AXI21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 778
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
AXI21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 778
File number: MLG 675 of 2021 Judgment of: JUDGE RILEY Date of judgment: 25 August 2023 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – Hazara Shia from Afghanistan – whether the Authority considered the risks to the applicant in the reasonably foreseeable future – US having committed to withdrawing its troops in the then near future. Legislation: Migration Act 1958 ss. 65, 5J(1), 36(2)(aa) Cases cited: CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 2 August 2023 Place: Melbourne Counsel for the Applicant: Minh-Quan Nguyen Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the First Respondent: Kylie McInnes Counsel for the Second Respondent: No appearance Solicitor for the First and Second Respondents: Clayton Utz ORDERS
MLG 675 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AXI21
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
judge riley
DATE OF ORDER:
25 August 2023
THE COURT ORDERS THAT:
1.The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The decision of the Immigration Assessment Authority made on 17 March 2021 in matter number IAA21/08899 be set aside.
3.The matter be remitted to the Immigration Assessment Authority for determination according to law.
4.The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $8,371.30.
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 RILEY:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise Visa under s.65 of the Migration Act 1958 (“the Act”).
BACKGROUND
In his written submissions filed on 4 July 2023, the applicant provided the following background to this matter:
B.1 Application for a protection visa
5.The applicant arrived in Australia in February 2013. He applied for a Safe Haven Enterprise (subclass 790) visa in March 2017.
6.The applicant’s representative provided the Minister’s delegate with written submissions and other materials in support of the applicant’s visa application on 3 February 2020 and 17 August 2020. Further materials, including written submissions, were given to the delegate on 21 December 2020 in response to an invitation under s 56 of the Act.
7.The applicant claimed to have a well-founded fear of persecution in Afghanistan as a Hazara and an adherent of Shia Islam. He also claimed to fear persecution on the basis of his imputed political opinions and his membership of a particular social group (as a failed asylum seeker or as a returnee from the West).
8.On 10 February 2021, the Minister’s delegate made a decision not to grant the applicant a protection visa, having concluded that the applicant was not a person in respect of whom Australia had protection obligations.
B.2Review by the Authority
9.The delegate’s decision was referred to the Authority. On 15 March 2021, the applicant’s representative provided the Authority with written submissions “address[ing] the key issues raised by the delegate’s decision” and a letter from a medical practitioner.
10.On 17 March 2021, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
11.The Authority accepted that the applicant was a Hazara who had lived in Tamaki in Qarabagh District, Ghazni Province. The Authority also accepted that the applicant was a practising Shia Muslim. The Authority made adverse findings about the applicant’s account of other aspects of his background,
rejecting his claim that he had resided in and applied for asylum in Greece and his claim that he had once been detained by the Taliban.
12.The Authority found that, if the applicant were returned to Afghanistan, he would reside in Kabul with his wife and children. The Authority dealt with the applicant’s claims on the basis of his Hazara ethnicity and Shia religion as follows:
(1)Although Hazaras in Afghanistan faced social, economic and political discrimination, the “small amount of societal discrimination” that the applicant might face did not amount to “serious harm”.
(2)DFAT reporting indicated that Hazaras are widely perceived to be supporters of the national government and attract a similar risk profile to persons associated with the government or the international community. However, other materials did not contain the same assessment, and the Authority did not accept that the applicant would be imputed as pro-government.
(3)The Authority noted that it had country information before it about attacks on Shia Muslims and Hazara Shia. The information indicated:
(a)that attacks had typically been against Shia in Afghanistan, and frequently targeted religious and political gatherings, including demonstrations by Hazaras, and Shia religious buildings, celebrations and schools; and such attacks were occurring as recently as November 2020;
(b)that Islamic State in Khorasan Province was “principally responsible” for such attacks and “had identified Shia as specific targets”, and that attacks on Shia had largely taken place “in large cities, including Kabul”; and
(c)that, according to DFAT and others, “Shia face a high risk of being targeted by Islamic State due to their religion, especially when gathering [in] large cities in groups that are identifiably Shia, such as at religious gatherings, festivals or political demonstrations”.
