AXZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 200
•29 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
AXZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 200
File number(s): PEG 126 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 29 March 2022 Catchwords: MIGRATION – Application for judicial review – decision of Immigration Assessment Authority – citizen of Afghanistan – internal relocation – reasonableness of relocation – whether intellectual engagement with and proper consideration of claims made – whether consideration of the victory of the Taliban in Afghanistan since the decision of the Immigration Assessment Authority is relevant – whether existence of receiving country a jurisdictional fact – whether jurisdictional error – writs issued Division Division 2 General Federal Law Legislation: Acts Interpretation Act 1901 (Cth) s 25D
Migration Act1958 (Cth) ss 36, 46A, 65, 424, 473CA, 473EA, 474, 476
Cases cited: CMV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2019] FCCA 2522
CSJ17 v Minister for Immigration & Anor [2018] FCCA 269
DFZ16 v Minister for Immigration & Anor [2017] FCCA 2427
DIJ17 v Minister for Immigration & Anor [2018] FCCA 2407
DVF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 135
EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177
EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10
GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12
Minster for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320; (2018) 362 ALR 48
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
Suh & Ors v Minister for Immigration and Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470
SZATV v Minister for Immigration & Citizenship (2007) [2007] HCA 40; 233 CLR 18; (2007) 81 ALJR 1659; (2007) 97 ALD 1
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46
SZSJB v Minister for Immigration and Border Protection [2017] FCA 229
SZVRA v Minister for Immigration and Border Protection [2017] FCA 121
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Number of paragraphs: 36 Date of hearing: 19 July 2021 Place: Perth Counsel for the Applicant: Mr R Jahnke Solicitor for the Applicant: Estrin Saul Lawyers Counsel for the First Respondent: Mr P Macliver Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 126 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: AXZ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
29 MARCH 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent made on 24 March 2020.
2.A writ of mandamus issue requiring the second respondent to re-determine the matter according to law.
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 LUCEV
INTRODUCTION
Before the Court is an application for judicial review filed by the applicant, AXZ18,
on 28 April 2021 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application is made in respect of a decision of the Immigration Assessment Authority (“the Second Authority Decision” and “Authority” respectively) handed down on 24 March 2020. A previous Authority decision made on 8 February 2018 (“First Authority Decision”) had been earlier quashed by this Court. The Second Authority Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively), of the first respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant AXZ18 a Safe Haven Enterprise visa (subclass XE-790) visa (“SHE Visa”) made on 29 December 2016 under s 65 of the Migration Act.
There is a single ground of review set out at [19] below.
The Court Book (“CB”) was marked as exhibit 1 at hearing.
BACKGROUND
Prior to the Delegate’s Decision
The background of this matter prior to the Delegate’s Decision is as follows:
(a)AXZ18 is a citizen of Afghanistan of Pashtun ethnicity: CB 5;
(b)on 8 April 2013 AXZ18 arrived in Australia at Christmas Island as an unauthorised maritime arrival: CB 150;
(c)on 3 May 2016 AXZ18 was advised that the Minister had exercised his power under s 46A(2) of the Migration Act to allow AXZ18 to make a valid application for either a Temporary Protection Subclass 785 visa or a SHE Visa: CB 19-23;
(d)on 29 December 2016 AXZ18 lodged his SHE Visa application: CB 24-86;
(e)in his SHE Visa application AXZ18 claimed:
(i)that his work with the American forces in Afghanistan categorised him as a member of a particular social group: CB 66 at [3];
(ii)that his family owned a large amount of land that was leased for use as an American army base: CB 68 at [25];
(iii)to fear harm in Afghanistan because he worked for the Americans for two years making bricks for fences around American army bases: CB 69 at [29]; and
(iv)that he was unable to safely relocate anywhere in Afghanistan because the risk of harm from the Taliban extended throughout the whole of Afghanistan: CB 70 at [40];
(f)on 28 March 2017 the Minister wrote to AXZ18 requesting more information about his SHE Visa application and inviting AXZ18 to respond in writing within 28 days: CB 120-125; and
(g)on 20 April 2017 AXZ18 responded to the Minister with written information and translated documents: CB 126-145.
