FEDERAL COURT OF AUSTRALIA BUY15 v Minister for Immigration and Border Protection [2017] FCA 22 Appeal from: BUY15 v Minister for Immigration & Anor [2016] FCCA 1736 File number: NSD 1305 of 2016 Judge: GLEESON J Date of judgment: 31 January 2017 Catchwords: MIGRATION – appeal from a decision of Federal Circuit Court of Australia – no appellable error identified in the decision below – appeal dismissed Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594 Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457, (1987) 14 ALD 291 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 40 FCR 493 SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 Date of hearing: 21 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 68 Counsel for the Appellant: Mr J Williams Solicitor for the Respondents: Ms S Burnett of Clayton Utz ORDERS NSD 1305 of 2016 BETWEEN: BUY15 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: GLEESON J DATE OF ORDER: 31 January 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GLEESON J: 1 The appellant has appealed from a decision of a judge of the Federal Circuit Court of Australia ("FCCA") dismissing the appellant's application for judicial review of a decision of the Administrative Appeals Tribunal ("Tribunal"): BUY15 v Minister for Immigration & Anor [2016] FCCA 1736. The Tribunal's decision was to affirm the decision of a delegate of the Minister for Immigration and Border Protection ("Minister") not to grant the appellant a Protection (Class XA) visa ("protection visa"). Background facts 2 The appellant is a male citizen of Pakistan, aged 26. He arrived in Australia on 9 August 2012 and lodged an application for a protection visa on 29 November 2012. The appellant claimed to fear persecution or harm from the Taliban if he returned to Pakistan because he is a Shia Muslim, and his father worked for the border militia. The FCCA judge noted (at [2] of his Honour's reasons) that the appellant accepted the following summary by the Tribunal of his claims made in support of his protection visa application as accurate: 4. In summary, according to his application the applicant is an ethnic Pashtun, Shia Muslim from Parachinar who has had 11 years of education and completed year 10 matriculation in 2007. He fears he will be killed by the Taliban for being a Shia Muslim and because his father worked for the border militia. The applicant claimed his father, who worked for the border militia, was killed in 2009; the applicant's home was fired on in 2010; his cousin lost a leg to a landmine on their farm; the applicant was in a market during a suicide bomb attack in 2012. He claimed it was not possible to live safely in Sunni areas in Pakistan and he has lived all his life in Kurram Agency and he has no family members outside the Kurram Agency and is unable to relocate. 5. In summary the agent submitted the applicant has a well-founded fear of persecution or harm due to his Shia Muslim religion and a direct descendant of the Prophet Mohammed as a Sayed, being a person of Bangash ethnicity and imputed political opinion as anti-Taliban, in circumstances where his father was a long term member of the border militia and was killed in a targeted attack in 2009 and because of his familial connection and being a Shia Muslim who originates from the Kurram Agency. At hearing the agent also submitted the applicant's fears stemmed from his membership of a particular social group of Shia Muslims from Parachinar, with a strong accent, who have an anti-Taliban opinion and who have Shia names. 3 The delegate refused to grant the protection visa on 27 March 2014. 4 On 3 April 2014, the appellant sought review of the delegate's decision by the Tribunal. On 13 May 2015, the Tribunal conducted a hearing, attended by the appellant, the appellant's registered migration agent, and a Pashto/Pushtu interpreter. On 11 August 2015, the Tribunal affirmed the delegate's decision. Tribunal's reasons 5 On the appeal, the main complaint made on behalf of the appellant was that the Tribunal's conclusions, adverse to the appellant, were unreasonable in the light of the Tribunal's other findings. 6 At para 37 of its decision record, the Tribunal accepted that there was a real chance that the appellant would face serious harm upon his return to Parachinar. The Tribunal also accepted that the significant and essential reason for this would be because the appellant is a Pashtun Shia Muslim or because of imputed political opinion of being anti-Taliban. 7 From para 38 of the decision record, the Tribunal considered whether it would be reasonable for the appellant to relocate to another part of Pakistan. At para 42 of the decision record, the Tribunal identified Lahore or possibly Islamabad as a location in Pakistan where the appellant may be able to relocate to avoid persecution. 8 At para 48 of the decision record, the Tribunal accepted that the appellant would be identified throughout Pakistan as a Bangash Shia from Parachinar. The Tribunal accepted that, as a Bangash Shia from his home region, the appellant would be imputed with a political opinion that is opposed to the Taliban and other Sunni extremists. 9 The Tribunal found, at para 54 of the decision record, that the Taliban is located primarily within the Federally Administered Tribunal Areas ("FATA"), but that reports indicated that the Taliban is capable of reaching targets in Lahore. The Tribunal stated that it had had regard to reports that the Punjab police forces appease Sunni militant groups and that the Lashkar-e-Jhangvi (a Sunni militant group) acts with impunity. 