AXP18 v Minister for Home Affairs
[2018] FCCA 3834
•21 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXP18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3834 |
| Catchwords: MIGRATION – Protection visa application – judicial review of Immigration Assessment Authority decision – whether the Authority erred in making findings that were unreasonable and not open to it – whether the Authority erred in its assessment of country information – whether country information relied on must be reliable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46A(2), 65, 473CA, 476(1) |
| Cases cited: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545 |
| Applicant: | AXP18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 109 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 15 November 2018 |
| Date of Last Submission: | 15 November 2018 |
| Delivered at: | Perth |
| Delivered on: | 21 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Draper |
| Solicitors for the Applicant: | Granich Partners |
| Counsel for the First Respondent: | Ms A. Ladhams |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The applicant’s originating application filed 26 March 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 109 of 2018
| AXP18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings is a Hazara Shia citizen of Afghanistan. He arrived in Australia via Christmas Island on 28 November 2012 as an unauthorised maritime arrival.
On 19 January 2016 the Department of Immigration and Border Protection sent a letter to the applicant advising that the Minister had exercised the discretion in s.46A(2) of the Migration Act 1958 (Cth) (the “Act”) to allow him to make an application for a protection visa. He was invited him to apply for a Temporary Protection Visa or a Safe Haven Enterprise visa (“SHEV”).
On 14 September 2016 the applicant lodged an application for a SHEV. He claimed to fear harm from the Taliban because he is a Hazara of Shia religion and because his father had worked for the government before he was killed by the Taliban (when the applicant was 12 years old).
The applicant attended an interview before a Ministerial delegate on 16 December 2016.
On 4 April 2017, the delegate made a decision not to grant the applicant a protection visa.
The matter was then referred to the Immigration Assessment Authority (the “Authority”) in accordance with s.473CA of the Act.
On 23 January 2018 the Authority affirmed the delegate's decision not to grant the applicant a protection visa.
Issues before this Court
On 26 February 2018, the applicant filed an application for judicial review of the Authority’s decision in the Federal Circuit Court of Australia. This proceeding is brought pursuant to s.476(1) of the Act. The applicant seeks orders for the issue of constitutional writs. In order for these writs to be the issued the applicant needs to demonstrate that the Authority fell into jurisdictional error.
The applicant relies on one ground of review, particularised as follows:
Grounds of Application
The Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well- founded fear of persecution.
The Authority misdirected itself in concluding that the Applicant, of Hazara ethnicity, a Shi’a Muslim who has lived in Australia since 2012, does not face a real chance of serious harm for reasons of ethnicity, religion and as a returnee from Australia if he returns to Afghanistan, in particular, to Daikundi, which conclusion fails to reasonably address or lead to the reasonable conclusion that the Applicant could reasonably be expected to seek refuge in Daikundi, where the evidence of persecution by insurgent and terrorist groups and societal discrimination against Hazara Shi’a returnees does not reasonably lead to a conclusion that the Applicant does not have a well-founded fear that there is a real chance of serious harm if he returns to Afghanistan.
Particulars
(i) DFAT assesses that the security situation in Afghanistan is:
(a) complex, highly fluid, and varies considerably by location, including between rural and urban areas;
(b) anti-government elements remain engaged in violent armed insurgency;
(c) the general security situation has deteriorated in Afghanistan in recent years;
(d) considerable ethnic and intra-ethnic tensions exist throughout the country, separate from continuing armed conflict.
(ii) DFAT acknowledges that people who have been identified as having international associations face a high risk of being targeted by insurgent groups;
(iii) DFAT is aware that returnees from western countries have been kidnapped or otherwise targeted based on their having spent time in a western country;
(iv) DFAT find that insurgent and terrorist groups, particularly the Taliban, have openly targeted Afghans of all ethnicities working for, supporting or associated with the government and/or the international community.
The applicant relies on various aspects of the country information relevant to Afghanistan to support his sole ground of review. Before this Court, the applicant was represented by Mr Draper. Overall, Mr Draper emphasised that the Authority relied on country information which, in the applicant's view, was unreliable and does not support the Authority's conclusion that the applicant did not face a real chance of serious harm in Afghanistan by. It was stressed that, in light of this country information, the Authority’s conclusions were “unreasonable”.
The Minister disagrees, contending that what the applicant seeks is an impermissible merits review that, in effect, asks that Court to undertake its own assessment of the relevant country information – an evidentiary review that is forbidden by the jurisprudence relevant to the use of country information by the Authority.
The Authority’s Decision
The Authority’s decision appears at pages 459 to 481 in the Court Book. An accurate summary of the Authority’s decision, relevant to the sole ground of review raised by the applicant, was provided by counsel for the Minister (Ms Ladhams) in written submissions dated 26 October 2018 at paragraph 10. That summary, which was not disputed by counsel for the applicant (other than as it relates to the accuracy of the Authority’s use of the country information referenced and relied on – discussed below), provides as follows:
10.The Authority was not satisfied that the applicant met the refugee criteria in s 36(2)(a) or the complementary protection criteria ins 36(2)(aa) of the Migration Act: [79], [86]. In making these findings:
10.1.The Authority expressed concerns about the applicant's credibility based on inconsistent information he gave in relation to his family, former residence and travel and money transfers: [14]-[33].
10.2.The Authority accepted that the applicant's father, who was a Shia Hazara and a government worker, was killed by the Taliban in or around 1997 and that this prompted the applicant's family's move to Iran. However, the Authority was not satisfied that the applicant or any member of his family had any ongoing profile in their home area of Daykundi or Afghanistan. The Authority did not accept that the applicant's sister had been killed. The Authority found that there was no real chance of the applicant being seriously harmed in connection with his father's past profile: [38].
