Afr19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 491
•28 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 491
File number(s): SYG 115 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 28 April 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority failed to make a forward looking assessment of the risk of harm considered – no jurisdictional error. Cases cited: AON15 v Minister for Immigration and Border Protection (2019) 269 FCR 184
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
DUX16 v Minister for Immigration and Border Protection [2018] FCA 1529
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375
MZYXR v Minister for Immigration and Citizenship [2013] FCA 252
SZQXE v Minister for Immigration and Citizenship (2012) 134 ALD 495
Warnakulasuriya v Minister for Immigration & Multicultural Affairs [1998] FCA 36
Number of paragraphs: 77 Date of hearing: 15 March 2021 Place: Sydney Counsel for the Applicant: Mr S Lawrence, with Ms E Buzo Solicitor for the Applicant: Michaela Byers, Solicitor Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 115 of 2019 BETWEEN: AFR19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
28 APRIL 2021
THE COURT ORDERS THAT:
1.The amended application the subject of leave granted on 15 March 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 9 January 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Afghanistan who arrived in Australia as an unauthorised maritime arrival on 5 June 2013. He applied for a Safe Haven Enterprise visa (SHEV) on 12 October 2016.[1] He claimed to fear harm because of his Shia religion and Hazara ethnicity.
[1] Court Book (CB) 46-117
The delegate interviewed the applicant on 23 January 2018, and refused the visa on 10 May 2018.[2]
[2] CB 208-240
The delegate refused the application on the basis that the applicant did not face a real chance of serious harm or a real risk of significant harm upon return to Afghanistan.
The matter was then referred to the Authority.
Authority decision[3]
[3] CB 520-538
The Authority referred to a submission provided to it by the applicant’s representative. The submission, in so far as it comprised argument on issues before the delegate and referred to claims and evidence before the delegate, was taken into account by the Authority at [4].
The submission also referred to country information which was not before the delegate. The Authority noted at [5] that this information post-dated the delegate’s decision and therefore, despite being new information, there were exceptional circumstances for its consideration.
The Authority also referred to a hyperlink contained in the submission. This apparently provided evidence of the average travel time between Kabul and Ghazni. The Authority referred to its Practice Direction which stated that hyperlinks to information were not acceptable. Further, it was noted that no explanation was given as to why this information could not have been provided earlier. The Authority also stated at [6] that, having regard to the totality of the applicant’s claims, it was of the view that the information provided no assistance in assessing the applicant’s claims and “for that reason I have decided under s 473FB(5) not to accept it”.
There was also some identity information provided which the Authority did not accept and provided detailed reasons for this at [8]-[10]. However, the Authority also stated at [11] that the applicant’s identity is as claimed. It was also accepted at [15] that he was a Shia Hazara from Location A[4] in Ghazni Province.
[4] The name of the location has been anonymised
The Authority also accepted at [18] that for a period between 2005 and 2009 the applicant lived in Kabul for education purposes. The applicant gave evidence to the delegate that his family, including his wife, children, brother and parents had moved to Kabul in May 2017 due to his daughter requiring medical treatment. However, it was accepted that Location A was the area to which he would return, which is what the applicant had claimed, as he had no land in other areas but retained his home and farmland in Location A.
In relation to the substantive claims, the Authority did not consider that the applicant raised credible claims. There were significant inconsistencies in the applicant’s evidence. While the applicant advanced various reasons for this, the Authority was not persuaded by them. It concluded at [19]-[27] he had fabricated the claims relating to threats by the Taliban or that he had to leave Afghanistan because of threats made that he was a Shia Hazara. It accepted that he worked for an NGO in around 2009-10 but not that he was threatened in connection with this or any other employment.
In relation to his return to Afghanistan, the Authority did not consider that he would face a real chance of harm either due to his past employment with an NGO, or that he had returned from a Western country. Due to the fact that his home area was exclusively Hazara and he has family ties there, the Authority found at [28]-[35] that the chance that he would face discrimination based on his ethnicity or religion was remote. The country information available also supported a finding that Islamic State was a limited threat in Location A and the risk of harm did not rise to a real chance. The Authority also considered at [36]-[41] information which suggested that Location A was not an area where returnees were targeted and the applicant did not have a profile which was associated with a high risk of harm.
