Age18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1631
•23 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AGE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1631
File number(s): MLG 125 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 23 July 2021 Catchwords: MIGRATION – Immigration Assessment Authority - Class XE Subclass 790 Safe Haven Enterprise visa –– whether IAA fell into jurisdictional error in applying section 473DD – whether Authority reached a conclusion at anterior stage of decision making process – whether legal unreasonableness can be established – no jurisdictional error or unreasonableness found – application dismissed. Legislation: Migration Act 1958 (Cth) ss 473DC, 473DD, 473DD(a), 473DD(b), Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 384 ALR 196
BXT17 v Minister for Home Affairs [2021] FCAFC 9
Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant s 20/2002 (2003) 77 ALJR 1165
Number of paragraphs: 52 Date of last submission/s: 5 May 2021 Date of hearing: 21 April 2021 Place: Melbourne Counsel for the First Applicant: Mr Sharify Solicitor for the First Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr Roe Solicitor for the Second Respondent: Australian Government Solicitor ORDERS
MLG 125 of 2018 BETWEEN: AGE18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
23 JULY 2021
THE COURT ORDERS THAT:
1.The Application filed on 17 January 2018 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $7,467.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority ('Authority') on 20 December 2017. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection visa ('visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is an Afghan national. The Applicant arrived in Australia on 27 August 2012 as an unauthorised maritime arrival. He applied for the visa on 29 October 2015.
On 8 February 2016, the Applicant attended a Protection Visa interview ('PV interview'). On 8 February 2017, a delegate of the Minister ('delegate') refused to grant the Applicant the visa. The matter was referred to the Authority for review of the delegate's decision on 13 February 2017.
On 6 March 2017, the Applicant's legal representative sent written submissions to the Authority. The Applicant's legal representative sent further written submissions to the Authority on 21 July 2017 and 13 December 2017.
On 20 December 2017, the Authority affirmed the decision of the delegate not to grant the Applicant the visa.
The Applicant commenced proceedings in this Court by filing an application for review and affidavit in support on 17 January 2018.
The Applicant filed a written outline of submissions on 9 April 2021. The Minister filed a written outline of submissions on 16 April 2021.
When the hearing commenced, the Applicant sought to rely on a lengthy affidavit from his solicitor filed one day before the final hearing. He also sought to raise an argument in respect of Ground 1 of the Grounds of review that had not been foreshadowed in his written outline of submissions. I proceeded to hear the matter and to accept into evidence the affidavit from the Applicant's solicitor, however I granted leave to the Minister to file supplementary submissions addressing both the solicitor's affidavit and the additional argument in respect of Ground 1. I have had regard to all of the above material and to the material contained within the Court Book filed by the Minister.
THE APPLICATION
Ground 1
The first ground of review in the Application is:
The Authority fell into jurisdictional error by incorrectly applying the requirements of s 473DD.
Particulars
Particulars
a)The Authority found at [10] that information relating to the applicant’s family in Kabul was irrelevant and therefore did not satisfy the exceptional circumstances test in s.473DD(a). In so coming to this conclusion, the Authority erred by failing to correctly apply the test in s.473DD.
b)Section 473DD sets out the circumstances in which the Authority may consider new information. This provision has two parts, being s.473DD(a) and s.473DD(b). Section 473DD(b) has two limbs which may be satisfied in the alternative.
c)Section 473DD(a) requires the Authority to be satisfied that exceptional circumstances exist to justify considering the new information. Section 473DD(b)(i) requires that the information was not, and could not have been, provided to the delegate before the decision was made. Section 473DD(b)(ii), in the alternative, requires the information to have been credible personal information which was not previously known, and if it had been known, may have affected the consideration of the applicant’s claims
d)The Authority failed to apply the tests in s 473DD, or in the alternative, misapplied the test, thus falling into jurisdictional error.
