AHJ16 v Minister for Immigration
[2018] FCCA 564
•13 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHJ16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 564 |
| Catchwords: MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.477 |
| Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Minister for Immigration & Multicultural Affairs v S152/2003 (2004) 222 CLR 1 |
| Applicant: | AHJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 252 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 6 September 2017 |
| Date of Last Submission: | 15 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 13 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | WLW Migration Lawyers |
| Counsel for the First Respondent: | Mr L. Brown |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The time for the filing the application for judicial review be extended to 11 February 2016.
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 252 of 2016
| AHJ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant applies for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on
28 September 2015 affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.
The application made in this court was approximately three months outside of the 35-day time limit provided for in s.477 of the Migration Act 1958 (Cth) (“the Act”). As McHugh J made clear in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552, this should not be seen as an arbitrary cut-off point but represents the legislature’s best judgment that the welfare of society is served by causes of action of this type being litigated within the time period.
The court has power to extend time under s.477 if it is necessary and in the interest of the administration of justice. The relevant considerations are not limited, but usually include consideration of whether or not there is an adequate explanation for delay, the impact of any prejudice upon the other party, and whether or not the applicant has an arguable case.
In the context of these proceedings, it is conceded by counsel for the Minister that the Minister will not suffer any relevant prejudice. The applicant’s explanation, although not detailed, is not unrealistic in that the applicant was attempting to obtain legal advice about the Tribunal’s decision. The delay in this case is, in comparison to many other cases of this type, relatively short. As will become apparent from the judgment to follow, it is clear that there are substantive issues that the applicant seeks to agitate.
It is in the interest of justice that the applicant’s extension of time be granted and the matter be determined upon its merits.
Background
The applicant is a citizen of Afghanistan. The applicant came to Australia by boat, arriving undocumented on Christmas Island on 24 July 2012. The applicant says he was born in Jaghori in the Ghazni province of Afghanistan. Despite the applicant producing no documents before the delegate, the delegate ultimately accepted the applicant’s claims as to his identity and where he had come from. Before the Tribunal, there does not appear to have been any real dispute as to the applicant’s identity or basic background information. The applicant was born a Jaghori in 1992 where he lived until 2010. The applicant then lived in Kabul for two years working as a waiter before leaving for Australia. The applicant’s mother and siblings now reside in Jaghori.
The applicant relied upon an incident at a local police station where his uncles and 12 others were killed, summarised by the Tribunal as:
25. Two of the applicant’s uncles (as well as 12 others) were killed by the Taliban in 2007 because they worked for a commander of a police station in Angori. The applicant was on his way to the police station to take food to his relatives and the Taliban were aware of his doing this and released his name to various places in Angori as a person of interest. It was also wrongly circulated that he worked for the Commander. The Taliban were pursuing him and he was not able to return home.
Part of this claim was accepted, with the Tribunal saying:
30. I accept that the applicant’s uncles worked at the checkpoint and were killed in a Taliban attack with 10 others in 2007 and I accept that the applicant had contact with them and would bring them food. I do not accept that he had voting card and I do not accept that such a card was found by the Taliban and that they had or have an adverse interest in him as a result. I do not accept that the Taliban released his name to various places in Angori as a person of interest and it was also wrongly circulated that [he] worked for the Commander. I do not accept that he received a threatening letter from the Taliban as claimed in Kabul or that he was of any particular adverse interest for his work in the restaurant.
The Tribunal ultimately concluded:
33. The applicant has been general consisted concerning his claim to have been aboard a van in 2009 that was stopped by the Taliban. I accept that in 2009, the applicant was travelling from Tangi Ootal to Angori in a van with 9-10 other passengers when they were stopped by the Taliban. I accept that the Taliban started hurting everyone and asked for taskeras. I accept that he hid his taskera and that two Hazara passengers were killed by the Taliban because they worked for the government. I accept that the Taliban could not find anything incriminating about him so they let him go. The applicant’s claims are generally consistent with the country information on the treatment of Hazaras on the roads in Afghanistan. As he was let go, I do not consider this incident means he is of any ongoing adverse to the Taliban or anybody else.
The Tribunal went on to consider the applicant’s risk generally as a Hazara Shia, saying:
34. I have considered carefully the country information submitted by the agents as to the situation for Hazara Shias in Afghanistan and the overall current security situation. I have considered whether the applicant has a well-founded fear of persecution in if he returns to Afghanistan on the basis of the general security situation in Afghanistan and the situation for Hazara Shias. I have also considered the associated imputed political opinion pro government and anti-Taliban arising from his race and religion. The applicant has claimed that the Hazara Shia face persecution and significant harm at the hands of the Taliban and ISIS.