(4)The Authority stated that “conditions for Hazara have improved substantially since 2001, and that millions of Hazara continue to live in Afghanistan”, and “[did] not accept” that “no Hazara is safe in Afghanistan”.
(5)The Authority referred to the security situation of Afghanistan “in recent years”, stating that “[d]espite recent peace talks, the Taliban remains engaged in a violent insurgency against the government of Afghanistan”; that the Government “is said to retain control” of large urban areas while the Taliban was stronger in rural areas; and that Islamic State and other insurgent groups operated in Afghanistan.
(6)The Authority considered the situation in Ghazni Province (seemingly in case it was wrong that the applicant would return to Kabul). It concluded that a Taliban attack in that province in 2018 was not “intended by the Taliban to target persons based upon their ethnicity, or their religion”. The Authority stated that if the applicant returned to Tamaki, he would not face more than a remote chance of harm there “given the increased military presence in the Province”.
(7)The Authority stated that the Taliban and Islamic State had “the capability to conduct large-scale attacks” in Kabul, but the applicant or his family had not been targeted by those groups or other Islamist groups. The Authority accepted that the applicant would practise his Shia faith and that Shia had been targeted in Kabul, but said that “the Government of Afghanistan has taken steps to improve security and I note that Kabul remains firmly in the control of Government forces”. It concluded that the applicant would not face “more than a remote risk of harm from insurgent groups in Kabul”.
(8)The Authority did not accept that the applicant would face a real chance of harm as a Hazara by reason of his need to travel by road, or because of his age or illiteracy.
13.The Authority concluded that there was “no more than a remote chance that the applicant will be caught up as a bystander or otherwise harmed in violence in Kabul”, and he would not face a real chance of harm as a Hazara Shia in Kabul.
14.For the same reasons, the Authority concluded that the applicant would not face a “real risk” of significant harm for the purposes of s 36(2)(aa) of the Act.
(citations omitted)
In his written submissions filed on 19 July 2023, the Minister adopted the background set out in the applicant’s written submissions.
MATERIAL RELIED UPON
At the hearing before this court, the applicant relied upon:
(a)the application filed on 12 April 2021 and amended on 4 July 2023 (“the application”);
(b)the court book filed on 27 March 2023;
(c)the affidavit affirmed by Emma Svehla on 4 July 2023;
(d)the written submissions filed on 4 July 2023; and
(e)the joint bundle of authorities filed on 31 July 2023.
At the hearing before this court, the Minister relied upon:
(a)the response filed on 6 May 2021;
(b)the court book filed on 27 March 2023;
(c)his written submissions filed on 19 July 2023; and
(d)the joint bundle of authorities filed on 31 July 2023.
GROUND 1
The first ground of review in the application is:
The Immigration Assessment Authority erred in its construction or application of ss 5J(1) and 36(2)(aa) of the Migration Act 1958 (Cth), in that:
(a)it did not assess whether there was a real chance of harm to the applicant by reference to the reasonably foreseeable future; and
(b)further or alternatively, it did not address a substantial, clearly articulated argument that there was a real chance of harm to the applicant in the reasonably foreseeable future.
Particulars
(i)Section 5J(1) of the Migration Act 1958 (Cth) requires a decision-maker to determine whether there is a real chance that a person would be persecuted in the reasonably foreseeable future if the person returned to the receiving country.
(ii)The applicant submitted, by reference to country information, that the “withdrawal agreement” between the United States and the Taliban could lead to the Taliban gaining power in Afghanistan and an increased likelihood of persecution of Hazara in Afghanistan in the future: CB 344-346 [78]-[83], 424 [22].
(iii) The Authority erred by:
(A)failing to consider or address the submissions and information referred to in paragraph (ii) above: cf CB 447-453 [51]-[68]; and
(B)failing to assess whether, in light of those submissions and that information, there was a real chance that the applicant would be persecuted by reason of his Hazara ethnicity in the reasonably foreseeable future.
(iv)There is a realistic possibility that the Authority could have made a different decision if it had not made the error referred to in paragraph (iii) above.