10.3.The Authority considered country information and was not satisfied that the applicant would face systemic harm or persecutory conduct in Daykundi for reasons of his ethnicity or religion. The Authority considered that there was little evidence to suggest that low profile Shia Hazaras are targeted on the basis of their religion, ethnicity, or any other imputed political profile by the Taliban or other insurgent groups or within Daykundi itself: [41], [42]. The Authority was not satisfied that there was any real chance of the applicant being seriously harmed by the Taliban or other insurgent groups active in the Daykundi province: [42]. The Authority acknowledged that the recent rise of Islamic State posed a threat, particularly in Kabul, but found that the information before it did not indicate that Islamic State has a presence in Daykundi province: [46]. The Authority considered that there was not a real chance that the applicant would harmed on the basis of his ethnic and religious profile in his home area: [49], [52].
10.4.The Authority acknowledged that there were some security risks on the roads between Kabul and the Hazarajat, but considered that there was only a remote chance of the applicant being abducted or otherwise harmed on the basis of his ethnic, religious or related profile while travelling between Kabul and his home area. The Authority considered that the applicant would be able to safely access his home area: [60], [62].
10.5.The Authority was not satisfied that there was a real chance of the applicant facing serious harm as a result of having spent time in Iran or in Australia, or for claiming asylum, and found that the applicant would be able to modify his behaviour to avoid the remote chance that he would suffer harm on the basis his time in the west and claim for asylum (taking into account s 5J(3) of the Migration Act): [63]-[76].
10.6.The Authority considered that the risk of the applicant facing harm from generalised and insurgent violence was credible but remote: [77], [78].
Submissions Received
Request for an Adjournment
At the commencement of this hearing, counsel for the applicant queried whether the hearing should be adjourned. It was explained that the issues and legal principles articulated in this matter had recently been adjudicated by various judges of this Court. Those decisions had all, to varying degrees, rejected one of the applicant’s core contentions – i.e., that the Court should undertake its own assessment of the relevant country information to determine whether that country information is “reliable”. Many of these cases were before Judge Smith of this Court and include: BJI17 v Minister for Immigration & Anor [2018] FCCA 2405; CNV17 v Minister for Immigration and Border Protection [2018] FCCA 2408; BYG17 v Minister for Immigration and Border Protection [2018] FCCA 2409; DQA17 v Minister for Immigration and Border Protection [2018] FCCA 2418 (DQA17) and CVQ17 v Minister for Immigration and Border Protection [2018] FCCA 2121.
Mr Draper indicated a notice of appeal had been filed in the Federal Court in relation to each of these cases.
More recently, this Court (and this judge) handed down the decision in EAT17 v Minister for Immigration & Anor [2018] FCCA 3036 (EAT17). Mr Draper appeared as counsel in that matter and his written and oral submissions in that case were replicated in the matter currently before this Court – particularly in relation to the issue of whether the Court can make a determination as to the reliability of country information. The Court rejected the applicant’s arguments in EAT17, finding, in effect, what was being sought was an impermissible merits review.
Mr Draper advised that he would appeal this Court’s decision in EAT17.
Mr Draper queried whether, given the above, the current matter should be adjourned pending the hearing of all of the above matters by a higher court. Counsel for the Minister disagreed that any adjournment should be granted. She argued, relevantly, that an informal request had only been made on the day of the hearing, detailed written submission had been prepared, the Minister wished to proceed, both lawyers were ready and able to proceed and in any event, there was, thus far, no authority to indicate that the jurisprudence at the core of the above decisions was either incorrect or incorrectly applied by the Court.
The Court agrees with the submissions made and concerns raised by Ms Ladhams for the Minister.
This Court is bound by the law as it stands on the day a hearing is scheduled and is charged with interpreting any and all relevant legal principles in light of the particular factual and evidentiary scenarios relevant to the matter before it on the day. Given the circumstances of this case and the current state of the law in relation to the issues raised by the applicant (particularly those submissions that suggest the Court should review any and all country information for “reliability”), the Court was not persuaded that the matter should be adjourned.
Reasonableness
The applicant’s main submission in these proceedings was that it was unreasonable for the Authority to conclude that the applicant would not face the requisite level of harm if returned to Afghanistan. Although the written submissions prepared for the applicant tend to overlap and “merge” arguably distinct legal issues, it appears from Mr Draper’s oral submissions (which were quite helpful and much appreciated) that the issue of “unreasonableness” is actually directed at two (albeit separate, but arguably nonetheless related) issues:
a)an assertion that the country information relied on did not support the conclusions drawn by the Authority; and
b)a concern that the country information was “unreliable”.
“Unreasonable” because the country information relied on did not support the conclusions drawn
In relation to this issue, the applicant seems to suggest that the Authority’s decision was unreasonable because the country information relied on does not support the conclusions drawn.
To better understand the applicant’s concerns in this regard, it is useful to outline the applicant’s submissions in some detail:
(2)At Case Book 469, paragraph 52 [CB 469, 52], the Authority concludes (the Conclusion) that the Applicant does not face a real chance of harm from the Taliban, Islamic State, or any other person or group on the basis of his racial, ethnic and/or imputed political opinion or any related profile upon return to Daikundi Province, Miramoor district, and that he faces a remote chance of serious harm travelling on the road from Kabul to Daikundi [CB 471, 60].
(3)The Conclusion regarding the security situation and road travel safety is reached in consideration of the following findings, namely:
(i)at [CB 467, 42], the Authority accepts that insurgent attacks occur in the Applicant’s home region in Daikundi Province (Daikundi), although such attacks tend to target government and international interests.