This ground takes issue with paragraph [10] of the reasons of the Authority. That paragraph is in the following terms:
It is relevant to note that the applicant has not claimed that he fears harm in Kabul (or another part of Afghanistan) on account of his uncle’s death, or the threats his sisters purportedly received from several extremist groups, but rather, he contends, in response to the delegate’s decision, that he cannot live in Kabul, in part, because he no longer has any family support there. The applicant’s claim that he no longer has any family (i.e. his sisters) in Kabul is new information. However, I have found it unnecessary to consider the question of relocation to Kabul. On the approach I have taken, the new information concerning whether the applicant has family in Kabul is irrelevant. Having regard to all the circumstances, I am not satisfied there are exceptional circumstances to justify considering this new information.
In his written outline of submissions, the Applicant contended that the Authority did not comply with the requirements of section 473DD of the Migration Act 1958 (Cth) (‘Act’) in deciding whether to consider information contained in a statutory declaration provided to the Authority on 6 March 2017 (the 'Declaration'). In support of that submission, the Applicant relied on the decision of the High Court of Australia in AUS17 v Minister for Immigration and Border Protection (2020) 384 ALR 196 ('AUS17'). The Minister accepted, having regard to AUS17, that the Authority did not comply with the requirements in section 473DD of the Act because the Authority considered the requirement in section 473DD(a) but did not consider in substance the requirements in section 473DD(b).
During the hearing, the Applicant raised an alternative submission under this ground of review that was not clearly articulated in his written outline of submissions. The Applicant submitted the Authority misunderstood the nature of its jurisdiction when it failed to admit the Declaration as new information under section 473DD. In summary, the Applicant submitted that the Authority fell into error because it made a final finding with respect to a protection claim at the anterior phase of its decision making process. That is, it reached a conclusion with respect to the Applicant's relocation to Mazar-e-Sharif at the anterior stage of its decision making process. In support of that submission, the Applicant relied on the comments of Mortimer and Jackson JJ at [72] of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 ('BTW17'), where their Honours said as follows:
Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
Thus, it was submitted by the Applicant that the Authority breached a necessary precondition for the exercise of the power to make a decision and acted contrary to the statutory scheme. I also understood the Applicant to submit that the form of reasoning employed by the Authority was impermissible because the reasoning was not sequential.
It is convenient to deal with the last point first. The order in which matters are addressed does not ground an error. As Gleeson CJ stated in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant s 20/2002 (2003) 77 ALJR 1165 at [14]:
Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.
In order to assess the Applicant's reliance on paragraph [76] of BTW17, it is necessary to understand the context in which Mortimer and Jackson JJ made their comments. In BTW17, the Court was, inter-alia, concerned with evaluating whether Bromberg J's construction of section 473DD(b)(ii) in CSR16 was correctly decided. In undertaking this task, Mortimer and Jackson JJ made a number of points about the legislative scheme in Part 7AA of the Act commencing at [63]. In paragraphs that precede paragraph [76] of BTW17 that is relied on by the Applicant, their Honours stated as follows:
71. The precondition in s 473DD(b)(ii) is but one aspect of these powers, and the approach taken to its construction should reflect its purpose as we have described it. In substance, it is no different to the Authority deciding whether to invite a person to an interview under s 473DC(3)(b): in both cases, the Authority is deciding what material should be before it on its review.
72.Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant – in all these circumstances the Authority is entitled to reflect on and assess the review material already before it – but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions – in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
73.However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own – fresh – consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
74.As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.
75.That is why, in our opinion, Parliament has used the word “credible” in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.