The Authority made its decision on 17 March 2021. At that time, there was a “peace agreement” between the US and the Taliban. The applicant submitted to the delegate in written submissions dated 17 December 2020, which were before the Authority:
78.On 29 February 2020, the Trump Administration and the Taliban signed an ‘Agreement for Bringing Peace to Afghanistan’ (Mowafeqatnamah-e awardan-e saleh be Afghanistan). It was not, however, a ‘peace agreement’ in any meaningful sense of the term, but rather a withdrawal agreement [.] Furthermore, it is likely that the Afghan Peace process will allow Taliban to gain more power in Afghanistan and lead to increased attacks on the Hazara ethnic group.
79.The following Country information reports on the impact the peace talks have had on violence in Afghanistan:
o.(sic) UNAMA said violence has failed to slow since the beginning of talks between government negotiators and the Taliban that began in Qatar’s capital, Doha, last month.
p.In the two months since the Afghan government sent representatives to Doha, Qatar, to meet with Taliban leaders to discuss an end to the war, the violence has only intensified.
q.New York Times journalists report that Hazaras live in fear of a return to Taliban rule. “Thomas Ruttig, co-director of the private Afghanistan Analysts Network in Kabul, said of Hazara anxieties: ‘There is good reason for them to be afraid.”
r.“American and Taliban negotiators have agreed on the framework of a deal in which American troops would withdraw in return for a Taliban pledge that Afghanistan will not be used by terrorists. But many Hazaras say the Taliban cannot be trusted — and that any peace deal would do little to prevent continued Islamic State bombings of Hazara mosques, shrines and rallies.
s.The withdrawal provision was not conditioned on any progress being made in intra-Afghan negotiations, or on any Taliban commitment to protect human rights or democratic processes. Rather, it was exclusively conditioned on the Taliban preventing the use of ‘the soil of Afghanistan to threaten the security of the United States and its allies’. The agreement arguably created an incentive for the Taliban to escalate violent attack (sic) on Afghan targets as a way of enhancing their bargaining position in any ‘intra-Afghan negotiations’[.]
t.“These mass killings which are a testament to the Taliban's deep-rooted hostility towards the Hazaras also demonstrate how the group will likely treat this ethnic minority if it were to return to power in any capacity.”
u.With the signature of the deal, the Taliban stated that ‘the war would continue’ not against foreign troops, but the Afghan government. According to the US, the Taliban have not launched any attacks on international forces since the deal was made in February; however, they have increased their attacks on Afghan government forces.
v.After the 29 February agreement was signed, the US reminded the Taliban that they had agreed verbally to reduce violence by 80 %. The Taliban replied that they had only agreed not to attack US forces, not to attacks (sic) the big cities, not to attack bases, but they were free to attack everything else. So, they appear to be fighting without crossing certain red lines which would antagonise the US military and risk drawing it back into the conflict.
80.It is submitted that any increased power given to the Taliban resulting from this ‘Peace Agreement’ would lead to increased persecution of the Hazara minority in Afghanistan.
(footnotes omitted)
In his written submissions to the Authority dated 15 March 2021, the applicant said at paragraph 22:
In making the assessment that Hazaras do not face risk of serious harm from the Taliban the delegate also failed to engage with the current peace agreement and the heightened probability of persecution to Hazara people by the Taliban resulting from this. He did not engage with the argument that if the Taliban shares governance of Afghanistan, persecution to Hazaras will consequently extend to all areas of the country.