Thereafter, the Tribunal considered considerable country information before concluding that “[b]ased on country information and the applicant’s individual circumstances, I therefore do not accept that the applicant in his home area of Jaghori faces a real chance of persecution, now or in the reasonably foreseeable future from the Taliban, ISIS or any other insurgent group on account of being a Hazara Shia or any imputed political opinion”: see [39].
The Tribunal also considered the dangers of travelling on the roads in that region of Afghanistan, noting that the applicant would need to travel on the roads for work if he were to live in Jaghori: see [41]. Again, this was after considerable review of the country information, concluding that the applicant would not be able to access adequate state protection on the roads or otherwise.
Indeed, the Tribunal member concluded specifically, with respect to travel on the roads:
50. In my view, the applicant is at an elevated risk of being targeted in on the roads outside Jaghori because he is a Hazara Shia. Considering the country information as a whole and the applicant’s individual circumstances, I find that he faces a real chance of serious harm amounting to persecution in the reasonably foreseeable future at the hands of the Taliban and other insurgent groups on the roads to and around his home area of Jaghori as a Hazara Shia.
51. Considering the country information as a whole and the applicant’s individual circumstances, I find that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk that he will suffer significant harm on the roads to and around his home area of Jaghori on this basis.
The core issue that arises in this case is whether or not the applicant is able to relocate to Kabul in order to avoid persecution or serious harm (in the complementary protection sense), and whether or not it would be reasonable to expect him to do so. In approaching this issue, the Tribunal commenced with an examination of an issues paper with respect to the Hazaras in Kabul: see [55]. The Tribunal also had regard to statements in a DFAT report issued in September 2015 which contained the following, “2.29 … Such attacks often cause significant casualties among civilian bystanders in addition to those being targeted. Kabul has seen a marked increase in the number of incidents in 2015 compared to the corresponding period in 2014.”, and a number of representative examples that followed: see [56]. The Tribunal noted the report’s comments at 2.31 with respect to the various deterrents and protections in place, and the conclusion in the DFAT report that “Nonetheless, violent attacks within the city [of Kabul] are common”.
Whether Hazaras are at greater risk than others as a result of what appear to be indiscriminate attacks in Kabul is a matter of some conjecture, the Tribunal noting that Professor Monsutti was of the view that Hazaras were no less safe than any other ethnic group – at least in January 2012: see [57].
In determining the extent of risk to the applicant in Kabul, the Tribunal considered a number of his personal circumstances, stating:
58. I have taken into account the reports of regular insurgency attacks on Kabul taken place but these need to be seen in the context that Kabul has a population of four millions and that the government maintains effective control of Kabul and has a range of counter-measures in place to prevent and respond to insurgent attacks [FN: Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.]. I have taken into account that the primary targets for insurgent attacks are government institutions, political figures, military, other security services and international organisations and that such attacks often cause significant casualties amongst civilian bystanders. I have taken into account that there are attacks on foreigners in Kabul and that the applicant may once again work in a restaurant which serves foreigners and government employees, however this would not involve directly work for the government and/or international community and I am of the view that the available country information considered as a whole indicates that the chance or risk of the applicant being seriously or significantly harmed in such a circumstance or due to any perceived association with the government or international community would be best described as remote, and not a real chance or real risk.
59. I accept that there have been some incidents where Hazara Shias have been targeted, and where ethnicity and religion would appear to be a factor and that ISIS have started operating in Afghanistan. However, I do not accept that all Hazara Shias in Kabul face a real chance of persecution or significant harm now or in the reasonably foreseeable future from these Sunni groups or anyone else. I accept that the applicant is a Shia and will attend mosque and religious events; however, given the country information viewed overall, I find that the chance or risk he will be seriously harmed or significantly harmed is remote.