The Minister places particular emphasis on paragraph [72] of BTW17. The Minister submits that in order for the Authority to determine information that is relevant, it is necessary for the Authority to enquire into how the material will bear upon the questions that the Authority is required to resolve. Alternatively, a relevance or criticality assessment cannot be carried out when one does not consider how or why the material may be relevant or critical to the matters the Authority is required to resolve. On this basis, the Minister submits that the Authority reflected on and assessed the review material already before it and on the basis of that information, the Authority was placed in the position where it was able to ascertain that the information contained in the Declaration would not be relevant or critical to its review in those circumstances. The Minister submits that the information was not information that 'may have affected the consideration of the referred applicant's claims' within the meaning of section 473DD(b)(ii) of the Act. On this basis, the Minister submits, among other things, that the statement of the Authority 'on the approach I have taken' in paragraph [10] of its reasons does not rise higher than an acknowledgement of the fact that it had undertaken the requisite evaluative process by reference to the material before it.
It is difficult to argue with the proposition advanced by the Minister above that in order for the Authority to determine whether proposed new information should be admitted, the Authority will need to inquire into how that material will bear upon the questions that the Authority is required to resolve, which therefore requires the Authority to undertake an evaluative process of the material before it. The more difficult question in any case, and indeed this case, is whether, to quote Mortimer and Jackson JJ, a particular assessment 'will go too far, and in reality will equate to, or become indistinguishable from, the Authority's reasoning on its own-fresh-consideration of the protection visa application' (at [73]).
Ultimately, in this case, although it is a matter which is finely balanced, I have come to the view that Authority has not gone 'too far' in the manner in which it has considered whether to admit the Declaration, and I accept that use of the phrase 'on the approach I have taken' does not rise higher than an acknowledgement of the fact that the Tribunal has undertaken the requisite evaluative process.
It is apparent from the decision of the Authority that the Authority was required to consider a range of matters and information. The Authority at paragraphs [3]-[17] of its reasons gives detailed consideration to the range of information it was asked to consider. In addition to the Declaration, it included submissions, country information, clinical notes and information concerning the security situation in Mazar-e-Sharif. The range of information the Authority was asked to consider admitting and which self-evidently, it evaluated, produced the result that the Authority was well-versed on the issues it was required to determine. I infer from the range of information the Authority was required to consider that its evaluation of what was relevant or critical to its assessment was therefore broader than what it otherwise might have been.
Second, it is of some significance that at the stage where it was considering whether to admit new information, the Authority gave explicit consideration to also admitting new information concerning the security situation in Mazar-e-Sharif. As paragraph [16] of the reasons of the Authority makes clear, the information in relation to Mazar-e-Sharif was not before the delegate. The Authority was therefore considering this information afresh. I am prepared to draw the inference that because the Authority had country information that bore upon the security situation in Mazar-e-Sharif, it was in a position to be able to ascertain and evaluate whether the information contained in the Declaration would be critical to its review, as part of its overall assessment of what new information to produce.
Third, while the Applicant places much reliance on paragraph [76] of the reasons in BTW17, it is important to bear in mind following. First, paragraph [76] must be considered in context which includes the paragraphs which precede it, and which I have set out earlier. Importantly, there is no prohibition on the Authority undertaking an evaluative process in determining whether or not to admit new information - the relevant limitation on the authorities is whether that assessment goes 'too far' as acknowledged by Mortimer and Jackson JJ at [73] of BTW17. Second, in my view, the comments made by Mortimer and Jackson JJ at [76] of BTW17 are directed toward that limb of section 473DD(b)(ii) that is concerned with whether the information is 'credible personal information which was not previously known'. In contrast, the present issue before me concerns the other limb of section 473DD(b)(ii) being whether the information 'may have affected the consideration of the referred applicants claims'.
For these reasons, I reject the submission of the Applicant that the Authority, inter alia, fell into error because it made a final finding with respect to a protection claim at the anterior phase of its decision making process and therefore misunderstood its jurisdiction. The Authority plainly did not make a final finding in respect of the reasonableness of relocation at paragraph [10] of its reasons. So much may be seen from the Authority's consideration of the new information in relation to the situation in Mazar-e-Sharif at [16], its invitation to the Applicant to respond to that information at [17], the Applicant responding to the invitation comment on the information about Mazar-e-Sharif at [17] and the Authority's decision to take into account both the country information in respect of Mazar-e-Sharif and the information or response provided by the Applicant at [17]. Indeed, the language used by the Authority at paragraphs [10], [16] and [17] is reflective of the evaluative task it undertook in respect of the admission of new information and stands in contrast to the findings made by the Authority at paragraph [46] of its reasons where it decided the question of risk to the Applicant if relocated to Mazar-e-Sharif.
