AHE18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 239
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AHE18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 239
File number(s): SYG 153 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 31 March 2023 Catchwords: MIGRATION – Whether reasonable to conclude no real chance of harm by reason of applicant keeping a “low profile” – whether applicant unable to take reasonable steps to modify immutable foreign profile characteristics Legislation: Migration Act 1958 (Cth) ss 5J, 395 Cases cited: Appellant S395/2002 v Minister for Immigration andMulticultural Affairs (2003) 216 CLR 473
DQU16 v Minister for Home Affairs (2021) 273 CLR 1
EUW19 v Minister for Immigration, Citizenship, Migrant Services andMulticultural Affairs(2021) 357 FLR 263
EXT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1071
Division: Division 2 General Federal Law Number of paragraphs 51 Date of hearing: 16 November 2022 Place Sydney Counsel for the Applicant: Mr B Mostafa Solicitor for the Applicant: Varess Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Minter Ellison ORDERS
SYG 153 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHE18
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
Judge given
DATE OF ORDER:
31 March 2023
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Immigration Assessment
Authority decision made on 15 December 2017 into this Court for the purpose of
quashing it.
2.A writ of mandamus shall issue, requiring the Immigration Assessment Authority to
re-determine, according to law, the review referred to it.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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).
REASONS FOR JUDGMENT
JUDGE GIVEN:
The applicant seeks review of a decision of the Immigration Assessment Authority (Authority) made on 15 December 2017 (CB 330 to 346) which affirmed a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Safe Haven Enterprise visa (visa).
Background
The background to the application is derived predominantly from the applicant’s written submissions but does not appear to be in dispute.
The applicant, a Sunni Tajik from Kabul, Afghanistan departed Afghanistan lawfully in October 2012 and travelled to Indonesia (CB 331 at [1]). He then departed Indonesia by boat and arrived on Christmas Island on 6 April 2013 (CB 331 at [1]).
In a case assessment and biodata interview conducted on 3 May 2013 (CB 1 to 6), the applicant claimed to have left Afghanistan because of a land dispute arising from his land having been forcibly taken from him by a person (who will be anonymised as “HA”). In addition, the applicant claimed to have received numerous threats from HA (CB 3). The applicant participated in an irregular maritime arrival (IMA) interview on 29 May 2013, during which he again referred to the threats he had received from HA, saying that HA had threatened to kill him because of the land dispute (CB 17). Also during the IMA interview, the applicant indicated that he had lived in Kabul from the year of his birth (1988) until the year of his departure from Afghanistan (2012) (CB 9 and 20).
On 4 May 2016, the applicant lodged his visa application (CB 29 to 205). By an accompanying statutory declaration, the applicant claimed:
(a)to have owned land near Kabul which, in early 2012, he decided to sell (CB 90 to 91 at [8] to [9]). The applicant said that around the same time, HA had asserted ownership over the land (CB 91 at [11]) which ultimately led to HA threatening the applicant. The applicant claimed that on this occasion he was informed that HA was “a member of the land mafia” and that he had harmed and killed other landowners and taken their land (CB 91 at [13] to [14]). The applicant claimed to fear harm on return to Afghanistan from HA “and his land mafia team as he had threatened to kill me because of the land dispute” (CB 92 at [22]); and
(b)to fear harm as a returnee to Afghanistan. Specifically, the applicant stated (errors in original) (CB 92 at [24]):
I have been in Australia for few years, this can give Taliban a good reason to seriously harm me or kill me as an infidel who has sought refuge in an infidel country. When someone is deported from Australia all the people in the area hears about the news and this can easily be transmitted to Taliban”
Included with the applicant’s visa application was part of a report entitled “EASO Country of Origin Information Report: Afghanistan Security Situation Update from January 2016” (EASO Report) (CB 106 to 205). The EASO report:
(a)included information about land disputes which said that they were common in Afghanistan, and frequently turned violent (CB 185); and
(b)noted that anti-government entities(AGEs) (CB 149):
… reportedly target individuals who are perceived to have adopted values and/or appearances associated with Western countries, due to their imputed support for the Government and the international community. There are reports of individuals who returned from Western countries having been tortured or killed by AGEs on the grounds that they had become ‘foreigners’ or that they were spies for a Western country.
