Aqj17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 21
•8 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISON 2
AQJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 21
File number(s): MLG 297 of 2017 Judgment of: JUDGE EGAN Date of judgment: 8 September 2021 Catchwords: MIGRATION – Application for Safe Haven Enterprise Visa – failure by Authority to consider reasonableness of applicant returning to live in a confined part of Kabul populated by Shia Hazaras – failure by Authority to intellectually engage on a critical question – failure to conduct a proper review – application granted – decision of Authority quashed. Legislation: Migration Act 1958 (Cth) ss 5J, 5H(1), 36, 473CB. Cases cited: Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317.
BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131.
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of last submission/s: 18 August 2021 Date of hearing: 18 August 2021 Place: Brisbane Counsel for the Applicant: Mr A. Aleksov Solicitor for the Applicant: Clothier Anderson Lawyers Counsel for the First Respondent: Mr M. Hosking Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance save as to costs ORDERS
MLG 297 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AQJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
8 SEPTEMBER 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Amended Application for Review filed on 21 July 2021 be granted.
3.The decision of the Immigration Assessment Authority made on 27 January 2017 be quashed.
4.A writ of mandamus issue directed to the Immigration Assessment Authority requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Immigration Assessment Authority for rehearing.
5.For the purpose of the Immigration Assessment Authority again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 27 January 2017.
6.The First Respondent pay the Applicant’s costs of and incidental to the Application for Review fixed in the amount of $7,853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
The applicant is a Shia Hazara citizen of Afghanistan who arrived in Australia by boat on 27 August 2012 as an unauthorised maritime arrival. [1]
[1] Court Book (‘CB’) p. 70.
On 26 November 2015, the applicant applied for a Safe Haven Enterprise Visa (‘SHEV’).
On 1 September 2016, a delegate of the Minister refused to grant the visa to the applicant on the basis that the applicant did not meet the criteria in ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).
On 7 September 2016, the Department referred the delegate’s decision to the Immigration Assessment Authority (‘the Authority’) for review.
The applicant’s representative provided written submissions to the Authority on 26 September 2016, 20 October 2016, 26 October 2016 and 27 October 2016. On 3 November 2016, the Authority invited the applicant to comment on particular information, and a response to such invitation was provided by the applicant’s representative on 17 November 2016.
On 27 January 2017, the Authority affirmed the decision of the delegate.
The Reasons of the Authority
At [2] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Act.
At [4] of its reasons, the Authority recorded that it had obtained new information about Shia Muslims and Hazaras in Afghanistan, that being a DFAT report of 5 September 2016. The Authority was satisfied that there were exceptional circumstances justifying its consideration of such new information.
At [12] of its reasons, the Authority summarised the applicant’s claims for protection as follows:
“[12]The applicant's claims are contained in the information referred and subsequently given to the IAA. They can be summarised as follows:
•He is a national of Afghanistan and ethnic Hazara and a Shia Muslim. He was born in [district omitted] in Maidan Wardak Province. His family moved to Kabul when he was five years of age and he lived in Kabul thereafter.
•He was married during the time of the Taliban occupation of Kabul, and at the celebration of his wedding Taliban members appeared in response to the event's drums and singing, to which they took exception. The applicant was taken away by the Taliban and was held for approximately one week and subjected to torture. His leg was broken and his back was burned with an iron. His father paid a ransom to secure his release.
•Some six months after this the Taliban began to come regularly to the applicant's family's timber mill business and would demand funds, which they had no option but to pay. On occasions the Taliban would whip and mistreat the applicant. This continued for some time. His parents moved to Mazar-e-Sharif in approximately 1997 and before that city fell to the Taliban. His parents subsequently disappeared. He believes they were killed by the Taliban in Mazar-e-Sharif in 1998.
•In 2010 while working as a taxi driver he met a man who offered to introduce him to a work contractor for an American company. While continuing to work as a taxi driver he thereafter was employed by PPI at an American base in [name of place omitted] as a generator mechanic, where he was responsible for maintaining the generator, changing the oil, filters and refuelling the generator. Some six months later he ended his employment with PPI after receiving a threat letter from the Taliban. He found the threat letter in his taxi after driving some passengers from [name of place omitted]. He believes the Taliban identified his taxi when it was parked in the American base car park at [name of place omitted].