The Minister argued that the Authority recognised that it had to assess the applicant’s risk of harm into the reasonably foreseeable future as shown by the fact that it referred to “the future” and the “reasonably foreseeable future” in paragraphs 55 and 63 of its reasons for decision. Those paragraphs are as follows:
55.Nevertheless, in Afghanistan Hazara can face social, economic, and political discrimination, often arising from their status as a minority, since in Afghanistan discrimination often occurs in order to favour a person from the same ethnic group. This may include better access to employment, housing, services and other opportunities. The UNHCR describes the Hazara in Afghanistan as being historically marginalised. However, despite the country information I have cited, the applicant in this case has not advanced any specific examples of these kinds of discrimination which was faced by himself, or by his immediate, or extended family merely for being Hazara in Afghanistan. I note that when he departed Afghanistan his immediate family members remained in Tamaki, and he has not identified problems like this occurring for them there. He has also not claimed such problems are faced by his family in Kabul, where they now reside. While I am aware that that an absence of past harm of itself is not necessarily indicative of the future, and I accept that if returned to Afghanistan, it is possible the applicant may face a small amount of societal discrimination, considering the evidence before me, including that I have found he would return and reside in Kabul, a city in which around half the population is Hazara; I conclude that such problems are likely to be remote, that the kinds of discrimination which the country information indicates he may possibly face in Kabul, in my view, do not amount to serious harm. (emphasis added)
…
63.According to the applicant, his wife and remaining children in Tamaki evacuated their homes after the 2018 fighting and now reside in Kabul. However, the applicant also says the family still owns and farms land in Tamaki. DFAT assesses that Hazara residing within the Hazarajat face a lower risk of experiencing conflict-related violence than those residing in other parts of the country. Even considering the 2018 events in Ghazni, and the ongoing Taliban presence in Ghazni noted in the applicant’s submissions, given the increased military presence in the Province, I am not satisfied that should the applicant return to Tamaki, the applicant would face any more that a remote chance of harm as a result of generalised or conflict related violence in the reasonably foreseeable future. (emphasis added)
(footnotes omitted)
However, as the Minister himself acknowledged:
the question is not so much whether the words “reasonably foreseeable future” were employed by the Authority but, rather, whether the Authority has made a forward looking assessment as was required.
The occasional use of the word “future” or the words “reasonably foreseeable future” does not mean that the Authority actually considered the point made by the applicant, which was that the “peace agreement”, which was really a withdrawal agreement, may lead to the Taliban having a greater share of the government in Afghanistan and that may increase the risk of harm to Hazaras and Shias. Paragraphs 55 and 63 of the Authority’s reasons for decision, while referring to the future, do not engage with the risk of the Taliban gaining a greater share of the government in Afghanistan.
The Minister then argued that the Authority’s assessment was necessarily forward looking, because it was considering what would happen if the applicant returned to Afghanistan. However, that does not mean that the Authority necessarily engaged with the applicant’s submissions about the risk of the Taliban gaining a greater share of the government in Afghanistan.
The Minister then argued that the Authority was alive to the fact that the situation in Afghanistan was unstable and its ability to peer into the future was limited. The Minister said that was demonstrated by paragraphs 61 and 62 of the Authority’s reasons for decision, which are as follows:
61.Nevertheless, I accept that Afghanistan is violent society. Country information before me, including information provided by the applicant shows that compared to Australia, Afghanistan is a violent society with frequent conflict related violence occurring for more than 40 years. There have been a large number of civilian casualties throughout this period, including many thousands of civilian deaths. The country information provided by the applicant supports that that (sic) Afghanistan is violent. Despite recent peace talks, the Taliban remains engaged in a violent insurgency against the government of Afghanistan and the general security situation in Afghanistan is said to have declined in recent years. Broadly, the Government is said to retain control of the large urban conurbations, while the Taliban is said to be stronger in rural areas, including the Pashtun areas of Ghazni province, such as Qarabagh. Islamic State and other insurgent groups operate in Afghanistan. Insurgent attacks have occurred throughout Afghanistan over the last decade.