10 In considering the possibility of the appellant relocating to Lahore, at para 61 of the decision record, the Tribunal found that "where the [appellant] is most likely at risk because he is Shia, is when he attends religious processions or is at a location where large numbers of Shias gather". As to that risk, the Tribunal found "the attacks that have taken place ... in Lahore are sporadic, have declined and considered in the context of the size of the Shia population and the state protection offered the Tribunal regards the risk of the applicant suffering serious harm on that ground to be remote". 11 Paragraph 62 of the decision record states: Further, given the relatively low levels of sectarian violence in Lahore, and the applicant's lack of a particular profile with the Taliban or any of its associated extremist groups, combined with the large number of Shia Muslims in Pakistan and in urban areas, including Lahore, DFAT's assessment that Lahore remains relatively free from the threat of militant, sectarian and politically motivated violence the Tribunal is satisfied that the chance of the applicant being harmed in an act of targeted sectarian or generalised violence in Lahore is remote. The Tribunal is also not satisfied that the applicant will have to modify his religious practise in order to avoid the harm he fears. 12 At para 63 of the decision record, the Tribunal found that "the chance of the applicant being harmed in such an attack in Lahore or when travelling to Lahore is remote, and therefore not a real chance". 13 Counsel for the appellant, Mr Williams, drew attention to paras 67 and 68 of the decision record which states: [67] The applicant claimed he cannot speak Punjabi and would be mute and that Sunnis from Parachinar will inform Sunnis he left Parachinar and they will find him in Lahore. He would not be able to get a job or make a living. [68] The Tribunal is mindful the applicant will face difficulties relocating to Lahore, finding work and accommodation. The Tribunal accepts that it may take the applicant some time to re-establish himself in terms of employment and that there are high levels of unemployment throughout Pakistan. However, the applicant is a young single male who attended high school and has worked on family and other farms and had a business as a tractor driver and found employment in Australia. While the applicant may not speak Punjabi, the tribunal does not accept he will be mute as Urdu is taught at school and is the national language of Pakistan and 8% of the population speak Urdu as their first language, but it is the second language of most people in the larger cities, such as Lahore, speak Urdu. Further, county information is that only 37 per cent enrol in secondary education and ten per cent in tertiary education. The applicant has shown he has been resourceful in the past in finding employment in a new place. He has past work experience and skills in Pakistan and Australia which will assist him in relocation. He has found work, provided for his mother and siblings while living in Australia and he has adapted to a new environment and language. Given his education, experience, skills and past resourcefulness, the tribunal does not accept he would not be able to get a job or make a living or get accommodation. The Tribunal is satisfied that the applicant would be able to re-settle in a different city in his own country where he is at least familiar with social customs and various other factors which will enable him to re-integrate into Pakistan society. The Tribunal does not accept that having to find work, accommodation in a new or unfamiliar place, like Lahore is unreasonable. (footnotes omitted) 14 Paragraph 70 of the decision record records: DFAT notes many large urban areas such as Lahore are home to mixed communities and offer greater opportunities for employment, access to services and higher level of protection. DFAT also notes because of Pakistan's size and diversity, internal relocation offers a degree of anonymity and opportunity to seek refuge from discrimination and violence. Further, there is no evidence that people from his home area or tribe are specifically targeted in Lahore. The tribunal does not accept he faces any harm from other ethnic groups, Hazaras, Sunnis or because he is from Parachinar, identified as Bangash Shia or an outsider. (footnotes omitted) 15 Mr Williams also drew attention to para 71 of the decision record, as follows: The tribunal accepts that he will continue to practise his Shia religion and attend mosques or processions. The Tribunal accepts the applicant's family name and attendance at Shia Mosque will make him more readily identifiable as a Shia. However, when considering his attendance at yearly processions, given the size and yearly frequency of procession, the violence is mitigated by significant efforts of authorities to protect processional routes, DFAT assess the overall risk to be low. On the basis of the evidence before it, and the country information referred to above the tribunal does not accept the applicant faces any appreciable risk of harm. Further, The tribunal does not accept the level of risk of attacks by the LeJ, Taliban or other extremist groups or other Sunnis, or ethnic groups makes it unreasonable for the applicant to relocate to Lahore. On the evidence, the tribunal finds that even having regard to the applicant's religious practice and circumstances and sectarian violence that it is reasonable for him to relocate to Lahore. (footnotes omitted) 16 At para 72 of the decision record, the Tribunal considered evidence of attacks on the Shia population in Lahore but concluded: Given the sporadic nature and level of incidents and the applicant's circumstances, the tribunal does not accept there is any appreciable risk [of] harm for the applicant in Lahore. 