•He felt that his life was in danger as he had previously been caught by the Taliban. He made arrangements to leave the country as he was concerned the Taliban would attack him.
•He fears that if he returns to Afghanistan he will be harmed or mistreated by the Taliban for reason of having worked at the American base as the Taliban are intolerant of people supporting the Americans, international forces, or who are working for the government and his links to coalition forces. The Taliban will consider him a spy. He is already seen as pro-West or anti-Taliban and his time in Australia will reinforce this. He will be identifiable as having lived in a western country from his extended time outside Afghanistan. He fears that upon return to Afghanistan the authorities will release his information to the Taliban or there might be Taliban spies at the airport who could identify him.
•His family continue to live in Kabul in fear but he believes the Taliban does not know about the location of his family because he always garaged his taxi when at home. If he returned he would need to work and would probably be a taxi driver as I he does not have anything else that he could do. This would make him identifiable to Taliban who may have photographed him as he entered or exited the American base at [name of place omitted]. It would be too dangerous for him to drive in all locations in Kabul. Further, if he worked as a taxi driver he would be required to travel outside of Kabul (driving to places such as the Hazarajat) along dangerous roads. Such places are dangerous for Hazaras and Shias. Further, he fears that as a Hazara he will be imputed to be a supporter of the Afghan government.
•He cannot live anywhere else because Hazaras are constantly being troubled by the Taliban when they travel on the roads, and because the Taliban have agents throughout Afghanistan that inform them of the movements of people that they seek to harm. He also cannot live anywhere else as he is unable to support his family in other areas as he does not have the tribal networks or the protection that he requires, and his children will not move out of Kabul.
•He fears suffering systematic discrimination from the Afghan government for reason of his being a Hazara.
•He fears that if he returns to Afghanistan there is a real possibility that his mental health will deteriorate as he is anxious about the torture he has previously experienced and about being identified by and killed or tortured by the Taliban in the future. If his mental health deteriorates he may need treatment and medication which is not available in Afghanistan.”
[names of places omitted]
At [13] – [14] of its reasons, the Authority duly recorded what constituted a person as a refugee under s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.
At [15] of its reasons, the Authority found that the applicant had lived in Kabul from the age of five (5) until the time of his departure from Afghanistan, and that Kabul was relevantly his home area.
At [32] of its reasons, the Authority recorded that the applicant had claimed that he would remain at risk of being targeted by the Taliban because, if returned to Kabul, he would have to work as a taxi driver, such that he would have to drive through dangerous parts of Kabul and outside of Kabul. The Authority found that there was not a real chance that the Taliban would locate and harm the applicant in Kabul on the basis of threats made against him in April 2011. The Authority did accept, however, that driving passengers outside of Kabul would expose the applicant to a real chance of serious harm.
On the question of how the applicant would be employed or otherwise support himself if returned to Kabul, the Authority found that because of the dangers associated with driving a taxi outside of Kabul, the applicant would change his employment so as to avoid the real chance of suffering serious harm, finding that the applicant would pursue work ‘of another kind that would allow him to remain in Kabul’. It was found that to do so would be a reasonable modification of behaviour under s. 5J(3) of the Act. At [33] of its reasons, the Authority found as follows:
[33]The applicant has claimed that he would probably return to taxi driving upon return to Kabul because he does not have anything else that he can do. I am not satisfied that the applicant would return to being a taxi driver given that he has sold his taxi and has previously expressed dissatisfaction with his work conditions in this regard. Indeed, it was for this reason that the applicant took up employment at [name omitted] in 2010. The applicant began working as a taxi driver after the birth of his fourth child in around 2008 or 2009, but it is not something he has done all his working life or which he has expressed any commitment to. He has, at different times, undertaken different kinds of work to earn a livelihood including carpet weaving, timber cutting and working as a generator mechanic. Given the security situation outside of Kabul, and given that he has sold his taxi and has previously expressed dissatisfaction with taxi driving, and given that the applicant has shown a willingness to enter into work other than taxi driving, I am not satisfied that upon return to Kabul the applicant would continue to work as a taxi driver. Changing his employment such that he would not be required to drive the roads outside of Kabul would allow the applicant to avoid the real chance of harm that would arise from engaging in such travel, and I consider that for this reason (combined with his previous dissatisfaction with taxi driving and the sale of his taxi) the applicant would pursue work of another kind that would allow him to remain with Kabul. I consider that this would be a reasonable modification of the applicant's behaviour given that taxi driving is not a characteristic fundamental to his identity or conscience or his political opinion, or of any other 5J(3) limitation.”