Delegate’s Decision
The Delegate assessed the following claims made by AXZ18:
(a)that in 2010 he had started work for the Americans, and was employed to make bricks for fences which went around the American army bases, which he did for two years until he left Afghanistan in 2012;
(b)his father and brother were both killed in 2012, and that he did not know exactly what happened because he was not with them, but after this he decided it was not safe for him in Afghanistan;
(c)because they were working for the Americans he believes that his father and brother were killed by the Taliban;
(d)he believes he would have also been killed if he had stayed in Afghanistan for the same reason;
(e)sometime before his father and brother were killed his father was warned by the Taliban to stop working for the Americans and on one occasion he was also told by the Taliban he should send one of his sons to work for them but he refused; and
(f)a couple of months after the death of his father and brother his mother and the rest of his community told him it was too dangerous for him to remain and so he left Afghanistan.
On 30 May 2017 the Delegate’s Decision was to refuse to grant AXZ18 a SHE Visa: CB 146-174, the Delegate not being satisfied that AXZ18 was a person in respect of whom Australia has protection obligations as outlined under s 36(2)(a) or (aa) of the Migration Act: CB 170.
Referral to the Authority
On 5 June 2017 the Delegate’s Decision was automatically referred to the Authority under s 473CA of the Migration Act as a fast-track decision: CB 175-187.
First Authority Decision
On 8 February 2018 the First Authority Decision was made affirming the Delegate’s Decision: CB 219-236. It is unnecessary to set out the details of the reasoning in the First Authority Decision.
On 27 February 2018 AXZ18 applied for judicial review of the First Authority Decision in this Court.
Remittal
On 10 February 2020 consent orders were made by this Court quashing the First Authority Decision and remitting the matter back to the Authority to be reconsidered according to law: CB 237-238.
Reconsideration upon remittal
On 19 February 2020 the Authority emailed AXZ18’s representatives with an invitation to provide comment on new information before it regarding:
(a)the security situation in Afghanistan; and
(b)relocation to Mazar-e-Sharif, Kabul or Herat.
On 11 March 2020 AXZ18’s representatives emailed the Authority with written submissions: CB 254-688.
SECOND AUTHORITY DECISION
On 24 March 2020 the Second Authority Decision affirmed the Delegate’s Decision to refuse AXZ18’s SHE Visa application: CB 689-714.
In the Second Authority Decision the Authority:
(a)found that AXZ18 would face a real chance of serious harm in his home city from the Taliban based on his family’s past profile working for and assisting American and Afghan forces, but for this same reason was also satisfied the real risk of significant harm was confined to AXZ18’s home area. The Authority was satisfied AXZ18 would not face a real risk of significant harm in other areas of Afghanistan, including Kabul or Mazar-e-Sharif for this reason: CB 708 at [68];
(b)observed that AXZ18’s submissions to the Authority cited the UNHCR’s reference to the need for a support network and pre-identified accommodation in any proposed area of relocation, but noted that UNHCR advices “are not legal requirements”: CB 708 at [69];
(c)held concerns about AXZ18’s evidence regarding his uncle’s status, and evidence as to whether AXZ18 has other family remaining in Afghanistan. The Authority also considered that, notwithstanding UNHCR advice, the presence of AXZ18’s ethnic and religious groups in Kabul and Mazar-e-Sharif was a positive factor in terms of relocation and noted and gave weight to the fact that AXZ18 speaks Pashto, as well as Dari, which would enable him to communicate with his own and other ethnic groups: CB 709 at [70];
(d)considered AXZ18 returning to Afghanistan alone would assist him in overcoming his lack of defined networks in the areas of relocation under consideration, and minimising his costs in terms of relocation in the short term: CB 709 at [71];
(e)did not accept that AXZ18 had the same vulnerabilities as other internally displaced persons (“IDPs”) returning to Afghanistan: CB 709 at [73], noting AXZ18:
(i)had a long period of experience living and working in Afghanistan;
(ii)spoke Dari, as well as his native Pashto;
(iii)had around $13,000 in personal savings at the time of his interview with the Delegate: CB 709-710 at [75],