(ii)at [CB 467, 44] the Authority finds that the number and scale of the attacks in late 2016 and early 2017 demonstrate that Shia, both Hazara and non- Hazara, now face a risk of being attacked by Islamic State based on their religious affiliation; and,
(iii)with regard to road travel, despite the Delegate finding that there is a real chance of the Applicant being seriously harmed on the roads returning from Kabul to Daikundi, found that not all of Daikundi is secure and continued insurgency exists, [CB 470, 56], that some areas of Daikundi are insecure due to increased insurgency in bordering provinces [CB 470, 56] and Shia’s continue to be targeted throughout the country [CB 470, 58]
(4)The February 2016 Report makes the following findings, namely that:
(i)at page 5, paragraph 2.12 [pg 5, 2.12] many areas of Afghanistan are contested by insurgent forces, and no part of the country can be considered free from conflict violence;
(ii)at [pg 5, 2.13], ethnic tension exists throughout the country at a local level and each year seasonal clashes arise over land rights between Pashtun Kuchi Tribes and Hazaras. “The threat of conflict-related violence faced by Hazaras is similar to that faced by members of other ethnic groups”;
(iii)the Afghanistan conflict is complex, and allegiances between groups can change quickly and belie generalisation or ideological coherence [pg5, 2.14];
(iv)it is too simplistic to attribute attacks against Hazaras to a simple ‘Hazara versus Taliban’ issue noting the security situation for Hazaras remains fluid although the security situation in Daikundi “tends to be better than in other parts of Afghanistan (although security incidents occur regularly across the country) [at pg 6, 2.19]; and,
(v)at [pg6, 2.22], DFAT concludes while some parts of Daikundi experience higher levels of insecurity than others, they are still considered safer than many other parts of Afghanistan.
(5)The September 2017 Report makes the following findings, namely that:
(i)the Afghan security situation is complex, highly fluid and varies considerably by location [pg 6, 2.17];
(ii)no part of Afghanistan can be considered free from conflict related violence;
(iii)Daykundi remains safer for Hazars than other parts of Afghanistan, although, as noted by the Authority at [CB 197, 29], there is “localised violence between Hazara-Pushtun border areas”.
(6)An earlier DFAT Report (“DFAT Country Information Report Afghanistan” 18 September 2015, copy attached marked “C”) also states, at 2.32 that there has been a significant increase in casualties since 2014 and, at 2.33 that “no part of the country can be considered free from conflict related violence”, that the security situation in Afghanistan is fluid and unpredictable and deteriorated throughout 2015 and 2016 and the Afghan governments capability and effectiveness in ensuring stability and security across Afghanistan is concerning and continues at page 8, paragraph 2.33, to state that:
“The security situation deteriorated significantly over the last 12-18 months, as anti- governments groups intensified their efforts and the international military contingent gradually withdrew.”
(7)And again, in the DFAT Country Information Report, DFAT comments that there has been a gradual withdrawal of the international community (at paragraph 2.32), and the withdrawal of the international community coupled with the DFAT’s findings above that the security situation in Afghanistan is fluid and unpredictable, deteriorated throughout 2015 and 2016 and that the Afghan governments capability and effectiveness in ensuring stability and security across Afghanistan is concerning, together with the evidence of increasing insurgent violence, it is unreasonable for the Authority to conclude that the government is and will necessarily remain stable in the future.
(8)Regarding the Applicant’s profile, the Authority’s conclusion is that as the attacks are targeted at government officials rather than groups he faces less exposure to risk of significant harm. The unreasonableness of this conclusion is founded in the fact that, firstly, given the attacks are increasing and the governments stability is being eroded, all civilians are at equal risk of harm irrespective of whether the attacks are being carried out against those profiled targets (government institutions etc) or not. Secondly, the chances of anyone facing a real risk of harm cannot simply be reduced to a ‘numbers game’ involving the drawing of a conclusion that because the attacks are sporadic and profile specific, then there is less risk of being harmed. The question as to whether the Applicant faces a real chance of the harm is evidenced by the fact that the Hazara Shia’s are being attacked by anti- Shia/Hazara insurgent groups. The attached DFAT Report dated 18 September 2015 concludes (at 2.35) that:
“Although attacks are often directed at specific targets, the methods of attack can be indiscriminate and often result in civilian casualties” (and refer to the examples listed in the remainder of paragraph 2.35).
In these circumstances the profile of the applicant other than a Hazara Shia against whom the attacks are conducted is an irrelevant consideration in assessing his risk of serious harm.
(9) Given DFAT’s finding that the Afghanistan conflict is complex, and allegiances between groups can change quickly and belie generalisation or ideological coherence (see 4(iii) above), it is unreasonable for the Authority to rely on the generalisation that because the ‘security situation is better in Daikundi than the rest of Afghanistan, that the Hazara-Pashtun conflict is localised and despite the southern area of Daikundi having the presence of Taliban insurgents that because the Taliban condemn ISIS their presence is less harmful and to conclude, as it has done, that the Applicant does not face a real risk of harm.
…
(24)As French CJ said in Minister for Immigration and Citizenship v Li [2013] HCA 18:
27.In Wednesbury Corporation, Lord Greene MR observed that the word "unreasonable" in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters [73]:
"If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'."
That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred [74].
28.Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider "they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it."[75] In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision.
(25) In Minister for Immigration and Multicultural Affairs v SGLB ("SGLB"), Gummow and Hayne JJ said:
The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned ... The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.
(26)A want of reason (or logic or rationality) in a decision subject to review must be such as to show that the decision-maker has transgressed what French CJ described in K-Generation Pty Ltd v Liquor Licensing Court as "the minimum constraint applicable to the exercise of any statutory power namely that it must be exercised in good faith and within the scope and for the purposes of the statute."
Counsel for the Minister responded in written submissions that provide a forensic and impressive “unpacking” of what the Authority did, and did not do, in relation to the country information and the evidence before it.
These submissions stress that the Court should assess whether the Authority's reasons provide an intelligible justification for the decision. In other words, the Court should consider the Authority's reasons for decision and decide whether the Authority's conclusions were reasonably open to it on the available evidence.