In the event I am wrong in my analysis above, I would nevertheless have dismissed this ground of review on the basis that any error made by the Authority was not material.
The test as to whether something is material has been set out in a number of the authorities including Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 ('Hossain'), Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 ('SZMTA') and more recently by a Full Court of the Federal Court of Australia, in the context of a consideration of section 473DD, in BXT17 v Minister for Home Affairs [2021] FCAFC 9 ('BXT17'). In BXT17, the Full Court explained inter alia that a breach is material if it operates to deny applicant an opportunity to give evidence or make arguments and thereby to deprive the applicant of a successful outcome. Similar sentiments were expressed, albeit differently, in Hossain and also in SZMTA.
In oral submissions, the Applicant, among other things, sought to rely on statements made by Mortimer and Bromwich JJ in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75 at [70] (‘Chamoun’). I have considered those statements and the reasons in Chamoun. I accept that a 'nuanced' approach needs to be taken in undertaking the 'reconstructive exercise' referred to. That does not, however, change in any way the principles as to materiality that have been enunciated in various authorities, including in the High Court.
In my view, adopting the 'nuanced approach' referred to in Chamoun, it is the case that even if the Authority made an error in its decision about the Declaration, that error could not have been material to the ultimate conclusion of the Authority that the Applicant could relocate to Mazar-e-Sharif.
If the information in the Declaration had been accepted as new information, the best that the Applicant could hope for would be a finding that it would be unsafe for him to relocate to Kabul. Such a finding may well have been made had the Declaration been admitted, however it would not have altered the ultimate finding of the Authority that the Applicant could relocate to Mazar-e-Sharif. Alternatively, if the Authority had made a finding that the Applicant could relocate to Kabul, he would not have satisfied the preconditions for the grant of the protection visa (which is the position the Applicant is ultimately in). It is therefore, in my view, evident that there was 'no realistic possibility' that admitting the Declaration might have led to a different outcome for the Applicant.
For all of these reasons, Ground 1 of the Grounds of Review must be dismissed.
Grounds 2 and 3
It is convenient to consider these grounds of review together. The second ground of review in the Application is:
The Authority fell into jurisdictional error by making a legally unreasonable finding in relation to whether it was reasonable for the applicant to relocate to Mazar-e-Sharif.
Particulars
a)The Authority concluded with no evidentiary basis, that the applicant would be able to financially support himself, his wife and his three children in Mazar-e-Sharif and that he and his family would be able to “access the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life” (at [64]-[65]).
The third ground of review is as follows:
Further and in the alternative to Ground 2, the Authority failed to genuinely consider an integer of the applicant’s claim, that is, that the economic situation in Mazar-e-Sharif was not conducive to the applicant’s employment and his ability to support himself, his wife and his children.
Particulars
a)The Authority failed to consider that the applicant would need to support himself as well as his family.
b) The Authority failed to consider that his family would move to Mazar-e-Sharif.
The Applicant's submissions under these grounds of review pertain to paragraphs [63]-[65] of the reasons of the Authority. I set out those paragraphs along with paragraphs [61] - [62], below:
61.Having regard to the applicant’s personal circumstances, I have considered whether it is reasonable for him to relocate to Mazar-e-Sharif. In his SHEV statement, the applicant stated that he has nobody to protect or support him in any area of Afghanistan. He also stated that he would be unable to find work or find a safe place to stay. In the applicant’s representative’s response to the IAA of 13 December 2017, it is submitted that it is unreasonable for the applicant to relocate within Afghanistan due to him having no remaining family connections there. It is submitted that in the absence of such a family network he would be precluded from participating in most forms of employment, and that his ability to find employment is restricted due to a combination of health issues and the absence of an established support network.