[names of places omitted]
At [40] of its reasons, the Authority recorded that there was evidence to indicate that Shia Hazaras living in Kabul were affected by a level of discrimination in the employment market.
On the question as to living conditions in Kabul, and the applicant’s claims of his fearing that he would suffer serious harm if returned there, the Authority, at [46] – [47] of its reasons, found as follows:
“[46]DFAT's reporting acknowledges that Kabul remains one of the most dangerous cities in the world." Nevertheless, and although civilian casualties have risen in Kabul in recent years, DFAT assesses that Kabul has a higher level of government control and a greater level of security than other parts of Afghanistan. While high-profile attacks, including those that target civilians, are common in Kabul, the city has a large population compared to other areas of the country, so there are fewer civilian casualties per head of population. The overwhelming majority of such attacks occur in central Kabul where Afghan government and international institutions are located rather than in the outer suburbs, like those in the west of Kabul where most of the Shia Hazara community resides. The applicant resides in [name of place omitted] and he claims that the proximity of the Ministry of Agriculture and Kabul University places him at risk of being harmed as a bystander to an attack upon these institutions. He has also claimed that it is significant that some attacks have occurred a mere kilometre or so away, and that he will need to make use of bazaars and hospitals in central Kabul and the vicinity of where attacks frequently occur. However, central Kabul is not the only place where facilities such as bazaars and health facilities are located. There are health care facilities located in many of Kabul's different districts and, although some of these are underequipped requiring residents to make us of a neighbouring facility the claim that the applicant would need to make use of a facility in central Kabul in the future is too speculative. The Hazara suburbs of west Kabul also have their own bazaars and I am not satisfied that the applicant would visit the bazaar in central Kabul to purchase life's necessities. While some attacks have occurred around a kilometre away from the applicant's residence, and while as noted above, a [name o place omitted] mosque was attacked along sectarian lines by Islamic State in October 2016, there have not otherwise been any attacks in [name of place omitted] in recent years in the manner that has repeatedly been the case in the government districts of central Kabul. While I accept that the applicant lives in proximity to the Ministry of Agriculture and Kabul University and that these are potential targets of insurgent attack, the available evidence (including the attacks mapped by the applicant's representative) indicates that in Kabul the insurgency has concentrated its attacks upon the city centre and upon government targets concerned with security and justice, and foreign run educational institutions, rather than agriculture or Afghan educational facilities or the outer suburbs. DFAT has recently advised that there are credible reports of future imminent attacks in Kabul, and I accept that attacks of this kind will likely occur in Kabul within the foreseeable future. However, and although attacks of this kind may occasionally cause civilian casualties, I am not satisfied on the evidence that there is a real chance of the applicant's being killed as a bystander to insurgent attack in Kabul for the foreseeable future.
