistan more generally. The Tribunal found that it had “not identified information that ANP members in Lahore were being harmed”. Such a finding disregarded the information which was before it as referred to above. In particular, the Reasons at [87] confirm that the Tribunal did not have regard to the matters identified in the 2014 PIPS report: see at [45]-[48] above.
68. Further, in Appendix A to the Reasons at [125], the Tribunal did refer to the 2014 PIPS report, however, it did so in a way which did not refer at all to the targeting of secular political activists. Taken together, the Reasons at [87] and [125] support a conclusion that the Tribunal had failed to consider the evidence that members of other secular political parties had recently been harmed in Lahore or that members of the ANP had been the most targeted of all the secular parties throughout Pakistan.
69. In discharging the applicable onus, I consider that the applicant has pointed to important material that was capable of supporting an inference that the Tribunal failed to have regard to evidence that was before it and that such evidence was both relevant and important to an assessment of whether secular political activists were being targeted and killed in Lahore and so whether the applicant was at risk of harm.
70. Further, having regard to all the evidence and other material before the court, I consider that it is appropriate to infer from the absence of the reference to the relevant information in support of the finding at [87] that the Tribunal did not consider such information to be material to its consideration of that issue: compare MZYTS.^[31] The failure to refer to that information in reaching the finding at [87] is consistent with the view that the Tribunal employed a narrow framework when assessing the question of risk in the context of relocation. In particular, its reasoning was narrowly focused upon identification of the past and present risk of harm in Lahore without adequate consideration of the risk of harm in the future. This was an essential aspect of the predictive or forward-looking task that the Tribunal was required to undertake when addressing the question of relocation. The failure to employ information that informed the existence, nature and extent of the risk faced by members of secular political parties bore directly upon the Tribunal’s core function of review. The information was not of merely passing relevance but was of direct relevance to an important issue on review.
71. It follows that I consider the Tribunal’s failure to have regard to the relevant information when assessing the question of risk constitutes a constructive failure to perform its core function of review.
72. The alternative basis on which Ground 2 was pressed was that the finding that the applicant did not face a real chance of serious harm or a real risk of significant harm in Lahore was irrational; there was said to be no logical connection between this finding and the evidence referred to above that members of other secular political parties had recently been harmed in Lahore and that members of the ANP had been the most targeted of all the secular parties throughout Pakistan.
73. I accept that the test for irrationality presents a high bar. It was common ground that one of the bases on which an administrative decision may be shown to be irrational or illogical in the requisite sense is that there is no logical connection between the evidence and the inferences drawn.^[32]
74. It may also be accepted that the Tribunal’s finding that the applicant did not face a real chance of serious harm or a real risk of significant harm in Lahore was based on country information. However, to state the proposition at that level of generality distracts attention from the evidence that was before the Tribunal and in particular, that the consideration of country information in Appendix A at [125] left out of account that the 2014 PIPS report referred to the targeting of secular political activists and the level of violence in Lahore. The matters addressed in sections 3 and 4 of that report (Major Actors of Instability in 2013 and Security Landscape in 2013) expressly identified that the Taliban had expanded its range of targets from military and security forces to political and sectarian killings, and that the highest number of such attacks were witnessed in Lahore. Those matters were not addressed in the Tribunal’s summary of the country information at [125].
75. A failure to give proper, genuine and realistic consideration to the evidence which was before an administrative decision maker may support a conclusion that it was irrational or illogical in the sense necessary to establish that jurisdictional error may have been committed.^[33] The finding at [87] that the Tribunal had not identified information that ANP members in Lahore were being harmed and that, for this reason, the applicant did not face a real chance or risk of relevant harm, demonstrates that the 2014 PIPS report had not received the consideration that was required to be given to it.^[34] For those reasons, I do not accept that a logical connection between the Tribunal’s finding and the evidence on which it was based is demonstrated.^[35]
76. Ground 2 is made out.

Ground 3 – reasonable practicality of relocation

77. Ground 3 reads:

The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to ask itself the right question in assessing the reasonableness of relocation, or alternatively, failed to consider each integer of the applicant’s objections to relocation.

Particulars

(a) The applicant’s objections to relocation included that he would have difficulty obtaining work because the usual way a young man in Pakistan obtains his first employment opportunities is through family or friends and he did not have any family or friends outside his home region.
(b) The Tribunal’s consideration of the applicant’s objections to relocation failed to consider the reasons given by the applicant why relocation in his personal circumstances would be unreasonable.

• (c) The Tribunal’s consideration of the reasonableness of relocation by reference to the ability of a large Pashtun population to survive in Lahore failed to address the personal circumstances of the applicant and thus the Tribunal asked itself the wrong question.

78. Ground 3 is addressed to the second limb of the relocation test; namely, whether it was reasonably practicable for the applicant to relocate in Pakistan. In substance, the applicant contends that the Tribunal’s decision was tainted by jurisdictional error because it failed to give any or any proper consideration to one of his objections to relocation.
79. Relevantly, the applicant relied upon an objection that relocation was not reasonable since he had a lack of family or other connections outside of his home area and that this would have an impact on his ability to obtain employment. In particular, the applicant had stated:^[36]

I do not have relatives outside my home area in Pakistan. My only relatives are in Mardan, which is approximately 100km away from my home village of Kawdary. If I were to relocate away from my home area I would not have family and traditional support networks. Also I would have very few employment prospects if I were to relocate within Pakistan as the usual way a young man in Pakistan obtains his first employment opportunities is through family or friends. In a relocation scenario I would not have these connections available to me and so would be facing unemployment and, eventually, homelessness. (Emphasis added)

In effect, the applicant contended that as a young man, he would have little prospect of securing employment in Lahore as the absence of family or friends posed a cultural barrier to employment. Beyond this paragraph of his statement, no other evidence, country information or submissions were provided in support of the contention that there existed in Pakistan a cultural norm of the kind described.