On 23 May 2017, the applicant attended a SHEV interview (CB 231) following which (on 28 May 2017) his (then) representative made a post-interview submission to the delegate (CB 231 to 248). During the SHEV interview, and again by the post-interview submission, the applicant gave details about threats made to this family. By the post-interview submission he said that the people who attacked his home in 2014 were linked to HA (CB 231). The applicant also provided further information about this claim on 7 June 2017 (CB 266 to 269). This claim was ultimately not accepted by the delegate nor by the Authority (CB 337 at [21]).
The post-interview submission included references to a range of country information about the prevalence of land disputes in Afghanistan (CB 232 to 234 at [8] to [13]). It also included a submission to the effect that available information supported a claim that the applicant’s absence from Afghanistan would further heighten his risk of attracting the adverse interest of the Taliban, or other armed groups as well as from fellow Afghans in his place of origin who would look at him with suspicion and hostility (CB 239 at [31]). The submission also referred to a range of country information on this point (CB 239 to 242 at [32] to [41]).
On 8 June 2017 a delegate of the first respondent (delegate) refused to grant the visa (CB 273 to 289). The delegate:
(a)noted that the applicant had claimed that he would try to reclaim his land if he was returned to Afghanistan, and that he had no other assets (CB 275 and 280);
(b)accepted that the applicant had had a dispute with HA regarding the land and that HA had threatened the applicant (CB 277). However, the delegate found that because these events had occurred over five years ago, and that HA had not maintained any interest in the applicant, that HA would not be motivated to track the applicant on his return (CB 281);
(c)observed that the applicant indicated he may one day try and reclaim the land that was taken by HA and found that (CB 281):
In doing so, I find this to be a conscious decision on his part. I found the applicant’s reasoning for wanting to do so (as well as how he would go about such a task) to be vague, unsubstantiated and speculative.
(d)added to the reasons for this finding that the applicant has three sisters who live in Afghanistan with their families, which was said to indicated that he had familial connections within Kabul and made no indication that he (or others) relied on the land to subsist in the past;
(e)found that it was unclear why ownership of the land would be required for the applicant to subsist in the future;
(f)did not make a specific finding about whether the applicant would or would not seek to reclaim his land, but found that the applicant did not face a relevant risk of harm from HA (CB 282);
(g)when dealing with the claim relating to the applicant’s status as a returnee from a Western country, referred to DFAT country information DFAT Country Information Report: Afghanistan dated 18 September 2015 (DFAT report) which the delegate summarised as saying that “returnees from Western countries are not specifically targeted on the basis of being failed asylum-seekers” (CB 283 and 284);
(h)referred to the content of [5.21] of the DFAT Report and concluded that the applicant did not face a real chance of serious harm as a returnee from a Western country (CB 284).
On 14 June 2017, the delegate’s decision was referred to the Authority for review.
On 31 July 2017, the applicant’s (then) representative made a submission to the Authority (CB 316 to 322) maintaining the claims regarding the risks faced by the applicant from HA, including that the applicant continued to have an interest in his land and that there was nothing to suggest that this position had changed. Namely, that if he was to demand that his land be returned that he would again be threatened and face serious harm from HA (CB 319 at [3.9]).
Application to this Court
By an application to show cause filed with this Court on 18 January 2018, the applicant sought review of the Authority’s decision and raised 2 grounds of review. The applicant has been represented by his present solicitors since the inception on the proceedings.
On 16 February 2018 orders were made by consent by a Registrar in chambers (both parties being represented) which included leave to the applicant to file Affidavit evidence and any amended application by 7 May 2018. The matter was initially docketed to another Judge of the Court to be listed for hearing on a date to be administratively advised to the parties.
On 4 May 2018 an Affidavit of the applicant’s solicitor was filed. Also filed on 4 May 2018, and within the grant of the Court’s leave was an Amended Application which augmented the existing grounds, and added a third ground of review with particulars.
The matter was later transferred to the central migration docket, possibly in anticipation of the first docket Judge’s impending retirement from the Court. On 11 August 2022, the matter was brought into my docket and listed for hearing on 16 November 2022 before me. I also made consequential orders on 11 August 2022 for the preparation of the matter for hearing, including an additional grant of leave to the applicant to file any evidence and further amended application by 25 August 2022. The applicant availed himself of this additional grant and the Further Amended Application was filed on 24 August 2022. By that Further Amended Application the applicant abandoned ground 2 of the Amended Application.
At hearing, the Court Book was received into evidence and marked Exhibit “1A”. The Affidavit of Farid Varess affirmed on 3 May 2018 (Varess Affidavit) was read for the applicant, without objection.
