ALV16 v Minister for Immigration
[2018] FCCA 626
•16 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALV16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 626 |
| Catchwords: MIGRATION – Judicial Review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of Minister for Migration and Border Protection not to grant Protection visa – whether the Tribunal assessed the risk of future harm to the applicant if he returned to Afghanistan solely on the basis of statistical evidence – whether the statistical evidence on which the Tribunal relied for assessing the risk of future harm was probative of the risk the applicant was likely to face on his return to Afghanistan – whether the Tribunal relied on a finding without any evidentiary foundation – whether the Tribunal failed to consider or engage with an aspect of the reasonable practicality of the applicant relocating within Afghanistan – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) |
| Cases cited: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 |
| Applicant: | ALV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 102 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 17 March 2017 |
| Date of Last Submission: | 17 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Tully |
| Solicitors for the Applicant: | Ryburn Solicitors |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 102 of 2016
| ALV16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Afghanistan, a Hazara, and a Shia Muslim, applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
Claims for Protection
The applicant’s claims for protection are set out in a statutory declaration the applicant submitted with his application for a Protection visa in which he claimed as follows:[1]
a)The applicant was born in a village in the district of Khas Uruzgan in Afghanistan.
b)In 1997 the applicant fled to Pakistan because the Taliban made it impossible for him and his family to remain in his village. The area in which the applicant’s village was located was in the hands of the Taliban who raided the village and took Hazara Shia men away and killed them.
c)In 2007 the Taliban killed the applicant’s brother in a Pashtun area in the course of the applicant’s brother’s journey back to the village to obtain his Taskera. The applicant’s mother subsequently died from a broken heart. The applicant’s father passed away from natural causes in Pakistan three years before.
d)For the past 15 years the applicant lived with his family in Quetta, Pakistan. He worked on and off as a bricklayer in Tehran, Iran. The applicant was deported from Iran to Afghanistan because of his unlawful status in that country. The applicant was badly abused and tortured by the police in Iran. On being deported the applicant made his way to Herat and then travelled to Pakistan to his family. After a short period, when money was getting low, the applicant returned to Iran for work.
e)The applicant left Afghanistan because his life was at risk due to the Pashtuns surrounding the area of his village, and the presence of the Taliban. He fears he will be harmed by the Taliban if he returns to Afghanistan, and that the government of Afghanistan cannot protect him.
f)The applicant’s brother-in-law has taken the applicant’s wife and their boys to Tehran due to the bad security situation for Hazara Shias in Pakistan.
[1] CB85-86
Before the Tribunal
The applicant provided to the Tribunal further details of his claims. In relation to the murder of his brother the applicant said that the news of his brother’s death was relayed by telephone by a Mr X who lived in the applicant’s native village. The applicant said Mr X said that someone had notified him that the applicant’s body had been found in a Pashtun area, that Mr X went there to find the body and discovered the applicant’s brother had been beheaded. Mr X said it took a few days to find the applicant’s brother’s body.[2] The applicant also said the brother did not discuss with him the brother’s plans to travel to Afghanistan. The applicant said his mother told the applicant of the brother’s plans after the brother had left Pakistan. The applicant could not give any reason why his brother would return to Afghanistan, but added that the applicant’s brother was the eldest child in the family and, in their culture, the elder one decides and does not discuss plans with younger siblings.[3] The Tribunal “put to the applicant that while he claimed, in his culture, an elder sibling would not discuss such matters with him, the Tribunal put to him that nevertheless his brother would have well-known that if he was killed in Afghanistan, the applicant would become the head of the family and also have to look after his brother’s own family being his wife and three children (the applicant saying that he took care of the three children after his brother died)”.[4]
[2] CB320, [12]
[3] CB320, [14]
[4] CB320, [15
The Tribunal also put to the applicant that it seemed improbable that his mother would not have said anything to the applicant about his brother’s plans to travel to Afghanistan until after the applicant’s brother left Pakistan. The applicant said that he was working and she would not tell everybody in the area that the applicant was going to work.[5]
[5] CB321, [16]
After the hearing, the applicant’s representative addressed, among other things, the concerns the Tribunal expressed at the hearing about the applicant’s older brother. The representative made the following submissions:[6]
Our Client maintains that his brother returned to Uruzgan province in Afghanistan from Pakistan to collect his Taskera, and to assess whether the area was safe for the family to return to live. [The applicant’s] brother was under the impression that it would be safe to return, as NATO forces were present in Afghanistan at that time. The family, particularly [the applicant’s] mother, was anxious to return to their home if it ever was to become safe. As is custom in Afghanistan, [the applicant’s] older brother discussed these plans to return with his mother. [The applicant] instructs that it is not customary to discuss such plans with a younger member of the family, and it therefore should not be considered suspicious, unlikely or unusual that [the applicant’s] older brother did not discuss his plans to return to Afghanistan with him personally. Any enquiries and plans made were discussed with the elder, being our Client’s mother, rather than with the younger siblings.
