ADU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 228
•4 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)ADU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 228
File number(s): BRG 377 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 4 November 2021 Catchwords: MIGRATION – appeal from decision of Immigration Assessment Authority – protection visa – whether failed to consider claim apparent but unarticulated claim – whether IAA misapprehended task – dismissed with costs Legislation: Migration Act 1958 (Cth), s.473CA
Refugees Convention Act 2012 (Nr), s.4(2)
Cases cited: ADU18 v Minister for Home Affairs [2020] FCA 366
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
CAI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1310
CRI026 v The Republic of Nauru (2018) 92 ALJR 52
CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134
CWF16 v Minister for Home Affairs & Anor [2020] HCATrans 191
CWF16 v Minister for Home Affairs [2020] FCA 509
SZTAL v Minister for Immigration (2017) 262 CLR 362
Number of paragraphs: 53 Date of last submission/s: 18 March 2021 Date of hearing: 18 March 2021 Place: Brisbane Counsel for the Applicant: Mr Karp Counsel for the Respondents: Mr McGlade Solicitor for the Applicant: Fisher Dore Lawyers Solicitor for the Respondents: Minter Ellison Lawyers
Table of Corrections 10 December 2021 In the quotation in paragraph 31 the applicant’s name has been replaced with the Court pseudonym. 10 December 2021 In the quotation in paragraph 40 the applicant’s name has been replaced with the Court pseudonym. ORDERS
BRG377 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADU18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
4 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The applicant have leave to amend his application filed on 2 July, 2020 in the way provided in the amended application exhibited to the affidavit of Caitlin White filed on 24 February, 2021.
2.The amended application be dismissed;
3.The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
These orders and reasons were prepared by Judge Jarrett but were published by Judge Vasta pursuant to s 210(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE JARRETT:
The applicant applies for judicial review of a decision of the second respondent. On 11 June, 2020, the second respondent affirmed a decision to refuse the applicant a Safe Haven Enterprise (Subclass 790) visa.
The applicant applied for the visa after his entry into Australia in 2013 as an unlawful maritime arrival for the purposes of the Migration Act 1958 (Cth). The visa application was made in 2016. His application was refused by a delegate of the first respondent. His application was subsequently referred to the second respondent pursuant to the Part 7AA fast track regime provided for in the Act. Following the referral the second respondent made a decision to affirm the delegate’s decision to refuse the applicant the visa.
The applicant sought judicial review of the second respondent’s decision. That was refused by the Federal Circuit Court. However, the applicant successfully appealed that decision and the second respondent’s decision was quashed on appeal from the Federal Circuit Court and the matter remitted to the second respondent for re-determination: ADU18 v Minister for Home Affairs [2020] FCA 366.
On 11 June, 2020 the second respondent again affirmed the delegate’s decision to refuse the visa. The applicant now seeks judicial review of that decision.
The first respondent opposes the application. The second respondent enters a submitting appearance.
A preliminary matter
The applicant seeks leave to amend his initiating application by adding a new ground 1, by amending the existing ground 1 (renumbered as ground 2 in the proposed amended application) and deleting the existing grounds 2, 3 and 5 (renumbered as 3, 4 and 6 in the proposed amended application). The applicant submits that the amended grounds focus the issues raised by the evidence before the Court. I will grant the applicant the leave which he seeks in this regard.
Background
The applicant arrived at Christmas Island on 3 February, 2013. In an entry interview conducted on 24 February, 2013 he claimed to be an Afghan citizen of Hazara ethnicity and Shia Muslim religion from Nawabad village in the Moqur district of Ghazni province. He also claimed that in the area where he had lived, rockets were fired every day and that one day in 2010 a rocket hit his family home and both his parents were killed.
In a statement attached to his visa application, the applicant claimed that:
(a)he owned and operated his own grocery shop in Nawabad;
(b)he could not practice his religion for fear of harm from Sunnis and he also feared racial persecution because of his Hazara ethnicity. He claimed that the Taliban were actively targeting Hazaras on the roads around Ghazni;
(c)he left Afghanistan after his parents were killed by an indiscriminately fired rocket which hit the family home. He was in Kabul when the attack occurred and after that attack his siblings moved to another house which was also hit by a rocket. He had not been able to contact them since; and
(d)he had trouble getting supplies for his grocery store because he could not travel in the area safely because of danger from the Taliban. The Taliban came to his store and physically assaulted him on six occasions.