In this regard, the Minister’s written submissions merit repeating here. They provide as follows:
22.The Authority has provided detailed reasons for its decision. The applicant only asserts unreasonableness in relation to the Authority's findings that the applicant would not face serious harm in Daykundi, or in accessing his home area of Daykundi, on the basis of his Hazara ethnicity or Shia faith. The relevant paragraphs of the Authority's decision are [39]-[62]. It is clear from these passages that the Authority considered country information from a range of sources, including the Department of Foreign Affairs and Trade (DFAT), European Asylum Support Office (EASO), United Nations Assistance Mission in Afghanistan (UNAMA) and Afghanistan Analysts Network (MN).
23.After accepting at [39] that the applicant is a Shia Hazara, the Authority at [41] noted that with recent exceptions, the country information before did not indicate that Shia Hazaras are facing systematic serious harm in Daykundi or elsewhere in Afghanistan for reasons of their religion or ethnicity or any related profile. The Authority cited EASO and DFAT reports and noted that the information suggests that persons associated with the government, the military or security forces, the media and the international community remain the groups at risk from the Taliban and other insurgent groups throughout the country. At [42], the Authority noted that there was little evidence to suggest that ordinary low profile Shia Hazaras are targeted on the basis of their religion and/or ethnicity by the Taliban or other insurgent groups or within Daykundi itself. The Authority relied on two 2017 DFAT reports and noted that DFAT assessed that Daykundi province continues to remain safer for Hazaras than most parts of Afghanistan, with insurgent attacks in the area tending to target government and international interests. The Authority concluded at [42] that weighing the information, it was not satisfied that there was any real chance of the applicant being seriously harmed by the Taliban or other insurgent groups active in the Daykundi province.
24.The Authority then proceeded to consider the recent exceptions that it had alluded to at [41].
24.1.The first of these was the recent rise of Islamic State, which had claimed responsibility for recent attacks in Kabul and Herat directly targeting Shias.
24.1.1.The Authority acknowledged recent information from DFAT which suggested that Shias now face a risk of being attacked by Islamic State based on their religious affiliation, particularly when assembling in large and identifiable groups, and placed significant weight on this information: [43]-[44]. The Authority acknowledged that less recent DFAT advice to the contrary may be unreliable: [45], [46].
24.1.2.The Authority then noted that the country information suggested that Islamic State focused principally on protests and religious attendances in Kabul and Herat and that the available information did not indicate that Islamic State had a presence in Daykundi province or that it had the capacity to orchestrate attacks in the area, citing reports by EASO, DFAT and UNAMA: [46], [47]. The Authority noted country information from the AAN which suggested that outside of the significant but occasional attacks in Kabul and Herat, there is little other indication of systematic or persecutory conduct towards Shia Hazaras in those cities or any suggestion that wider sectarianism is likely to take root: [48].
24.1.3.Weighing the country information, the Authority concluded that the chance of the applicant facing serious harm as a non-observant Shia Muslim in Kabul is remote, and that the likelihood of the applicant being harmed in an attack in Daykundi must be even more remote: [48]. The Authority then provides a summary at [49] acknowledging that Islamic State poses a credible threat in Kabul and Herat, as well as Nangarhar, and then explaining why it does not consider that this threat will extend to the applicant in in Daykundi province.
24.2.The second exception related to road security.
24.2.1.At [54], the Authority noted that Daykundi is a Hazara-majority province and noted EASO country information in relation to the limited number of security incidents in 2015 and 2016.
24.2.2.At [55], the Authority noted DFAT's assessment that even those areas within Daykundi that have a higher level of insecurity are still considered safer than many other parts of Afghanistan, and insurgent attacks that do occur in Daykundi tend to be targeted at government officials. The Authority then found that the Hazaras are generally able to move around within Daykundi province without facing undue security risks: [55).
24.2.3.The Authority then turned its attention to country information regarding continued insurgency in the surrounding provinces and that DFAT assessed transport between the Hazarajat and major cities is far from secure: [56]. The Authority considered country information from DFAT regarding the risks to travellers on the roads, and noted that all ethnic groups were vulnerable to attacks on the roads, but that Hazaras may be more likely to be selected as hostages if a vehicle carrying a mix of ethnic groups is stopped: [57]-[58].
24.2.4.The Authority acknowledged that the applicant would most likely be returned to Kabul, but considered that the duration of his stay in Kabul was likely to be only a few days and that, in this context, he did not face a real risk of serious harm in Kabul, notwithstanding the concerns that the Authority had expressed about the security situation in Kabul: [59]. The Authority accepted that in returning to Daykundi from Kabul, the applicant would need to travel on roads where there had been security issues in recent years. However, the Authority then proceeded to give reasons for its conclusion that the applicant would not face a real chance of harm in travelling from Kabul to Daykundi: [60]. These reasons included that there had been a decline in the number of incidents on the roads, the applicant's lack of adverse profile, the applicant's past experience travelling on the roads, the infrequency with which the applicant would need to travel and that in returning from Kabul to Daykundi, the only province that the applicant would need to travel through where Hazaras have been targeted is Maidan Wardak province, which reported incidents without fatalities in 2016 in relation to historic conflicts between Hazara farmers and Kuchi nomads, for which the applicant had no profile.
Having summarised the Authority’s assessment of the country information, the Minister concluded as follows in relation to the issue of “unreasonableness”:
25.From the above summary, it is clear that the Authority considered country information from a range of sources, and has provided cogent reasons for finding that the applicant would not face a real chance of serious harm on account of his ethnicity or religion, even though some of the country information indicates that there are some security issues in Afghanistan. These reasons include the information about the relative safety of the applicant's home area, and factors specific to the applicant, such as his lack of adverse profile, that he is a non-practicing Shia and the route that he would be likely to take from Kabul to Daykundi. The Authority has provided an intelligible justification for its conclusions in this matter.