62.The applicant’s wife and children reside in Iran and the applicant has no current status or residence permission in that country. I accept that on return to Afghanistan he would be unable to return to Iran or travel to Iran to visit his immediate family. I also accept this would be difficult for the applicant, but these difficulties would exist regardless of where he lived in Afghanistan. I do not consider this factor means it would not be reasonable for the applicant to relocate within Afghanistan
63.I accept that the applicant has no family or other existing support network in Mazar-e-Sharif. However, while such networks are deemed advantageous by DFAT and UNHCR, they are not deemed a prerequisite for successful relocation for able-bodied men. DFAT considers that men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, but that the lack of family networks for single men can also impact on their ability to reintegrate into Afghan community. In UNHCR’s view, the reasonableness of relocation is dependent on the effective availability of traditional support mechanisms, provided by members of the applicant’s extended family or ethnic group, and advises that the only exception for the requirement of external support are single able bodied men, without identified specific vulnerabilities. I have accepted that the applicant presents with a skin condition and that he has seen his doctor for other health matters in the past. However, there is nothing before me to indicate that any health issues or medical conditions have impacted on his ability to work in the past, or that those issues will act as a barrier to him being able to subsist in Mazar-e-Sharif. While traditional support networks are important in rural areas, such persons may in certain circumstances be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective Government control. The applicant’s immediate family reside in Iran and as noted above, Tajiks are a dominant ethnic group in Mazar-e-Sharif and the applicant has demonstrated that he is resourceful and resilient and has successfully lived apart from his family and settled in unfamiliar places such as Kabul and Australia.
64.Agriculture, wholesale and retail trade, manufacturing and construction are the main sectors of employment in Afghanistan. DFAT assess that economic and employment opportunities vary across the country, particularly in rural areas and areas directly affected by armed conflict. I accept that there is high underemployment and unemployment in Afghanistan. However, the city of Mazar-e-Sharif is one of the biggest commercial centres and the more stable security and greater economic opportunities will be conducive to the applicant finding employment. I also accept that due to Mazar-e-Sharif being a major urban area where IDPs and refugee/returnee populations are likely to settle in, there will be pressures in terms of accommodation, employment and basic services. I accept these factors would make relocation challenging. However, on the evidence before me and considering the applicant’s personal circumstances, I am satisfied that although he will face challenges, I am not satisfied the applicant has any vulnerability (including any health issue or condition) which would act as a barrier to him obtaining employment to enable him to subsist in Mazar-e-Sharif
65.Overall, I accept there are economic and other challenges in relocating to Mazar-e-Sharif. I also accept that the applicant may face difficulties in establishing himself and that he may be affected by employment discrimination through nepotism. However, the applicant is of working age, and I am satisfied he would have some relevant skills and attributes gained through his experience of being gainfully employed in the construction and manufacturing industry which would support his ability to find employment upon return. I am satisfied the applicant would be able to access the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. I am also satisfied that over time, he will be able to integrate into the local community.
The Applicant's submissions under these grounds of review also draw on the following reports. First, a UNHCR Report entitled 'UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan' ('UNHCR Report’) dated 19 April 2016. Second, a report from DFAT entitled 'Thematic Report- Hazaras in Afghanistan 2015-16 update' dated 8 February 2016 ('DFAT Report'). Both of these reports were referenced in the decision of the Authority at paragraphs [63] - [65]. It is convenient to set out the extracts from each of these reports upon which the Applicant relied prior to considering the Applicant's submissions.
At page 86 of the UNHCR Report, the following is stated:
UNHCR considers that the only exception to the requirement of external support are single able bodied men and married couples of working age without identified specific vulnerabilities as described above. Such persons may in certain circumstances be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective Government control.