[6] CB277-278
Tribunal’s reasons
The Tribunal accepted the applicant is a Shia Hazara from a village in the district of Khas Uruzgan; all of the people who lived in the village were Hazaras; the applicant did not go to school but worked as a shepherd with his father on his father’s farmland; in 1997 the applicant and his family abandoned their village and went to live in Quetta, Pakistan; on a number of occasions the applicant travelled to Iran where he worked as a plasterer, bricklayer, and tiler; on a number of occasions the Iranian authorities apprehended the applicant because he was in Iran unlawfully; the applicant would go to Herat and from there travel across Afghanistan to Quetta; and the applicant “was at risk in the sense that all other Hazaras were because of the explosions taking place and groups in that city wanting to kill Shias and Hazaras”.[7] The Tribunal also accepted that while the applicant was living in Pakistan his father died of natural causes; the applicant’s mother and brother are deceased; the wife of the applicant’s brother has remarried but the applicant cared for his three children; his brother’s three children have been living in Iran after being taken there by the applicant’s brother-in-law because of the dangerous situation unfolding in Quetta; the applicant’s brother-in-law lives separately in different places; and the applicant has been supporting his wife and three children himself.[8]
[7] CB319, [9]
[8] CB319-320, [10]
The Tribunal, however, did not believe the applicant’s claim that his brother was murdered. It found “highly improbable, in the circumstances described above, [the applicant’s] claim that his brother would return to Afghanistan without, at the least, telling the applicant he was planning to do so”.[9] It is reasonable to infer, and I do infer, that “circumstances described above” to which the Tribunal intended to refer are the circumstances set out in the Tribunal’s recitation of the answers the applicant gave to questions the Tribunal asked of the applicant about his brother’s not discussing with the applicant his plans of returning to Afghanistan. That included the Tribunal’s putting to the applicant that the applicant’s brother would have well known that if the brother were to be killed in Afghanistan the applicant would become the head of the family and also have to look after his brother’s own family (which the Tribunal found the applicant did),[10] and the Tribunal found it improbable that the applicant’s mother would not have told the applicant of the applicant’s brother’s plans to travel to Afghanistan until after the applicant’s brother left Pakistan.[11] The Tribunal concluded, therefore, that the applicant’s claims that his brother travelled back to Afghanistan, that his dead body was located in a Pashtun area, and that a man telephoned the family to tell them that were false.[12]
[9] CB321, [18]
[10] CB320, [15]
[11] CB312, [16]
[12] CB321, [19]
The Tribunal then referred to country information about the security situation in Afghanistan, the position of Hazaras in Afghanistan, Hazaras and travel on roads, failed asylum seekers who return to Afghanistan after spending time in a Western country, Hazaras in Uruzgan, and Hazaras in Kabul. As to the security situation across Afghanistan, the Tribunal noted it has deteriorated over the last 12 to 18 months as anti-government groups intensify their efforts and international military forces gradually withdraw.[13]
[13] CB322, [20]
As to the position of Hazaras in Afghanistan, the Tribunal noted the population of Afghanistan is approximately 32 million; Hazaras make up 9% and Pashtuns 42% of the population; Hazaras are a visibly distinct ethnic group; although there is no official policy of discrimination by the government on the basis of ethnicity, ethnic, tribal, and family affiliations are important factors in almost every aspect of life in Afghanistan; Afghans, therefore, tend to live in areas where their ethnic group constitutes the local majority with Hazaras living in the central provinces; almost 19% of Afghans are Shia Muslims and almost all Hazaras are Shias; the Department of Foreign Affairs and Trade (DFAT) states it does not have credible evidence that Shias are systematically targeted on the basis of their religion except for religious leaders; there has been no large-scale ethnic violence since the fall of the Taliban in 2001, and no particular ethnic group is systematically targeted solely on the basis of ethnicity; and it is individuals working for, supporting or associated with the government or the international community who are at high risk of violence committed by anti-government elements.[14]
[14] CB324-325, [23] – [26]
As to Hazaras that travel on roads, the Tribunal referred to a DFAT report which assessed that individuals working for, or supporting or associated with the government and the international community are at high risk of violence by insurgents on roads in Afghanistan, and that Hazaras were widely perceived to be affiliated with the government and the international community because of improvements in their own situations. The Tribunal noted, however, that DFAT did not assert that being targeted for affiliation with the government and the international community arose solely from Hazara ethnicity, and that Hazaras who worked for the government and the international community took precautions to ensure that if they were stopped they would not be identified as being so employed.[15] The Tribunal referred to a DFAT report of 2013 that it had received allegations that Hazaras had been killed on roads to and from Hazarajat, but that it found no reliable evidence that insurgents disproportionately target Hazaras on any road in Afghanistan.[16] The Tribunal also referred to a 2015 DFAT report stating that Hazaras travelling by road between Kabul and Hazarajat can face a risk greater than other ethnic groups, but that “kidnappings of Hazaras were relatively rare ‘in a country wide context’”.[17]
[15] CB325, [27]
[16] CB325, [28]
[17] CB325, [28]
The Tribunal also referred to a DFAT report about persons who return to Afghanistan after having unsuccessfully sought asylum in Western countries. DFAT reported that returnees from Western countries are not specifically targeted because they are failed asylum seekers. DFAT also concluded there was no evidence to indicate that low profile individuals suffer discrimination or violence because they are returnees. In a 2015 report, however, DFAT noted there were occasional reports of returnees from Western countries alleging they have been kidnapped or otherwise targeted because they had spent time in a Western country, but DFAT expressed no opinion about the veracity of these claims.[18]
[18] CB327, [30]
Next the Tribunal referred to country information concerning Hazaras in Uruzgan. The Tribunal referred to country information that reported that in 2010 there was a mass displacement and forced migration of Hazaras due to insecurity; that in 2013 there was a report that relations between Hazaras and Pashtuns in the district of Khas Uruzgan have long been precarious; that over 2013 and 2014 Hazara Afghan Local Police units clashed with the Taliban, and that in 2014 DFAT assessed Uruzgan as an area contested by insurgent forces. The Tribunal also referred to DFAT’s assessment that Hazara minorities living in Uruzgan, a Pashtun majority area, were less safe than those living in Kabul or other Hazara majority areas in Afghanistan.