and found that these differences to other IDPs meant that AXZ18 would not be unable to earn a living and would not have to relocate to the “slum” areas of Balkh (in Mazar-e-Sharif), Herat or Kabul: CB 710 at [76];
(f)weighed AXZ18's ethnic and religious profile and was satisfied Herat, Kabul and Mazar-e-Sharif have Sunni and Pashtun populations: CB 709 at [77];
(g)was satisfied AXZ18 would bring his family back to Afghanistan in due course when able to do so safely, and accepted it would be difficult if AXZ18 was unable to return to his home city, and to face continued separation from his family in Pakistan, but was satisfied that the separation would be temporary: CB 710 at [79];
(h)noted that AXZ18 had already spent several years away from his family, and considered that his family would not need to immediately relocate to Afghanistan if AXZ18 were to return to Afghanistan: CB 710 at [80];
(i)considered that, due to his family’s circumstances, AXZ18 would not travel overseas to see his family or return to his home village in Afghanistan and that remaining in another city in Afghanistan or more accurately, not returning to his home village, would be reasonable and would not amount to serious or significant harm: CB 710 at [81];
(j)noted the submissions put forward by AXZ18’s representative as to why AXZ18 could not reasonably relocate, including the economic, employment, environmental and social situation in Afghanistan: CB 710-711 at [82];
(k)was not satisfied AXZ18 met the same risk profile as that of other IDPs: CB 711 at [83], and while it accepted the economic, employment, environmental and social pressures in Afghanistan, it noted that AXZ18:
(i)was skilled in a trade;
(ii)had good savings;
(iii)speaks Pashto and Dari;
(iv)would be relocating alone,
(v)is apparently able-bodied, and
(vi)had demonstrated a clear ability to relocate to other areas and find work, as he had done in Australia: CB 711 at [84];
(l)acknowledged:
(i)the obviously elevated security situation in Kabul; and
(ii)that while not immune from violence, it considered the general security environment in Balkh/Mazar-e-Sharif and Herat more favourable than in other insecure areas in Afghanistan,
but considered that those matters needed to be considered in the context of the size of any city and its centrality to any conflict, and accepted that low profile and low risk profile civilians are victims of violence in Kabul and other cities, but considered AXZ18 would be to some degree insulated from such harm because he has no adverse profile: CB 711-712 at [85];
(m)in the totality of circumstances, did not consider the security situation in Herat, Kabul or Mazar-e- Sharif was such that it would not be reasonable for AXZ18 to relocate to those cities to avoid the real risk of significant harm he may face in his home area of Kandahar: CB 712 at [85]; and
(n)was satisfied it would be reasonable for AXZ18 to relocate to another city outside of his home city (such as Herat, Kabul or Mazar-e-Sharif) where there would not be a real risk that he will suffer significant harm: CB 712 at [87].
Some of the relevant passages from the Second Authority Decision are set out more fully at [23] below.
JUDICIAL REVIEW APPLICATION
The requirement for jurisdictional error
This Court may set aside the Second Authority Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. The jurisdictional error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon AXZ18 to establish jurisdictional error in the Authority Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Authority Decision, or to actually determine AXZ18’s SHE Visa application: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground of review
The Judicial Review Application sets out a single particularised ground of review, as follows:
The Immigration Assessment Authority (IAA) erred by not completing its statutory task in concluding that it was reasonable for the Applicant to relocate.
Particulars
a.The Applicant claimed that it would be unreasonable for him to relocate to an urban area of Afghanistan for reasons including the ‘scarcity and meagreness of essential services and resources’.
b.When considering the question of relocation under s.36(2B) of the Migration Act 1958 (Cth), the IAA did not engage in any active intellectual process in relation to the Applicant’s submissions and country information in respect of the ‘scarcity and meagreness of essential services and resources’ and why it would be unreasonable for him to relocate to Kabul, Mazar-e-Sharif or Herat.