At page 15 of the DFAT Report, the following is stated:
4.10 Internal relocation is generally more successful for single men of working age, provided they are able to make use of family or tribal networks. Unaccompanied women and children are least likely to be able to successfully relocate to urban areas, particularly if these networks are lacking.
4.11Returnees from western countries are almost exclusively returned to Kabul. While some families are returned, most returnees tend to be single men travelling alone. While men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, the lack of family networks for single men can also impact on their ability to reintegrate into Afghan community. The relatively better economic opportunities available mean returnees often choose to remain in Kabul. There are no tracking mechanisms for these returnees, so it is difficult to assess the conditions they face. There are plausible, but anecdotal, reports of returnees from western countries turning up in drug communities. DFAT assesses that, because of Kabul’s size and diversity, returnees would be unlikely to be discriminated against or subject to violence on the basis of ethnicity or religion. There is a large Hazara population living in Kabul.
The Applicant made a number of submissions under this ground. In respect of paragraph [63] of the reasons of the Authority, it is contended that the Authority has failed to consider that the Applicant is not a 'single able bodied man', and that his family might move to Mazar-e-Sharif. Or put another way, it is contended that the Authority has applied reasoning or evidence that deals with 'single able bodied men' to the Applicant who has a family. Indeed, it was submitted that no consideration was given to the fact that the Applicant had a wife and three children, or that he has no family network in Mazar -e-Sharif. It was also contended that the Authority, having disregarded those matters, goes on to make findings, inter alia, that it is reasonable for the Applicant to relocate to Mazar-e- Sharif and that he does not face any vulnerability which would act as a barrier to him obtaining employment to enable him to subsist in Mazar-e-Sharif. The Applicant further contends that in addition to the illogicality of the approach summarised above, the Authority has effectively not engaged with the Applicant's claims and that the Authority has simply 'copied and pasted' from the UNHCR Report. Accordingly, the Applicant submits that the findings of the Authority at paragraphs [64]-[65] that the Applicant does not have any vulnerability which would act as a barrier to him obtaining employment to enable him to subsist in Mazar-e-Sharif are unreasonable. Alternatively, the Applicant submits that the Authority failed to consider an integer of the Applicant's claim being that the economic situation in Mazar-e-Sharif was not conducive to the Applicant's employment and his ability to support himself, his wife or his children.
In oral submissions, the Applicant also contended as follows. The Authority in its reasons mischaracterised the UNHCR Report and the DFAT Report. The contention is that the authors of those reports make it a mandatory condition that returnees have family or tribal networks, whereas the Authority makes a finding that persons 'may in certain circumstances be able to subsist without family and community support'. That is said to be unreasonable because while the Authority was not bound to adopt what the authors of the report said, the Authority did ultimately adopt those tests but then proceeded to mischaracterise them. Further, the Applicant points to paragraphs 4.10 of the DFAT Report (which is found under a heading in the Report entitled 'Other factors affecting internal relocation') and 4.11 of the DFAT Report (found under a heading of the Report entitled 'Treatment of Returnees') and submits as follows. First, those paragraphs are not consistent and say different things, yet the reasoning of the Authority is taken exactly from those passages. Second, the Authority has relied on comments from DFAT in support of its conclusion in relation to the reasonableness of relocation when paragraph 4.11 goes to the treatment of returnees. Third, the Authority has been opportunistic and has sought to 'break apart' conditional statements to reach the conclusion that it wants. Fourth, the manner in which the Authority has broken apart or separated the statements amounts to the Authority deliberately 'cutting and pasting' from the Reports and represents a failure by the Authority to engage with the real issues. Fifth, paragraph 4.11 of the DFAT Report which has been relied on by the Authority in respect of relocation to Mazar e- Sharif deals only with Kabul.