Lastly, the Tribunal referred to country information concerning Hazaras in Kabul. The Tribunal noted that Kabul has a population of up to 7 million, of which between 1.7 and 2 million are Hazaras, making them the largest ethnic group in the city, most of whom live in the west of the city. The Tribunal referred to DFAT’s conclusion that returnees to Kabul would be unlikely to suffer discrimination or be targeted on the basis of ethnicity or religion, and that ethnic violence in Kabul is rare; and that, while insurgent groups regularly conduct high-profile attacks in Kabul, Hazaras are not disproportionately targeted by criminals or insurgents in the city.[19]
[19] CB328-329, [33]
Having identified what it considered to be relevant country information; the Tribunal concluded as follows:
a)The risk of the applicant suffering serious harm if he returns to live in his native area in the district of Khas Uruzgan is remote. The Tribunal so concluded even though it accepted Hazaras living in Uruzgan are not as safe as those who live in Hazara majority areas. The Tribunal noted, however, that it does not have reports of specific cases of Hazaras being attacked there because of their ethnicity in recent years; and that, while the conflict between the Afghan government and the anti-government groups has resulted in civilian casualties, the targets of anti-government groups are not specific ethnic groups but people associated with the Afghan government, its institutions, international forces, and international institutions or groups.[20] The Tribunal acknowledged the applicant could suffer serious harm in this conflict as a civilian, but it noted that the number of casualties has to be considered in the context of the overall population.[21] In a footnote the Tribunal noted that in 2014 civilian casualties were approximately 10,600 out of a population of 32 million people.[22]
b)The Tribunal accepted that if the applicant were to return to his native area in Khas Uruzgan he would have to travel there by road from Kabul. The Tribunal found that the risk of the applicant suffering serious harm in that travel is remote. While acknowledging that the Taliban and criminal elements target certain roads, and that DFAT stated that Hazaras were more likely to be selected for harm over Pashtuns if a bus carrying a mix of ethnic groups was stopped, the Tribunal noted that DFAT also “repeatedly stated that Hazaras are not systematically or disproportionately targeted”. Those whom the Tribunal concluded were really at risk on the roads are those people associated with the Afghan government, its institutions, international forces, and international institutions or groups .[23]
c)The applicant will not be perceived to be wealthier than other Afghans and will not, therefore, be at risk of harm for that reason;[24] and the risk of the applicant suffering harm because he sought asylum in Australia is remote.[25]
[20] CB330, [37]
[21] CB330-331, [37]
[22] CB331, footnote 82
[23] CB331, [39]
[24] CB331, [40]
[25] CB331, [41]
In its reasons the Tribunal addressed submissions the applicant’s representative made. One set of submissions related to reports of attacks on Hazaras mainly while travelling on the roads.[26] The representative submitted, among other things, that the number of civilians killed as a result of attacks between the government and insurgents did not reflect the number of Hazaras killed. The Tribunal responded to that submissions as follows:[27]
While that is true, the fact remains that the number of civilians killed in the conflict considered in the context of the overall population means that the risk of the applicant suffering serious harm as a civilian in this conflict is remote.
[26] CB334, [54]
[27] CB335, [56]
The Tribunal then turned to the question of relocation. It concluded “it is reasonable for the applicant to relocate to Kabul where, objectively speaking, there is no appreciable risk of the occurrence of the feared persecution”.[28] The Tribunal found that, based on the country information to which it had already referred, the applicant’s risk of suffering harm in Kabul is remote.[29] The Tribunal also found that “it is reasonable for the applicant to relocate to Kabul”.[30] The Tribunal so concluded even though it acknowledged that the applicant had never been to Kabul, he has no family there, and, because of the rapid population growth, Kabul “faces challenges in terms of providing adequate services”.[31]
[28] CB332, [44]
[29] CB332, [44], [45]
[30] CB333, [46]
[31] CB333, [46]
Finally, the Tribunal concluded this part of its reasons by noting that it has assessed the risk of the applicant suffering serious harm in the reasonably foreseeable future. The Tribunal referred to country information that indicates that, with the gradual withdrawal of international forces, there has been an increase in conflict and civilian casualties. The Tribunal concluded, however, that:[32]
it would be far too speculative to find that the situation in Afghanistan will change in the reasonably foreseeable future such that there is a real chance the applicant will suffer harm on either, or cumulatively, all of the grounds discussed above or to find that it would not be reasonable to expect him to relocate to Kabul. Accordingly, the Tribunal infers that the applicant does not hold a well founded fear of persecution in Afghanistan.
[32] CB333, [49]
The Tribunal also concluded the applicant did not satisfy the complementary protection criterion provided for by s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). In so concluding the Tribunal relied on the findings it made in assessing the applicant’s claims for protection under the Refugees Convention.[33]
[33] CB336, [62]. The “Refugees Convention” is a reference to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.
Ground 1 – failure to apply “real chance” test
The first ground of application is as follows:
The tribunal misapplied or misconstrued the real chance test.
Particulars
(a)At [21], [23], [34], [44], [53], [56] and footnotes 82 and 85 of its decision, the tribunal considered the risk of serious harm to the applicant as a civilian in Kabul to be remote because that risk had to be assessed by reference to the number of casualties in the context of the overall population in Afghanistan.