The Authority accepted that the applicant would be returned to Kabul and would then need to transit to Location A and that this would occur by road. Noting the likely route to be taken, the Authority assessed at [42]-[45] the risk of harm as remote due to the lack of any recent attacks being reported in that area. It was also noted that there was a commercial flight available which would then involve travelling through a Hazara majority area. The applicant’s evidence at interview that he had accumulated savings of more than $20,000 was relied on to support the conclusion that he could afford an airfare. The Authority also considered the general security situation at [46]-[47] and concluded that any risk was remote and was also not for a Convention reason.
For similar reasons the Authority also found at [52]-[54] that the applicant did not satisfy the complementary protection provisions.
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 17 January 2019. The applicant now relies upon an amended application which I granted the applicant leave to file and rely upon at the trial on 15 March 2021. There is one ground in that application as amended:
The Tribunal acted outside of jurisdiction by failing to complete the statutory task of review by failing to consider and determine whether the Applicant a) had a well-founded fear of persecution and b) faced a real risk of suffering significant harm, in the reasonably foreseeable future, as distinct from the present or immediate future.
The only evidence I have before me is the book of relevant documents (court book) filed on 18 March 2019. The parties provided written submissions in advance of the hearing and made oral submissions through their counsel at the hearing.
CONSIDERATION
Applicant’s contentions
The applicant’s protection visa application[5] was accompanied by a statutory declaration setting out his claims.[6]
[5] CB 46
[6] CB 85-89
The applicant claimed a fear of harm on the basis of:[7]
(a)his Hazara race;
(b)his Shia Muslim faith;
(c)imputed political opinion of opposition to the Taliban and other extremist Sunni groups; and
(d)membership of a particular social group being “returnees from western countries”.
[7] CB 85 [1]
The applicant claimed to fear harm from:[8]
(a)the Taliban;
(b)Daesh; and
(c)other Sunni insurgent groups in Afghanistan.
[8] CB 85 [4]
The basis for these fears was stated as:[9]
(a)he had worked for an organisation called Neama and had been threatened by the Taliban because they believed it was a government organisation;[10] and
(b)he was a Hazara person and a Shia Muslim.
[9] CB 87 [10]
[10] CB 86 [6]–[8]
The specific fears upon return were described as:
(a)“I fear being persecuted”;[11]
(b)“I will be declared an infidel”;[12] and
(c)“I fear I will seriously physically abused, killed or subjected to an extraordinary level of discrimination that will threaten my ability to subsist or otherwise significantly harmed if returned to Afghanistan”.[13]
[11] CB 86-87 [6]-[10]
[12] CB 87 [11]
[13] CB 87 [12]
The applicant specifically raised the issue of the unstable security situation:
The security situation was also deteriorating and it was too dangerous for me to move or seek safety anywhere in the country.[14]
…
The Daesh is threatening to continue persecuting Shia Hazaras in Afghanistan and this new development means that it is not only the Taliban and affiliates who persecute Shia Hazaras but Daesh too.[15]
[14] CB 87 [14]
[15] CB 88 [16]
As noted above, the applicant was interviewed by the delegate on 23 January 2018,[16] and thereafter on 6 February 2018 the applicant’s representative sent a submission to the delegate addressing concerns raised in the interview.[17]
[16] CB 127
[17] CB 139
The submission raised matters squarely concerning the unstable security situation in Afghanistan: [18]
[18] CB 141-142
There is no doubt that the security situation in Afghanistan has continued to deteriorate in recent weeks with the Taliban gaining more territories while the Afghan security forces .. ‘are decreasing in relevancy and effectiveness in the area of counterterrorism and have been turned into nothing more than a sideshow’. More notable though, the emergence of the Islamic State (ISIL) in the region has … ‘intensified attacks on local Shi’a Muslim populations and their places of worship, exposing the potential for deepening sectarian tensions in the country’. The Human Rights Watch Report in January 2018 confirmed that, ‘A growing number of these attacks targeted Afghanistan’s Shia Hazara minority’.
…
According to the Dhaka Tribune, ‘IS (ISIL) …is now targeting mainly the Shias and the Hazara minority, joining forces with the Taliban thereby changing the dynamics of the war in Afghanistan.’
…
What will be his future in Afghanistan but death when the very people he fears (Taliban) are gaining more power and influence everywhere in the country.
…
The Taliban were not very powerful at the time he fled Afghanistan and he and his family have been out of their radar since he fled to Australia and there was no way they could get to him in Australia. Therefore he will again come to the attention of the now powerful and influential Taliban…
…
The former governor of Mazar-e-Sharif, Atta Mohammad Noor is at war with the government in Kabul and the province security is uncertain.