80. The gravamen of the applicant’s complaint was that the Tribunal had failed to appreciate the essential nature of his objection; namely, that the absence of family or friends outside of his home area would be a reason for his difficulty in finding employment. The applicant accepted that the Tribunal had considered whether employment would be available to him if he relocated and that it had done so in light of his objection that competition for jobs in urban areas would be “too strong”: Reasons, [98]. The applicant also accepted that the Tribunal considered whether “the absence of a network of friends would be a significant fetter to the applicant’s ability to settle into a new city”: Reasons, [99]. It was also submitted that while the Tribunal had appreciated the relevance of both family and employment as factors which grounded his objection to relocation, it had failed to draw a connection between the two and so failed to consider that objection (alternatively, had failed to consider that integer of his claim). It was on this basis that the applicant submitted the Tribunal had failed to address the precise objection to relocation as detailed in his statement.

Objection to relocation

81. The applicant submitted that an analysis of the reasonableness of relocation was guided by, but not confined to, consideration of his objections and that the Tribunal was required to evaluate the reasonableness of relocation on the whole of the material before it.^[37] Further, it was submitted that, while on a fair reading of the Reasons, the Tribunal had attempted to deal in good faith with the applicant’s objections, it had misunderstood at least one of the objections and thereby failed to deal with it. The status of an applicant’s objections to relocation is thus a matter of some moment to the present application.
82. A person is excluded from the definition of refugee if it would be reasonable under all the circumstances for him or her to relocate to another part of their receiving country: SZATV.^[38] As Gummow, Hayne and Crennan JJ held, otherwise, the international community would be obliged to provide protection where that receiving country was itself able to do so.^[39] The plurality stated that the test for internal relocation did not merely require assessment of whether it was objectively reasonable, in the sense of practicable, for an applicant to relocate to an area where there was no appreciable risk of injury. Rather, their Honours held that whether relocation was reasonably practicable must also depend upon the circumstances of the particular applicant and the impact which relocation would have upon that person. By that means, their Honours did not exclude an applicant’s subjective fears of relocation from some consideration in the process of evaluation. However, the plurality acknowledged that the Convention was concerned with persecution, not living conditions in the broader sense, and endorsed the view that, whether relocation was unduly harsh was not to be judged by considering whether, in the place of relocation, the quality of life met the basic norms of civil, political or socio-economic human rights.^[40]
83. In MZANX v Minister for Immigration and Border Protection,^[41] Mortimer J endorsed the view that as concerned living standards, the humanitarian object of the Refugee Convention was to secure a reasonable measure of protection – not to procure a general ‘levelling up’ of global living standards – such that, as concerned the standards to be observed in relation to, inter alia, employment:^[42]

. . . , while lesser living standards, and indeed living standards that are far below that experienced in a Western country, will not render relocation unreasonable, it is unreasonable to expect a person to relocate to a place where she or he must exist ‘below or at least an adequate level of subsistence. . . .

. . . Standards commensurate with reasonable expectations of the local community which an applicant is expected to live would be appropriate.

It is apparent that the local living standard was considered to provide a relevant benchmark against which the issue was to be assessed.

84. It is settled that the reasonableness of relocation is a fact intensive enquiry which is not undertaken in the abstract but by reference to the circumstances of the specific applicant.^[43] It may also be accepted that the possible impact of a lack of family support in a place of proposed relocation is a factor which bears upon whether it would be reasonable, in the sense of practicable, for a person to relocate.^[44] In SZATV, Kirby J considered that in some circumstances, internal relocation may be rendered unreasonable having regard to an applicant’s age, the absence of family networks, other local support or other support mechanisms.^[45]
85. While reliance was placed upon some aspects of MZANX v Minister for Immigration and Border Protection,^[46] it is useful to consider the decision more generally. There, Mortimer J observed that a dispute as to whether all of an applicant's objections to relocation had been dealt with and considered cumulatively (and so, whether relocation was reasonable and practicable), may involve questions of the emphasis that was to be placed, and so inform the level of consideration to be expected of a decision maker, upon individual features of the particular applicant in the case at hand. Her Honour endorsed the view that the practical realities facing a person who claims to be a refugee must be carefully considered,^[47] holding that:

A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope.^[48]

Mortimer J accepted that the adoption of a broad brushed approach posed a risk that the assessment would be formulaic and removed from the relevant factual basis that applied to the individual applicant.^[49]