(b)Alternatively, the tribunal committed a jurisdictional error similar to that identified in SZVJE v MIBP [2016] FCCA 594 at [28]-[30].
This ground is directed to an element of the criterion specified in s.36(2)(a) of the Act as it operated when the applicant applied for protection.[34] (For ease of expression I will refer to the Act as it then applied to the applicant in the present tense.) The criterion is a visa-applicant’s being “a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”. That incorporates the definition of “refugee” contained in Art.1A(2) of the Refugees Convention. Under that definition a refugee is a person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[34] This part of the Act was amended by Part 2 of Schedule 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The amendments took effect on 18 April 2015. Item 28 of Schedule 5 provides that Part 2 applies in relation to an application for a protection visa that is made on or after the day “this item commences”. Under s.2 of the Act, Item 28 came into effect on the day after assent. The date of assent was 15 December 2014.
The element of the definition of “refugee” to which ground 1 is directed is that there must be a “well-founded fear of being persecuted”. The meaning of that expression requires consideration of two questions:[35] what is the required degree of probability that the feared serious harm will occur before the fear may be regarded as well founded? And over what future period must the person have a well-founded fear that the serious harm will occur?
[35] In this and the following four paragraphs I repeat what I said in SZUHN v Minister for Immigration & Anor [2016] FCCA 635 at [22]-[26]
The first of these two questions has been authoritatively settled by two decisions of the High Court. The first is Chan v Minister for Immigration and Ethnic Affairs where Mason CJ said:[36]
But I prefer the expression "a real chance" because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia . . . . If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
[36] (1989) 169 CLR 379 at page 389. See also Toohey J at page 407 where his Honour said that the real chance test “gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial”. See also McHugh J at page 429 where his Honour said: “As the U.S. Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.”
This passage must be read with the following passage from the judgment of the plurality in Minister for Immigration and Ethnic Affairs v Guo:[37]
Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error. . . . Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well-founded”, but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.
[37] [1997] HCA 22; (1997) 191 CLR 559 at page 572-573
As for the future time over which the person must have a well-founded fear that serious harm will befall that person, the High Court, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, accepted that whether or not a person had a well-founded fear of persecution had to be assessed on the assumption that the person were to return to his or her country “at this time or within the reasonably foreseeable future”.[38]
[38] [1996] HCA 6 at [47]
In Minister for Immigration and Border Protection v MZYTS the Full Federal Court said that such assessment “involves a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past”.[39] What is involved in such assessment was described in greater detail by Gummow and Hayne JJ in S395 v Minister for Immigration and Multicultural Affairs:[40]
The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.
Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant's country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.
[39] [2013] FCAFC 114 at [33]
[40] [2003] HCA 71 at [73]- [75]
The parties’ submissions
In his written submissions counsel for the applicant submitted the Tribunal “did not consider on the evidence whether a real chance was established”, but it instead “over-relied on statistics drawn from the available country information”.[41] Counsel further submitted that the Tribunal’s “approach was indicated during the hearing”.[42] Here counsel referred to two examples. The first is where the Tribunal member put to the applicant that in the conflict “innocent civilians have been killed”, that this “number is say for the last year there were about 3,500 people, civilians, who were killed in this conflict”, but “of course this is out of a population of 32 million”.[43] The second example occurs in the context of the Tribunal referring to attacks in Kabul directed to the government and people associated with the international community. Here the Tribunal put to the applicant that in those attacks “some civilians have been killed” but “the number is still low out of a population of seven million”.[44] Counsel for the applicant also referred to what he submitted was the Tribunal’s identical approach when considering the risk of harm to the applicant if he were to return to his native area of Uruzgan. That relates to the Tribunal’s acknowledging that Hazaras in Uruzgan are not as safe as Hazaras living in Hazara majority areas but also noting that that the risk of harm to the applicant has to be assessed by considering the number of civilian casualties in the context of the overall population.[45] Counsel also submitted that the Tribunal assessed the risk of harm to the applicant by reference to the number of casualties in the context of the overall population in Afghanistan; and that this approach was erroneous “because it diverted the tribunal away from applying the real chance test by reference to the other evidence”.[46]
[41] Applicant’s Submissions, [12]
[42] Applicant’s Submissions, [12]
[43] Affidavit of A D Ryburn, annexure “AJR2”, page 10
[44] Affidavit of A D Ryburn, annexure “AJR2”, page 16
[45] Applicant’s Submissions, [15] referred to CB330-332, [37] and footnote 82 which refers to there being 106000 casualties in 2014 out of a population of approximately 32 million people
[46] Applicant’s Submissions, [19]
In the alternative, counsel submitted that the Tribunal made the same error this Court found the Tribunal made in SZVJE v Minister for Immigration and Border Protection.[47] In that case Judge Driver found that the Tribunal assessed relative risk between two places (Lahore and elsewhere in Pakistan) rather than focus on the degree of risk in Lahore. His Honour found this was a jurisdictional error because the Tribunal examined “relative risk between Lahore and elsewhere rather than” analyse “the real risk in Lahore”.[48]
[47] [2016] FCCA 594, at [28]-[30]
[48] [2016] FCCA 594, at [28]
Counsel for the Minister submitted the Tribunal was entitled to rely on the statistical reasoning which it undertook; and it cannot reasonably be said the Tribunal confined itself to such reasoning without considering the applicant’s particular circumstances.[49] Counsel particularly referred to the Tribunal’s consideration of the individual characteristics and circumstances of the applicant.[50] Counsel for the Minister also relied on the judgment of Beach J in MZAAD v Minister for Immigration and Border Protection.[51]
[49] First Respondent’s Written Submissions, [4]
[50] CB319, [8], [9], CB 330, [37], CB331, [39], and CB 333, [47]-[48]
[51] [2015] FCA 1031
In MZAAD the appellant submitted that when assessing a claim for protection the Tribunal was required to make a “holistic qualitative evaluation in all the circumstances based upon the facts as found”, but that the Tribunal instead had engaged in a mere numerical calculation of risk based on the appellant twice having safely travelled on the relevant road.[52] That led his Honour to make a number of observations about “arithmetical reasoning”. First, when assessing future risk, past events may be a guide to the future.[53] Second, “statistics on past events may have some probative value for predictive purposes”.[54] Third, while a consideration of past events and some statistical or computational approach may have some probative value, “it is inappropriate to confine the evaluative process in assessing “real risk” or “real chance” to only such data set or quantitative analysis”.[55]
[52] [2015] FCA 1031 at [39]
[53] [2015] FCA 1031 at [41]
[54] [2015] FCA 1031 at [42] referring to a passage from the judgment of McHugh J in Minister for Immigration and Multicultural Affairs v respondents S152/2003 (2004) 222 CLR 1 at [80] where McHugh J said, among other things, that “[s]tatistical percentages based on experience of past events are essentially an accurate guide to the chance of similar events occurring in the future.”