AXZ18’s submissions
AXZ18’s submissions were as follows:
(a)the Authority did not engage in any active intellectual process in relation to AXZ18’s submissions and country information in respect of why it would be unreasonable for him to relocate to Kabul, Mazar-e-Sharif or Herat. Put simply, the level of scrutiny and detail of reasoning given by the Authority in respect of the issue of relocation did not reflect the material before it;
(b)section 36(2B) of the Migration Act provides that there is taken not to be a real risk a non-citizen will suffer significant harm if the Minister is satisfied that “it would be reasonable for the noncitizen to relocate to an area of the country where there would not be a real risk that the noncitizen will suffer significant harm”. Section 36(2B)(a) of the Migration Act imports the “relocation principle” explained by the High Court in SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 237 ALR 634; (2007) 97 ALD 1;
(c)in his submission to the Authority AXZ18 raised a number of objections to relocation to Mazar-e-Sharif to which the Authority makes reference at CB 711 at [82]. While the Authority may have been cognisant of one or more of AXZ18’s particular objections to relocation, it did not engage with them in the manner required by the question raised by s 36(2B)(a) of the Migration Act;
(d)to support the argument regarding problems brought about by the “scarcity and meagreness of essential services”, AXZ18 provided the Authority with country information which highlighted the realities of life in Afghanistan, including the following:
(i)wide-spread poverty (specifically that 56.1 per cent of the Afghan population lived in multidimensional poverty): CB 271 at [63];
(ii)slum-like living conditions (specifically that 72.4 per cent of Afghans live in slums, informal settlements or inadequate housing): CB 272 at [64];
(iii)the lack of access to safe water (specifically that only 36.7 per cent of the urban population of Afghanistan are able to use safely managed drinking water services and approximately 67.1 per cent have E. coli in their drinking water): CB 272 at [65]; and
(iv)the lack of sanitation services (specifically that only 41.4 per cent of Afghans have access to safely managed sanitation services): CB 272 at [64],
(e)AXZ18’s objections were clearly set out in his submission to the Authority which stated it “would be unreasonable for AXZ18 to relocate to an area where, due to scarcity and meagreness of essential services and resources, he becomes unable to access these basic necessities of life, such as safe water, shelter, health care and sanitation”: CB 271 at [62], and with the possible exception of the issue of AXZ18 securing paid employment: CB 709 at [74], the Authority failed to intellectually engage with these other objections at all;
(f)the Authority’s assessment of the reasonableness of relocation should have been informed, at a minimum, by AXZ18’s claims and objections to relocation. In SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 (“SZMCD”) at [124] per Tracey and Foster JJ the plurality in the Full Court of the Federal Court observed that the “question in turn depends upon the framework set by the particular objections raised to relocation” citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 (“Randhawa”) at 442–443 per Black CJ;
(g)in SZVRA v Minister for Immigration and Border Protection [2017] FCA 121 (“SZVRA”) at [18] per Markovic J the Federal Court stated “[w]hether a claimant can reasonably be expected to relocate depends upon the framework set by an applicant’s particular objection to relocation.” In MZANX v Minister for Immigration and Border Protection [2017] FCA 307 (“MZANX”) at [58] per Mortimer J went further, stating that, while “the “framework” set by an applicant may be an important factor ... it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him”;
(h)AXZ18’s objections to relocation called for a detailed examination of the circumstances of his case and on the ground in Afghanistan. In MZANX at [51] Mortimer J observed that issues concerning what it is “‘practicable’ and ‘reasonable’ for a person to do, or not to do, involves a fact intensive assessment” and that “[g]eneralities will not suffice”;
(i)acknowledging that the level of scrutiny described in MZANX is not universally applicable and that each case turn on its own facts: DFZ16 v Minister for Immigration & Anor [2017] FCCA 2427 at [51] per Judge Smith and CSJ17 v Minister for Immigration & Anor [2018] FCCA 269 at [34] per Judge Wilson, says that, in the present matter, the level of scrutiny the Authority applied to AXZ18’s framework of objections was deficient. The dearth of reasoning about reasonableness of relocation shows that the Authority did not in fact consider all objections raised by AXZ18, much less expose in its reasoning any “articulation of the different effects” of the competing evidence and any process of “weighing and preference”: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 (“MZYTS”) at [50] per Kenny, Griffiths and Mortimer JJ; see also SZSJB v Minister for Immigration and Border Protection [2017] FCA 229 (“SZSJB”) at [45] and [56]-[58] per Perry J (described there as a failure to consider essential integers of the appellant’s claims);
(j)DIJ17 v Minister for Immigration & Anor [2018] FCCA 2407 (“DIJ17”) addressed a similar argument and at [33] per Judge Smith the Federal Circuit Court found that the Authority had erred in failing “to grapple with the essential element of the applicant’s objections to relocation”, observing, more fully, as follows:
The Authority’s reasoning was that, given the relative economic strength of both Kabul and Mazar-e-Sharif, and the applicant’s own experience and resourcefulness, he will be able to find a job and, as a result, will be able to sustain himself and meet the basic necessities of life. As a matter of logic there appears to be little wrong with that reasoning. The difficulty with it, however, is that it fails to grapple with the essential element of the applicant’s objections to relocation, namely, that the reality in those cities was that the basic resources were meagre and there was stiff competition for them. For instance, the applicant relied on information to the effect that “almost half of the capital’s residents lacked regular access to water”. That information was not qualified by any reference to employment and so objection was not addressed by the Authority’s conclusion that the applicant would be able to find work.