The basis of the refusal of the application by the first respondent’s delegate was that the delegate was not satisfied that the applicant was either Hazara or Shia. The applicant’s other claims were also rejected. The application was referred to the second respondent by operation of s.473CA of the Act. I have recounted the fate of that review above. The decision was overturned because the Court found that the second respondent had failed to consider the applicant’s claims that rockets which killed his parents were fired by the Taliban and that such attacks occurred regularly.
The application was returned to the second respondent for re-consideration. The applicant took the opportunity to put further material before the second respondent. The applicant, by his advisers, made three written submissions referring to a range of information. The second respondent considered the submissions and the information referred to in them. Some of the information was considered to be new information in respect of which exceptional circumstances existed to justify its consideration for the purposes of s.473DD(b) of the Act and some of it was rejected because it did not satisfy the requirements of that subsection.
Of particular importance was a psychological report in respect of the applicant prepared by Dr Ursula Oertel. Dr Oertel diagnosed the applicant with post-traumatic stress disorder, dissociative amnesia and “major depressive disorder, moderate”. She added that he also presented with conditions of being a victim of “Terrorism, or Torture and Exposure to War or Other Hostilities”. She thought that if the applicant were to return to Afghanistan he would be provided with constant stimuli “that symbolise and resemble his past traumatic experiences” which would consequently prolong and exacerbate his symptoms. In addition, she thought that he would likely be exposed to further “social violence” which would compound his existing symptoms and could significantly interfere with his capacity to obtain, undertake and retain employment.
The applicant’s solicitors gave the second respondent further submissions on 15 April, 2020 and 3 June, 2020. The latter responded to an invitation to comment on a proposition that the applicant no longer had material ties with Nawabad and that he, “…would very likely return to Kabul instead”. However, the applicant’s adviser’s submitted that Kabul could only be a place of relocation for the purposes of s.36(2)(aa) of the Act read with s.36(2B)(c) of the Act. They argued that it would be unreasonable for him to relocate there. The advisers furnished the second respondent with new country information about the security situation in Afghanistan in general and about Moqor district in Ghazni province, but the second respondent did not consider this information because it believed that the applicant would return to Kabul. It accepted that the submissions on relocation and country information regarding Kabul addressed an aspect of the applicant’s circumstances that was squarely at issue, that being his likely place of return, and thus met the s.473DD criteria. It took the submissions and the information upon which they were based into account.
On 11 June, 2020 the second respondent again affirmed the delegate’s decision and refused the applicant’s visa application.
The second respondent accepted that the applicant suffered from the conditions identified by Dr Oertel but noted that those conditions had not prevented him working a 70 hour week in Australia. The second respondent was satisfied that his psychological conditions were not debilitating.
Whilst the second respondent accepted that the applicant was of Hazara ethnicity and was a Shia Muslim, it did not accept that he practised his Shia faith, or that he attended Shia religious events in Australia other than for the purpose of connecting with the Hazara community here. The second respondent was not satisfied that the applicant would practise his Shia faith in any way upon return to Afghanistan or that he was readily identifiable as a Hazara.
The second respondent accepted that the applicant’s parents were killed in 2010, that his siblings went missing in 2013 and that he had not had any contact with them since that time. It accepted that his grocery store business had closed. It concluded that the applicant’s ties with Nawabad had been “effectively severed” and it was satisfied that he would therefore return to Kabul.
The second respondent found the submission of 3 June, 2020 concerning the likelihood of the applicant returning to Kabul and the basis upon which his return to Kabul ought to be dealt with as unconvincing. The second respondent reasoned that even if the applicant had not stayed in contact with his friends in Kabul over the past seven years as he had claimed, it did not accept the submission that those contacts were lost to him. It also found that his links to Kabul were significantly more substantial than the submission acknowledged. He had told the delegate that he had travelled to Kabul once a month for stock for his shop, but also inferred that he went there for social and cultural reasons. He had also told the delegate that he had been visiting friends in Kabul when his parents were killed and he did not return for the burial.
The second respondent accepted that the applicant had not spent extended periods of time in Kabul, but that had been in the context of having ties in his home village which had been effectively severed. It was satisfied that he would not return there. It was also satisfied that Kabul would very likely be his place of return. It therefore considered whether he had a real chance of serious harm there.