[47]The applicant would, upon return, be required to pass through Kabul's airport and the road connecting the airport to the city. DFAT has reported that Kabul International Airport has been attacked on a number of occasions, with a rocket attack in 2014 landing on the runway apron. Attacks have also occurred in the vicinity of the airport, including in May 2015 when a European Union vehicle was hit by a vehicle-borne improvised explosive device, killing at least three people and injuring 18 others, while in August 2015 the airport's entrance was the target of a suicide attack which killed five persons." In January 2016 a Taliban suicide attacker detonated a truck full of explosives between two compounds housing international civilian contractors, and other civilians including United Nations staff, in proximity of Kabul International Airport in Kabul city. The attack killed five civilians and injured 66 others. DFAT has warned travellers that there are ongoing threats against the Kabul International Airport and aircraft." Given the extent to which Australian citizens travelling to Kabul may have to transit, or work in the area of, the airport such a warning is pertinent in such circumstances. However, and although the applicant would have to pass through the airport and the connecting road to Kabul upon the occasion of his return, there is no evidence before me to indicate that he would frequent this area following his return to Kabul (as has been noted above, I do not accept that the applicant would return working as a taxi driver to earn a livelihood). DFAT also reports that returnees from western countries are almost exclusively returned to Kabul, and gives no indication that the attacks in the area of the airport are occurring to such an extent that they represent a significant threat to the safety of returnees." I am not satisfied that the applicant would face a real chance of harm as a consequence of his having to return through Kabul airport.”
(names of place omitted)
Having considered the evidence before it, the Authority at [51] of its reasons found that the applicant did not meet the requirements of the definition of refugee in s. 5H of the Act.
At [53] – [57] inclusive of its reasons, when considering whether the applicant was owed complementary protection obligations, the Authority found as follows:
[53] Under s.36(2A), a person will suffer 'significant harm' if:
•the person will be arbitrarily deprived of his or her life
•the death penalty will be carried out on the person
•the person will be subjected to torture
•the person will be subjected to cruel or inhuman treatment or punishment, or
•the person will be subjected to degrading treatment or punishment.
[54]As has been noted above, I am satisfied that there is a real chance, and thus a real risk, that upon return to Kabul the applicant may experience some discrimination in the employment market, for reason of his being a Shia Hazara, and/or as a consequence of family or tribal favouritism and nepotism. However, the evidence does not indicate that the applicant would face a real risk of being denied the capacity to subsist or that there is a real risk of the applicant's being otherwise arbitrarily deprived of his life, subjected to the death penalty or torture, or that instances of such discrimination would intentionally cause the applicant the kind of pain or suffering or severe pain or suffering that amounts to cruel or inhuman treatment of punishment, or the kind of extreme humiliation which is unreasonable such that it amounts to degrading treatment or punishment. I am therefore not satisfied that the applicant would face a real risk of significant harm on this basis if he returned to Kabul.
[55]Given that the applicant was threatened by the Taliban in April 2011, and harmed by Taliban members during the Taliban occupation of Kabul, and given the October 2016 attack which killed two of his relatives in his home suburb, I accept that he may feel a degree of anxiety about returning to Afghanistan, notwithstanding the evidence that there is not a real chance that he would be harmed by the Taliban in the future. However, the applicant has provided no medical evidence to indicate that he is suffering from any significant mental health issues and the possibility that such problems would develop upon his return to Afghanistan is too speculative. On the evidence I am not satisfied that that there is a real risk that any anxiety which may be cause to the applicant in this regard would intentionally cause the applicant the kind of severe pain or suffering (physical or mental) that amounts to torture, or that it would intentionally cause the applicant the kind of pain or suffering or severe pain or suffering that amounts to cruel or inhuman treatment of punishment, or the kind of extreme humiliation which is unreasonable such that it amounts to degrading treatment or punishment. I am not satisfied that he would, in such a manner, be arbitrarily deprived of his life or subjected to the death penalty. I am therefore not satisfied that the applicant would face a real risk of significant harm on this basis if he returned to Kabul.
[56]Beyond the matters noted above, I am not satisfied that there is a real risk that the applicant would face harm of any other kind in Kabul. Moreover, given that I do not accept that the Taliban have any ongoing interest in the applicant resulting from his having worked at FOB Airborne or the threats made against him in April 2011 threat letter more generally, and/or because they would impute him to be working for, supporting or associated with the government and/or the international community, or because of these reasons in combination with his being a Shia Hazara, given that I do not accept that the applicant's being a Shia Hazara and/or a returnee from Australia where he has sought asylum would contribute to his being targeted by the Taliban in this regard, given that DFAT considers that the risk faced by returnees in Kabul as a consequence of such international links is low, given the rarity of intercommunal violence in Kabul along ethnic or sectarian lines, given the speculative nature of the applicant's claim that he would suffer a significant deterioration of his mental health, given the evidence as to the level of risk posed by the possibility of future occasional mass casualty attacks upon Shia Hazaras in Kabul, and given the evidence as to the level of risk posed to the applicant as a civilian bystander to an insurgent attack or as a consequence of criminality for the foreseeable future, I am not satisfied that the applicant would face a real risk of significant in Kabul even if all of the applicant's circumstances are considered in a cumulative manner.