17 At paras 73 and 74 of the decision record, the Tribunal stated: [73] The Tribunal accepts that it will be concerning for the applicant to live in a city which has experienced sectarian and terrorist incidents. The Tribunal does not accept the fact that the applicant may be concerned for his safety as a result of violence or attacks to the extent that he will have to modify his conduct or that it will affect his ability to obtain employment or accommodation or practice his religion in Lahore. The Tribunal is not satisfied that such factors make it not reasonable for the applicant to live and work in Lahore. [74] Even having regard to the country information about Lahore violence and attacks, and the applicant's circumstances (including his education, work prospects, language, religion and past harm) the tribunal finds it would be reasonable for the applicant to relocate to Lahore. 18 At para 75 of the decision record, the Tribunal concluded: For the reasons given above the Tribunal considers that it is reasonable, in the sense of practicable, having regard to all of the applicant's circumstances, for him to relocate to Lahore. 19 In essence, the Tribunal was satisfied that it was reasonable for the appellant to relocate to Lahore because there was "no appreciable risk" of harm to him there, and none of the particular circumstances that the appellant identified led to a conclusion that it was not reasonable for him to relocate to Lahore. Application to FCCA 20 On 7 September 2015, the appellant applied to the FCCA for judicial review of the Tribunal's decision. An amended application was filed on about 3 November 2015. 21 The FCCA conducted its hearing on 21 June 2016. At the hearing, the appellant relied solely on ground 3 of his amended application. Ground 3 was in the following terms: Ground 3: Jurisdictional Error of Law - Misapplication of law or failure to ask the correct question 3. The [Tribunal] erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question. Having accepted that the applicant has a well-founded fear of being persecuted for a convention or complementary reason if he is returned to Parachinar, Pakistan, objectively, there was an appreciable risk of the feared persecution occurring if the applicant was relocated in Lahore. Alternatively, it was unreasonable, in the sense of being practicable, to expect the applicant to be relocated to Lahore having regard to a) the particular circumstances of the applicant, b) the circumstances the applicant would reasonably be expected to face in the place of relocation, or c) the impact on the applicant of being relocated to Lahore. Appeal to this Court 22 The notice of appeal contains the following single ground of appeal: 1. With regard to ground three of the amended application filed 3 November 2015, the primary judge erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the relocation of the appellant from Parachinar to Lahore in Pakistan. Particulars a) The Tribunal erred at [71] of the decision record, by finding that the 'Tribunal does not accept the applicant faces any appreciable risk of harm by relocating to Lahore from Parachinar, Pakistan.' b) Alternatively, the Tribunal erred at [75] of the decision record, by finding 'that it is reasonable, in the sense of practicable, having regard to all of the applicant's circumstances, for him to relocate to Lahore.' c) The primary judge therefore erred at [14] of the judgment by finding there are 'two parts to this ground: first is the assertion that there was an appreciable risk of harm in Lahore. As will be seen, that amounts to no more than an attack on the merits of a finding of fact made by the Tribunal. The second is that it was unreasonable to expect the applicant to relocate to Lahore. Put in that way, it is another assertion of fact and raises no jurisdictional error.' Legal principles 23 The appellant referred to the decision of the High Court in SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 ("SZATV"). At [19] to [22], Gummow, Hayne and Crennan JJ said: [19] … [I]t will be seen that the matter of "relocation" finds its place in the Convention definition by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department. His Lordship said: "The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason." [20] The reference in the passage to the unavailability of the protection of the country of nationality of the refugee is best understood as referring not to the phrase "the protection of that country" in the second limb of the definition, but to the broader sense of the term identified in Respondents S152/2003. This was the international responsibility of the country of nationality to safeguard the fundamental rights and freedom of its nationals. [21] Lord Bingham went on in Januzi to refer to the statement in the UNHCR Handbook, at [91]: "The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so." [22] His Lordship, significantly both for Januzi and the present appeal to this Court, added: "The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country." (Footnotes omitted) 24 At [23] and [24], their Honours concluded that the applicable test is whether it is reasonable, in the sense of practicable, for the applicant to relocate to a region where, objectively, there is "no appreciable risk" of the occurrence of the feared persecution, taking into account that what is reasonable, in the sense of practicable, must depend upon the particular circumstances of the applicant. Consideration 25 Mr Williams made no criticism of the FCCA judge's summary of the Tribunal's reasons, at [5] to [12] of his Honour's judgment. Notice of appeal 26 The single ground of appeal is set out at [22] above. 