A lengthy series of attachments to the submission contained a large quantity of country information[19] which confirmed the unstable security situation in Afghanistan, its deterioration and the real prospect of further deterioration.[20]
[19] CB 146-207
[20] CB 147, 150,151, 153, 155
The delegate refused the applicant’s protection visa on 10 May 2018.[21]
[21] CB 208
The decision of the delegate analysed the security situation and noted it was generally deteriorating.[22] It further noted, “in late 2016 and 2017 a series of deliberate sectarian attacks against Shia targets”, which “raised concerns that Shia may now be vulnerable to being targeted based on their religious identity by Afghanistan-based groups”.[23]
[22] CB 221
[23] CB 221-222
The delegate however was of the view that the risk of the applicant being so targeted was a “remote possibility”[24] and stated that it was: [25]
important to assess the recent attacks on Shia in context of the security situation in Afghanistan as a whole. Country information before me indicates that Hazara and non-Hazara now face a risk of being attacked by ISKP based on their religious affiliation, however it is important to note that these attacks to date have occurred in Kabul, Herat, Balkh Province, Nangahar Province and Ghor Province against Shias in large identifiable groups. The Applicant comes from [Location A] in Ghazni Province, an area where there is no credible reporting to indicate or suggest that Shias are presently systematic and discriminately targeted. The previously cited country information suggests that the situation in the applicant’s former home district … is relatively safe and that he would not be a target for insurgent attacks based on his profile as a Hazara Shia Muslim. I therefore find that there is not a real chance that the applicant will face harm of sufficient gravity as to amount to persecution on the basis of his religion in the event he were to return to his home region in Afghanistan in the reasonably foreseeable future.
(applicant’s emphasis retained)
[24] CB 222
[25] CB 222-223
The delegate further stated that: [26]
I have considered the applicant’s claims, circumstances and relevant information individually and cumulatively. I am not satisfied that the applicant has a well-founded fear of persecution and I do not accept that there is a real chance of persecution if he were to return to Afghanistan now or in the reasonably foreseeable future.
(applicant’s emphasis retained)
[26] CB 234
The matter was referred to the Authority on 16 May 2018.[27]
[27] CB 241
On 6 June 2018 the applicant’s representative made a submission to the Authority.[28]
[28] CB 258
This submission took issue with the delegate’s findings as to the security situation:[29]
…the delegate failed to take fully into consideration recent events indicating that the security situation particularly for Shia Hazaras, targets of the Taliban (including [the applicant] and Daesh and other insurgent groups has continued to decline significantly since July 2016 and made his own personal assessment that ‘there are no compelling signs that there will be a significant decline..’ (paragraph 4 page 11).
[29] CB 261
The submission cited newer country information[30] (from EASO[31], the same source as the delegate had relied upon) that suggested a worsening in the situation in the applicant’s home province and that, “UNOCHA[32] considered Ghazni as one of the ‘most conflict affected’ provinces”[33] and again stated that, “the security situation is deteriorating”.[34]
[30] CB 261
[31] European Asylum Support Office
[32] United Nations Office for the Coordination of Humanitarian Affairs
[33] CB 261
[34] CB 263
The Authority made its decision on 9 January 2019.
Much of the reasons of the Authority are concerned with an assessment of the applicant’s claims to have been threatened by the Taliban.[35]
[35] CB 524-527 [19]-[27]
This claim was rejected, though the Authority accepted he had worked “for an NGO in around 2009/10 for a number of months”.[36]
[36] CB 527 [27]
At [28] to [48] the Authority considered the question of whether there is a real chance the applicant will be harmed or otherwise persecuted upon return to Location A.[37]
[37] CB 527-533
The country information concerning Ghazni Province which the applicant had provided was considered, with the Tribunal noting that:[38]
There were no security incidents reported in the district in EASO’s May 2018 report, with [Location A] (and neighbouring districts …) considered in the lowest category for ‘conflict severity’.