86. It was in this context that her Honour observed that the nature of an applicant’s claims informed the assessment required of a Tribunal. Mortimer J then addressed the proposition that a decision maker was expected to consider the framework of the reasonableness of relocation, as supplied by the applicant’s objections to the proposed relocation,^[50] and stated that it was important to recall that the reviewer’s task was to form a state of satisfaction on the basis of all of the material before the Tribunal and, in doing so, to draw on their experience and expertise. Her Honour explained that the resulting inquisitorial process undertaken by the Tribunal was not necessarily confined to those matters. For the reasons below, I consider Mortimer J was concerned to explain that while such objections may supply a framework within which the reasonable practicability of internal relocation was to be evaluated, this did not exhaust the scope of the decision-making process. I do not consider that her Honour was concerned to explore more fully the nature and status of an applicant’s objections to internal relocation.
87. The precise role that is played by objections to relocation was considered further in AHK16 v Minister for Immigration and Border Protection.^[51] There, the Full Court appears to suggest that internal relocation should not be approached through the prism of an applicant’s objections to relocation. Notably, Mortimer, Moshinsky and Thawley JJ held that the concept of objection found no “conceptual or statutory status in the statutory task of determining whether the causal element of Art 1A of the Refugees Convention is satisfied” and further, that to employ such objections as a checklist was inapt. The Full Court relied upon MZANX in reaching that conclusion. The reasoning in AHK16 accepts that such objections may supply a framework for the inquiry but does not accept that they assume further status in the process of determination.
88. In my view, the Full Court’s reasoning in AHK16 does not support the applicant’s broad submission that the Tribunal was required to address his objection to internal relocation as though it was to be equated to a claim or integer of a claim to protection. Rather, it was required to employ an objection as part of the framework within it was to consider the relevant question; namely, whether it was reasonably practicable for the applicant to relocate having regard to his individual circumstances. To approach an applicant’s objections to relocation as though they are to be equated to his or her claims to protection seems inapt and as elevating those objections in a way that would confer on them a status which the Full Court has held finds no conceptual or statutory status in the Act. The analysis required by the Act when addressing the question of the reasonable practicability of relocation is separate from that which is required when evaluating the claims on which an applicant contends that he or she is a refugee or entitled to complementary protection. Having regard to the distinct provision made by ss 36(2)(a), 36(2)(aa) and 36(2B)(a) of the Act, it seems preferable to maintain a distinction between a claim to protection and an objection to internal relocation. They are located in separate compartments in the analysis of whether a person has satisfied the criteria for the grant of a Protection visa under ss 36 and 65 of the Act. To treat an objection to relocation as being synonymous with a claim would introduce the risk of merging principles which are conceptually distinct. In my view, to do other than apply the internal relocation test in the terms in which it has been stated will only distract attention from the relevant question.^[52]

Resolution

89. Contextually, the applicant had claimed he could not relocate internally within Pakistan as he had no family or other connections beyond his immediate place of birth and that a cultural norm in his country was that young persons relied upon such familial and other connections for employment opportunities. The delegate recognised that the applicant had raised those objections. Those issues were addressed in concluding the applicant was not a refugee because safe internal relocation was both possible and reasonably practicable.
90. However, as set out above, before the Tribunal, the applicant submitted that in circumstances where the first limb of the internal relocation test was not satisfied, “it was not necessary to consider whether it was reasonable, in a sense of practicable, to expect the applicant to be sent to another region.”^[53] Instead, as concerned the question of relocation, the pre-hearing submission focussed upon country information and advanced reasons which were said to support a conclusion that the first limb of the relocation test was not met.^[54]
91. Having adopted the position that that first limb was not satisfied, the applicant was thus content to submit that it was unnecessary to advance any submissions in relation to the second limb of the test for internal relocation. Having regard to those matters, following the hearing of the application for judicial review, the court invited submissions from the parties as to how Ground 3 (and proposed Ground 4) were open to be pursued in circumstances where the affirmative submission advanced on behalf of the applicant had been that it was unnecessary to address the second limb of the internal relocation test.
92. For the applicant it was submitted that the submission made before the Tribunal did not relieve it from its obligation to address the second limb of the relocation test. It was further submitted that the Tribunal had considerable information about the applicant’s individual circumstances before it, including, but not limited to, the objections he had made to relocation in the statement attached to his Protection visa application. Those submissions, with respect, failed to confront the issue and to take up the opportunity that had been extended to explain how Ground 3 and the proposed Ground 4 were open to be pursued.
93. The Minister submitted that while the Tribunal was required to examine each of the applicant’s objections to relocation, its obligation fell to be discharged having regard to, amongst other things, the evidence and arguments that the applicant had raised on the issue. In particular:
    1. in light of the applicant’s pre-hearing submission, before the Tribunal he did not take issue with the delegate’s treatment of his objection to relocation being addressed as part of a broader enquiry rather than dealing with it expressly and separately;
    2. before the Tribunal, the applicant was afforded an opportunity to comment on relocation;
    100. following the hearing, the applicant did not press the objection to relocation any further by way of post-hearing submissions.

The Minister submitted, in effect, that it was understandable the Tribunal had dealt with the applicant’s objection in the manner it did, as it reflected the lack of emphasis being placed on it by the applicant.^[55]

94. Where a visa application has proceeded through many levels of decision-making, the court insists that, on application for judicial review, the decision must be considered in light of the basis on which it was advanced, not a basis conceived of by the applicant or their advisor after the event: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs.^[56] The correctness of that principle was recently endorsed in WET052 v The Republic of Nauru.^[57] To adapt the reasoning in DWN027 v The Republic of Nauru,^[58] on judicial review the court is entitled to be alive to the real danger of an applicant seeking to put his or her case in a way that was not put below: “and of the appellant criticising the reasoning of the decision maker in a manner that overlooks the forensic context in which the reasoning was expressed.” I consider that those principles to be of importance in the present case.
95. Once relocation had been raised, the Tribunal was required to consider both limbs of the relocation test. However, the scope of its obligation was informed by the applicant’s submissions and evidence. To adapt the observations of Black CJ and Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs,^[59] the extent of the decision-maker’s task is largely determined by the case sought to be made out by the applicant. Consequently, where material advanced by an applicant lacks detail and thus cogency, the question of fact whether relocation was reasonably practicable fell to be decided on that basis.
96. Moreover, as Thawley J observed in CED15 v Minister for Immigration and Border Protection:^[60]