[57]There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa). The IAA affirms the decision not to grant the referred applicant a protection visa.”
Grounds of Review
At the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 21 July 2021. The one (1) ground of review was as follows:
“Grounds of application
1.The Immigration Assessment Authority (IAA) failed to lawfully assess the applicant’s complementary protection claims.
Particulars
1.1. At Reasons [46], the IAA’s conclusions are premised on the applicant making several modifications to his behaviour (not to visit central Kabul).
1.2.The IAA erroneously failed to assess whether these modifications were reasonable in the applicant’s circumstances.
1.3. The IAA accordingly fell into error.”
It was clear that the Authority dealt with the applicant’s claim made under s. 36(2)(a) of the Act, and found that there was not a real chance of the applicant suffering harm in Kabul from an insurgent group like Islamic State, or the Taliban, by reason of his being Shia Hazara. [2] The Authority also found that there was no evidence that the applicant would face a real chance of suffering serious harm from any other actor in Kabul, or as a consequence of inter-communal violence by reason of his being a Shia Muslim and/or a Hazara. [3]
[2] Paragraph [37] of the reasons of the Authority at CB 669.
[3] Paragraph [38] of the reasons of the Authority at CB 669.
At [54] and [56] of its reasons, the Authority adopted its findings in respect of the s. 36(2)(a) criterion when assessing the criterion under s. 36(2)(aa) of the Act.
It was submitted on behalf of the applicant that though the Authority had found that the applicant could safely lead his life within a particular area of Kabul populated by Hazaras, it had failed to assess whether it was reasonable for the applicant to do so. The applicant submitted that there was a distinction between the requirement for the Authority to assess the real chance of persecution under s. 5J(1)(c) of the Act, insofar as such section related to the s. 36(2)(a) criterion, and the requirement for the Authority to assess whether it was reasonable for the applicant to live in a particular area of Kabul for the purposes of the complementary criterion under s. 36(2)(aa) of the Act. The applicant relied upon the factually similar case of Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 where French CJ, Hayne, Kiefel and Keane JJ said as follows:
“[21]The “internal relocation principle” is well established. According to this principle, a person is not a refugee within the meaning of the Convention if he could avail himself of the real protection of his country of nationality by relocating to another part of that country. The connection of the principle to the definition of a refugee in the Convention, and the conditions for the principle’s application, were explained by this Court in SZATV (26). In that case the Tribunal refused to grant a protection visa because it determined that the visa applicant, a Ukrainian journalist who had suffered persecution for his political opinions, could relocate to another region of Ukraine, even though he might not be able to continue to work there as a journalist. The Tribunal failed to consider what might reasonably be expected of the applicant with respect to relocation, which this Court held was an error of law (27).
…
[25]The factum upon which the principle of relocation operates is that there is an area in the visa applicant’s country of nationality where he or she may be safe from harm. In this matter it was found by the Tribunal that Kabul was such a place. By analogy with the internal relocation principle, given the existence of a place within his country of nationality where the respondent would have no well-founded fear of persecution, it could not be concluded that he is outside Afghanistan and unable to return to that country owing to a well-founded fear of persecution if it could reasonably be expected that he remain in Kabul and not travel outside it. As in SZATV, it is the question of what may reasonably be expected of the respondent which must be addressed.
…
[29] The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul. The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach. Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it. An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable.
…
[31]In the present case it is not just the living conditions for the respondent in Kabul – and whether he would face a real chance of persecution if he stayed there – which should have been considered by the Tribunal. Rather, it was necessary for the Tribunal to consider the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business. Addressing this question properly may have raised various issues for the Tribunal’s consideration. At the least, the question clearly directs attention to the respondent’s ability to earn an income from other sources and to his needs and those of his family.