[38] CB 528 [31]
The Tribunal made the following findings:
I consider the chance that the applicant would now, in 2019, come to the adverse attention of the Taliban or other insurgent groups in connection with that employment to be remote.[39]
[39] CB 527 [29]
…
[H]aving regard to the country information before me, I find it does not support that Shia Hazaras are currently being targeted and harmed in ethnic or religious attacks, nor for other reasons, by the Taliban, Islamic State or other insurgent groups, in [Location A].[40]
…
Islamic State … remains a limited threat in [Location A].[41]
…
When I consider the frequency of attacks against Shias and Hazaras there, and the applicant’s lack of other profile or proximity connected to those in high profile groups, I find the chance that he would be harmed in [Location A] due to his ethnicity or religion, or as a Shia Hazara, to not rise to a real chance.[42]
…
I consider that any period of time he would need to spend transiting would be brief, and that the government and security forces maintain effective control in Kabul, including at the airport and, on the information before me, I am not satisfied the situation will deteriorate in the reasonably foreseeable future. I am not satisfied that the applicant will face a real chance of harm of any kind during any transit period.[43]
…
While I have accepted that there have been security incidents, the evidence before me does not support that the Afghan government or security forces are losing control of [Location A].[44]
(applicant’s emphasis retained)
[40] CB 529 [35]
[41] CB 529 [35]
[42] CB 529 [35]
[43] CB 532 [46]
[44] CB 532 [47]
The applicant submits that the Authority did not discuss, consider or analyse the possibility of a worsening in the security situation in Afghanistan generally in the reasonably foreseeable future. The closest the Authority came to doing so is said to have been in its discussion of the Kabul Airport, in respect of which it stated:[45]
the government and security forces maintain effective control in Kabul, including at the airport and, on the information before me, I am not satisfied the situation will deteriorate in the reasonably foreseeable future.
[45] CB 532 [46]
The Authority decision is notable for its absence of references to the “reasonably foreseeable future”, a test with which the delegate’s decision was replete.
The applicant contends that this constituted a failure to apply the statutory test, which required[46] consideration of the circumstances as they may emerge in the “reasonably foreseeable future”[47] or the “immediately foreseeable future”.[48]
[46] per Flick J in SZQXE v Minister for Immigration and Citizenship (2012) 134 ALD 495
[47] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 279 per Brennan CJ, Toohey, McHugh and Gummow JJ
[48] Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375 at 403 per Sheppard J; Warnakulasuriya v Minister for Immigration & Multicultural Affairs [1988] FCA 336 per Finkelstein J
This approach is said to be supported by UNHCR Guidelines:[49]
When assessing the risk, it is important to take into account the fluctuating character of many contemporary situations of armed conflict and violence. Changing levels of violence or control over territories and populations are common in situations of armed conflict and violence. For example, even if the level of violence at the time of decision-making is relatively low, over time the situation of armed conflict and violence may change, increasing the degree of risk establishing a well-founded fear.
[49] Guidelines on International Protection No 12: Claims for refugee status related to situations of armed conflict and violence under Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees and the regional refugee definitions at 25
The reasoning of North J in MZYXR v Minister for Immigration and Citizenship[50] at [19] is also said to be apposite (in a case where there was at least a formulaic reference to the “reasonably foreseeable future”):
Given the structure and methodology of the decision, a fair reading leads to the conclusion that the issue of the prospects of persecution in the reasonably foreseeable future was not addressed. The formulaic reference in [145] that there is no real chance of the appellant being harmed in Afghanistan for a Convention reason of race or religion now “or in the reasonably foreseeable future” is not supported by any earlier reasoning.
[50] [2013] FCA 252
The evidence is said generally to have squarely raised the realistic (if not likely) prospect of deterioration of the security situation in Afghanistan.
The applicant submits that the statutory test could not be properly applied to the applicant’s claims in a review without proper consideration of the reasonably foreseeable future and the prospect of a change in the security situation in Afghanistan and the significant evidence that supported that prospect.
Minister’s contentions
The Minister submits that the Authority needed to consider the reasonable foreseeably future, “on the basis of probative material, without extending into guesswork”.[51] However it is said not to be a fair reading of the Authority’s reasons, contrary to Wu Shan Liang at 271-272, to suggest that it has not done so.
[51] CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60], quoted in AON15 v Minister for Immigration and Border Protection (2019) 269 FCR 184 at [50]-[51]
The Authority had regard to relevant country information as at the date of its decision so as to inform itself about what might occur in future if the applicant were returned to Afghanistan. It is said to be apparent that it was looking to the future from what it states at [46]-[47] concerning the situation in Kabul in the “reasonably foreseeable future” and whether the government was losing control in Location A.