On the basis of country information before it, second respondent was satisfied that the Taliban was still carrying out attacks on Kabul, but that it did not have an ethnic agenda and that the applicant, as a non-practicing Shia Hazara residing within a large Shia Hazara population in Kabul, would face no more than a remote chance of being harmed by Islamic State or caught up in a Taliban attack.
The second respondent did not consider that the applicant would be discriminated against to the extent of being denied the capacity to earn a livelihood or find accommodation or that he would face any relevant danger as a returned asylum seeker.
As to the applicant’s mental health, the second respondent accepted Dr Oertel’s report to the effect that he faced severe mental health issues, but the second respondent was not satisfied that he would seek out treatment upon return to Afghanistan. It also referred to Dr Oertel’s opinion that his mental health would considerably worsen upon return, to the extent that his functioning would be significantly impaired, but found that this opinion was based upon Dr Oertel’s finding that he faced a well-founded fear of persecution. The second respondent reasoned that it had made a more nuanced assessment and based on that assessment and its finding that the chances of his being persecuted were remote, it did not accept that the applicant’s conditions would worsen to the extent that he would not be able to function in Afghanistan or that his capacity to subsist would be threatened. The second respondent considered that whilst the applicant’s symptoms may continue they would not be the result of systematic or discriminatory conduct.
The second respondent was satisfied that the general security situation in Kabul and the level of criminal activity in the city was such that it did not amount to anything more than a remote chance of persecution in the reasonably foreseeable future. The second respondent concluded that the applicant did not establish his claims to complementary protection if the decision under review was affirmed.
THE GROUNDS OF REVIEW
Ground 1
The first ground of review is in the following terms:
1.The IAA erred in failing to consider a claim that clearly arose on the evidence and submissions before it,
Particulars
A claim that the applicant had a well-founded fear of persecution as a result of psychological harm that could be inflicted upon him because of his being exposed to violence caused by terrorist attacks upon his ethic and religious community in Kabul.
The applicant argues that Dr Oertel’s opinion was that were the applicant to return to Afghanistan he would experience constant stimuli “that symbolise and resemble his past traumatic experiences” which would consequently prolong and exacerbate his psychological symptoms. And so it was.
The applicant submitted to the second respondent that given the fluidity of the security situation in Afghanistan and the probability of attacks, especially in Kabul, the applicant would continue to be re-traumatised. The applicant submitted that quite apart from the “obvious harm” that this would cause, it would greatly restrict his capacity to gain and retain employment.
The parties agree that the applicant clearly articulated a claim that by reason of his possible exposure to further violence should he be returned to Afghanistan, he would suffer psychological harm that would restrict his capacity to gain and retain employment. In that way, the applicant argued the further psychological harm would meet the description of serious harm for the purposes of s.5J(5) of the Migration Act because the restriction on his capacity to earn a livelihood would threaten his capacity to subsist. The parties also agree that the second respondent dealt with this claim and its findings about that are not challenged.
The applicant now argues that the psychological harm that he will endure by reason of the constant stimuli “that symbolise and resemble his past traumatic experiences” which he would experience and which would consequently prolong and exacerbate his psychological symptoms was, of itself, serious harm for the purposes of s.5J(5) of the Act. He argues that a return to Afghanistan would necessarily involve serious harm by way of the prolongation and exacerbation of his psychological conditions because he would be exposed to violence. He argues that such a claim arose squarely upon the evidence, material and submissions before the second respondent and the second respondent did not deal with that claim. The first respondent argues that such a claim was never articulated by the applicant. Moreover, the first respondent argues that it does not arise on the material before the second respondent. There is no dispute that the second respondent did not deal with such a claim.
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 provides guidance as to the nature of the second respondent’s task:
· The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).
·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
· As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
Subject to a court being more willing to draw the line in favour of an unrepresented party, where, in the way they are articulated, presented or advanced by evidence, an applicant’s claims are open to differing interpretations as to the nature of the claim being raised, the alleged claim is not one that meets the threshold standard referred to by the Full Court in AYY17: ADU18 v Minister for Home Affairs [2020] FCA 366 at [72] – [73], CAI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1310 at [62].
Whilst the applicant accepts that the second respondent dealt with his contention that if he returned to Afghanistan his conditions would worsen to the extent that he would be unable to function or that his capacity to subsist would be threatened, he argues that it did not deal with a claim that he would be psychologically harmed by recurring violence directed at his community. He argues that such a claim arises squarely on the submissions and material before the second respondent. He argues that the second respondent was obliged to deal with this claim even though the psychological harm that he might suffer if he was returned to Afghanistan might not affect his ability to function in society. This claim if accepted, he argues, establishes serious harm for the purposes of s.5J(4)(b) of the Act. The applicant argues that as a result of failing to consider that claim, it also failed to consider whether such harm would involve “systematic and discriminatory conduct” for the purposes of s.5J(4)(c) of the Act.