27 Although particular (c) of the particulars to the appellant's ground of appeal is expressed as a conclusion from the premises stated in particulars (a) and (b), that conclusion does not follow as a matter of logic. 28 Particular (c) records: (1) the FCCA judge's analysis (at [14] of his Honour's reasons of the ground for judicial review that was argued before his Honour); and (2) the FCCA judge's summary of his conclusion that the ground for judicial review did not raise any possible jurisdictional error but only questions of fact. 29 I do not accept that the FCCA judge made the error asserted by particular (c). To the contrary, the FCCA judge accurately analysed the ground for review in the passage set out in particular (c), as appears from a comparison of the ground of review (set out at [21] above) with the words quoted in particular (c). 30 Further, as appears from particular (a), the appellant plainly sought to challenge (and continues on this appeal to challenge) the Tribunal's factual finding that the appellant did not face any appreciable risk of harm by relocating to Lahore. 31 Similarly, as appears from particular (b) the appellant was seeking to challenge (and continues on this appeal to challenge) the Tribunal's factual finding that it was reasonable, in the sense of practicable, for the appellant to relocate to Lahore. 32 The matters particularised in the notice of appeal do not, without more, reveal any misinterpretation, misunderstanding or misapplication of the applicable law by the FCCA judge. Nor do they reveal that the FCCA judge failed to ask the correct question with regard to the relocation of the appellant from Parachinar to Lahore in Pakistan. 33 It follows that the appellant's case, as identified by the notice of appeal, must fail. Written submissions 34 Even so, I have considered whether the written submissions disclose any appellable error on the part of the FCCA judge. Risk of harm in Lahore 35 The written submissions asserted that the Tribunal erred at para 63 of its decision record, by finding that the chance of the appellant being harmed in an act of targeted sectarian or generalised violence in Lahore was "remote and therefore not a real chance". The submissions continued: 13. However, at [61], the [Tribunal] accepted that 'where the [appellant] is most likely at risk because he is a Shia, is when he attends religious processions or is at a location where large numbers of Shia gather. 14. In light of the foregoing, having accepted that the [appellant] has a well-founded fear of being persecuted for a convention or complementary reason if he is returned to Parachinar, Pakistan, objectively, there was an appreciable risk of the feared persecution occurring if the applicant was relocated in Lahore. 36 As I understand the submission, it was that the Tribunal found that there was a "remote" chance of harm in Lahore and therefore: (1) it was illogical for the Tribunal to have found that there was no "real" chance of harm; and (2) as a matter of logic, the Tribunal was driven to the conclusion that there was an "appreciable" risk of the feared persecution in Lahore. 37 I do not accept this submission. By describing the relevant risk as "remote", the Tribunal was conveying its view that the risk was not a "real" risk. That use of language is perfectly apt. The meaning of the words "remote" and "real" was explained by a Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75 ("Batey") at [19]-[20], as follows: [19] The decisions in Chan [v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379] and Boughey [v Queen (1986) 161 CLR 10] demonstrate that as a matter of usage the word "real" when used as an adjective to describe a "chance" or "risk" means that the chance of the event happening or the risk becoming a reality is not remote even though the chance or risk is less than 50 percent. "Remote" in this context means something that is extremely unlikely to occur. This is to use the word "real" in the context of a quantitative assessment of the chance or risk. The decisions in Chan and Boughey mean no more than that in the context of the enactments there being considered, the chance of the event occurring assessed in a quantitative sense had to be substantial and not remote even though the chance may be less than 50 percent. However, neither the meaning of the word "real" when used to describe a chance or risk nor any requirement of the law, requires that a "real risk" or a "real chance" be assessed solely on a quantitative basis. [20] The word "real" may be used to describe the qualitative nature of a risk or chance. In this sense it is used to describe something which is not far-fetched or fanciful. 38 The Tribunal's reasons reveal that the Tribunal assessed the relevant risk as "remote" and not "real". That was a sensible distinction to draw, and was consistent with the meaning of those words as explained in Batey. 