The applicant’s submissions complain that the Authority did not “discuss, consider or analyse the possibility of a worsening in the security situation in the reasonably foreseeable future”. However, the Minister submits that it was not required to do more than it did. The applicant had claimed that the security situation in Ghazni Province and, in particular, in Location A meant that he could not return there.[52] The Authority plainly found to the contrary at [28]-[46]. The applicant’s reference to the security situation in Afghanistan deteriorating at CB 261 was put in the context of why he could not relocate to Kabul or Mazar-e-Sharif, which was not relevant given the Authority found at [18] that he would return to Location A. The Authority nevertheless addressed the security situation in Afghanistan at [47], but noted that the evidence did not indicate that the authorities were losing control of Location A. The Authority is said thereby to have addressed the applicant’s claims. The Minister submits that having found that the applicant would return to Location A, it was not required to consider conditions elsewhere in Afghanistan.
[52] CB 261-262
The Minister submits that the fact that the delegate refers more often to the foreseeable future than the Authority, a matter relied upon by the applicant, by itself hardly establishes that the Authority did not consider the reasonably foreseeable future. Ultimately the applicant bears the onus of demonstrating, on the balance of probabilities, that the Authority did not do so. The Minister submits he has not discharged that onus. As in SZQXE at [11] and [15] and CPE15 at [55] and [62]-[63], the Minister submits that the applicant has not established that the Authority failed to address the reasonably foreseeable future to the extent required.
Applicant’s reply contentions
The applicant notes that the Minister indicates that the Tribunal “was not required to do more than it did” in terms of its approach to assessing the security situation in Afghanistan in the reasonably foreseeable future.
This is said to be an incorrect interpretation of how “reasonably foreseeable future” is to be considered in a situation. In CPE15 at [60] it was found that:
The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.
As such, in making its assessment, the applicant contends that the Authority was required to make an assessment of the “reasonably foreseeable future” on the basis of probative material, which was before the Authority and make an “accurate assessment of what risks a person may face in the practical ‘on the ground’ circumstances she or he will be living in”.
This process is not necessarily a linear assessment, rather the Authority is required to also consider changes in circumstances. As Perram J stated in DUX16 v Minister for Immigration and Border Protection:[53]
… in assessing whether an applicant has a well-founded fear of persecution for a Convention reason the decision-maker must assess the applicant’s situation not only in the present by also into the reasonably foreseeable future [Liang at 279]. Thus even though there may be no immediate risk of harm to an applicant for a Convention reason if returned to the country of origin, nevertheless changes in circumstances may in some cases be readily foreseeable and this may, in turn, justify the conclusion that there is a well-founded fear of persecution for a Convention reason.
[53] [2018] FCA 1529 at [14]
As such, the Authority is said to have failed to consider changes in circumstances in Location A and Afghanistan generally that were readily foreseeable based on probative material before it, separately to what was found to be the likely “reasonably foreseeable future”.
While the Authority had assessed that there may be no immediate risk of harm to the applicant for a Convention reason, as per DUX16, changes in circumstances in Location A and Afghanistan generally are readily foreseeable based on the information before the Authority, and these changes required independent consideration, which the Authority is said to have failed to do.
The applicant notes that the Minister contends that the Authority did have regard to what might occur in the future if the applicant returned to Afghanistan, and indicates that the Authority demonstrated this where it states at [46]-[47] the situation in Kabul in the “reasonably foreseeable future” and whether the government was losing control in Location A.
The express reference in the decision that the Authority was not convinced that the situation in Kabul would deteriorate in the “reasonably foreseeable future” is said to demonstrate the appropriate application of the reasonably foreseeable future test, which was absent elsewhere in the decision. The test as applied to Kabul airport cannot logically be extended to Afghanistan as a whole and Location A.
The applicant contends that his safety in the reasonably foreseeable future was not contingent on whether the government was about to lose control of Location A. However, the use of the present continuous tense in its assessment “are losing control” is said to demonstrate that the Authority was only looking at the future as an extension of the present conditions and did not entertain whether conditions could change from the current situation.
Following from this, the determination that the government and security forces are not losing control is said to fail to apply the correct test as articulated in Wu Shan Liang, which requires that in assessing whether an applicant has a well-founded fear of persecution for a Convention reason, the decision-maker must assess the applicant’s situation not only in the present but also into the reasonably foreseeable future.
The applicant contends that determining that the Afghan government or security forces are losing control of Location A is making an assessment in the present, when it is the task of the Authority to look not only to the present, but also into the reasonably foreseeable future.
The applicant notes that the Minister has submitted that by the Authority finding the applicant would return to Location A, there was no need for the Authority to consider conditions elsewhere in Afghanistan. This is said to erroneously presume that the conditions elsewhere in Afghanistan will have no impact on the security in Location A. The applicant faces return to a country, being Afghanistan, and the risk of harm could not be properly dealt with solely by reference to a small sub-district of a larger province. The security situation in Location A was and is dependent on the overall security situation in Afghanistan and Hazarjat more generally.