62.In 2018 the Taliban launched a protracted attack on Ghazni Province, which saw fighting throughout the province, including in Ghazni city. This attack resulted in a high number of civilian and security forces casualties in Ghazni Province, as well as a large number of internal displacements. However, after initial setbacks, Government security forces defeated Taliban forces which have since withdrawn from the area. The Government has resumed control of the Province, even recapturing some districts which had been under effective Taliban control for some time, though more recent reporting indicates that the Taliban has resumed control of some Pashtun Districts. According to EASO reporting in 2019 and 2020. Ghazni is under the responsibility of the 203rd ANA Corps, and the Government has reinforced security forces throughout Ghazni including stationing an Afghan National Army Territorial Force in the neighbouring Jaghori District to further increase security within the District. During the attacks, many government officials were said to have been killed, having been identified by the Taliban who carried lists of persons they deemed to be pro-Government, usually persons with direct links to the Government. While such deliberate targeted killings are concerning, none of the evidence before me indicates that the 2018 events in Ghazni Province were intended by the Taliban to target persons based upon their ethnicity, or their religion. It has been argued in submissions that these events indicate the Hazara are not safe. However, in my view the evidence before me does not suggest that the Taliban specifically targeted any unaffiliated Hazara Shia who resided in the area merely for having that profile.
(footnotes omitted)
These paragraphs talk about the past and the present. They do not engage with the applicant’s submissions about the risk of the Taliban gaining a greater share of the government in Afghanistan in the future. Nor did the Authority say that its ability to peer into the future was limited. They are the Minister’s words. And while it may difficult, the Authority’s job was to “peer into the future”, as best it was able.
The Minister submitted that, in circumstances of volatility, it was reasonable for the Authority to “place greater weight on events in the past as a predictive guide”. I cannot accept that submission. In circumstances of volatility, the Authority can consider “what if things stay the same” but it must also consider questions such as “what if X happens”, “what if Y happens”, “how likely is it that X will happen”, “how likely is it that Y will happen”. That is especially so when, as in the present case, the applicant made a written submission that there was a risk of the Taliban gaining a greater share of the government in Afghanistan, and that impacting adversely on Hazaras and Shias.
The applicant and the Minister agreed the relevant principles were correctly stated in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60], where Mortimer J (as her Honour then was) stated:
The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.
The Minister argued that the Authority made an assessment based on probative material without descending into guesswork. The Minister noted in paragraph 9 of his written submissions that:
The Authority accepted that the Taliban remained engaged in a violent insurgency against the government of Afghanistan and the general security situation was said to have declined in recent years: CB 450 [61]. However, the Authority went on to cite country information about the government security forces having defeated Taliban forces and resumed control in Ghazni Province (at CB 450-451 [62]) and in Kabul: CB 451 [64]. The Authority had regard to relevant country information to inform itself about what might occur in future if the applicant were returned to Afghanistan.
However, the government’s resumption of control of Ghazni Province and Kabul occurred in the past, and at a time when the US forces were still present in Afghanistan. Paragraphs 61 and 62 of the Authority’s reasons for decision, which are set out above, do not address the risks that might arise in the future in Afghanistan after the US had withdrawn. Prior to the Authority making its decision, the US had said that it would withdraw its forces in the relatively near future.
The Minister particularly argued that the Authority addressed the reasonably foreseeable future at paragraph 64 of its reasons for decision, where it said:
DFAT reporting indicates that that (sic) if returned to Afghanistan, the applicant will most likely be returned directly to Kabul where Hazara make up a plurality of the population. Estimates indicate that there are between two and 2.5 million Hazara in Kabul. Country information indicates that insurgent groups, including the Taliban and Islamic State retain the capability to conduct large-scale attacks in Kabul. Though the applicant has argued that he would face harm from the Taliban and Islamic State in Afghanistan, beyond his principal claims which I have not accepted, the applicant has not suggested that he, or any member of his family or any person he knows has been targeted by the Taliban, or Islamic State, or any other Islamist group. I note the applicant has not indicated that in Afghanistan he has any political affiliations or profile or that he is interested in or participates in large scale public events like those that have typically been targeted by insurgent groups in the past. I accept that if he returns to Afghanistan, the applicant would continue to practise his Shia faith and that Shia have been targeted in Kabul in the past. There were allegations that the government failed to provide adequate security for Shia, however, more recent reporting indicates that the Government of Afghanistan has taken steps to improve security and I note that Kabul remains firmly in the control of Government forces. The UK Home office has cites (sic) DFAT to report that “ordinary Hazaras who reside in Hazara-majority areas of Kabul and do not have open affiliations with the government or international community…are unlikely to face any greater threat than are Afghans of other ethnicities”. Notwithstanding the risks posed by insurgents, I am not satisfied that the applicant would face anything more than a remote risk of harm from insurgent groups in Kabul. (emphasis added)
(footnotes omitted)
The Minister submitted that, by saying that Kabul “remains firmly in control of Government forces” (emphasis added), the Authority demonstrated that it had considered whether the situation in Afghanistan was so fluid that it might change, and evidently decided that the situation would not change.