Each of the parties filed written submissions in accordance with the Court’s orders. At the final hearing, the parties were (respectively) represented by Counsel, each of whom also made oral submissions. I have been assisted by the submissions of the parties.
The grounds of review in the Further Amended Application which fall for consideration are as follows (omitting particulars):
1.The Authority fell into jurisdictional error by failing to consider whether he applicant would refrain from attempting to reclaim his land near Kabul in order to avoid persecution.
2.The Authority fell into jurisdictional error in concluding that the applicant did not face a real chance of harm in Kabul on account of being a returnee from a Western country (RWC) because the Authority committed one or more of the following errors:
a.Failing to consider whether he would be identified as a person having international associations on account of being a RWC;
b.Having considered that there was evidence that RWCs “face a similar level of risk to other people in Afghanistan who are associate with support for the government or the international community” ([32]), failing to take into account evidence that showed that RWCs “almost exclusively return to Kabul” and many choose to remain in Kabul when holding ([34]) that the applicant did not face a real chance of harm in Kabul on account of being a RWC;
c.Misconstruing or failing to correctly apply the “real chance” test;
d.Proceeding on the basis that the applicant would, or that it was reasonable for the applicant to, act in a wat to maintain a low profile, including by taking steps to conceal his Association with Australia, without considering whether the applicant would do son on account of his feared persecution.
Ground 1
This ground relates to the applicant’s land dispute claim.
In essence, the applicant says that he consistently maintained that he owned land in Afghanistan, and that HA took that land and threatened him. The Authority accepted that the applicant’s land had been taken by HA, and that the applicant had been threatened previously when he attempted to reclaim the land. The Authority noted that the applicant was able to point to country information about “the prevalence of land-grabbing in Afghanistan and the potential for such disputes to escalate into significant violence that has led to gun battles, injuries and deaths” (CB 334 at [13]). However, the Authority resolved this claim by finding that the applicant would not attempt to reclaim his land on return to Afghanistan, and so would not face a real chance of harm.
The applicant says that, by so doing, the Authority failed to consider whether the applicant’s fear of harm which may occur if he attempted to reclaim his land would be the cause of the applicant refraining from attempting to do so, relying on Appellant S395/2002 v Minister for Immigration andMulticultural Affairs (2003) 216 CLR 473 (S395) at [88] per Gummow and Hayne JJ.
The first respondent says that this ground, when read with the applicant’s submissions relying on S395, must fail.
The first respondent says that the principle in S395 is that:
a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution.
relying in turn on DQU16 v Minister for Home Affairs (2021) 273 CLR 1 at [8] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ.
The first respondent says that the applicant not reclaiming his land, on its face, does not involve him hiding any Convention attribute and there was no claim before or finding by the Authority that it did. Accordingly S395 is said to have no application. The first respondent says that the fact the applicant may have been motivated by fear not to seek to reclaim the land is irrelevant because, on a fair reading, the Authority found (CB 337 at [23]) that he would not suffer persecution by not reclaiming the land.
At hearing, Counsel for the applicant expressly did not take issue with the Authority’s finding that the applicant would not “need” to reclaim the land in order to subsist, accepting that there were options for him to survive other than reclaiming the land.
The issue raised by this this ground goes specifically to what is said to be the applicant having to “behave discretely” on return in respect of his land. While the Authority’s reasons might have been expressed more clearly in terms of the claim lacking a Convention nexus, the Authority did not accept that the applicant would face a real chance of harm from HA by reason of the land dispute itself (CB 337 at [25]).
I find that there was nothing to suggest that the applicant refraining from reclaiming his land was a manifestation of any Convention characteristic such that the principle in S395 was not engaged. In those circumstances, the Authority’s finding in this regard was a factual finding of what the applicant may or may not do on return.
In those circumstances, ground 1 is not made out.
Ground 2
Ground 2 relates to the applicant’s claim to fear harm in Afghanistan as a returnee from a Western country, namely Australia.
The applicant contends that country information (the DFAT report) said that persons who had returned from Western countries faced similar levels of risk to other people in Afghanistan who were associated with support for the international community, and that DFAT assessed those as facing a high level of risk, including from the Taliban.
The DFAT report forms Annexure “A” to the Varess Affidavit and at [5.20] to [5.21][1] relevantly provides:
5.20 Returnees from Western countries are almost exclusively returned to Kabul. While some families are returned, most 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, particularly some time after their return. There are plausible, but anecdotal, reports of returnees from Western countries often 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.