The applicant concludes that as such, the Authority could not have considered the harm that the applicant may face in the reasonably foreseeable future without reference to the country as a whole.
Resolution
The amended application contains one ground, asserting that the Authority did not consider whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future.
As I pointed out to counsel during oral argument, the question is not so much whether the words “reasonably foreseeable future” were employed by the Authority but, rather, whether the Authority had made a forward looking assessment as is required of any decision maker in this jurisdiction.
There may be cases in which the likely course of future events is unknown or unknowable. In such cases the forward looking assessment need not descend into mere speculation. The obligation on decision makers is to assess the risk facing a visa applicant in the future as best he or she can, notwithstanding that the foreseeable future may be within a short compass.
In the present case, the delegate made a detailed analysis of the general security situation in Afghanistan.[54]
[54] CB 221-224
At CB 224 the delegate concluded:
Weighing all the information before me, I consider the applicant’s home area of [Location A] in Ghazni Province comparatively secure and I am satisfied that if the applicant was to return to and live in his former home area, there is only a remote chance that he would be harmed for reasons of his religion or ethnicity, or any related profile, or in generalised violence, involving the Taliban, Islamic State, or any other groups active in Afghanistan and in the areas in and around his former home areas of [Location A] in Ghazni Province. On the basis of the country information before me, I am also satisfied this is the case in relation to neighbouring districts of …, as well as other neighbouring Hazara-dominant districts in Daykundi and Bamyan provinces.[55]
[55] CIS38A8012186: DFAT, "DFAT Thematic Report: Hazaras in Afghanistan", 8 February 2016; EASO, CIS38A8012395: "EASO COI Afghanistan Security Situation 2016", 20 January 2016; CIS38A80121778: DFAT, "DFAT Thematic Report on Afghanistan Security Conditions 1 January to 31 August", 5 September 2016
In his submission to the Authority,[56] the applicant took issue with the delegate’s decision. That is the context in which the Authority came to make its own assessment.
[56] at CB 261-263
The Authority made a detailed analysis of the risk confronting the applicant in Location A in Gazni Province from [28]-[42].[57]
[57] CB 527-531
At [43]-[46][58] the Authority considered the risk confronting the applicant in getting to Location A.
[58] CB 531-532
Finally, at [47][59] the Authority assessed the general security situation in Afghanistan.
[59] CB 532-533
In my view, this case bears some similarities with CPE15, AON15 and SZQXE, upon which the Minister relies. The conclusions reached by the Authority in the present case were not dissimilar to those reached by the delegate, albeit without the same highly detailed analysis. The Authority in the present case was sparing of the use of the expression “reasonably foreseeable future” but it does not follow that the Authority failed to make a forward looking assessment.
As was pointed out by counsel for the Minister in oral argument, the assessment was necessarily forward looking because it dealt with the hypothetical return of the applicant to Afghanistan at some point in the near future. The Authority was plainly alive to the fact that the general situation in Afghanistan was, at the time of the decision, unstable and the ability of the Authority to peer into the future was limited. In such a case, it is reasonable for a decision maker to consider the trajectory of risk from the past to the present. If that trajectory of risk is reducing then a decision maker may be able to make a forward looking assessment that the applicant does not confront a real or significant risk of harm. If the trajectory of risk is increasing, a decision maker may be driven to the opposite conclusion. That, in my view, is essentially what the Authority was doing at [47] in relation to the general security situation. As best as the Authority could determine, the trajectory of risk in Location A was static, off a low base. That analysis enabled the Authority to conclude that the risk of harm by generalised violence was remote. Likewise, the Authority was able to assess as best it could the risk of harm confronting the applicant by reference to his various Convention attributes. Like Mortimer J in CPE15 at [60], I conclude that the Authority in the present case was making, as best it could, an assessment on the basis of probative material about future risk, without extending into guesswork. The predictions of the future that the Authority could make in relation to Afghanistan generally and Location A in particular were necessarily limited by the degree of uncertainty apparent from the material. Without necessarily expressly saying so, the Authority was engaging in an assessment of the risk confronting the applicant in the reasonably foreseeable future which is, as Mortimer J noted, an ambulatory period of time.
CONCLUSION
I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver judge. Associate:
Dated: 28 April 2021
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