Prior to engaging with the Applicant’s submissions, it is appropriate to set out some matters of principle.
The Minister conveniently summarised the principles relating to unreasonableness at paragraph [26] of his written submissions as follows:
26.The threshold for legal unreasonableness is high. In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Kiefel CJ stated at [11] that “the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion …”. See further Gageler J at [37] and [47], Nettle and Gordon JJ at [97], and Edelman J at [135].
Further to the above, in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135], Crennan and Bell JJ expressed the threshold issue as being whether it could be said 'that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision'.
I did not understand the Applicant to take issue with the principles above.
Next, it is appropriate to record that the 'choice and assessment of the weight' to give to material before the Tribunal 'were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal'.: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13].
Third, consideration of the reasons of the Authority should not be read by selectively singling out text and reading that text in isolation. Context is important. As has been noted many times, the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to error.
It is now appropriate to turn to the submissions of the Applicant. I have earlier in these reasons in respect of these grounds of review set out the totality of paragraphs [61]-[65] of the reasons of the Authority, as well as the totality of the text from the UNHCR Report and the DFAT Report relied on by the Applicant. I have done this because the Applicant in his submissions has highlighted aspects of the reasons of the Authority in order to advance his contentions. I regard it as necessary in order to consider the Applicant's contentions, to have regard to all of the reasoning of the Authority in context, as well as the context of what is contained in the Reports. When that is done, the following becomes apparent.
First, it is plain that the Authority was aware that the Applicant had a family (wife and children) that reside in Iran: see [61] and [62] of the reasons, as well as the last sentence of [63]. No inference can be drawn that the Authority ignored or overlooked that fact or proceeded on the basis that the Applicant was a single male.
Second, it is plain that in addition to the Authority's awareness of the Applicant's family, the Authority was aware of and considered the Applicant's personal circumstances including his health conditions and working history. The statement in paragraph [63] beginning with the words 'However, there is nothing for me to indicate any health issues' is not only a statement that is made with regard to the UNHCR Report and the DFAT report, it is also a statement that is made having regard to the particular health issues the Applicant raised and the Applicant's employment history which is the subject of discussion by the Authority at paragraphs [45]-[46] of its reasons. For completeness, I set out paragraph [45]-[46] of the Authority's reasons below (citations omitted):
45.In his SHEV statement, the applicant stated that on return he would be unable to find employment in any part of Afghanistan. According to the employment history recorded on the applicant's SHEV application, between 1989 and 2012 he has worked in various roles including as a construction labourer, a cleaner, a factory worker, and as a farm assistant. In the IAA submission, the applicant's representative submits that the applicant's hypertension and arm/leg length discrepancy renders him unable to perform any labour involving heavy lifting. According to the applicant's clinical notes summary, he was seen by his general practitioner for hypertension in May 2013 and January 2017, and a 'leg-length discrepancy' in May 2013. There is no other information before me about the applicant's claimed arm-length discrepancy and no further medical information is provided, including whether the leg and hypertension conditions have been treated, are ongoing, or the impact that these conditions may have on the applicant's ability to work. The letter from The Dermatology Clinic confirms the applicant is being treated for a skin condition called vitiligo. Again, there is no information before me that indicates what impact, if any, the skin condition has on the applicant's ability to obtain employment. Even if I was to accept that he applicant was unable to perform any labour involving heavy lifting, I am not satisfied this would prevent him from finding suitable employment in Mazar-e-Sharif. On the evidence before me, I am not satisfied that upon return any ongoing medical conditions the applicant has will prevent him from being able to gain employment or subsist in Mazar-e-Sharif, or that he would otherwise suffer harm in connection with this.