39 Having found that the relevant risk was "remote", on a logical basis, the Tribunal was not driven to the conclusion that it was an "appreciable risk". To the contrary, the Tribunal was driven to the opposite conclusion. 40 Alternatively, Mr Williams may have been intending to submit that the Tribunal should have found that the risk of harm was greater than "remote". 41 If so, that submission does not disclose any jurisdictional error by the Tribunal. It is an attack on the Tribunal's finding of fact at para 62 of the decision record, set out at [11] above. 42 Consequently, there was no error on the part of the FCCA judge in his consideration of this aspect of the appellant's application for judicial review and, in particular, the FCCA judge's conclusions (at [44] of his Honour's reasons) that the appellant's real complaint was that a different factual finding ought to have been made. Reasonableness of relocation to Lahore 43 The written submissions record various claims made by the appellant, and recorded by the Tribunal, about circumstances which would make it unreasonable for him to relocate to Lahore. 44 Then, the written submissions argue: 30. After finding that the identity documents and family name is one which would readily identify the applicant as a Shia, that there have been attacks against Shia Mosques, that the applicant is at risk because he is a Shia who attends religious processions, that country information indicates the targeting of Shia groups by Sunni extremist, and that it will be difficult for the applicant to find accommodation and employment in Lahore, the [Tribunal] erred by finding it was reasonable for the applicant to relocate to Lahore and misapplied the applicable law or failed to ask the correct question. 45 The submissions do not identify any part of the Tribunal's reasons in which it is said to have misapplied the applicable law. 46 The written submissions next contend: 31. What was absent from the Tribunal's reasons for the decision is evidence that it asked itself what the relocation principle required it to ask itself; and that is whether it was reasonable, in the sense of practicable, to expect the applicant to relocate to Lahore having regard to the fact that the circumstances the applicant would reasonably be expected to face in Lahore would include the asserted practical realities. By failing to ask itself this question, the Tribunal's conclusion that it was reasonable for the applicant to relocate to Lahore was arrived at as a result of jurisdictional error. 32. Not only did the Tribunal not ask itself whether, having regard to the asserted practical realities, it was reasonable to expect the applicant to relocate to Lahore, it did not consider all of the personal circumstances of the applicant relevant to determining the reasonableness of the applicant's relocating to Lahore. 47 However, the Tribunal addressed itself correctly to the relevant law at paras 39 and 40 of its decision record. It said: [39] It is well settled that the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. [40] Thus, a person will be excluded from refugee status if it is reasonable, under all the circumstances, in the sense that it is practicable, to expect him or her to seek refuge in another part of the country. 'Reasonable' will depend upon the particular circumstances of the applicant and the impact of relocation upon that person within the person's country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense. (footnotes omitted) 48 All of the "asserted practical realities" are identified in the Tribunal's decision record. 49 There is nothing in the Tribunal's decision record to indicate that the Tribunal failed to ask itself the question identified in the appellant's written submissions. To the contrary, at para 75 of the decision record, the Tribunal explicitly said that it had regard to "all of the [appellant's] circumstances" in reaching the view that it was reasonable for the appellant to relocate to Lahore. 50 Further, the written submissions do not identify any appellable error on the part of the FCCA judge in his consideration of this aspect of the appellant's application for judicial review. Requirement to "act reasonably" 51 The appellant submitted that there was no relevant difference between the error identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 ("S395") (which he paraphrased as a requirement that the applicant "act reasonably" by behaving discreetly as a homosexual in Bangladesh) and the requirement in this case that the appellant "act reasonably" by relocating to another part of Pakistan, so as to avoid upsetting persecutors. 52 This contention was not addressed by the FCCA judge, and it is not clear whether the argument was raised before him. Generally, a party to litigation cannot raise a point for the first time upon appeal when it could have been met by calling evidence below: Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 per Mason CJ, Wilson, Brennan and Dawson JJ at [13]. I note that a court may find it expedient and in the interests of justice to allow a point to be raised where all the facts have been established beyond controversy or where the point is one of construction of law: See Green v Sommerville [1979] HCA 60]; (1979) 141 CLR 594 per Mason J (with Murphy and Aickin JJ agreeing) at [22]. However, I do not consider that this is such a case, because the contention has no merit. 