[55] [2015] FCA 1031 at [43] referring to DZADQ v Minister for Immigration and Border Protection [2014] FCA 754 at [61] and [65]
In his oral submissions counsel for the applicant accepted the Tribunal made no jurisdictional error only because it relied on statistics; and counsel accepted what Beach J said in MZAAD.[56] Counsel further accepted that the Tribunal “considered the applicant’s circumstances in relation to other risks and other claims of harms”.[57] The gist of counsel’s submission was that “just in relation to the risk of being caught up as a civilian in the context of the insurgency, the tribunal solely relied on statistics in relation to the . . . number of civilian casualties in the context of the entire population of Afghanistan”.[58] Counsel submitted that the Tribunal in the case before me made the error Mansfield J found the Tribunal made in DZADQ v Minister for Immigration and Border Protection.[59] Counsel also made the following submissions:[60]
So while there might be a statistic in relation to the number of civilian casualties, how is that unique to the particular circumstances of the applicant? Those statistics in terms of number of casualties, they don’t indicate, for instance, where those casualties are occurring, which particular regions, . . . which ethnic groups are particularly affected, or predominantly represented within those casualty statistics. There’s no indication there, within that statistic, for instance, how many . . . Hazara civilians are being caught up in the insurgency and are casualties of this particular conflict
[56] T4.1
[57] T4.40
[58] T4.40
[59] [2014] FCA 754 at [61] and [65]
[60] T8.10
Did the Tribunal misunderstand the “real chance” test?
Although ground 1 is framed in terms of the Tribunal misunderstanding or misapplying the “real chance test”, the applicant seeks to establish that indirectly by attacking the Tribunal’s use of a particular base rate, namely, the proportion of the total of Afghan civilians who have been killed or injured as a consequence of the insurgency (Base Rate). And here the applicant may be taken to make two claims. One is that the Tribunal assessed the risk of harm to the applicant solely by reference to the Base Rate; and the other is that the Base Rate was in any event not logically probative of assessing the future risk of harm to the applicant.
The notion of “base rate” denotes, at least in the literature of social science, “the relative frequency with which an event occurs or an attribute is present in some reference population”.[61] The “reference population”, which is often referred to as a “reference class”,[62] plays an essential task in statistical inference. The “basic idea of statistical inference is to observe counts – i.e., frequencies, proportion – in some reference class and apply the result as an estimate for a new, similar case”.[63] Thus, on the applicant’s case, the Tribunal has engaged in a form of statistical inference; from the Base Rate, so counsel for the applicant submits, the Tribunal directly inferred that the applicant or at least members of a class of persons who shared the applicant’s characteristics, faced a probability of harm expressed as a ratio that is comparable to the Base Rate.
[61] J T Koehler “When do Courts Think Base Rates are Relevant?” (2002) 42 Jurimetrics 373 at page 474
[62] This is the case in literature that has discussed the “reference class problem” – see, for example P Roberts “From Theory into practice: introducing the reference class problem”(2007) 11 Int’l J. Evidence & Proof 243
[63] J Franklin “Feature Selection Methods for Solving the Reference Class Problem: Comment on Edward K Chen, “A Practical Solution to the Reference Class Problem”’, Colum. L. Rev. Sidebar, 2010, Vol 110, 12 at page 13
In the context of proof in litigated cases statistical inference or proof has been contrasted with what is sometimes referred to as “individualised evidence”.[64] At least in Australia, courts do not generally accept base rates as probative of particular issues of fact; courts instead require evidence that is directed to the individual circumstances of the case.[65] That, however, is not because the use of base rates by themselves is irrational; there is an extensive literature to the effect that base rates can be probative, and that the drawing of rational inferences in many contexts requires the identification of relevant base rates.[66]
[64] See, for example, J J Thomas “Liability and Individualized Evidence” (1986) 49 Law and Contemporary Problems, 199
[65] See the discussion in Heydon, J. D., Cross on Evidence Tenth Australian edition, LexisNexis Butterworths at [9090] and [9095]
[66] See J T Koehler “When do Courts Think Base Rates are Relevant?” (2002) 42 Jurimetrics 373 at page 474 at pages 378-379, fn.24
The parties’ submissions do not require me to consider the problems that may arise when a fact-finder relies or wishes to rely on a base rate. That is so because it is common ground that it was open to the Tribunal to rely on statistical evidence to assess the risk of harm to the applicant in the reasonably foreseeable future. That is, it is common ground that it was open to the Tribunal to rely on a base rate or base rates. The questions I have to address are, first, whether, as the applicant claims, the Tribunal restricted itself to considering the Base Rate when assessing the risk of harm to the applicant as a civilian; and, second, whether, as the applicant also claims, the Base Rate was not probative of the risk of future harm to the applicant as a civilian.