(k)in CMV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2019] FCCA 2522 (“CMV18”) at [54] per Judge Driver the Federal Circuit Court also addressed a similar ground and concluded:
The essence of the Authority’s reasoning was that all problems could be solved by money and that, in the social Darwinian struggle to which the applicant would be subjected if he were to go to Mazar-e-Sharif, he would succeed because he is young, male, fit and healthy and resilient.
(l)in CMV18 the applicant raised similar objections to relocation based on “scarcity and meagreness” of employment and resources, and in CMV18 at [59] per Judge Driver the Federal Circuit Court concluded these were not properly assessed:
In my view, it was insufficient for the Authority to deal with the applicant’s submission at such a high level of abstraction. The assumptions made by the Authority were both bold and broad. In my view, the Authority needed to consider what level of scarcity and meagreness was practicable and what level of scarcity and meagreness was reasonable for the applicant to accept in his struggle for existence. Some things should no doubt be assessed against basic standards, such as access to potable water, food, clothing and shelter. Other things might be assessed on a more relativistic basis, because if a person is returning to a third world country, they must expect third world conditions. These may be issues of some subtlety of analysis which was absent from the Authority’s reasoning.
(m)the circumstances in the present case bear a strong resemblance to the cases cited above where the Authority did not discharge its statutory task in examining whether relocation would be reasonable;
(n)this is not an occasion to resort to the response that the unaddressed objections were bound up in findings of greater generality. Nor is the Minister’s case assisted by resorting to the proposition that there was no need to engage in a line-by-line refutation of all the evidence, or that the Authority Decision is not to be read overzealously in search of error. Such statements do not intellectually engage with the case which required that the Authority engage in “detailed consideration” of its findings: “general statements will be insufficient”, and a “broad brush approach will not satisfy the requirements of the task to be performed”: MZANX at [55] per Mortimer J; and
(o)had the Authority correctly performed its task, the findings would have been material to its conclusion that relocation was reasonable, given that the assessment needed to be fact-intensive and with reference to AXZ18 specifically. The Authority therefore would have, consistent with s 473EA of the Migration Act and s 25D of the Acts Interpretation Act 1901 (Cth): Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166 at [49] per McKerracher, Gleeson and Burley JJ, set those findings out in its reasoning about the question. This did not occur. The only appropriate inference is that they were not considered in the manner required.