[32]The Tribunal did not address this question. It did not address what was necessary to an inquiry whether it was reasonable to expect the respondent to remain in Kabul and not drive trucks outside it. It made one assumption – that the respondent would be able to work as a jewellery maker in Kabul, as he had formerly done in [name of place omitted]. This assumption does not appear to have been put to the respondent for his comment. The respondent had raised concerns about his ability to earn a living if he were to return to Afghanistan, but the Tribunal did not explore this subject with him.
[33]… Without addressing the question whether it would be reasonable to expect the respondent to remain and work in Kabul, having regard to the circumstances in which that would place him, the Tribunal could not make a final determination as to whether he could be said to have a well-founded fear of persecution. Failure to address this question constituted an error of law.”
It was submitted on behalf of the applicant that the Authority did not assess reasonableness for the purposes of s. 36(2B)(a) of the Act. Sections 5J and 36(1A) – (2B) of the Act relevantly provided as follows:
“5J Meaning of well‑founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3) A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.”
“36 Protection visas—criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.”
At [30A] of the first respondent’s consolidated submissions filed on 25 August 2021, the first respondent conceded that the Authority, in its reasons, did not expressly consider the reasonableness of the applicant being confined to live in a part of Kabul as opposed to being able to safely go to all parts of Kabul. It was submitted as follows:
“30A.The Minister accepts that the Authority did not expressly identify in its decision record that it was required to make a finding about whether it was reasonable for the applicant to live in Kabul, and not go to central Kabul. However, in circumstances where the Authority made findings in [46] of its decision record specifically addressing the applicant’s objections to remaining in Kabul without travelling to central Kabul, the Minister submits that the Court should infer that the Authority gave active intellectual consideration to the question of whether it was reasonable for the applicant to live in Kabul, and not go to central Kabul.”
It was further submitted on behalf of the First Respondent that the findings of the Authority in paragraph [46] of its reasons ought to be read in the context of its other findings, submitting further that if one did so, one would conclude that the Authority had adequately considered whether it would be reasonable for the applicant to not go to central Kabul. The first respondent submitted that the relevant findings were as follows: [4]
“22.1 Kabul has a large population and a greater level of security compared to other areas of the country;
22.2 although insurgent attacks, including those that target civilians, are common in Kabul, the overwhelming majority of those attacks occur in the city centre, not in the suburbs;
22.3 the area where the applicant would reside on return to Kabul is in the western suburbs;
22.4 the applicant would not need to travel to the city centre to access bazaars and health facilities — he would be able to access health facilities and purchase goods in other parts of Kabul;
22.5 although the applicant would live near the Ministry of Agriculture and Kabul university, those are not likely to be the subject of insurgent attacks; and
22.6 having regard to all of those matters, there was not a real chance of the applicant being killed as a bystander to an insurgent attack in Kabul in the foreseeable future.”
[4] Paragraph 22 of First Respondent’s submissions filed on 25 August 2021.
The Court finds that the Authority did address the likely living circumstances of the applicant in the context of whether there was a real chance of the applicant suffering serious harm if he was to live in a confined part of Kabul. The Court further finds that the Authority did not address the reasonableness of the applicant living in such a confined way as the Authority was required to do pursuant to s. 36(2B)(a) of the Act, and having regard to the requirement for such evaluation to be undertaken as held by the plurality in SZSCA.
In BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131, when discussing what was required for the purpose of considering the question of reasonableness of relocation, Jackson J, at [6] – [18], said as follows:
“[6]In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [23], Gummow, Hayne and Crennan JJ (Callinan J agreeing) accepted a formulation of the relevant question as being whether 'whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution'. However at [24] their Honours held that '[w]hat is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality': see also Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 at [27].
[7]The question of reasonableness is one that requires a factual inquiry to be undertaken and an evaluative judgment to be made: Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 at [110]. The practical realities facing a person who claims to be a refugee must be carefully considered: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 442. In SZATV at [81] Kirby J observed (citations omitted):
In some circumstances, having regard to the age of the applicant, the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable. In each case, the personal circumstances of the applicant; the viability of the propounded place of internal relocation; and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution, will need to be weighed in judging the realism of the hypothesis of internal relocation.