The first question must be answered “no”. As my summary of the Tribunal’s reasons should indicate, the Tribunal considered more than the Base Rate when assessing the risk of future harm to the applicant. It considered the security situation in Afghanistan, the position of Hazaras in Afghanistan as a whole, the position of Hazaras who travel on roads, the position of failed asylum seekers who return to Afghanistan after spending time in a Western country, and the position of Hazaras in Uruzgan. The Tribunal particularly considered the question whether Hazaras are targeted because of their ethnicity; but it was not satisfied they were so targeted. The Tribunal did refer to and relied on the Base Rate; but it did so in the context of considering and weighing all these matters. It particularly acknowledged that Hazaras living in Uruzgan are not as safe as Hazaras who live in Hazara majority areas, thus showing an appreciation that the risk of harm to Hazaras was not uniform throughout Afghanistan. It was on the basis of its consideration of all of these matters, together with the Base Rate, that the Tribunal concluded that “the risk of the applicant suffering serious harm if he returns to live in his native area in the district of Khas Uruzgan is remote”.[67]
[67] CB330, [37]
The question whether the Base Rate was not probative of the assessment of future risk of harm to the applicant must also be answered in the negative. The basis on which the applicant’s counsel submitted the Base Rate is not probative is that the attributes of the proportion of the Afghan population that is measured by the Base Rate – namely, Afghan civilians in general who have been killed or injured as a proportion of the Afghan population as a whole – do not reflect or sufficiently reflect the attributes of the applicant or of the class of persons who share the applicant’s attributes. In those circumstances, counsel submits it is not rational to infer from the Base Rate that the probability of future harm to Hazaras, expressed as a ratio, approximates the Base Rate. Implicit in counsel’s submissions is the proposition that the only probative base rate on which the Tribunal could rationally have relied in assessing the risk of future harm to the applicant is one that has as its reference class Hazaras in Afghanistan or Hazaras in particular regions, such as Uruzgan or Kabul, and to identify from that reference class the number of Hazaras that were killed or injured (Alternative Base Rate).
There are two difficulties with the applicant’s claim that the Base Rate was not probative. The first is it assumes the Alternative Base Rate would be different from the Base Rate. There is nothing in the evidence before me, however, that indicates it was reasonably open to the Tribunal to assess the Alternative Base Rate. Second, and more importantly, the applicant’s claim ignores findings the Tribunal made that are relevant to assessing the reasonableness of the Tribunal’s relying on the Base Rate. The Tribunal was satisfied the Hazaras were not targeted only because of their ethnicity. As I have already noted the Tribunal referred to DFAT having “repeatedly stated that Hazaras are not systematically or disproportionately targeted”.[68] The Tribunal also noted it did not have reports of specific cases of Hazaras being attacked in district of Khas Uruzgan because of their ethnicity in recent years.[69] The effect of these findings is that the Tribunal was not satisfied Hazaras were at a significantly greater risk than other ethnic groups of facing serious harm in the conflict because of their ethnicity. In those circumstances, it was reasonably open to the Tribunal to consider the Base Rate to be probative when assessing the risk of future harm to the applicant, even though the Tribunal acknowledged that Hazaras living in Uruzgan are not as safe as Hazaras who live in Hazara majority areas.
[68] CB331, [39]
[69] CB330, [37]
Finally I turn to the applicant’s claim that the Tribunal made the same error the Tribunal was found to have made in SZVJE. Counsel for the applicant submitted that the error the Tribunal was found to have made in that case is that it focused on the relative degree of risk within Pakistan rather than focusing the degree of risk within Lahore itself; and the Tribunal in the case before me made the same error because it assessed the risk of harm to the applicant by assessing the risk of harm to civilians caught up in the insurgency within Uruzgan by reference to the risk of harm to civilians caught up in the conflict across Afghanistan as a whole.[70]
[70] T8.35
I do not accept these submissions. First, the error the Tribunal was found to have made in SZVJE was not that it assessed the risk of harm in a particular area by reference to the risk of harm in another area; the error the Tribunal was found to have made is that it only assessed the relative risk of one area compared to the risk in another area when it ought to have considered the actual risk in the area in question. Second, as I have already concluded, although it is true the Tribunal relied on the Base Rate to assess the risk of harm to the applicant, the Tribunal did not only rely on the Base Rate; and it was not unreasonable in the circumstances of this case for the Tribunal to rely on the Base Rate in the manner that it did.
For these reasons, therefore, ground 1 of the application fails.
Ground 2
Ground 2 is as follows:
When assessing the applicant’s claims, the tribunal made a critical finding without evidence to support it.
Particulars
(a)At [14]-[19] of its decision, the tribunal found it to be improbable that the applicant’s brother would return to Afghanistan without informing the applicant.
(b)This finding was critical to the tribunal’s assessment of the applicant’s credibility.