Minister’s submissions
The Minister’s submissions were as follows:
(a)it may be accepted that an assessment of reasonableness will be governed by an applicant’s claims and objections to relocation and the evidence before the decision-maker: SZMCD at [12] and [124] per Tracey and Foster JJ, citing Randhawa at 443 per Black CJ; see also SZVRA at [18] per Markovic J, also citing Randhawa at 442-443 per Black CJ;
(b)AXZ18 relies in particular on the Federal Circuit Court decisions in DIJ17 and CMV18. In each of those cases the applicant had made similar submissions to the submissions made by AXZ18 here in relation to relocation, and the Court concluded in each case that the Authority had not properly considered the issues raised by the applicant: DIJ17 at [34] per Judge Smith and CMV18 at [59] per Judge Driver, but the Authority’s reasons here do not reflect the same failure to grapple with AXZ18’s objections to relocation: see DIJ17 at [33] per Judge Smith, and cannot be said to simply deal with AXZ18’s submissions at a “high level of abstraction”: CMV18 at [59] per Judge Driver;
(c)the Authority’s reasons here are in sharp contrast to the Authority’s reasons in DIJ17 and CMV18, and unlike the Authority’s reasons in DIJ17 and CMV18, the Authority’s reasons here demonstrate that the Authority did have an intellectual engagement with AXZ18’s submissions as to the reasonableness of relocation, in particular his submissions about the scarcity and meagreness of essential services and resources: see Second Authority’s Decision reasons at CB 708 at [69], 709 at [72] and [73], 710-711 at [82], 711 at [83] and [84];
(d)it is relevant that in CMV18 at [48] per Judge Driver the Federal Circuit Court expressed the view that the arguments were “finely balanced”, but that “on balance” the Court accepted that the Authority did not truly engage with the critical arguments of scarcity and meagreness advanced in the applicant’s submission to the Authority;
(e)having regard to the Authority’s reasons here, in contrast to its reasons in CMV18, the Court should conclude that the Authority here did truly engage with AXZ18’s submissions as to the “scarcity and meagreness of essential services and resources” and why it would be unreasonable for him to relocate to Kabul, Mazar-e-Sharif or Herat;
(f)having regard to AXZ18’s submissions in relation to relocation and the reasons in the Second Authority Decision on that issue, the Court should conclude that the Authority did not fail to complete its statutory task in concluding that it was reasonable for AXZ18 to relocate; and
(g)when the Authority’s reasons in relation to its assessment of AXZ18 relocating to Mazar-e-Sharif, Herat or Kabul are considered in light of AXZ18’s submissions as to relocation, the Court should conclude that the Authority did engage in an active intellectual process in relation to AXZ18’s submissions and country information in respect of the “scarcity and meagreness of essential services and resources” and why it would be unreasonable for him to relocate to Kabul, Mazar-e-Sharif or Herat.
Consideration
In assessing whether the Authority engaged in any active intellectual process, as it was required to do: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”) at [49]-[50] per Lindgren, Rares and Foster JJ, in assessing AXZ18’s submissions, and the country information, in respect of whether it would be unreasonable for AXZ18 to relocate within Afghanistan, regard must be had to the following:
(a)the manner in which the Authority must engage with the material in question raised by s 36(2B)(a) of the Migration Act; and
(b)the level of scrutiny and detail of reasoning in the Second Authority Decision in respect of the issue of relocation and whether it reflected the material before it,
see particularly MZANX at [55] and [58] per Mortimer J; MZYTS at [50] per Kenny, Griffiths and Mortimer JJ; DIJ17 at [33] per Judge Smith; CMV18 at [59] per Judge Driver.
In the Second Authority Decision:
(a)at CB 709-710 at [72]-[76] the Authority said as follows (footnotes omitted):
72.The applicant's submission contends that as a returnee in such a context the applicant would likely find him or herself in a situation comparable to that of other urban IDPs, and that IDPs remain among the most vulnerable groups in Afghanistan.
73.I accept that for some returnees that may be the case, but I am not satisfied the applicant shares the same vulnerabilities.
74.Firstly, in terms of employment, the applicant has a long period of experience living and working in Afghanistan. The applicant appears to be a skilled mechanic, having considerable experience in the occupation in both Afghanistan and Australia. I consider the applicant to be highly skilled. I also again note he speaks Dari/Farsi, as well as his native Pashto. I consider he would be well placed to find paid work, most likely as a mechanic, within another city in Afghanistan. I am satisfied this would enable him to access accommodation, and access to services and other necessities.
75.Secondly, I note at the visa interview the applicant gave evidence that he had around $13,000 in personal savings. While I accept some time has passed since the interview, and the applicant has likely had expenses since that time not limited to his appeal, I give weight to the fact that he had considerable savings at the time of the visa interview. No indication has been given that he has ceased working or no longer has access to such savings. I consider that having savings would significantly assist in the applicant returning to Afghanistan and relocating to a new area. I consider his savings would enable him to find accommodation (and avoid the need for pre-identified accommodation) and access services until he can find stable work, notwithstanding the accommodation and employment pressures in the main cities that have been identified in the submissions.