As a result, the Tribunal ultimately concluded, with respect to his risk of serious harm :
61. I do not accept that the applicant faces a real chance or real risk of serious harm or significant harm in Kabul on account his membership of a particular social group of failed returned asylum seekers from the West. There is no recent information before me that returnees or failed asylum seekers or those who have spent time outside Afghanistan have seen seriously or significantly harmed in Kabul [FN: For example, Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015 and United States Department of State, Country Reports on Human Rights Practices for 2014, Afghanistan do not refer to this happening in Kabul]. DFAT have stated that because of Kabul’ size and diversity returnees are unlikely to be discriminated against or subjected to violence on the basis of ethnicity or religion [FN: Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015]. Whilst DFAT say there are aware of occasional reports of returnees from western countries alleging that they have been kidnapped or otherwise targeted on the basis of having spent time in a western country they assess that in general returnees from western countries are not specifically targeted on the basis of their being failed asylum seekers [FN: FN: For example, Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, Conditions in Kabul, 18 September 2015].
62. Having regard to the country information concerning the overall situation for Hazara Shias and failed returned asylum seekers from western countries and the country information that indicates that the Government maintains effective control of Kabul and the applicant’s individual circumstances, I do not accept that the applicant faces a real chance of persecution in the reasonably foreseeable future in Kabul on account of being a Hazara Shia or an imputed political opinion or for membership of a particular social groups consisting of failed returned asylum seekers from the West or his family from the Taliban, ISIS, other insurgent groups, Sunnis, the state or anybody else.
The Tribunal then went on to consider whether or not it was reasonable for the applicant to relocate to Kabul, saying:
64. I have considered carefully and taken into account all the information contained in the agent’s submissions and in DFAT’s recent report on Conditions in Kabul [FN: Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015] which suggests that relocation to Kabul may be unreasonable including the information that unemployment is widespread and underemployment is common, it has a relatively high cost of living particularly for housing and that it is one of the poor cities in the world. I have taken into account that there are difficulties with utilities and that insurgents regularly conduct high-profile attacks and that there are occasional attacks on religious facilities. Basic public health care is free though medicines are not. However, there are a number of factors that outweigh these and lead me to conclude that relocation in the applicant’s individual circumstances is reasonable. These are:
· The applicant has previous experience of living in Kabul and did so for a substantial period. He was able to find accommodation and employment there. He has completed Year 12 and been able to work as a waiter to support himself. The applicant has stated that he does not know whether his mother’s extended family members still reside in Kabul but he has remained in contact with his family since coming to Australia and his mother has not indicated that they have moved. DFAT have noted that many individuals may have members of their extended family who can assist their relocation. The applicant was able to obtain a job in a restaurant through a member of his mother’s extended family which supports that he has family networks there that can again assist with reintegration. DFAT have commented that internal relocation to urban areas is more successful for single men of working age, provided they are able to make use of family or tribal networks. The applicant is a single male of working age and the country information and his individual circumstances suggest that he would be able to successfully reintegrate.
· DFAT have commented that Kabul’s size and diversity means that there are large communities of almost all ethnic, linguistic and religious groups in the city and that returnees are unlikely to be discriminated against or subjected to violence on account of their ethnicity or religion. They have commented that that there are many Shia mosques in the city. This information suggests that there is a large Hazara Shia community which the applicant can reintegrate into. DFAT have also commented that notwithstanding the security situation, there are generally options available for members of most ethnic and religious minorities to relocate from parts of Afghanistan to relative safety in Kabul.
· The applicant has is a young adult male who has not indicated that he has any particular health concerns.
The Tribunal then found that “it would be reasonable for the applicant to relocate to Kabul to avoid the localised threat of serious harm that he faces on the roads outside Jaghori”: see [65].
Ground One
The first ground of the applicant’s application is that “the Tribunal erred in undertaking the evaluation of the safety limb of the relocation question only by reference to a statistical analysis”.
The applicant points to the Tribunal’s reasoning in [58], and in particular the reference to the fact that Kabul has a population of four million people. The applicant points to the comments of McHugh J in Minister for Immigration & Multicultural Affairs v S152/2003 (2004) 222 CLR 1 at [80] where his Honour said:
…a percentage chance based on the results of a number of events, by itself, seldom throws light on whether a future event is likely to affect any particular person, place or property. To make the percentage useful for predicting the occurrence of an individual event, the predictor has to know a good deal about the inputs that form the basis of the statistical calculation. The predictor must know, for example, the source and nature of the inputs, the period and the area over which they were collected and their significance for the subject of the prediction.
These principles have been applied in other cases, such as DZADQ v Minister for Immigration and Border Protection [2014] FCA 754 and MZAKC v Minister for Immigration & Anor [2016] FCCA 834. Importantly, those cases do not say that one must ignore a statistical description of a particular location.