The only submission that was made to the second respondent that would raise the claim now identified by the applicant appears in the submissions from the applicant’s advisors made in reply to the second respondent’s invitation to comment (at Court Book 414):
(16) Dr Ursula Oertel’s expert evidence is that Mr [ADU18’s] mental health symptomology would be compounded as a result of his return to Afghanistan and if he were exposed to violence or war-related events. Relevantly, the UNHCR quoted a source in their December 2019 report that “90% of the deportees in Kabul experience violence upon their return, yet such incidents are often underreported”.
(17) Dr Oertel’s evidence is directly relevant to the question of whether it is reasonable for Mr [ADU18] to relocate to and remain in Kabul. That is because,
(a) Given the fluidity of the security situation in Afghanistan, and the probability of at least sporadic militant attacks anywhere in the country, he would most likely continue to be retraumatised if returned to anywhere in Afghanistan;
(b) This is especially so in Kabul given the frequent militant attacks in the city which would be a constant reminder of the trauma to which he had been exposed earlier in his life;
(c) Exacerbation of his mental health symptoms, either by simply returning to the country where he has experienced trauma, or by witnessing or experiencing other traumatic events will cause deterioration in his mental health. Apart from the obvious harm that this would cause, it would also greatly restrict his capacity to gain and retain employment;
(d) Given the limited availability of mental health treatment in all areas of Afghanistan (discussed below), it is highly improbable that he will receive support for his complex medical needs that could improve his capacity to both obtain work, and to be able to work; and
(e) In the absence of mental health treatment, he is unlikely to function well in a risk environment.
(18) The Authority may be tempted to believe that because of his work history in Afghanistan and Australia, his mental health has not precluded him from working previously and therefore should not serve as a barrier in future. This would not address Dr Oertel’s evidence as summarised above. His ability to work in Australia is hardly relevant given that he is and considers himself to be safe here and does not suffer retraumatising events.
(19) So far as the availability of mental health care in Afghanistan is concerned, we note the following;
•In their April 2018 report, EASO quoted an Asylos source that “mental health care in Afghanistan is virtually non-existing” with only one public mental health hospital operating in Kabul and one private on in Mazar-e Sharif. Available information is that there is mistreatment of mentall ill persons Afghanistan and that there is societal stigma associated with mental illness. This stigma, and the vulnerability of those who suffer from mental illness, has been recognised by DFAT, the EASO and the UNHCR.
•A 2016 Samuel Hall study reported that Afghanistan suffers from a lack of trained professionals (psychiatrists, social workers, psychologists), sufficient infrastructure and awareness about mental health issues. The study also found that returnees find themselves “most vulnerable” compared to those with no migration background.
•In an October 2019 report, Humans Rights Watch estimated they were around one psychiatrist for every 435,000 people and one psychologist for every 333,000 people. The same report referenced a number of examples of Afghans who sought mental health or psychological treatment and received only sleeping medication.
•There is a paucity of educated and qualified mental health treatment services and professionals in Afghanistan. This is likely to worsen in the near future – according to OCHA’s 2019 Humanitarian Needs Overview, the rapid population growth in Kabul is likely to further exacerbate disrupted and inadequate access to health services.
(20) It is reasonable to conclude that mental health care in Afghanistan is next to non-existent, and that Mr [ADU18] would not be able to obtain such case as is available. By contrast, he has made clear plans to access appropriate mental health treatment in Australia. Following his assessment with Dr Oertel, he has arranged, via a Mental Health Care Plan referral, to attend treatment sessions with Ms Katayoon Haghserest, psychologist. We attach a copy of his MHCP and appointment confirmation for the Authority’s reference.
These submissions, in my view raise a claim that the applicant would face psychological harm in the event that he was returned to Afghanistan. The symptoms from which he was suffering would, according to the established facts set out in Dr Oertel’s report, be prolonged and exacerbated although no quantitative or qualitative analysis of that prolongation or exacerbation was undertaken by Dr Oertel.