26.The findings made by the Authority were clearly open on the material before the Authority and there is nothing unreasonable, illogical or irrational in the Authority's reasoning process or the conclusions it reached.
27.The Minister also makes the following responses to the specific assertions of unreasonableness in the applicant's submissions:
27.1.The applicant's submission at [8] essentially asks the Court to look at the country information and form a different conclusion to that formed by the Authority. To do so would be to engage in impermissible merits review. Further, the applicant misinterprets what the Authority has done and the information before the Authority. The acknowledgement in the country information that civilians who were not specific targets can be victims of indiscriminate attacks aimed at other targets cannot be paraphrased as a 'fact' that all civilians are at equal risk of harm. The Authority has not reduced risk to a 'numbers game' but rather has evaluated whether the risk faced by the applicant amounts to a real chance of serious harm (and real risk of significant harm) as it was required to do. In conducting this evaluation, the Authority has considered the chance of harm that the applicant may face as a Shia Hazara and the chance of harm based on his other claims. In addition, the Authority's evaluation has included a finding at [77][78] that the risk of the applicant being seriously harmed in generalised and insurgent violence was remote.
27.2.Also at [8], the applicant has asserted that the question of whether the applicant faces a real chance of harm is evidenced by the fact that Hazara Shias are being attacked by anti-Shia and Hazara insurgent groups. The Authority's decision is also more nuanced than this. The Authority has distinguished the situation in the applicant's home area of Daykundi, where it found that there was little evidence of Hazara Shias being targeted because of their ethnicity or religion, from the situation in other places, such as Kabul, Herat, and Nangarhar, where it found that there had been significant but occasional attacks against Shias. This was a reasoning process that was entirely open to the Authority.
27.3.In response to the applicant's submission at [9], the Minister submits that the complexity of the security situation in Afghanistan does not make it unreasonable for the Authority to consider the information about the current situation in the applicant's home area and take that information into account in assessing the risk of harm that the applicant would face in the foreseeable future.
The Court has noted the authorities outlined by the parties here and thanks the parties for their considerable assistance in this regard. As indicated above (at paragraph 15), this Court recently addressed the same issues and the same arguments in its decision in EAT17. No argument was made in this matter that changes the Court’s view of the relevant legal authorities on the meaning of “unreasonableness”. As such, for completeness, the Court repeats below what it outlined in EAT17.
In Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li), the plurality of the High Court stated (at [76]) that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.
The jurisprudence in relation to reasonableness post-Li has received extensive judicial scrutiny. Oft cited cases in the Full Court include: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 (Muggeridge); Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton).
Noting the content of the Minister’s written submissions (and, again, this Court’s summary in EAT17), the law relating to unreasonableness can be summarised as follows.
In Stretton, Allsop CJ explained:
11. … the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power…
In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, the Full Court stated that the process of review of legal unreasonableness “will inevitably be fact dependent”. The Court continued:
48. …that is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as 'intelligible justification' must involve scrutiny of the factual circumstances in which the power comes to be exercised.
The relevant statutory provision in this case is s.65 of the Act. That section requires the Minister either to grant or not grant a visa if satisfied (or not satisfied) that the applicant meets the relevant statutory criteria. As McKerracher J pointed out in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 (SZOOR), referring to Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 (Applicant S20):
52. …it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions. The fact finding itself can only be impugned where the factual determination is "illogical, irrational or lacking a basis in finding or inferences supported on logical grounds".
Further, in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), Crennan and Bell JJ set out the test for irrationality or illogicality as follows:
131. The test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Their Honours further explained:
135. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or of there is no logical connection between the evidence and the inferences or conclusions drawn.
In ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109 (ARG15), the Court (after referencing SZMDS) said:
[47] Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”. Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error.
(Citations removed)
SZMDS sets a very high threshold for findings of irrationality or illogically (citing also Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [34]-[36] and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 1 at [30]).
It is not enough, in this context, for the question of fact to be one on which reasonable minds may come to different conclusions: ARG15 at [47]. Further, even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was not critical to the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [55].
Overall, having reviewed the Authority’s decision in detail, the Court agrees with the Minister that it cannot be said here that the conclusions drawn by the Authority were not open to it on the country information before it. As in EAT17, the Court rejects any suggestion that the Authority’s findings were unsupported by probative material or that the conclusions drawn cannot reasonably be drawn from the relevant country information.
The Authority considered country information from a range of sources and provided clear reasons for finding that the applicant would not face a real chance of serious harm on account of his ethnicity or religion, even though some of the country information indicates that there are some security issues in Afghanistan. All relevant information was assessed. No irrelevant information was relied on. As correctly outlined in detail by counsel for the Minister, the Authority's reasons for decision demonstrate that the Authority gave careful consideration to all of the applicant’s claims and evidence. In the circumstances, the Authority’s reasons cannot be said to lack “an evident and intelligible justification”: Li at [76] per Hayne, Kiefel and Bell JJ.
Overall, as in EAT17, while the applicant may disagree with the conclusions drawn and may preference other information and evidence, it cannot be said here that the Authority’s findings are unreasonable. The findings are neither illogical nor irrational. It cannot be said here that the Authority has reached a conclusion that no reasonable authority could ever have come to it.
It is accepted that this Court cannot review the merits of the Authority’s decisions: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In effect, that is what the applicant seeks here.
Unreasonableness and the Use of Country Information
As in EAT17, in addition to the applicant’s contentions in relation to unreasonableness generally (canvassed above and rejected), the applicant also made specific reference to the way in which the Authority used the country information before it. Specifically, again, as in EAT17 before this Court, it was argued that the Court must be satisfied that country information relied on by the Authority must be scrutinised and seen to be “reliable”. That task would require the Court to undertake an evaluation as to the accuracy of the country information considered by the Authority in light of all of the evidence available to it.