[8]One way of assessing whether it is reasonable for an applicant to relocate to an area is to compare the conditions he or she will encounter there to the reasonable expectations of the local community in which he or she is expected to live: see MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [61], relying on Lord Hope in Januzi v Secretary of State for the Home Department [2006] UKHL 5; (2006) 2 AC 426 at [47].
[9]It is also important to bear in mind that a finding that a person does not face a real risk of significant harm in an area does not mean that a risk of harm which does not rise to that level may be disregarded in the assessment of whether it is reasonable for the person to relocate to the area: see MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2016) 161 ALD 73 at [35] (Kenny J); and DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177; (2018) 265 FCR 57 at [27]‑[29] (Reeves, Rangiah and Colvin JJ).
[10]The answer to the question of reasonableness of relocation depends upon the framework set by the particular objections raised to relocation: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [124], citing Randhawa at 442‑443. While the process is inquisitorial, not adversarial, the decision‑maker is not obliged to deal with claims that are not articulated or do not arise clearly from the materials before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [60]‑[61]. In AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106; (2018) 161 ALD 457 at [27] the Full Court quoted with approval the following observations of Mortimer J in MZANX at [58]:
… it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker's experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia's protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.
[11] To this it may be added that the need to consider a claim arising clearly on the materials extends to the need to consider a claim clearly arising on the decision‑maker's own findings: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [26].
[12]Many of the authorities cited above come from a time when determining whether a person was a refugee for the purposes of the Act involved the application of the Refugees Convention, (the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967). However there is no reason to suppose that the approach should differ when the decision concerns the application of the statutory standard now imposed in s 36(2B)(a) of the Act. Mortimer J proceeded on that basis in MZANX.
[13]Both parties accepted the authority of MZANX as explaining the level of detail into which the decision‑maker must go in assessing the reasonableness of relocation. The appellant relied on the following passage at [55]:
In the context of relocation, detailed consideration of the circumstances 'on the ground' in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to restart her or his life in a new place, without undue hardship ... Likewise, the circumstances of that individual - her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed.
[14]The Minister referred to Mortimer J's observation at [51] that there 'must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe locations'.
[15]I respectfully agree with each of the passages relied upon. But in my view it is important not to take the emphasis they place on the level of detail required out of the context of Mortimer J's careful consideration of the principles, so as to conclude that jurisdictional error will result unless there is a minute examination of every circumstance of the proposed relocation. There are no mandatory relevant considerations applicable to the question, and to require a decision‑maker to elaborate on every aspect of the practical application of the so‑called 'relocation test' would be to descend to a greater level of particularity than the Act requires: SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 at [22] (Allsop J, as his Honour then was); and DZU16 at [110].
[16]In truth, a statement that the information relied on must be sufficiently detailed does not, and cannot, provide guidance as to the precise level of detail that is required in any particular case before the court. As Lord Bingham said in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; (2008) 1 AC 678 at 683, 'the difficulty lies in applying the test, not in expressing it'. As is recognised in the first passage from MZANX quoted above (from [58]), ultimately the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him. Both under s 65(1)(a) and s 36(2B) the question is whether the Minister is satisfied as to the relevant matters, and that is also the state which the Authority must reach (or not reach as the case may be) in the course of performing its statutory task of review: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [16]‑[17].
[17]A failure to consider a relevant matter going to the reasonableness of relocation can be jurisdictional error: see MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 289 ALR 541 at [19]‑[20] (Flick and Jagot JJ), [38] (Yates J). I respectfully agree with Yates J's characterisation in MZYPW of the nature of the jurisdictional error as a failure to engage with the substance of an issue for determination and a failure to take a matter into account.