Subsection 5J(5) of the Act is an inclusive definition of serious harm. Psychological harm or the exacerbation or prolongation of psychological symptoms, of itself, is not within s.5J(5)(a) – (f). The applicant recognised this as his claim was put on the basis that his symptoms and the prolongation and exacerbation of them would mean that he could not work and therefore would not be able to subsist because he would not be able to earn a livelihood. Notwithstanding that, I accept that exacerbation or prolongation of psychological symptoms, of itself, might amount to serious harm for the purposes of the Act. I accept that the identified claim is able to engage s.5J(4)(b) of the Migration Act if it arose on the materials before the second respondent.
However, I do not accept that psychological harm caused by attacks on a section of a population necessarily involves systematic and discriminatory conduct within the meaning of s.5J(4)(c) of the Act. Here, the claim said to have been raised was that the applicant would suffer psychological harm by reason of constant stimuli “that symbolise and resemble his past traumatic experiences” which would consequently prolong and exacerbate his psychological symptoms. It was his case that he would continue to be re-traumatised. However, the country information before the second respondent demonstrated and the second respondent found, that the attacks in Kabul did not have an ethnic agenda and so the proposition that the conduct was discriminatory (in the sense that it targeted a particular ethnic group or part of Kabul society) was not made out on the facts.
I do not accept that the applicant’s case was ever advanced on the basis that he would have psychological impacts by reason of his “community” being targeted as is now put on his behalf in the amended ground of review. Nor does such a case clearly emerge on the evidence and information before the second respondent. Whilst it is the case that the evidence and information suggested that the applicant might witness violence from attacks in Kabul which would re-traumatise him, I accept the first respondent’s submissions that those claims were put in a broad and unfocussed way. They were not directed specifically to violence that the Shia-Hazara community would experience but rather to general exposure to violence and war-related events.
In those circumstances, to the extent that it might be accepted that the applicant would suffer harm through the prolongation and exacerbation of his psychological symptoms and would continue to be re-traumatised, those consequences do not engage the protection obligations set out in the Migration Act. That is so because the applicant could not have a well-founded fear of persecution based upon those consequences. The fear of the relevant persecutory conduct is not for reasons of race, religion, nationality, membership of a particular social group or political opinion. The actions leading to the relevant harms are not, on the applicant’s case directed to him, but to others and the harm that he might suffer is a by-product of the actions directed or targeted at others.
This ground does not demonstrate jurisdictional error by the second respondent.
Grounds 2 and 5
These grounds are directed to the second respondent’s determination of the applicant’s claim to complementary protection. They can be conveniently be dealt with together and are in the following terms:
2.The IAA erred in failing to conclude on the facts that it found, that Kabul was place of relocation for the applicant in terms of s 36(2)(aa) of the Migration Act, read with s 36(2B)(a), and as a result of having so erred, failed to consider whether it was reasonable for the applicant to relocate to Kabul.
5.Alternatively to ground 1 above, the IAA erred in failing to consider a clearly articulated substantial submission made on behalf of the applicant that Kabul could not be construed as a place of return in the Applicant’s circumstances, and was, in those circumstances, a place of relocation.
It is uncontroversial that the second respondent accepted that the applicant had never spent extended periods in Kabul and that he previously had familial and business ties in Nawabad, where he had lived and was born and raised. However, the second respondent found that the applicant’s links with Kabul were significantly more substantial than his advisor’s had submitted. The second respondent found that the applicant would likely return to Kabul upon his return to Afghanistan.
In their submissions before the second respondent the applicant’s advisors posited two questions that they said needed to be answered by the second respondent if it thought that the applicant would be likely to return to Kabul. They submitted:
3.Even were it accepted that Mr [ADU18] would return to Kabul, consideration must be given to why he would reside there. Given the absence of any sufficient links to Kabul in his case, and his links with his home village. the only possible answer is that he would be choose to reside there because his home area is unsafe.
4.Thus, contrary to the Authority’s assumption, he would not “return” to Kabul. The only place in Afghanistan to which he would “return”, in the sense of having lived there in the past, would be Nawabad village, Moqor district, Ghazni Province where he had been born and raised. Our previous submissions have addressed the danger to him of return there. We continue to rely on those submissions.
5.In view of the above, Kabul could only be a place of relocation in terms of s 36(2)(aa) of the Migration Act, read with s. 36(2B)(c). Thus, were it accepted that Mr [ADU18] would seek to locate himself in Kabul upon return to Afghanistan, questions arise as to,
(a)Whether first, he may have a well-founded fear of persecution or face a real risk of serious harm in Kabul, AND
(b) Whether it would be reasonable for him to relocate to Kabul.