The fact that the appellant was represented has some significance to the way the Tribunal could have been expected to conduct the proceeding and the way it would have read and approached submissions”.^[61]

Of course, proceedings before the Tribunal are not adversarial and the issues are not defined by pleadings; however, the Tribunal’s reasons must be read and understood on the basis of the application made to it and the way the matter was put.^[62] Each case must depend on its own circumstances. Here, it is relevant that the applicant was represented because it might be expected that the claim would have been addressed squarely, with evidence, if it was a claim which had not been dealt with in the delegate’s decision and was seen to be important and not subsumed in some other, more general, claim. It has been observed that the issue of whether an unarticulated claim arises “squarely” on the material may be more likely to arise in cases where the applicant is unrepresented.^[63]

Those observations are pertinent to the treatment of Ground 3. Here, the applicant was represented and forensic decisions had been made as to the submissions that were – and relevantly, were not – to be made.

97. I have set out the applicant’s principal submission above. The applicant also observed that in considering relocation to Lahore, the Tribunal had found that “the large Pashtun population residing in Lahore” had managed to survive displacement and been able to establish new lives for themselves there: [103]. This reasoning was said to indicate, by extension, that the applicant could likewise do so. The applicant relied upon this statement as demonstrating the generalised and inadequate nature of the Tribunal’s consideration of his particular circumstances and as supporting a conclusion of failure to deal with his claim (or an integer) and so grounding jurisdictional error.^[64]
98. The Minister submitted that Ground 3 was without merit because the Tribunal had extensively considered the applicant’s objections to relocation (and each integer of those objections), including as follows:
    1. the Tribunal noted the applicant’s claim that he was unable to relocate because he did not have relatives outside his home area [14], [37], [95], [99];
    2. the Tribunal did not accept that the absence of a network “would be a significant fetter to the applicant’s ability to settle into a new city” [99]. It was submitted that the Tribunal’s reference to the applicant’s “ability to settle into a new city” plainly included his ability to find employment and that so much was evident from the fact that, after referring to the applicant’s ability to settle into a new city, the Tribunal had found “the applicant has demonstrated his capacity to adapt and assimilate to a new environment through his experience in Australia”, where the applicant has been able to find employment. The Tribunal noted that the applicant told the Tribunal “that since he has been in Australia, he now sends money back to his family as he is working here”: [30];
    100. the Tribunal addressed the applicant’s objection that if he moved away from home, there were very few employment opportunities and that “competition for jobs is strong”: at [95], [98], [98]. The Tribunal had also noted the applicant’s language abilities, his reasonable level of education and work experience would “assist him to find employment in Pakistan” [98];
    4. the Tribunal also considered the applicant’s objections that:
       1. he would not be able to find a house if he relocated to Punjab and would face discrimination: [100];
       2. as an ANP member, he would face heightened risk in the areas of Pakistan outside the north, as the ANP was less active in those areas [101];
       3. Islamabad (Lahore) covered a small geographic area and his relocation there would be obvious [95].
99. The Tribunal correctly identified the test for internal relocation: [94]. It also recognised that in both his written application and submissions, the applicant had identified the absence of family as a factor which he relied upon as a basis for relocating and that he would have very few employment opportunities: [95]-[96]. The Tribunal considered the reasonableness of relocation to Lahore, having regard to the applicant’s background and circumstances: [97]. It recognised that the applicant was of Pashtun ethnicity and that 10% of Lahore’s population was Pashtun: [4], [102]. In assessing the applicant’s personal circumstances, the Tribunal also had regard to the applicant’s age and that as a young single man he had been able to settle in Australia and had secured employment despite having no family in this country: [21], [30].
100. The Minister further submitted that the Tribunal’s statement at [103] that “the large Pashtun population residing in Lahore would not be able to survive . . . if they could not find employment and accommodation” was made in the context of preceding paragraph [102], where the Tribunal considered whether the applicant, as a Pashtun, would “attract attention and face harm because of it” outside his home area. The statement in paragraph [103] regarding the ability of the Pashtun population to survive in Lahore was not the basis for the Tribunal’s finding that the applicant could reasonably relocate to Lahore. Rather, that finding was made on the basis of its consideration of the applicant’s particular circumstances. It was said that these reasons undermined a conclusion that there had been a generalised assessment of the issue.
101. In rejecting the applicant’s claim that he would be denied employment or unable to secure some form of work in a reasonable period of time, the Tribunal was plainly aware of the applicant’s claim that he would not have a network of family and friends outside his home area. Where in SZATV, Kirby J spoke of the need to consider that in some circumstances, internal relocation may be rendered unreasonable having regard to an applicant’s age, the absence of family networks, other local support or other support mechanisms,^[65] his Honour may have had in mind that it could be unreasonable to expect a person who was either very young or infirm, or advancing years or without family of other support to relocate.
102. While Kirby J’s statement in SZATV is clearly capable of application to applicants across the spectrum of ages, I am satisfied that in this case the Tribunal adequately considered the age, education, familial and other factors relied upon by the applicant in assessing whether internal relocation was reasonable and practicable. Particularly is that so in the circumstances described at [90]-[92] above. The Tribunal stated at [98]-[100] and later at [103]:

The Tribunal considered the applicant’s claim that if he relocates he does not think he would find employment because competition for jobs is strong. The Tribunal notes he claims he speaks, reads, and writes Pashto, Urdu, and English, and he has a reasonable level of education, and has some work experience to assist him in finding employment in Pakistan. The Tribunal does not accept the country information before it suggests the applicant will be denied employment of some kind, or that he will be not be able to secure some form of work in a reasonable period of time.