5.21 DFAT is aware of occasional reports of returnees from Western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a Western country. While this Country Information Report does not make a judgement on the veracity of individual cases, in general DFAT assesses that returnees from Western countries are not specifically targeted on the basis of their being failed asylum-seekers. As noted above, people who are identifiable as being associated with foreign (particularly Western) countries may be targeted by insurgent groups such as the Taliban. Returnees from Western countries, however, face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community. People in this situation often take measures to conceal their association, such as not travelling with documents or symbols that may link them to the Afghan government, the international community based in Afghanistan or Western countries. DFAT assesses that returnees from Western countries who maintain a low profile such as by taking steps to conceal their association with the country from which they have returned do not face a significantly higher risk of violence or discrimination than do other people in Afghanistan with a similar ethnic and religious profile.
[1] Varess Affidavit, Annexure A at pages 24 to 25
The applicant says that reference within that part of the DFAT report to people who are identifiable as being associated “with foreign (particularly Western) countries” being at risk of being targeted by the Taliban, is a reference back to an earlier section of the same DFAT report which is headed “People associated with the government or the international community”.[2]
[2] Varess Affidavit, Annexure A at page 15
Within that part of the DFAT report, it relevantly provides the following:
(a)at [3.34]:[3]
Insurgent and terrorist groups, including the Taliban, openly target government officials and people associated with the international community. These individuals are often subject to intimidation, threats, abduction and killing. These attacks occur throughout Afghanistan, including Kabul.
(b)at [3.38]:[4]
…individuals working for, supporting or associated with the government and/or the international community are at high risk of violence perpetrated by anti-government elements.
[3] Varess Affidavit, Annexure A at page 15
[4] Varess Affidavit, Annexure A at page 16
The Authority dealt with this issue by finding that the applicant would remain in Kabul, where he would be less distinguishable from the local community than he would be if he were in a small community. The substance of the ground warrants the following paragraphs of the Authority’s decision being set out in full (emphasis added, footnotes omitted):
32. DFAT assesses that returnees from Western countries face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community. People in this situation often take measures to conceal their association, such as not travelling with documents or symbols that may link them to the Afghan government, the international community based in Afghanistan or Western countries. DFAT assesses that those returnees from Western countries who maintain a low profile, such as by taking steps to conceal their association with the country from which they have returned, do not face a significantly higher risk of violence or discrimination than do other people in Afghanistan with a similar ethnic and religious profile.
33. I take into account that the applicant has been residing in Australia for over four years and if he was to return to a small community, he may be more readily distinguishable from the local community as someone who has been in the west. I note however that the applicant has always lived in Kabul and has not claimed that he has ever had to, or will need to in the future, travel to the provinces or small communities where he may come to the attention of AGE.
34. I have found that the applicant does not have an adverse profile and is not otherwise of any interest to any AGE. He has always lived in Kabul and his sisters remain there, and he has not claimed that he will need to travel outside Kabul for any reason. I am not satisfied that he will face a real chance of harm at the hands of any AGE in Kabul because of his former residence in Australia.
The applicant emphasises that the country information which addressed the position of returnees from Western countries was already premised on DFAT’s view that they were returned almost exclusively to Kabul, and that many such returnees remained there. The Authority’s reasoning is said to demonstrate that it overlooked relevant material, misconstrued or misapplied the real chance test, or dealt with this claim on the basis that the applicant would avoid risks by maintaining a low profile on return without the Authority considering why he would do so or how s 5J(3) of the Migration Act 1958 (Cth) (Act) applied to the applicant’s case.
The first respondent says that to the extent the Authority is said to have misapplied the real chance test, on a fair reading it found there was not a real chance of the applicant being persecuted in Kabul given his “low profile”. The first respondent therefore says that to the extent that the Authority may have assumed the applicant would keep a low profile, and would not reveal that he is a returnee from a Western country, there was no claim or finding that this would involve any hiding of a Convention attribute or an immutable characteristic within
s 5J(3) of the Act. Accordingly, the first respondent says this ground must fail.Relevant to this ground are ss 5J(1) to (3) of the Act (inclusive) which provide:
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3) A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
Despite the first respondent’s assertions that it is difficult to understand the relevance of the Authority’s findings about the applicant being returned to Kabul, the import of this aspect is clear. The applicant having always resided in Kabul, and returning there, meant he would not have any greater protection simply by reason of the fact that Kabul is a large centre (presumably into which he might blend in) because the DFAT report was premised on a general assessment of the position for returnees to Kabul. As a result this was not a distinguishing feature which enabled the Authority to discount any potential chance of harm the applicant may face.