Clearly, the risk to an individual of insurgent attacks that are regular in a small village of 20 or 30 thousand people is very different to the risk of regular insurgence attacks in a city of four million. The important point of principle that flows from the cases is that the statistical analysis is but one aspect of the evidence that needs to be weighed against the other facts and circumstances relevant to the case. In this case, it appears that the Tribunal member has taken into account a number of other facts and circumstances unique to the applicant as are set out in the balance of the reasons given at [58] (as quoted above).
I am not persuaded that in this case the Tribunal member has erred by turning only to the question of statistics in reaching the decision.
Ground Two
Ground 2 is framed as follows :
2. The Tribunal failed to considered whether any risk of harm in the postulated place of relocation meant that relocation to that place was not reasonable.
Counsel for the applicant argues that the difficulty which arises is that this analysis was focused upon the Convention claim, not on the second test of reasonableness of relocation. The Tribunal member turns to the question of reasonableness at [64] of the reasons. However, this analysis flows from earlier findings, importantly in [58], that the risk of the applicant being seriously or significantly harmed “would be best described as remote, and not a real chance or real risk”. The tribunal member also referred to a DFAT report in [64] that there is relative safety in Kabul.
The applicant advances the argument that the Tribunal member must consider forms of harm that would not be within the terms of the protection provisions of the Migration Act 1958 (Cth), in order to determine whether or not it is reasonable to relocate. This follows logically from MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 where the Tribunal erred in failing to consider a risk of non-persecutory harm in the area where it was thought that the applicant could relocate. Similarly, it is argued, that harm that may be less than a “real chance” based upon the Convention test may nonetheless be sufficient to make it “unreasonable” to expect a person to relocate. Having regard to the reasons given by the Tribunal member at [64], it is clear that the member proceeded to consider the “reasonableness” of relocation as stated in the first sentence. Risks in Kabul were identified and considered. In these circumstances, I am not persuaded that the Tribunal member proceeded by ignoring any risks that were not sufficient to fall within the Convention test, when going on to consider the reasonableness of relocation. It appears the Tribunal was considering the reasonableness of relocation, not the test for serious and significant harm.
In these circumstances I am not persuaded that the applicant has made out ground 2.
Ground Three
Ground 3 was framed as:
3. The Tribunal misunderstood the evidence in the review in relation to whether the applicant had family members in the postulated place of relocation.
The applicant points to the absence of any evidence before the Tribunal member that the relatives (referred to in [64]), which had previously assisted the applicant, were still in Kabul or even likely to be in Kabul. It is apparent from the reasons that the Tribunal member is aware that the applicant does not know whether his extended family continue to reside in Kabul. Counsel for the applicant points to an exchange with the applicant in the transcript in their outline of arguments:
Tribunal: And what about your mother’s relatives in Kabul that you mentioned?
Applicant (through interpreter): They are far relatives, I don’t know but in the fours I left there maybe they are still there maybe not.
Tribunal: Is the restaurant still there, do you know?
Applicant (through interpreter): No, I don’t know.
It is argued no inference was logically available that family remained in Kabul – the highest that the Tribunal could assert the proposition was that the applicant had family connections at some point in the past. Everyday life proceeds on the assumption that people and businesses continue where they were previously located. We draw this inference each time we visit a friend or trader. The strength of the assumption weakens with time and must be assessed in the circumstances, as gradual change is also inevitable.
Counsel for the Minister points to the fact that there is no challenge to the conclusion that the applicant was assisted by a member of his mother’s extended family when last in Kabul in 2010 to 2012, leading to an evidentiary basis for a conclusion that there were extended family members in Kabul around three to four years before the decision. This issue was clearly raised with the applicant at the hearing. There was no evidence before the Tribunal that any family members had departed from Kabul or were no longer there.
Thus, the Tribunal member (a) had evidence that family members were present in Kabul and had assisted the applicant in the relatively recent past, (b) had raised the issue in the hearing with the applicant, and (c) no evidence was led to the effect that family members were no longer present or able to assist. It was open to the Tribunal member to draw the inference that was drawn in the decision. This is, in substance, a merits review ground.
Ground Four
The applicant’s fourth ground is in the following terms:
4. The Tribunal failed to lawfully consider an objection to relocation, being that there was scarcity of housing in the postulated place of relocation.