[18]It follows, in my view, that the level of detail to be attained by the decision‑maker in considering the reasonableness of relocation is informed by the requirement that the task of review has not been performed if the requisite state of satisfaction is found to have been reached, or found not to have been reached, without an active intellectual engagement with the question. As recently confirmed in Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 at [36(b)] to [36(d)], the requirement for active intellectual engagement can apply even in cases where there is no express statutory requirement to 'consider' a matter that is relevant to the formation of the necessary state of satisfaction. A court may find that the standard has not been met, even when the decision‑maker has said he or she has given full consideration to the relevant matters: see Omar at [36(f)], relying on Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352.”
The Court finds that because the Authority failed to actively intellectually engage on the question of the reasonableness of the applicant living in a confined part of Kabul, the Authority failed to fulfil its statutory obligation to carry out a proper review. The Authority was required to at least consider evidence of the likely ability of the applicant to be employed so as to support himself, and whether the employment open to him was or was not likely to be in a safe environment. The Authority failed to do so.
Under the heading ‘Complementary Protection’ in the applicant’s migration agent’s submissions dated 1 April 2016, it was submitted as follows: [5]
[5] CB pp. 180 – 181.
“Complementary Protection
3.1In addition to the above, the applicant also fears serious harm requiring complementary protection due to the following reasons. It should be noted the applicant claims it is not safe anywhere in Afghanistan, however if this is not accepted, the applicant maintains it is not reasonable to relocate to Kabul or elsewhere as it is not safe and not reasonably practicable due to his vulnerabilities outlined below.
…
3.5DFAT observes that the withdrawal of international forces from Kabul has had a significant financial impact on Kabul. Further, DFAT notes that conflict, corruption, weak revenues and with the withdrawal of international forces have contributed to a significant fall in government domestic revenues. The concentration within Kabul of international forces, organisations and government ministries has also left Kabul with a relatively high cost of living compared with the rest of Afghanistan. The high cost of living in Kabul has left many poor residents to borrow money to survive leading residents in a cycle of poverty and indebtedness. Throughout Kabul unemployment and underemployment is widespread.”
(footnotes omitted)
By a letter dated 3 November 2016 addressed to the applicant, the Authority invited the applicant to provide information going to the question as to whether it would be reasonable or not for him to relocate to other areas of Afghanistan including Mazar-e-Sharif. The request made to the applicant was as follows: [6]
[6] CB pp. 633 – 635.
“You are also invited to provide the following information:
•Information as to why it would not be reasonable for you to relocate to any other areas of Afghanistan apart from those places you claim you will suffer harm, including Mazar-e-Sharif.
You are also invited to comment on the following information that may be relevant to your case as it may lead the IAA to conclude that you do not face a real chance of serious harm or real risk of significant harm in Mazar-e-Sharif and it is reasonable for you to relocate there:
•Country information indicates that Hazaras form one of the majority ethnic groups in Mazar-e-Sharif. Mazar-e-Sharif has, in the last decade, been relatively isolated from the conflict and it is one of the biggest commercial and financial centres of Afghanistan. Figures from 2009 until 2015 show, Mazar-e Sharif counted the lowest numbers of civilian victims. While armed attacks have occurred in Balkh province, militant attacks are reportedly relatively rare in the city.
•Country information indicates there is an international airport in Mazar-e-Sharif accepting flights from Kabul and international locations.
You are invited to give comments on the above information in writing. Your comments must be received at the IAA by 17 November 2016. If the comments are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If we do not receive your comments by 17 November 2016, we may make a decision on the review without taking any further action to obtain your views on the information.”
The applicant’s migration agent responded at length to the Authority’s request for information about relocation to places outside Kabul, including Mazar-e-Sharif. The applicant did not specifically address issues going to the reasonableness or unreasonableness of his being required to live in Kabul, save for the submissions made on his behalf on 1 April 2016. Had the Authority asked the applicant for such information, the Court finds that the applicant would have been likely to have provided it. It would appear that the Authority overlooked the requirement for it to consider the reasonableness of the applicant returning to live in a confined part of Kabul. In such circumstances, such failure constituted jurisdictional error.
The decision of the Authority is accordingly quashed.
It is ordered that the matter be remitted to a differently constituted Authority for review of the decision of the delegate according to law.
The Court will hear the parties as to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 8 September 2021
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