At the hearing, the applicant claimed that some people who moved to Karachi or Lahore have a strong network and they can hide but at the end they will be found by the Taliban. He said he has no friends or family in other parts of Pakistan. Based on the relevant country information cited in this decision record, the Tribunal does not accept the applicant’s pessimism that he would eventually be found by the Taliban if he relocates. Further, it does not accept that the absence of a network of friends would be a significant fetter to the applicant’s ability to settle into a new city which has a significant Pashtun population into which the applicant will be able to establish networks. The Tribunal considers the applicant has demonstrated his capacity to adapt and assimilate to a new environment through his experience in Australia, and considers he will not fail in adapting or assimilating into a location such as Lahore should he choose to relocate there.

The applicant claimed he would not be able to find a house if he relocates to Punjab and that he will face discrimination. He said he is a single person with no family. Having regard to the DFAT report extracted below, the tribunal does not accept that he will not be able to find accommodation of some kind within a reasonable period of time.

. . .

The Tribunal notes that the large Pashtun population residing in Lahore would not be able to survive if they were not survive (sic) if they could not find employment and accommodation. The displacement of so many people, as regrettable as that may be, has not prevented them in establishing a new life. The Tribunal considers that this displacement will not cause the applicant difficulty in his relocation.

103. In my opinion, on a fair reading of the Reasons, the Tribunal dealt with the applicant’s objection and its finding was subsumed in the more general findings addressed at [94]-[110]. That it gave consideration to this issue implicitly falls for evaluation in the circumstance that the only statement in support of the suggested cultural norm (whereby initial employment was dependent upon family connections), was that set out briefly in the applicant’s statement at [36] and was not otherwise the subject of comment in the written submissions lodged by his lawyers. In reaching its conclusion, the Tribunal had regard to the applicant’s evidence at the hearing which was repetitious of his statement above.
104. Further, the Tribunal expressly recognised that factors other than harm amounting to persecution may make relocation unreasonable and gave consideration to the application of those principles. It concluded that, while the applicant may face challenges on return, taking into account all of his circumstances he was capable of meeting those challenges: [104]. It concluded that considering all of the applicant’s circumstances, both individually and cumulatively, it would be reasonable, in the sense of practicable, for the applicant to relocate in Pakistan – particularly to Lahore: [105]-[109].
105. Quite aside from whether there was a cultural norm of the kind suggested, the Tribunal might fairly have assumed this as a global norm. However, there was no country information adduced in support of the contention that such a norm assumed particular status or significance in Pakistan. Further, I consider that the matters addressed by the Tribunal at [94]-[110] in the context of the Reasons as a whole undermine the contention that the Tribunal failed to consider this claim or that only generalised consideration was given to it. From these perspectives, it may be said that the Tribunal’s treatment of the objection was broadly proportionate to the submission made.
106. Having regard to the applicant’s submission before the Tribunal that it was not necessary to address the second limb of the internal relocation test, I consider that the Tribunal’s statements above, in the context of the Reasons as a whole were a sufficient treatment of the issue.
107. Where, as here, the reasons of a Tribunal are otherwise comprehensive, the court should be cautious in finding that a Tribunal has failed to consider an applicant’s claims or the integers of such claim. The Tribunal’s Reasons were comprehensive, particularly as concerned the question of relocation. I am satisfied that it undertook a sufficiently fact intensive assessment of the applicant’s objections to relocation, including that which is now the subject of Ground 3.
108. Ground 3 is rejected.

Proposed Ground 4 – failure to consider current country information

109. Proposed Ground 4 reads:

The Tribunal constructively failed to exercise its jurisdiction by failing to have regard to the most recent country information in forming its state of satisfaction regarding the applicant’s claims to fear persecution or a real risk of significant harm.

Particulars

(a) The Tribunal purported to have regard to ‘current’ country information, inter alia from the UK Home Office and the Pakistan Institute for Peace Studies.
(b) The material so relied on by the Tribunal was outdated and had been superseded by newer reports from the same sources (UK Home Office report November 2015; Pakistan Institute for Peace Studies reports 2014 and 2015).
(c) The outdated country information relied on by the Tribunal was central to the Tribunal’s finding that the applicant could reasonably relocate to Lahore or another urban area.

Should leave be granted to add Ground 4?