In this ground the applicant argues (Submissions filed 21 August 2013 pp.14 – 15) that housing in Kabul was problematic because of a scarcity of houses and high rent. The applicant relied upon a Danish Immigration Service report to support this argument. The applicant develops the argument as one where two propositions are put, firstly that housing is expensive and secondly that housing is scarce.
Counsel for the Minister argues, scarcity and cost are connected incidents in a marketplace. That is, when houses are scarce, demand exceeds supply and prices are generally high. Of course, whilst counsel’s argument is correct in economic theory, many markets are affected by other factors. For example, the price of housing may be at a point where greater rents simply cannot be obtained by landlords (due to the average incomes of those renting), but houses remain scarce (particularly when impediments to building make construction uneconomic based upon economic returns by way of rent or possible capital gains). However, the core problem remains one of the difficulty in obtaining housing.
The Tribunal member did have regard to housing difficulties, along with a number of other difficulties that would confront somebody relocating to Kabul at [64]. Although, the Tribunal dealt with this issue, albeit it at a slightly higher level of generality than that argued by counsel for the applicant before this Court, I am not persuaded that the Tribunal erred in a judicially reviewable way.
Ground Five
The fifth ground that the applicant raised is:
5. The Tribunal failed to ask the applicant about the gist of untranslated county information he submitted to the Tribunal.
The applicant provided substantial country information that was not in English, and did not provide translations to the Tribunal. As counsel points out, the Tribunal member is obliged to at least ask the applicant about the “gist” of the information: see X v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 319 and SZQGL vMinister for Immigration and Citizenship (2012) 206 FCR 474 where Cowdroy J said:
91. It should be noted that, unlike the Full Court in X v Minister for Immigration and Multicultural Affairs, this Court does not have before it translated copies of the full articles. The Court is therefore unable to determine whether the statements made by the appellant about the articles accurately summarised their contents. However, the Reviewer provided the appellant with the opportunity to summarise such articles. Thus in the Court’s view the Reviewer satisfied the procedural fairness requirements in this respect.
92. In X v Minister for Immigration and Multicultural Affairs Gray J referred to the distinction between a request of a decision-maker that a document be translated into English compared to a refusal of a decision-maker to take into account a document which has not been so translated. In the present matter, the Reviewer did accord consideration to the documents put forward by the appellant, since he made specific enquiries relating to their contents.
Counsel for the Minister does not dispute this proposition, but argues that the member did inquire as to the substance of the contents of the articles, relying upon an exchange at p.9 of the transcript:
Member: Look you provide quite a lot of, a large number of untranslated news articles, what are they essentially about? Obviously I can’t read them as is.
Interpreter: It’s all about the safety of Hazara people around, across the country, all over the country, the news are printed out from the BBC website it’s about 31 Hazara people they were taken hostage a while ago and someone of them were caught in the Mazar Chapchal … province.
It is also submitted by the Minister, for the reasons set out in the supplementary outline of submissions, that the untranslated material did not contain information that was critical to the resolution of the issues before the Tribunal member in any event.
The ‘gist’ of the information was articulated and doesn’t bear directly on risks in Kabul.
In these circumstances, the applicant cannot succeed on this ground.
Ground 6
At the hearing of the matter, I granted leave to counsel for the applicant to raise an additional ground framed as follows:
6. The decision of the Tribunal is affected by jurisdictional error in that it failed to consider a claim for protection, as it related to the safety limb of the relocation test.
Particulars
a) The applicant claimed to fear harm on grounds of his actual or imputed political opinion (CB 113).
b) The Tribunal accepted that the applicant was a person who had contact with his uncles, which uncles were killed by the Taliban (Reasons [30]).
c) The Tribunal did not deal with the claim in (a) insofar as it was supported by the evidence in (b), when assessing whether the applicant was exposed to a real chance of persecution in Kabul for the purpose of the safety limb of the relocation test.
The applicant, in submissions to the Tribunal raises the claim of imputed political opinions as one of a dot point list of claims: see Court Book p.113. Counsel argues that the claim arises from the claim that the applicant (when 15 years of age) took food to his uncles at a government check point. The applicant’s uncles were both killed by the Taliban in 2007. The applicant says that, whilst this was a random attack, the Taliban came to know of him through an informer and because he left his ‘election card’ at his uncle’s: see Court Book pp.127-128.