As noted above, this line of argument was considered and rejected in EAT17. The Court heard nothing in relation to this matter that persuades it to alter the position taken in that case or any of the cases referenced in EAT17. As such, the Court repeats here what it said in EAT17.
In relation to the use of country information, in DVI17 v Minister for Immigration [2018] FCCA 241 (at [39]), Judge Wilson of this Court made the following observations on the use to which country information may be put in a proceeding in which jurisdictional error is raised:
a) the accuracy of country information is a matter for the Tribunal, not a court, because a court would be engaging in an impermissible merits review if it made its own assessment of country information, a proposition made good by the Full Court of the Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; and see also observations of Judge Wilson in AUV15 v Minister for Immigration and Border Protection [2017] FCCA 1951; and
b) the choice and interpretation of country information is a factual matter for the Tribunal alone, as was held by Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545 and in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419.
Although His Honour is referring above to decisions of the Administrative Appeals Tribunal, these principles apply equally to the Authority. That is not disputed.
In this matter, as in EAT17 and the cases it relies on, the applicant conceded that NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 and the cases that follow it remain good law. However, the applicant contended that these core principles must now be read differently in light of more recent case law which, the applicant contends, suggest that the Authority can be found to have erred if it is determined that the country information relied on was not “reliable”.
In this regard, the applicant sought to rely on the High Court’s decision in CRI026 v The Republic of Nauru [2018] HCA 19 (CRI026).
As summarised by this Court in EAT17, CRI026 is a decision on appeal from the Supreme Court of Nauru. It concerned the issue of internal relocation in the context of the Refugees Convention Act 2012 (Republic of Nauru). The appellant in that case argued that the question of “reasonableness” did not apply in determining whether there was an obligation of complementary protection under that Act because, if it did, it would be incumbent upon an applicant for complementary protection to undertake the practically impossible task of establishing that there is no place in his or her country of nationality to which he or she could reasonably relocate. The Court rejected that contention, stating:
[39] That contention should also be rejected. Implicitly, it proceeds from the false premise that a claim for complementary protection is in the nature of an adversarial proceeding in which the burden of proof is on the applicant and, therefore, that, in the event of the applicant failing to discharge the burden of proof, the claim for complementary protection must fail. To the contrary, however, as appears from BL v Australia, before a decision maker may properly reject a claim for complementary protection on the basis of the availability of reasonable internal relocation, the decision maker needs reliable information as to the safety and suitability of the place of relocation. Moreover, as Gummow, Hayne and Crennan JJ observed in SZATV v Minister for Immigration and Citizenship in relation to a claim for refugee protection:
What 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.
Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant’s personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable that the claim for complementary protection may be rejected on that basis.
(Citations omitted)
In relation to the matter before this Court, counsel for the applicant contended:
(10)In CRI026 v The Republic of Nauru [2018] HCA 19 (CRI026) the High Court held that before the Authority can reject a claim for complementary protection on the basis of the availability of reasonable internal relocation, the Authority must consider, in making a decision to relocate the Applicant (at 39):
(i)reliable information as to the
(a) safety, and
(b) suitability of the place of relocation; and
(ii)pay careful regard to the Applicant’s personal and family circumstances.
(11)‘Reliable information’ is not defined and we submit the ordinary meaning of ‘reliable’ must be given in defining the nature of the information to be relied upon.
(12)Webster’s Third New International Dictionary (1981) (the Dictionary) defines ‘reliable’ as:
Suitable or fit to be relied on … of proven consistency in producing satisfactory results
And the Oxford English dictionary defines reliable as:
Constantly good in quality and performance…able to be trusted.
(13)The Dictionary defines ‘reliably’ as “in a reliable manner: with certainty”.
(14)We submit that the decision maker must only consider the information regarding the safety and suitability of the place of relocation that is fit for that purpose, in CHI026 (sic) matter, and able to be trusted but that all information relied upon must be reliable, dependable and consistent.
(15)In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FACFC 10 (NAHI) the Court held at [11], that:
“[T]he question of accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in a merits review.”
(16)We submit that CRI026, contrary to NAHI, broadens the Court’s jurisdiction to review for jurisdictional error in that the Authority must undertake an evaluation as to the accuracy and reliability of the country information considered by it.
(17)The Full Court explained in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh) that the process of review of legal reasonableness “will inevitably be fact dependent” (at [48]) and the role of the supervising Court only involves a scrutiny of the factual circumstances in which the power comes to be exercised.
(18)We further submit that CRI026 read in the context of Singh requires the Court to scrutinise the factual circumstances upon which the Minister exercises his/her power to test those facts and circumstances (for example, road safety from Kabul to Daikundi) for reliability. To put it simply: a decision finding that the Applicant can safely travel from Kabul to Daikundi can only be reasonably made if that decision is made with regard to reliable information – reliance on unreliable information is unreasonable.
(19)With regard to the unreliability of the country information concerning the security situation in Afghanistan, Daikundi, and road travel, the Authority notes, inter alia, at paragraphs (3) and (4) above that that insurgent attacks occur in the Applicant’s home region in Daikundi , that Shia, both Hazara and non-Hazara, now face a risk of being attacked based on their religious affiliation, there is a real chance of the Applicant being seriously harmed on the roads returning from Kabul to Daikundi, many areas of Afghanistan are contested by insurgent forces, and no part of the country can be considered free from conflict violence and the threat of conflict-related violence faced by Hazaras is similar to that faced by members of other ethnic groups.