In his submissions before me, counsel for the applicant posed the questions for the second respondent slightly differently. He submitted:
23. …The following questions arise;
(i) Would Kabul, as a matter of law, be a place of relocation for the applicant? If the answer to that question is “yes”, the second respondent erred in failing to so find.
(ii) Alternatively, was it arguable that Kabul might be a place of relocation for the applicant? If that question arose for consideration, the second respondent has failed to consider that issue, and has also failed to consider clearly articulated submissions on it.
Thus, the applicant argues that for the purposes of s.36(2)(aa) of the Act the second respondent failed to recognise that Kabul was a place of relocation and that, consequently, it was required to consider whether it was reasonable to relocate to Kabul.
The first respondent argues that the applicant’s case is centred around a misunderstanding as to how s.36(2)(aa) of the Act operates. The first respondent argues that the second respondent was not required to undertake an assessment of the reasonableness of the applicant returning to Kabul.
Both parties commence the elaboration of their arguments with the text of the relevant section – always a very good place to start. Subsection 36(2)(aa) of the Act is as follows:
36 Protection visas—criteria provided for by this Act
(2) A criterion for a protection visa is that the applicant for the visa is:
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
…
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) 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; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
As will be observed from the text of the above subsections, the test for complementary protection in s.36(2)(aa) of the Act is qualified by s.36(2B)(a) of that Act. It is s.36(2B)(a) which is relevant for present purposes. The other subsections of s.36(2B) have no application.
The applicant argues that the test for relocation in the context of complementary protection is “identical to that in the context of Article 1A(2) of the Refugees Convention”. He argues that a proper application of that test required the second respondent to first make a finding that Kabul was a place of relocation. Second, it was required as a matter of law, to consider the reasonableness of that relocation.
But I cannot accept those arguments. The second respondent’s task was to first determine if s.36(2)(aa) was engaged at all. As the first respondent submits, that required a finding about where the applicant was likely going to go and what he would likely do in such place or places. The next step required a finding about the risk of significant harm that was a reasonable consequence of his return to the identified receiving country. It was only once the second respondent had concluded that s.36(2)(aa) was engaged that it was called upon to consider s.36(2B)(a) of the Act: cf. CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 at [45]-[47].
The applicant’s reliance on what fell from the High Court of Australia in CRI026 v The Republic of Nauru (2018) 92 ALJR 52 does not assist. In that case, at issue was the nature and extent of the non-refoulment obligation cast upon the Republic of Nauru by reason of s.4(2) of the Refugees Convention Act 2012 (Nr). That section expressly called up the international obligations cast upon contracting states in respect of what was described as “complementary protection”. The legislative provisions under consideration in the instant application as significantly different. To the extent that the applicant submits that SZTAL v Minister for Immigration (2017) 262 CLR 362 confirms that in the present context, s.36(2B)(a) of the Act may therefore be taken to be informed by, and to give effect to, a principle akin to the principle of internal relocation know in international refugee law, I reject that submission. SZTAL provides no support for that view.
Here, the second respondent made a critical finding that it was likely that the applicant would return to Kabul. It gave reasons for that finding. The second respondent accepted that the applicant’s ties with his home village had been severed because his parents had been killed in 2010, his siblings had disappeared in 2013 and he closed his business there. The finding was clearly open to the second respondent on the evidence. It went on to find that the applicant would likely return to Kabul notwithstanding that he had not spent extended periods there. Again, this finding was open to the second respondent. In making these findings, the second respondent discharged its duty to make a finding about the place of return of the applicant. That is something distinct from considerations of relocation. Questions of relocation did not arise on the facts as found by the second respondent: cf. CWF16 v Minister for Home Affairs [2020] FCA 509 (special leave refused: CWF16 v Minister for Home Affairs & Anor [2020] HCATrans 191).
The second respondent then went on to consider that there was no real risk of significant harm to the applicant when he returned to Kabul, a finding that the applicant does not now challenge.
The second respondent’s findings about these matters meant that it was unnecessary, in the context of the applicant’s claim to complementary protection, to consider that Kabul was a place of relocation or the matters set out in s.36(2B)(a) of the Act.
These grounds do not reveal jurisdictional error on the part of the second respondent.
DISPOSTION
The amended application must be dismissed with costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett. Associate:
Dated: 4 November 2021
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