(c)The tribunal’s assumption as [15] of its decision that the applicant’s brother would have “well known” that the applicant would care for the brother’s family should he die upon return to Afghanistan lacked a proper evidentiary foundation.
The finding to which the ground is directed is the Tribunal’s conclusion that it is improbable that the applicant’s brother would have returned to Afghanistan, as the applicant claimed he did, without first informing the applicant of his intention to do so (Critical Finding). According to the particulars, the ground on which that finding is said to have been made without evidence to support it is that the Tribunal relied on an assumption, namely that the applicant’s brother would have well known that the applicant would care for the brother’s family should he die upon return to Afghanistan lacked a proper evidentiary foundation (Impugned Finding). Thus, the relevant finding which the applicant submits was made without any evidence is not the Critical Finding but the Impugned Finding.
In his written submissions counsel for the applicant appears to have assumed that, when assessing credibility, the Tribunal was obliged to “focus on what is objectively or reasonably believable in the circumstances”.[71] Counsel for the applicant then submitted there was no objective or reasonably believable evidence about the applicant’s brother’s state of mind;[72] and that the applicant provided a plausible explanation why his brother would not have informed the applicant of his intention to travel to Afghanistan.[73] Counsel further submitted that the “impugned fact”, by which I understand counsel to have intended to refer to the Impugned Finding, was irrelevant because the applicant did not claim he feared harm due to a profile that his brother held.[74]
[71] Applicant’s Submissions, [25]
[72] Applicant’s Submissions, [27], [28]
[73] Applicant’s Submissions, [29]
[74] Applicant’s Submissions, [30]
Counsel for the Minister submitted there was evidence before the Tribunal on the basis of which it was reasonably open to the Tribunal to find that the applicant would have become the head of the family and have to look after the applicant’s brother’s family; and that evidence was the applicant’s evidence that the applicant looked after his brother’s children after his brother’s death. Counsel for the Minister further submits that, to the extent the Tribunal relied on cultural practices in Afghanistan, it was entitled to do so without having to identify the source of that knowledge. Counsel relied on the Full Federal Court’s judgment in SZLPO v Minister for Immigration and Citizenship.[75]
[75] [2009] FCAFC 51 at [149] –[153]
Although counsel for the applicant appears to have relied on the “no evidence ground” of judicial review, he did not make any submissions about the nature or elements of that ground of review. Not surprisingly, nor did counsel for the Minister make any submissions. In my opinion, however, it is necessary to say something about the “no evidence ground” before I consider the applicant’s submissions.
I considered the “no evidence ground” in SZVCL v Minister for Immigration,[76] and I do not propose to repeat here what I said in that case. It would be sufficient if I take the following passage from the judgment of the Full Federal Court in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs as the relevant statement of the “no evidence ground of review”:[77]
If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error. . . . If . . . the material on which the tribunal relied was so inadequate that the only inference was that the tribunal applied the wrong test or was not, in reality satisfied in respect of the correct test, then there would be jurisdictional error.
[76] [2016] FCCA 1856 at [34]-[53]
[77] [2003] FCAFC 231 at [19] (Mansfield, Selway and Bennett JJ)
As I have already noted, the finding the applicant claims lacked a proper evidentiary foundation is the Impugned Finding - that is, that the applicant’s brother would have well known that the applicant would care for the brother’s family should he die upon return to Afghanistan. The first question is whether the Tribunal made that finding on the basis of no evidence. In my opinion, and as submitted by counsel for the Minister, there was an evidentiary basis for the Impugned Finding; and that was the applicant’s evidence that the applicant took care of the applicant’s bother’s children after his brother died. That this was the basis of the Impugned Finding is apparent from the following (emphasis added):[78]
[T]he Tribunal put to [the applicant] that while he claimed, in his culture, an elder sibling would not discuss such matters with him, the Tribunal put to him that nevertheless his brother would have well-known that if he was killed in Afghanistan, the applicant would become the head of the family and also have to look after his brother’s own family being his wife and three children (the applicant saying that he took care of the children after the brother died).
[78] CB320, [15]
The second question is, assuming the Tribunal made the Impugned Finding without evidence, whether the Impugned Finding was a critical step in an ultimate conclusion the Tribunal reached. That question must be answered in the negative. The relevant ultimate conclusion was the Tribunal’s not accepting the applicant’s claims that his brother travelled back to Afghanistan; that his dead body was located in a Pashtun area, and that a man from the applicant’s native village telephoned the applicant’s family to tell them that.[79] The immediate premises on which the Tribunal relied for not accepting these claims was what it regarded as the improbability of the applicant’s brother making a journey back to the native district of Afghanistan from which the family had previously fled for their own safety without discussing his intentions with the applicant;[80] and the improbability of the applicant’s mother not having informed the applicant of the applicant’s brother’s intention to travel to Afghanistan until after the applicant’s brother left for Afghanistan.[81] The Tribunal did not rely on the Impugned Finding to conclude these matters were improbable. The Tribunal relied on the Impugned Finding as a reason for not accepting the evidence the applicant gave to explain away what the Tribunal put to the applicant as being the improbability of the applicant’s brother returning to Afghanistan without first informing the applicant of his intention to do so; that explanation being that in the applicant’s culture the oldest sibling did not discuss such matters with a younger sibling.
[79] CB321, [19]
[80] CB320, [15]
[81] CB321, [16]
That the Impugned Finding was not a critical step in any ultimate conclusion the Tribunal reached is implicitly recognised in the submission counsel for the applicant made that the Impugned Fact was irrelevant. It was irrelevant to what I have found to be the relevant ultimate findings because, as I have already noted, the Tribunal did not rely on the Impugned Finding to conclude the applicant’s claims were improbable; it relied on the Impugned Finding as a reason for not accepting the applicant’s explanation as to why the applicant’s brother did not discuss with the applicant his plans to return to Afghanistan.