76.In this respect, I am not satisfied he shares the same vulnerable risk profile of as IDPs and other returnees to the country, or at least that he would be significantly insulated against such a profile. I am not satisfied he would be unable to earn a living or access accommodation, or that he would be forced to relocate to the 'slum' areas of these cities, or that he would be forced to live in hardship and unable to subsist.
(b)at CB 710 – 711 at [82]–[84] the Authority said as follows (footnotes omitted):
82.The applicant has made submissions about the challenging economic, employment, environmental and social situation in Afghanistan, with some reference to the proposed areas of relocation. I do not discount those assessments. The submissions highlight the particularly challenging situation faced by some returnees and IDPs that are forced to live in poor and volatile shelters, and the impact of unemployment and underemployment, poverty rates, drought and water insecurity, throughout Afghanistan. While indicating that the proposed areas of relocation are impacted, the analysis also highlights that these challenges are present throughout the country. The pressures on these cities arise in part due to IDP and returnee flows. In this regard, I note the ALCS report states as follows:
[Kabul] stands out as the main gravitational centre for migrants in the country, both for those who move internally and for those returning from abroad. More than one third of Kabul residents were born abroad or elsewhere in Afghanistan. The province hosts more than half of all migrants in the country who moved since birth. Secondary magnets of attraction are Balkh, Herat and Kandahar. Overall, living conditions of migrants tend to be somewhat better than those of non-migrants, as suggested by a lower poverty rate and higher literacy- and labour-force participation rates. This also applies to migrants who return from displacement, but only for those who return from abroad and not for those who were internally displaced.
83.The submissions highlight the risks for IDPs in particular, however I have not accepted the applicant shares the same profile of many IDPs in the country. I consider the survey report more accurately reflects the reality for returnees (migrants) such as the applicant, with higher literacy and labour force rates, and better living conditions.
84.I accept that there are economic, employment, environmental and social pressures in these cities, as well as his home area of Kandahar, and throughout Afghanistan. I also consider the lack of networks in those cities presents a serious hurdle. In weighing those challenges, I have also given weight to the applicant’s individual circumstances. He is skilled as a mechanic, has good savings, speaks Pashto and Dari, would be relocating alone, is apparently able-bodied, and has demonstrated a clear ability to relocate to other areas and find work (as he has in Australia). I accept he would face a number of practical challenges and difficult conditions in terms of relocating, but I am also satisfied that he would be able to overcome the economic, employment, environmental and social pressures in these cities and throughout the country. I am satisfied he would be able to accommodate his basic needs, including food, water, and shelter and he would be able to subsist, and avoid living in poverty or severe hardship, notwithstanding the many challenges present in Afghanistan.
The Authority’s reasoning in relation to the reasonableness of relocation is very generalised. It amounts to little more than saying that because it is satisfied that AXZ18 will be able to obtain employment in Afghanistan, and has some savings to tide him over any period of unemployment, that AXZ18 will be able to live and be accommodated and have access to services in cities such as Mazar-e-Sharif, Kabul and Herat, and therefore it is not unreasonable for him to relocate within Afghanistan. This broad-brush approach does not grapple with the material submitted by AXZ18 so as to undertake a fact intensive assessment, nor does it display any detailed analysis, or any of the subtlety of analysis, required to assess the relevant factual material.
Accepting, for the purposes of the argument posited by the Minister, that AXZ18 is a skilled mechanic, and that he might obtain employment and would have some savings on return to Afghanistan, is not enough to warrant findings that he would be able to be accommodated and have access to basic services, and more particularly those services that AXZ18 specified would be lacking such as safe water, healthcare and sanitation: CB 271 at [62], without explaining why that is so in the particular factual circumstances prevailing in Afghanistan. That is especially so when one looks at the material put forward against which the reasonableness of relocation had to be assessed. Thus, for example, the Authority did not engage with the:
(a)country information indicating 72.4 per cent of Afghans live in slums, informal settlements or inadequate housing, or endeavour to explain how it is that it was satisfied that AXZ18’s possible employment as a mechanic might put him in that upper quartile of the Afghan population who might not live in what might broadly be described as inadequate housing;
(b)fact that 63.3 per cent of Afghanistan’s urban population are not able to use safely managed drinking water, or that 67.1 per cent of the Afghan population have E. coli in their drinking water, and there is either no, or no obvious, analysis explaining how it is that the Authority might have been satisfied that AXZ18 had access to safe drinking water (access to safe water being a claim specifically made by AXZ18); and
(c)fact that almost 60 per cent of the Afghan population does not have access to safely managed sanitation services, and again there is either no, or no obvious, analysis explaining how it is that the Authority might have been satisfied in relation to AXZ18’s claim that he may not have access to safely managed sanitation services.