110. The court may allow a party to amend any document in a proceeding.^[66] A question arises whether leave should be granted to add Ground 4. However, in my view, leave to argue a ground of review not raised before a decision-maker where an applicant had an opportunity to adduce evidence and raised arguments on the decision under review should only be permitted where it is expedient and in the interests of justice to do so: cf BOZ v Minister for Immigration and Border Protection.^[67] There, Allsop CJ endorsed the proposition that in the consideration of whether to allow an amendment to add a further ground of appeal, the merit of the proposed ground was an important consideration together with the question of prejudice to the respondent. Although this is not an appeal, I consider those principles are instructive to the present application.
111. As noted above, the court invited further submissions from the parties as to why, relevantly, leave should be granted to add proposed Ground 4. It did so in the circumstances where, before the Tribunal, the applicant had contended that it was not necessary to address submissions to the second limb of the internal relation test.
112. I have set out the applicant’s submissions above and noted that they were essentially non-responsive to the invitation that was extended.
113. For the Minister it was submitted, correctly that it was for the applicant to advance whatever evidence of argument he or she wished to advance in support of a contention on an application for review by the Tribunal.^[68] That is because proceedings before the Tribunal are inquisitorial, not adversarial; the decision-maker not being a contradictor. Once the applicant has advanced the evidence and argument he or she wishes to make, it is for the Tribunal to decide whether it is made out. The Minister noted that in this context, the Tribunal had invited the applicant to provide any additional information he desired to put before it.
114. In Coulton v Holcombe,^[69] Gibbs CJ, Wilson, Brennan and Dawson JJ confirmed the long standing principle respecting an appeal by way of rehearing that it is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial and that the powers of an appellate court were ordinarily to be exercised with the general framework of the issues as so determined. The plurality identified considerations of expedition, finality and justice in allowing an appeal against a decision of an intermediate appellate court to allow the amendment of the grounds of appeal to add a ground which had been ‘overlooked.’^[70] In Nguyen v Minister for Home Affairs,^[71] the Full Court acknowledged the application of the principles in Coulton v Holcombe. Analogous considerations arise in relation to the grounds raised by way of judicial review from the decision of an administrative decision-maker.
115. Although the Tribunal considered in detail the question of whether internal relocation was reasonable in the sense of practicable, it did so in the context of the applicant’s express submission that because the first limb of the applicable test was not satisfied, it was therefore said to be unnecessary to make submissions in relation to the second limb.
116. The applicant was entitled to and was afforded an opportunity to present evidence and make submissions on the issues arising in relation to the decision under review. Internal relocation was a central issue that arose on review in circumstances where the delegate’s decision addressed both limbs of the internal relocation test, as was required by the applicable principles. The applicant took the opportunity that was afforded to him and did so by lodging detailed written submissions and then appearing before the Tribunal with his migration agent.
117. In my view, it is not to the point that the Tribunal reached the same conclusion respecting the reasonable practicability of internal relocation as had been arrived at by the delegate.^[72] Of greater importance is that the applicant was given, and took, the opportunity to make submissions. In doing so, the applicant maintained the position that it was unnecessary to make submissions in relation to the reasonable practicability of internal relocation by reason that the first limb of the test was to be answered in his favour. From my re-examination of the written submissions, the applicant addressed only the question of whether he could not safely relocate within Pakistan. On that basis, although the applicant’s earlier statement had raised an objection to relocation on the basis of an absence of familial or other connections beyond his birthplace, his written submission should be seen as redefining and limiting the framework within which a merits review of the application was being sought. This is not unimportant where, as here, the application is to be remitted for reconsideration.
118. For the reasons above, in my view, it is not open to the applicant to raise Ground 4 by way of judicial review in circumstances where the applicant submitted it was not necessary to make submissions on the issue of whether it was reasonable in the sense of practicable for him to relocate.
119. It is not necessary in the interests of justice for leave to amend the application for judicial review so as to add Ground 4. However, if I am wrong in this conclusion, I consider whether the Tribunal’s decision is affected by error on the basis raised by proposed Ground 4.

Resolution

120. It was common ground that “attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction” in the context of an assessment whether the criterion in s 36(2)(a) of the Act has been satisfied: Minister for Immigration and Border Protection v MZYTS.^[73] The Full Court’s statement above is to be understood as representing a more emphatic assertion of the principle than the general assumption that administrative decision-making should be based on the most up-to-date information.^[74] Attention to current information constitutes a core aspect of such decision-making, having regard to the predictive and regulative nature of the evaluation whether a person’s fear of persecution is well-founded.^[75]
121. Contrastingly, reliance may be placed upon older information included as part of the weighing process of all available information and in deciding what information “best and most reliably supports the prediction of future risk”. For example, more recent information may simply confirm older, more detailed, information. Older information may also be more specific to the circumstances of a particular applicant. In MZYTS, Kenny Griffiths and Mortimer JJ held:

There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.