(20)In contrast, DFAT also states that the security situation in Daikundi is still considered safer than many other parts of Afghanistan, and road travel, while unsafe, is safe if the occupants of the vehicle are of mixed ethnicity or not profiled persons and in consideration on the number of incidents generally as detailed by DFAT, the Authority concludes that the chance of significant harm is remote.
(21)The question which arises is therefore what is the state of the security situation and road travel in Daikundi. The country information relied upon by the Authority is unreliable for its uncertainty, contradictory and vague comments on these important issues and as such it cannot be deemed ‘reliable’.
(22)Similarly, the Authority cannot rely on information stating that IS are a limited threat when there is information stating that the security situation has and will deteriorate in the face of intensifying insurgency.
(23)The contradictory and inconsistent information renders the information unreliable in the absence of any reasonable rejection of the contradictory information and, with regard to CRI026, we submit the Minister is now tasked with considering not only all relevant information, but also all reliable information before it, the reliability of which is subject to the scrutiny of the Court.
The Minister, in turn, contended:
13.The applicant appears to submit that the combined effect of CRI026 v Republic of Nauru [2018] HCA 19 (CRI026) and Singh is that in conducting judicial review in this matter, the Court can and should assess the reliability and accuracy of the country information before the Authority, contrary to the long held principle articulated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (NAHI) that the assessment of country information and the weight to be given to country information is a matter for the decision-maker (see applicant's submissions at [15]-[18]). This submission should be rejected.
14.To the extent that the applicant relies on CRI026 to invite the Court to form its own assessment of country information, a similar submission was rejected by Judge Smith in BJI17 v Minister for Immigration [2018] FCCA 2405 (BJI17) at [45]-[51].
14.1.Judge Smith rejected a submission that the phrase 'reliable information' as used in CRI026 should be given a meaning similar to that advanced at [11]-[13] of the applicant's submissions in this matter, on the basis that the words of the High Court are not to be examined as though they were part of the Migration Act: BJI17 at [48].
14.2.Judge Smith accepted that an administrative decision must be based on 'reliable' information in the sense that the information must provide a logical basis for the decision-maker to be satisfied of the existence of a fact in issue, and suggested that 'it would be surprising' if DFAT and UNHCR reports could not provide a sufficient basis for (in that case) determining the reasonableness of relocation: BJI17 at [49]-[50].
14.3.Nothing in CRI026 overruled the principle in NAHI that it is a matter for the Authority, not the Court, to decide what information it accepts, and the existence of information inconsistent with the information relied on by the Authority did not mean that either information was unreliable: BJI17 at [51].
15.The Minister contends that the reasoning of Judge Smith is sound and the applicant's submissions based on CRI026 in the present case should be rejected for the same reasons.
16.Further, and in any event, the present case is easily distinguishable from CRI026. In addition to the different statutory context in which CRI026 was decided, it is relevant that in CRI026 the High Court was assessing a decision-maker's findings on whether an applicant could reasonably relocate to another place within the applicant's home country. The passage of CRI026 relied on by the applicant in the present case suggests that, before a decision-maker can properly reject an applicant's claim for complementary protection on the basis of the availability of reasonable internal relocation, the decision-maker needs reliable information as to the safety and suitability of the place of relocation: CRI026 at [39]. However, the present case does not involve internal relocation at all. The Authority accepted that the applicant and his family were from Daykundi: [39] and found that the applicant did not face a real chance of serious harm, or a real risk of significant harm, in Daykundi. Accordingly, the applicant's submission at [14] has no relevance to the present matter.
17.The applicant in this matter makes a further submission that CRI026 read with Singh requires the Court to scrutinise the factual circumstances in which the power is exercised and test those circumstances for reliability. The quote from Singh, cited at [17] of the applicant's submission, should be read in the context of the passage in which it appears. At [48] of Singh, the Full Federal Court said:
The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as "intelligible justification" must involve scrutiny of the factual circumstances in which the power comes to be exercised.
[Emphasis added]
18.A similar point was recently made by Nettle and Gordon JJ in SZVFW at [84]:
Moreover, legal unreasonableness is invariably fact dependent and requires careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment…
19.For the purposes of the present application, the Minister does not disagree with the principles expressed in the passages from Singh and SZVFW cited in the 2 immediately preceding paragraphs. The Minister does emphasise, however, that in considering the factual circumstances of the case, the Court cannot engage in merits review. This is made clear not only by the emphasised sentence in Singh, but also in a number of other cases, including those cited at [12.1] and [12.2] above. To the extent that the applicant's submission at [18] could be viewed as asking the Court to engage in merits review, it should be rejected.
20.As indicated above, the power being exercised by the Authority in the present case required the Authority to consider whether the applicant met the criteria for a protection visa, including the criteria in s 36 of the Migration Act. This involves the Authority having to assess the applicant's claims for protection and can include (as in the present case) an assessment of an applicant's credibility and weighing up sometimes conflicting evidence. There is nothing in Singh or CRI016 (sic) which suggests that the mere existence of conflicting or inconsistent evidence means that all or any evidence is unreliable. Nor is there anything in those cases that suggests that reliance by a decision-maker on any particular country information or evidence to make a finding that is adverse to the applicant, in circumstances where conflicting or inconsistent country information also exists, is necessarily unreasonable. Further, nothing in these cases allows the Court to substitute its own view on which country information is most accurate or reliable or which country information the Authority should have preferred.
…
27.4.In response to the applicant's submissions at [19]-[22], the Minister reiterates the point made by Judge Smith in BJI17 that the existence of country information that is inconsistent with that relied on by the Authority does not necessarily mean that either country information is unreliable. The Authority is often tasked with assessing conflicting information and, in the case of country information regarding Afghanistan, the Authority's statutory task also often requires it to consider the applicability of country information to different parts of Afghanistan. In this case, the Authority has appropriately considered whether the applicant would face a real chance of serious harm in his home area of Daykundi province and in the course of accessing his home area. In so doing, it has considered country information which, in the Authority's assessment, distinguishes the situation in Daykundi from that in other parts of Afghanistan. The Authority has given clear and cogent reasons for its decision and for placing weight on particular country information and no unreasonableness is evident in those reasons.