That argument might have some merit if it were not for the looming departure of US forces. As a matter of historical record, the “peace agreement” signed by the US and the Taliban on 29 February 2020 committed to the US withdrawing all its forces by 1 May 2021. Ultimately, the US forces did not withdraw from Afghanistan until 30 August 2021, and the Taliban gained control of the whole country within a few days.
Without relying on hindsight, on 17 March 2021, when the Authority made its decision, it was very likely, if not entirely obvious, that the US would soon withdraw its forces from Afghanistan. The departure of US forces was obviously going to have an impact the ability of the Afghan government to contain the Taliban. While the Afghan government might have been firmly in control of Kabul on 17 March 2021, when the Authority made its decision, that circumstance shed little light on what would happen when the US withdrew its forces in the then near future. To say that the Kabul “remains [in the present tense] firmly in control of Government forces” says nothing about what might happen in the future when the Afghan government ceased to be supported by the US forces.
In any event, the Minister argued that the Authority did not have to consider the possibility of the “withdrawal agreement” leading to the Taliban gaining power in Afghanistan and a consequent increase in the likelihood of the persecution of Hazaras. The Minister said that was because the Authority was only obliged to consider claims that are the subject of substantial and clearly articulated argument relying on established facts or clearly raised by the evidence and contentions, which, if resolved in one way, would or could be dispositive of the review.
The Minister argued that the applicant’s claims consisted of two points, namely:
(a)the peace talks had already resulted in increased violence and that such violence would continue; and
(b)if the Taliban were to gain more power in Afghanistan, there would be a future increase in attacks on Hazaras.
The Minister submitted that the Authority addressed the first point in paragraphs 60 and following of its reasons for decision. Paragraph 60 of the Authority’s reasons for decision is as follows:
In various submissions the applicant has provided country information about the security in Afghanistan and argues that no Hazara Shia is safe in that country. The applicant has cited a report written by an Australian Professor which argues that Hazara cannot and should not return to Afghanistan. In the citation, the author opines that Hazara are not safe anywhere in Afghanistan and that the return of any Hazara asylum seeker to Afghanistan should be avoided, on the basis that events in Afghanistan are “extraordinarily fluid” and that even credible information sources about Afghanistan can be out of date soon after publication. Further excerpts from the same report cited in Submissions argue that persons returning to Afghanistan require support, and that a person who returns lacking strong social connections is likely to end up destitute or be exposed to gross exploitation or criminal predation. I have found that the applicant would return to Kabul, where his wife and children reside. In this context I note that though conditions are difficult in Afghanistan, the applicant’s Hazara family, including his wife and children reside in Afghanistan and so an argument to the effect that no Hazara can live seems unpersuasive. Other country information before me from reliable sources indicates that conditions for Hazara have improved substantially since 2001, and that millions of Hazara continue to live in Afghanistan. According to his own evidence, this includes the applicant’s Hazara family who reside in Kabul. Furthermore, in this context I note that during his Protection Visa Interview the applicant had indicated that his Hazara son, previously granted protection and now said to be an Australian citizen, has returned to Afghanistan more than once on family business. I do not accept the argument that no Hazara is safe in Afghanistan.
The relevant paragraphs subsequent to paragraph 60 of the Authority’s reasons for decision are set out above.
I do not accept that the Authority did consider that the “peace talks” had already resulted in increased violence and that such violence would continue. That is because the “peace talks” were not actually peace talks but were an agreement for the US to withdraw its troops, as the applicant claimed and as the historical record shows.