53 The contention is inconsistent with the principle identified in SZATV, that it is relevant to consider whether an applicant "could reasonably be expected to relocate" within the country of nationality. 54 The test in S395 is directed to a different question, namely the assessment of whether a claimant has a well-founded fear of persecution. In that case, the plurality held that asylum seekers are not required to take reasonable steps to avoid persecutory harm (at [40]-[50] per McHugh and Kirby JJ), (at [78]-[83] per Gummow and Hayne JJ). There is no suggestion here that the appellant would be required to take any step to avoid a real risk of persecutory harm in the event that he relocated to Lahore. 55 Accordingly, this aspect of the appellant's argument does not reveal any appellable error. Oral submissions 56 The appellant's oral submissions departed substantially from the notice of appeal and the written submissions. In particular, Mr Williams made submissions by reference to the concept of legal unreasonableness. His primary argument was that the FCCA judge had wrongly characterised the appellant's case as an attack upon the merits, rather than the legality of the Tribunal's decision. 57 Mr Williams went further and asserted, as is obvious, that "the judicial system is not here to rubberstamp the Tribunal's decision". He identified nothing in the decision of the FCCA judge to indicate that the Tribunal's decision had been "rubberstamped". That submission should not have been made. 58 As I understood him, Mr Williams was referring to the principle explained by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] and [135], as follows: [130] … "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. … [135] … Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. 59 Mr Williams also referred to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, at [76], in which Hayne, Kiefel and Bell JJ stated: Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. 60 Mr Williams complained that the FCCA judge had found (at [15]) that ground 3 did not raise any unreasonableness ground. I reject that complaint. There is nothing in ground 3 that articulates an alleged jurisdictional error involving unreasonableness. 61 Mr Williams also contended that the FCCA judge was wrong in making the following statement: [17] Counsel for the applicant argued that legal unreasonableness was an essential part of the relocation principle because an essential element of it was that it must be reasonable to expect a putative refugee to relocate to another area in his or her country of nationality or residence. In my view, that argument exemplifies the risk of approaching judicial review by reference to categories or catchwords without a proper understanding of the underlying legal concepts. 62 I reject Mr Williams' contention. The submission made by counsel for the applicant, as recorded by the FCCA judge, is not intelligible. "Legal unreasonableness" is a concept that describes various legal errors including errors in fact finding. It is not "part of the relocation principle" and its relevance to decisions about the reasonableness of relocation does not arise from the fact that the decision is a decision about what is reasonable in given circumstances. 63 The finding that the risk of harm to the appellant in Lahore was remote was supported by the findings set out at paras 62 and 63 of the Tribunal's decision record (at [11] and [12] above). The Tribunal's other findings, particularly at paras 37, 48, 54, 53, 61 and 71, did not require the Tribunal to come to a different conclusion. Paragraph 37 concerned the position outside Lahore. The findings at paras 48, 54, 61 and 71, taken at their highest, did not compel the Tribunal to a different assessment of the risk of harm to the appellant in Lahore. 64 The contentions (which Mr Williams made orally) that the Tribunal's fact finding did not have a logical evidentiary basis are not set out in the notice of appeal. In any event, those contentions must fail for the reasons set out at [63] above. 65 The bases for the finding that it was reasonable for the appellant to locate to Lahore are set at [13] to [17] above. The difficulties, which the Tribunal recognised, do not detract from the conclusion, which was open to the Tribunal, that relocation to Lahore was a reasonable option for the reasons that the Tribunal gave including (without being exhaustive) the appellant's situation as a young single male, his high school education, his work experience, the extent of his capacity to communicate in Urdu, the appellant's resourcefulness in finding employment in a new place in the past. 66 Finally, Mr Williams submitted that the Tribunal did not give "genuine, proper consideration" to the appellant's claims, referring to the decision of Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457, (1987) 14 ALD 291 ("Khan"). In Khan, Gummow J identified passages of the record of decision which revealed a failure on the part of the decision maker to give "proper, genuine and realistic consideration" to the merits of the applications before the decision maker. 67 That was not an argument raised before the FCCA judge. In any event, it was no more than a re-formulation of the complaint that the Tribunal had made findings said to be inconsistent with its ultimate findings against the appellant. For the reasons explained above, I do not accept that the decision record reveals any relevant inconsistency. Conclusion 68 The appeal must be dismissed. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate: Dated: 31 January 2017