46.On the evidence before me, I am not satisfied there are any significant vulnerabilities or barriers that would deny the applicant’s capacity to earn a livelihood on return to Mazar-e-Sharif, or that he will experience significant economic hardship, or will be denied access to basic services that threatens his capacity to subsist, now or in the foreseeable future. I accept that the applicant presents with a skin condition and that he has seen his doctor for other health matters in the past, but there is nothing before me to indicate that any health issues have impacted his ability to work in the past, or that those issues will act as a barrier to him being able to subsist in Mazar-e-Sharif. DFAT assess that ethnic groups who are in the minority in the area in which they reside face a risk of societal discrimination which may include the denial of access to employment or housing. However, as noted above, Tajiks form one of the majority ethnic groups in Mazar-e-Sharif. DFAT assess that official discrimination on the basis of religion is low and that any religious or ethnic discrimination faced by Shias in Afghanistan, is more likely to be societal in nature, at the community level, primarily as a result of the important role played by ethnic, tribal and familial networks in Afghan society and the dominance in many areas of the Sunni majority. Societal discrimination generally occurs as a result of a positive preference for members of one's own family/tribal/ethnic/religious group, rather than negative discrimination against a particular group. The applicant presents with a varied work history, is still of working age, and on the evidence before me does not present with any health problems or other vulnerabilities that would impact his ability to seek and obtain employment. I am not satisfied that any societal discrimination that the applicant may be subjected to will prevent him from obtaining employment or manifest itself in such a way that it would constitute serious harm.
Third, when the reasons of the Authority are examined, it can be seen that the Authority has not 'copied and pasted' from the Reports such that it can be said it has failed to engage with the Applicant's claims. True it is that the Authority has used words and phrases that are also used in the Reports. That there is some similarity in the words and phrases used does not, however, mean that the Authority has copied and pasted text from the reports. Plainly, that has not occurred. Moreover, it can be seen from a simple reading of the reasons of the Authority and from what I have said above that the Authority has engaged with the material before it in reaching its conclusions.
The Applicant's submissions take issue with the use by the Authority of country information. As I understood the Applicant, two submissions were advanced. First, the Authority had applied only part of the tests or information used by UNHCR and DFAT. Second, the Authority referred to or relied on or gave weight to certain aspects of the Reports, but not to other aspects of the reports. In respect of these submissions, the following matters are relevant. First, the Authority is not required to apply in totality, information or evidence set out in reports prepared by UNHCR or DFAT. The Authority is required to apply the law as set out in the Act and in relevant case authorities. Second, in having regard to the country information, the Authority is not required to apply without variation or consideration, information contained in reports such as those prepared by UNHCR and DFAT. The weight to be given to particular material is a matter for the Authority. There is nothing unreasonable or illogical about that course and it is in my view uncontroversial.
The Applicant submits at paragraph [28] of his written submissions that findings made in paragraph [64]-[65] about the reasonableness of relocation to Mazar-e Sharif are unreasonable because the Authority has ignored evidence that the Applicant is a man with a family, but has used the passages from the Reports to lay the foundation for its decision that relocation to Mazar-e-Sharif is reasonable. That submission ignores the fact that it is plain from the decision of the Authority read in context that the Authority was aware that the Applicant had a family. Similarly, when the Applicant contends at paragraph [29] of his written submission that phrases from the Reports of been copied and pasted, that submission proceeds on an incorrect premise, being the Authority's mistaken view that the Applicant was a single man.
In my view, when the above matters are considered, it cannot be said that the reasons of the Authority are unintelligible or that there is an absence of logical connection between the evidence as a whole and the reasons for the decision. The findings of the Authority were plainly open to it on the material available. There is nothing in the reasons of the authority that is unreasonable or that indicate that the Authority has failed to consider relevant claims including the Applicant’s family situation, the economic situation in Mazar-e-Sharif or his ability to support himself.
For the above reasons I would dismiss Grounds 2 and 3 of the Grounds of Review.
CONCLUSION
The Application for Review must be dismissed. The Minister claims costs of $7,467. I will make an order for costs in favour of the Minister in circumstances where the Application has been dismissed in its entirety.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 23 July 2021
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