The Authority did not absorb that point. When the Authority referred to “peace talks” in paragraph 61 of its reasons for decision, it said:
… Despite recent peace talks, the Taliban remains engaged in a violent insurgency against the government of Afghanistan and the general security situation in Afghanistan is said to have declined in recent years. …
By saying, “Despite recent peace talks”, the Authority demonstrated that it regarded the so-called peace talks as actual peace talks, not as an agreement for the US forces to withdraw. In doing so, the Authority missed the point that the applicant expressly made.
What the applicant actually said, in effect, in the first point identified by the Minister was that the promise by the US to withdraw its troops had already resulted in increased violence and that such violence would continue. However, the Authority did not anywhere consider the effect of the US withdrawing its troops, which it was on record as having promised to do not long after the Authority made its decision.
The Minister said that the applicant’s second point was if the Taliban were to gain more power in Afghanistan, there would be a future increase in attacks on Hazaras. The Minister argued that it was not an established fact that the Taliban would gain more power. However, it was an established fact that the US had promised to withdraw its troops and that in all probability it would withdraw them in the near future.
The Minister noted that the applicant himself provided country information in the form of a report from a BBC journalist on 14 July 2019 that said:
A US pullout, with or without a peace deal, might not automatically result in the sudden collapse of the government in Kabul. …
That was simply speculation from a journalist. In any event, it is implicit in that statement that the reverse might also happen, and that “A US pullout, with or without a peace deal, might automatically result in the sudden collapse of the government in Kabul.” Obviously, that is what happened, though the Authority could not have known for sure that it would happen.
The established facts of this case, based on the historical record if nothing else, were that, as at 17 March 2021, when the Authority made its decision:
(a)there was a civil war going on in Afghanistan between the Taliban and the government;
(b)the government was supported by US forces;
(c)the US had entered into an agreement with the Taliban pursuant to which the US had committed to withdrawing its forces not long after the Authority made its decision;
(d)the US withdrawing its forces was going to effect the balance of power in the war; and
(e)the Taliban had a long history of violence against Hazaras and Shias.
In these circumstances, the Authority was obliged to consider the risks faced by the applicant because of the forthcoming US troop withdrawal. While the Authority could not be certain whether the Afghan government would immediately collapse or not, it had to consider whether:
(a)there was a real risk of all of Afghanistan, including Kabul, becoming a war zone in the reasonably foreseeable future;
(b)there was a real risk of the Taliban gaining substantial governmental control of Afghanistan in the reasonably foreseeable future; and
(c)there was a real risk of Hazaras and Shias, in a post-US withdrawal Kabul, facing serious or significant harm.
The Authority did not do any of that. It thereby fell into jurisdictional error. The Minister did not submit that the error in this case was not material. I consider that it was. It follows that the Authority’s decision must be set aside with costs.
GROUND 2
The second ground of review in the application is:
The Immigration Assessment Authority erred by making a finding, based on irrational or illogical reasoning or without a probative basis, that the applicant did not face a real chance of harm from militant groups as a Shia Muslim.
Particulars
(i)The Authority accepted that country information indicated that Shia Muslims faced a “high risk” of being targeted by Islamic State due to their religion, especially when gathering in large cities including Kabul: CB 489-490 [59].
(ii) The Authority found that:
(A) the applicant was a practising Shia Muslim: CB 489 [59];
(B)if he were returned to Afghanistan, the applicant would live in Kabul: CB 486 [49].
(iii)The Authority did not identify any logical or probative basis for rejecting the assessment that Shia Muslims faced a “high risk” of being targeted by Islamic State due to their religion, especially when gathering in groups in large cities including Kabul.
(iv)In light of paragraphs (i) to (iii) above, the Authority’s finding that the applicant would not face more than a “remote” risk of harm, or its reasoning for that finding, was irrational or illogical or lacked a probative basis: cf CB 491-492 [63]-[64].
(v)There is a realistic possibility that the Authority could have made a different decision if it had not made the error referred to in paragraph (iv) above.
As ground 1 has been made out and the matter must be remitted to the Authority, it is unnecessary to consider ground 2.
CONCLUSION
The matter will be remitted to the Authority for determination according to law. The Minister will be required to pay the applicant’s costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 25 August 2023
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