Ground 2, therefore, also fails.
Ground 3
Ground 3 is as follows:
The tribunal misapplied or misconstrued the test for determining the reasonableness of relocation.
Particulars
(a)At [48] and [58] of its decision, the tribunal considered how the applicant arranged for his family to travel and join him in Kabul to be “a matter for him and his family”.
(b)The Tribunal was required but failed to properly consider the practical realities facing the applicant with respect to his family circumstances.
In substance this ground claims the Tribunal failed to engage with the question of whether it was reasonably practicable for the applicant to relocate to Kabul because it failed to engage with the question of whether it was reasonably practicable for the applicant’s wife and children to travel to Kabul to be with the applicant. The basis of that claim is the Tribunal’s statement that when and how the applicant arranges for his wife and children to come to live with the applicant in Kabul “is a matter for him and his family”.
I do not accept the applicant’s claim that the Tribunal’s use of the words “is a matter for him and his family” manifests a failure by the Tribunal to consider the reasonable practicality of the applicant’s wife and children travelling to Kabul. The statement implies the Tribunal was of the view that it was within the power and capacity of the applicant’s wife and children to travel to Kabul in such manner and at such time as they considered appropriate. That, in turn, implies a belief there is no reason that can stand in their way of joining the applicant in Kabul at such time they may consider appropriate. That further implies that the Tribunal considered it reasonably practicable for the applicant’s wife and children to join him in Kabul, if and when they so choose to do so. Ground 3, therefore, is not made out.
Even if the Tribunal incorrectly applied the relocation test, that would not affect the Tribunal’s decision, given I have found the Tribunal made no jurisdictional error in concluding the applicant did not have a well-founded fear of persecution, and there was not a substantial risk the applicant would suffer harm, if he were to be returned to Uruzgan in Afghanistan. Such error would not have affected the Tribunal’s exercise of power because, having “found that the appellant was not a person to whom Australia owed protection obligations and having done so in definite terms, [the Tribunal] had no choice other than to affirm the delegate’s decision.”[82]
[82] SZMCD v Minister for Immigration and Multicultural Affairs [2009] FCAFC 46 at [121]
Ground 4
Ground 4 is as follows:
The tribunal, having regard to its findings and reasons, failed to consider a claim or an integer of the applicant’s claims.
Particulars
(a)The tribunal accepted the applicant’s claim that he worked in the construction and building industry as a plasterer, bricklayer and tiler (at [47] of its decision).
(b)It found that the possibility of the applicant having to travel outside his native area of Khas Uruzgan to be “highly speculative” (at [40], [54]).
(c)Alternatively, if the applicant was employed in Kabul, it would be unnecessary for him to travel on Afghan roads (at [45]).
(d)The tribunal rejected the applicant’s claim that construction project workers would be targeted by criminals (at [58]).
(e)The tribunal accepted country information that, on roads and in Kabul, insurgents targeted civilians actually or perceived to be working, supporting or associated with the Afghan government or the international community (at [21], [57]).
(f)The tribunal found that the applicant was “not such a person” (at [37], [39]).
(g)The tribunal failed to consider the applicant’s claim, or an integer of a claim, to fear harm by reason of his imputed political opinion, namely that he would be targeted by insurgents as a construction industry worker while travelling on roads or in Kabul.
From the particulars themselves it is apparent the applicant accepts the Tribunal found that the possibility of the applicant having to travel outside his native areas of Khas Uruzgan was “highly speculative” and that, if the applicant were to relocate to Kabul, it would be unnecessary for him to travel on Afghan roads. This indicates the Tribunal considered a claim based on the risk of harm to the applicant’s being harmed while travelling on the road because he would work in the construction industry and thus be imputed with a political opinion. That leaves the potential claim that the applicant would face the risk of harm in Kabul because criminals and insurgents would impute to him a political opinion of supporting the West.
The Tribunal referred to that claim and found that “that submission is far-fetched and it is more likely that those harmed by criminals are those in charge of management of such prospects rather than somebody like the applicant performing manual labour”. Counsel for the applicant submitted that the Tribunal’s only referring to “those harmed by criminals” rather than stating “those harmed by criminals and insurgents” indicates the Tribunal did not consider the applicant’s claim to the extent it was based on risk of harm by insurgents. I do not accept that claim. The Tribunal made the finding in direct answer to “that submission”, being the submission that the applicant would face harm from criminals and insurgents. It is unlikely in those circumstances that the Tribunal differentiated between criminals and insurgents and intended to deal only with criminals but not also the insurgents.
In any event, to the extent the Tribunal failed to consider a claim based on the risk of the applicant’s being harmed in Kabul because he would be working in the construction industry, such error would have been an error made in connection with the Tribunal’s consideration of the reasonable practicality of the applicant’s relocating to Kabul, and that such error would not have resulted in the Tribunal making a jurisdictional error. That is so because I have found the Tribunal made no jurisdictional error in concluding the applicant did not have a well-founded fear of persecution, and there was not a substantial risk the applicant would suffer harm, if he were to be returned to Uruzgan in Afghanistan.
Ground 4, therefore, fails.
Disposition
The applicant has not established the Tribunal made any jurisdictional error. I propose to order, therefore, that the application be dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 16 March 2018
13
2