At [25] the Tribunal summarised this claim saying:
25. Two of the applicant’s uncles (as well as 12 others) were killed by the Taliban in 2007 because they worked for a commander of a police station in Angori. The applicant was on his way to the police station to take food to his relatives and the Taliban were aware of him doing this and released his name to various places in Angori as a person of interest. It was also wrongly circulated that he worked for the commander. The Taliban were pursuing him and he was not able to return home.
The Tribunal addressed these issues and rejected the applicant’s evidence on a number of key factual claims, saying (in addition to [30]-[33] as quoted above):
29. I have considered carefully the applicant’s claims but I do not consider that he has given credible evidence in relation to a number of key matters. I do so for the following reasons:
• The applicant has claimed that he left his voter election card at the police station which was overrun by the Taliban and that as a result they have his name and were able to identify him and he is of adverse interest to them. I do not accept this is a credible claim. The applicant has claimed that his uncles were killed in 2007 (1386 in the Afghan calendar). The applicant told the Tribunal that he obtained the card from government officials and told them that he was born in 1992 and that they got this information from his taskera. The applicant was only 15 years old at the time and would not have been eligible to vote in Afghanistan. Country information indicates that the minimum voting age is 18 years [FN: Agence France-Presse, Young Afghan voters dismayed by old faces and warlords, 9 October 2013, The applicant told the Tribunal in response to this concern that they did not consider his age and that some people younger than him obtained the voting cards. I have considered his response but the applicant was well under the minimum voting age and I do not consider it plausible or credible that government officials would have willingly issued him such a card in contravention of the electoral law. I consider this is a matter that detracts from his credibility.
• The applicant claimed that five years after the deaths of his uncles, the Taliban stopped a truck driver travelling to Kabul and asked questions about him and ordered the driver to leave a letter at a hotel in Kabul near where the applicant lived. He has claimed that the letter contained all the details about him allegedly working for the police at the police checkpoint and that he worked at a restaurant servicing non-Muslims and foreign workers. I do not consider it credible or plausible that the Taliban would have had such an adverse interest in the applicant that they would have pursued him in this way. Five years had passed since his uncles were killed at the checkpoint and the applicant was just 15 years old at the time. The applicant was not actually employed by the government or the police. He told the Tribunal that his uncles were not actual police members but worked there assisting the checkpoint and that they were just two of 12 persons killed in the Taliban attack. Whilst the applicant worked at a private restaurant that served many foreigners and government workers, his role was merely as a waiter and his evidence did not indicate that any negative action was taken against the restaurant, the owner or any of the other staff by the Taliban or any other insurgents. Country information is that it is not likely that the Taliban would make it a priority or have the capacity to track down low profile persons in Kabul [FN: Danish Immigration Service, Afghanistan Country of Origin Information for Use in the Asylum Determination Process, pp7-8 May 2012]. In all these circumstances, I consider it farfetched and implausible that the Taliban would have made such an effort or had the capacity to threaten the applicant who had such a very low profile and I do not accept that he was of any adverse interest to the Taliban or other insurgent groups as he has claimed. I consider these are matters that detract from his credibility.
The Tribunal rejected the evidence that the applicant ever had an ‘election card’ and rejected the claims of the Taliban taking an interest in him since the attack. These factual findings were open to the Tribunal. Thus, on the facts as found by the Tribunal the applicant took food to his uncles in 2007 but has had no adverse interest by the Taliban since that time.
The applicant also points to the findings of the Tribunal at [39] of its reasons:
39. DFAT have commented that the key Hazara districts of Ghazni Province (Nawur, Malistan and Jaghori) continue to experience relatively low levels of violence. No recent reports have been found of Taliban or other insurgent incursions into Jaghori. Based on country information and the applicant’s individual circumstances, I therefore do not accept that the applicant in his home area of Jaghori faces a real chance of persecution, now or in the reasonably foreseeable future from the Taliban, ISI or any other insurgent group on account of being a Hazara Shia or any imputed political opinion.
These findings reject any claim based upon political opinion (express or implied).
The applicant argues that the Tribunal nonetheless failed to consider the applicant’s more simple claim that he may be imputed with his uncles’ political opinions as a result of taking food to them when he was 15 years old. However, the conclusions at the end of [30] and [33] are clear findings that he is of no interest to the Taliban, regardless of the basis of the claim. The applicant has not established that this ground shows a judicially reviewable error on the part of the Tribunal.
As the applicant has not established a ground for judicial review, I must therefore dismiss the application.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 13 March 2018
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