122. As stated, the Minister accepted that the Tribunal erroneously referred to certain country information as ‘current’ when in fact there were more recent reports than those to which it referred in forming its state of satisfaction regarding the applicant’s claims to fear persecution or a real risk of significant harm. While the Tribunal referred to the 2014 PIPS report and 2014 UK report, it did not have regard to:
     1. two further publications by the Pakistan Institute for Peace Studies issued in January 2015 and January 2016 respectively; and
     2. a further publication by the UK Home Office, November 2015.
123. However, the Tribunal did refer to a 2016 DFAT report providing country information which addressed the position of secular political parties, including the ANP: [77], [126]-[127].
124. Having identified (and exhibited) each of the more recent PIPS and UK reports, the applicant noted that the Tribunal had obtained the earlier reports for itself but had neither identified, referred to nor relied upon the more recent reports described above. It was further submitted that, contrary to the reasoning in MZYTS, the Tribunal had not provided any explanation for why it had relied on older information. While those submissions may be accepted, they are to be viewed in the context that the Tribunal had in fact identified more recent country information and in light of the applicant’s submission that it was unnecessary to make submissions directed to the second limb of the internal relocation test. They are also to be considered upon the principles set out at [94] above, including that the court is entitled to be alive to the real danger of an applicant seeking to put his or her case in a way that it was not put below: DWN027 v The Republic of Nauru.^[76] There Kiefel CJ, Gageler and Nettle JJ recognised that the court should not overlook the forensic context in which the reasoning was expressed by a decision maker.
125. In this case, it was not merely that applicant’s forensic decision that it was unnecessary to make submissions on the second limb of the internal relocation test that provides important context. The submissions which were made did identify and rely upon extensive country information.^[77] In particular, those submissions referred to recent country information, being the 2016 DFAT country report. This report was more recent, or at least as recent, as the PIPS and UK Home office reports upon which the proposed Ground 4 was advanced. It is difficult to see how the Tribunal’s failure to refer to those reports can be the subject of legitimate complaint when the applicant identified other contemporary country information but did not refer to the reports on which Ground 4 is based. Moreover, insofar as the applicant sought to elevate the significance of the PIPS country information as being of greater relevance than DFAT information, the same observation might be fairly be said to apply equally to the applicant’s reliance on that DFAT country information in lieu of the PIPS information. Considered from those perspectives, the applicant’s criticism of the Tribunal’s decision as raised in Ground 4 overlooks this important forensic context. Put another way, the applicant chose to rely upon particular and recent country information but now seeks, in effect, to complain of jurisdictional error by seizing on additional country information and by attributing the failure to the Tribunal when he did not do so himself but chose to identify the 2016 DFAT report that the Tribunal had in fact considered.
126. While the Tribunal erroneously referred to the 2014 UK Home Office Report as being the ‘current’ report, the fact that this report had been superseded by a later report did not of itself undermine the currency of the information contained in the earlier report. And, in contrast to MZYTS,^[78] since the Tribunal did pay regard to the 2016 DFAT country information, it cannot be said that the Tribunal failed to have regard to more current information as to the level of risk of serious harm faced by the applicant if he relocated to Lahore, or another urban area outside KPK or the FATA. Insofar as the Tribunal also placed reliance on the 2014 Home Office Report and the 2014 PIPS Report, nor can it be said that this involved a failure to have regard to more recent information as the Tribunal also considered the 2016 DFAT report.^[79]
127. Finally, I accept that in general, the choice of country information and the factual findings arising from country information, where the country information is recent and the factual findings are open on the available material, are matters solely for the Tribunal as the finder of fact.^[80] As counsel for the Minister observed, the Tribunal may rely on older country information, provided that information is not wrong or contradicted by more recent information.^[81] That occurred in this case.
128. For the reasons above, had it been appropriate to consider proposed Ground 4, it would have been rejected.

Conclusion

129. It is necessary to say something briefly concerning the manner in which this application has been pursued. That is because it is notorious that the business of this court is over-extended and has limited resources to afford to the many litigants who come before it. It is consistent with the obligations of legal practitioners that they advance the real and substantive issues that are open to be pursued. To do so has the significant advantage that it will focus rather than distract the court’s attention upon grounds of review that are of merit. It is also important that they do so because, where, as here, a matter is to be remitted for reconsideration, this is to occur having regard to the submissions that had been made to this point, including that it the applicant had made a forensic decision not to advance submissions in relation to the second limb of the relocation test; that is, the reasonable practicability of him being able to relocate to another part of his receiving country.
130. The application should be allowed.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate:

Date: 24 October 2019

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^[1] [2007] HCA 40; (2007) 233 CLR 18, [23]-[24].

^[2] The submission is dated 30 March 2015, however, it appears to have been transmitted by email on 30 March 2016.
^[3] Applicant’s submissions 30 March 2015 (sic) at [70].
^[4] Act, s 474(2).

^[5] Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
^[6] Act, s 476(2).
^[7] See CID15 v Minister for Immigration and Border Protection [2017] FCA 780, [37].
^[8] Cf DAK16 v Minister for Immigration and Border Protection [2019] FCA 683, [18].
^[9] [2014] HCA 45; (2014) 254 CLR 317, [21] (footnotes omitted).
^[10] [2018] HCA 24, [1], [22]-[26] (Bell J agreeing on the statement of principle).
^[11] [2018] HCA 24; (2018) 356 ALR 50, [26] (citations omitted).
^[12] [2018] HCA 24; (2018) 356 ALR 50, [43]-[58].

^[13] SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18, [24], [30] (Gummow, Hayne and Crennan JJ); SZSCA [2014] HCA 45; (2014) 254 CLR 317, [27] (French CJ, Hayne, Kiefel and Keane JJ) citing Januzi [2006] UKHL 5; [2006] 2 AC 426, [15], [20] in turn approving E v Secretary of State for the Home Department [2003] EWCA Civ 1032; [2004] QB 531, [23].
^[14] AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106, [27].

^[15] Citing Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 575; cf CDW18 v Minister for Home Affairs [2019] FCA 270, [14]-[15] (Thawley J).

^[16] Citing Pakistan Institute for Peace Studies, Pakistan Security Report 2013 (January 2014, at pp. 10, 21, 22) and the applicant’s written submission to the Tribunal at [57]-[58].
^[17] [2007] FCA 1572, [3], [28], (Allsop J).
^[18] [2018] FCA 610, [33], (Perry J).
^[19] [2019] FCA 270, [20]-[21], (Thawley J).

^[20] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1, [65].

^[21] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184, [47]. See also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, [67]-[69]; Minister for Immigration and Citizenship v MZYZA [2013] FCA 572, [30].
^[22] SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109, [25].

^[23] Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51, [28]. For a more recent application of these principles, see BMR17 v Minister for Immigration [2018] FCA 1250.