The Court notes here, as it did in EAT17, the recent decision of Judge Smith of this Court in DQA17. As correctly outlined by the Minister above, that case raised issues in relation to the prospect of relocation in Afghanistan. There, the applicant argued that the Authority had unreasonably concluded that it was practicable for him to relocate to Kabul and (highlighting the decision CRI026) argued that the Authority erred by relying on information that was not reliable.
In DQA17, Judge Smith summarised the applicant’s position and, rejecting it, found as follows:
53. The applicant… argued that, in light of CRI026, the Authority could only be satisfied that it was reasonable for the applicant to relocate on the basis of reliable information about the relevant circumstances in Kabul.
54. … He [argued] that… the Court must undertake an evaluation as to the accuracy and reliability of the country information considered by the Authority. His argument was that where, as here, there was information that was contradictory and inconsistent with the information relied on by the Authority, the latter information was, for that reason, unreliable and so the Authority’s reliance on it was unreasonable.
55. There are many difficulties with that submission. Leaving to one side the different statutory context in which CRI026 was decided, there are two particular issues. First, what was meant in CRI026 by the word “reliable”; and secondly, whether the information here was “reliable”.
56. The applicant contends that information is reliable if it is “suitable or fit to be relied on” and “of proven consistency in producing satisfactory results.” The error in this approach is that the words of the High Court in CRI026 are not to be examined as though they were part of the Act. The Court adopted this word from a communication of the United Nations Human Rights Committee concerning whether Australia would breach its obligations under the International Covenant on Civil and Political Rights if it were to return a citizen of Senegal to Senegal. In a concurring opinion, one of the members of the committee said:
... The duty of ascertaining the location where adequate and effective protection is available in Senegal does not rest upon the authorities of [Australia]. Their duty is limited to obtaining reliable information that Senegal is a secular State where there is religious tolerance.
57. There is nothing in either CRI026 or the communication from the United Nations Human Rights Committee to suggest that information had to be consistent with all other information before it could support the view that relocation would be reasonable. It may be accepted for present purposes, and without the benefit of any argument from the Minister on the point, that any administrative decision must be based on “reliable” information in the sense that the information must provide a logical basis for the decision-maker to be satisfied of the likelihood of the existence of a fact in issue. Even if “reliable” required more, as suggested by the applicant, it was not, and could not have been, submitted that there was no such information here.
58. The Authority relied on information from sources including DFAT and the UNHCR. It would be surprising if the views of the Australian government or the international agency with responsibility for the Refugees Convention could not be a sufficient basis for determining the question of reasonableness of relocation: see, albeit in a different context, Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 428 (McHugh J).
As in DQA17, and as summarised in EAT17, the Court here is unable to ascertain any legal principle that requires (or, indeed, even permits) the Court to scrutinise the Authority’s use of country information in detail. This is not surprising as to do so would, in effect, require the Court to override firmly entrenched principles (clearly articulated in NAHI) and engage in an impermissible merits review of the Authority’s decision.
CRI026 does not suggest that the country information relied on by the Authority must be consistent with all of the other information before the Authority before any decision about relocation can be seen to be “reasonable”. Rather, in so far as CRI026 does clarify the role of the Authority in relation to its use of country information, the Court agrees with Judge Smith’s statement in DQA17 that CRI026 simply confirms the basic principle that any administrative decision must be based on “reliable” information in the sense that the information must provide a logical basis for the decision-maker to be satisfied of the likelihood of the existence of a fact in issue.
Further, even if “reliable” here required more, as suggested by the applicant, it cannot be said that the information here was not reliable. The fact that there may have been information inconsistent with the information relied on by the Authority does not mean that the information ultimately relied on to deny the applicant a protection visa was “unreliable”.
Here, as in EAT17, the Authority relied on information from widely respected governmental and international human rights authorities. These included the Department of Foreign Affairs and Trade, the European Asylum Support Office, the United Nations Assistance Mission in Afghanistan and the Afghanistan Analysts Network. To again reference Judge Smith in DQA17 and this Court’s findings in EAT17, it would be surprising if the views of the Australian government or international agencies charged with monitoring the Convention was not sufficiently reliable to allow the Authority to determine whether this applicant, given his particular factual circumstances, could not return safely to Afghanistan and live there without risk of harm of the requisite standard.
It cannot be said here, as in EAT17, that the information relied on by the Authority is not, to apply the definitions suggested by the applicant, “constantly good”, “able to be trusted” or “suitable or fit to be relied on or of proven consistency in producing satisfactory results”.
Nor can it be said that that the Authority erred here because it did not to give reasons for why it preferred specific evidence from some sources over other evidence contained in the same or other sources relied on. To again reference Judge Wilson of this Court in DVI17, how the Authority deals with and assesses the country information before it is a matter for the Authority within the context of the particular factual background to the issues before it. The choice and interpretation of country information is a factual matter for the Tribunal alone: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545; NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419.
On the basis of the above, it cannot be said that the Authority here engaged in jurisdictional error of the sort alleged by the applicant. As stressed in EAT17, and supported by the authorities referenced therein, the existence of information that trends against a finding that a protection visa is not appropriate within the context of a particular applicant and within the context of a particular country does not support the contention that the Authority’s main finding was not open to it and thus unreasonable.
Conclusion
It cannot be said here that the Authority’s findings that the applicant was not at risk if returned to Afghanistan was “unreasonable” in the circumstances of this case.
The applicant has not established that the Authority’s decision is affected by jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 21 December 2018
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