The real difficulty with the Authority’s reasoning though, is its findings at [32]. At hearing, Counsel for the first respondent said that by its “low profile” finding at [32] the Authority was “reciting the DFAT report basically verbatim”.
Reflecting the language of the DFAT report would not necessarily be problematic, however it appears to have caused the Authority to fail to consider whether there would be characteristics which the applicant could not take steps to conceal. The part of the DFAT report which was reflected by [32] dealt with actions that persons could take to conceal tangible aspects and which might reveal their status as a person who had returned from a Western country “such as not travelling with documents or symbols that may link them to …Western countries”. It was these persons whom DFAT considered were keeping a low profile.
Contrary to what appears to be assumed by the first respondent, the Authority did not make a finding that the applicant would or could keep a “low profile”, even in the sense assessed by DFAT. The Authority did not properly consider the applicant’s claim to be identifiable and face harm as a person who was a returnee from a Western country, although it came somewhat close to this exercise when accepting that, after so long in Australia (which at the time of the decision was already more than 4.5 years), the applicant “may be more readily distinguishable from the local community as someone who has been in the west.”
The Authority did not further assess its own contention in that regard but proceeded directly to find that the applicant would not need to travel outside of Kabul (thereby not facing harm anywhere else) and did not face a real chance of harm at the hands of any AGE in Kabul because of his former residence in Australia.
In response to the contention that the Authority failed to properly apply s 5J(3) of the Act, Counsel for the first respondent acknowledged that s 5J(3) was not referred to by the Authority. This was said to be because the Authority did not think that the applicant maintaining a low-profile (such as by taking steps to conceal his association Australia resulted in a modification of behaviour. The first respondent contended that the applicant had not ever engaged in maintaining a high profile or demonstrating his association with a country from which he has returned in the past because in the past he was in Afghanistan. It was further submitted for the first respondent that the present case was simply one where the section is not obviously applicable. However, it was submitted for the first respondent that if the Court took the view that the section was relevant, then the sort of steps that the DFAT report referred to would not be seen as the modification of some innate or immutable characteristic within section 5J(3). I disagree.
In EXT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1071, this Court found jurisdictional error of the kind identified in EUW19 v Minister for Immigration, Citizenship, Migrant Services andMulticultural Affairs(2021) 357 FLR 263 (EUW19) per Judge Driver.
In EUW19 the Court found that, while it may have been open to the Authority to conclude that the applicant would not seek to publicise their time spent in Australia, it was one thing for them to choose not to reveal the fact of residence (such as the tangible concealment referred to in the DFAT report and relied on by the instant Authority at [32]), but another thing again to conceal the traces of same (see EUW19 at [56]).
The Court found that it was not reasonable to expect a person to seek to conceal that which they could not control: see EUW19 at [58], that in order for the Authority to have completed the review it required more than a “bald statement” and that it:
59. …needed to consider whether it would be possible, let alone reasonable, for the applicant to attempt to conceal what could be a great many indicators of his cultural association with Australia. The review thus being incomplete, the veracity of the Authority’s reasoning in respect of the applicant’s other claims is not to the point.
In the present case, the Authority did not properly consider which, if any, characteristics of the applicant could give rise to him being readily identifiable as a person who had returned from a Western country: see EXT17 (supra) at [38] to [40].
To the extent that the Authority in this case could be taken to have concluded that the applicant could keep a low profile (in the manner discussed in the DFAT report and recited by it at [32]), there was no assessment as to whether the applicant would reasonably be able to conceal any characteristics within the ambit of s 5J(3)(c) of the Act.
Given the tacit acceptance by the Authority that persons who were identifiable as having returned from Western countries faced the same risk of as people who were associated with support for the government and Western community (namely a high risk), the Authority failed to properly considered the applicant’s claim including by reference to the evidence regarding the chance of harm. Accordingly, the Authority failed to properly apply the real chance test when it simply concluded, without proper analysis including by reference to s 5J(3), that the applicant would not face a real chance of harm in Kabul because of his former residence in Australia.
Accordingly, I accept the applicant’s contention that the Authority erred in the manner alleged in ground 2. Had it not done so, this could realistically have resulted in the Authority making a different decision. The error is therefore material and jurisdictional. Accordingly, writs should issue and I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given . Associate:
Dated: 31 March 2023
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