^[24] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [11]-[13].

^[25] Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67, [58], citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99, 122 (Robertson J).
^[26] SZSRS, supra [2014] FCAFC 16; (2014) 309 ALR 67, [29].

^[27] Citing SZDXZ v Minister for Immigration [2008] FCAFC 109, [25]; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALJR 407, [60]-[68]; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, [67]-[69]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594, [32] and [69]-[70]; ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054.

^[28] [2018] FCAFC 94, [38] (The Court).

^[29] Ibid, [35] (The Court) citing Islam v Cash [2015] FCA 815; (2015) 148 ALD 132, [14] (Flick J).
^[30] (2013) 230 FCR 431, [49] (The Court).
^[31] (2013) 230 FCR 431, [49].

^[32] Minister for Immigration and Citizenship v SZMDS (2010) 240 CRL 611, [135] (Crennan and Bell JJ).
^[33] Cf BZD17, supra [2018] FCAFC 94, [45] (The Court).
^[34] See 2014 PIPS report at paras 3.1 and 4.4.
^[35] Cf DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641, [41].

^[36] Applicant’s statement at [36].
^[37] MZANX v Minister for Immigration and Border Protection [2017] FCA 307, [58].
^[38] [2007] HCA 40; (2007) 233 CLR 18, [22] (Gummow, Hayne and Crennan JJ).
^[39] [2007] HCA 40; (2007) 233 CLR 18, [10] (Gummow, Hayne and Crennan JJ).

^[40] [2007] HCA 40; (2007) 233 CLR 18, [23]-[25], citing Januzi v Secretary of State for Home Department [2006] UKHL 5; [2006] 2 AC 426, 457 (Lord Hope).
^[41] [2017] FCA 307.
^[42] [2017] FCA 307, [60]-[61].
^[43] Ibid.
^[44] [2007] HCA 40; (2007) 233 CLR 18.
^[45] [2007] HCA 40; (2007) 233 CLR 18, [80]-[81].
^[46] [2017] FCA 307, [46]-[48].

^[47] [2017] FCA 307, [52] citing Randhawa v Minister for Immigration, Local Government, and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437, 442.
^[48] [2017] FCA 307, [55].
^[49] [2017] FCA 307, [55].
^[50] [2017] FCA 307, [56]-[58].
^[51] [2018] FCAFC 106, [29].

^[52] Cf CRI026 v The Republic of Nauru [2018] HCA 19, [42]-[43]; CRI028 v The Republic of Nauru [2018] HCA 24, [22]-[26]; CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14, [42]-[48]; BHB16 v Minister for Immigration and Border Protection [2018] FCAFC 42, [33]; AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106, [27]-[29].
^[53] Applicant’s submissions 30 March 2015 (sic) at [70].
^[54] Applicant’s submissions 30 March 2015 (sic) at [42]-[69].

^[55] Cf MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100, [37] (North, Rangiah and Moshinsky JJ).
^[56] [2003] HCA 71; (2003) 216 CLR 473, [1], [14] (Gleeson CJ).
^[57] [2018] HCA 47, [36] (Gageler, Keane and Edelman JJ).
^[58] [2018] HCA 20, [21] (Kiefel CJ, Gageler and Nettle JJ).
^[59] [1994] FCA 1253; (1994) 124 ALR 265, 270, (Beaumont and Whitlam JJ agreeing at 279, 280).
^[60] [2018] FCA 451, [74]-[75].

^[61] Citing MZZQY v Minister for Immigration and Border Protection [2015] FCA 883 at [27], (Beach J), referring to MZZUT v Minister for Immigration and Border Protection [2015] FCA 141 at [18], (Middleton J).

^[62] Citing S395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473, [1], (Gleeson CJ).

^[63] Citing Kasupene v Minister for Immigration & Citizenship [2008] FCA 1609; (2008) 49 AAR 77, [21] (Flick J); AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67], (Barker J).
^[64] Citing MZANX, supra [2017] FCA 307, [50]-[51] (Mortimer J).
^[65] [2007] HCA 40; (2007) 233 CLR 18, [80]-[81].

^[66] Rule 7.01(a), Federal Circuit Court Rules 2001 (Cth).
^[67] [2018] FCA 418, [66] (Allsop CJ).
^[68] Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510, [187] (Gummow and Hayne JJ).
^[69] [1986] HCA 33; (1986) 162 CLR 1, 7-8.
^[70] [1986] HCA 33; (1986) 162 CLR 1, 6.

^[71] [2019] FCAFC 128, [39]-[40] (Jagot, Robertson and Farrell JJ); see also BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176, [27] (Moshinsky, Steward and Wheelahan JJ).

^[72] Albeit that the delegate was addressing relocation to Islamabad, not Lahore, this was said not to be of significance in the application for judicial review.
^[73] (2013) 230 FCR 431, [73] (Kenny, Griffiths and Mortimer JJ).

^[74] MZYTS, supra (2013) 230 FCR 431, [73] citing Minister for aboriginal affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, 45 (Mason J).
^[75] Ibid.
^[76] [2018] HCA 20, [21] (Kiefel CJ, Gageler and Nettle JJ).
^[77] See applicant’s submissions to Tribunal at fn 67-94.
^[78] Minister for Immigration v MZYTZ (2013) 230 FCR 231.
^[79] See SZUAL v Minister for Immigration and Border Protection [2016] FCCA 347, [22].

^[80] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, [11] (Gray, Tamberlin and Lander JJ).
^[81] BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 at [35]- [36].