The Court also has regard to what the Second Authority Decision indicates the Authority did or did not consider when considering the reasonableness, or otherwise, of relocation within Afghanistan for AXZ18. For example:
(a)the Second Authority Decision sets out no information as to the claims made in relation to [25(a)-(c)] above, or any relevant country information in relation to those issues;
(b)the Second Authority Decision equates employment with the capacity to obtain access to accommodation, and access to services and other necessities: CB 709 at [74], but does not say it has made any assessment as to the nature, quality or liveability of the accommodation, access to services and other necessities to be accessed, which it needed to do given the nature of the country information referred to it by AXZ18, and summarised partially in AXZ18’s submissions at CB 271–273 at [63]–[65] (set out at [25] above);
(c)as with employment, the Second Authority Decision equates having some savings with the capacity to obtain accommodation, access to services and other necessities: CB 709–710 at [75], without any obvious analysis or explanation as to why that is so, or as to the nature, quality or liveability of the accommodation, services or necessities to be accessed;
(d)the Second Authority Decision suggests that AXZ18 will not be forced to live in slum areas: CB 710 at [76], but again there is no assessment as to how employment as a mechanic puts AXZ18 into that 27.6 per cent of the Afghan population which does not have to live in inadequate housing, and there is, for example, no analysis of which areas have adequate housing, or the availability of that adequate housing by city or area, or as to whether the adequate housing is owner-occupied, available per se for rental, or whether, if it is available for rental, whether the amount of rental charged might be within the means of a person employed as a mechanic; and
(e)health care (access to which was a claim specifically made by AXZ18) is not specifically addressed in any detail in the Second Authority Decision.
From the extracts of the Second Authority Decision set out at [23] above, it is evident that there is no proper, genuine or realistic consideration, and hence no active intellectual engagement, with the objections to relocation raised by AXZ18. The Second Authority Decision makes reference to matters raised by AXZ18, but there is no assessment by the Authority of the difficulty in obtaining access to these services nor an intellectual engagement with the material presented by AXZ18 in his submissions as to the scarcity and meagreness of the services themselves. The references made are cursory in themselves and demonstrate no consideration of the reasonableness of relocation against the objections raised by those references. And even if, as the Minister submitted, the Authority can be said to have been cognisant of these issues, it has not considered them in the manner required: see, for example, MZANX at [55] and [58] per Mortimer J; MZYTS at [50] per Kenny, Griffiths and Mortimer JJ; DIJ17 at [33] per Judge Smith; CMV18 at [59] per Judge Driver. Cognizance is not, of itself, consideration, and there is nothing in the conclusions drawn in the Second Authority Decision which demonstrates that the Authority has engaged in the required “grapple with the essential element of the applicant’s objections to relocation”: DIJ17 at [33] per Judge Smith. Although the Authority set out some of the evidence (which in this case was not inconsiderable) relevant to some of the issues it had to consider with respect to the reasonableness of relocation, there was no active intellectual process directed at a full and proper consideration of that issue or the matters expressly raised by AXZ18’s submissions to the Authority: Lafu at [49]-[50] per Lindgren, Rares and Foster JJ, and the making of relevant findings in relation thereto. This is not to say that the Authority must involve itself in a line-by-line reflection, or a consideration of every piece, of an applicant’s evidence, because that is not required: Minster for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320; (2018) 362 ALR 48 at [48]-[49] per Besanko, Barker and Bromwich JJ. But what is required, and was lacking here, was for the Authority to engage with the material, and engage in a proper consideration of that material for the purposes of making a factual assessment of the position as it related to AXZ18’s objections to relocation within Afghanistan. Thus, jurisdictional error exists because there has not been a real, but rather a purported, exercise of power by the Authority because the Authority has not had regard to all of the matters which it had to address: Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 595 per Kirby J.
Whether the approach adopted in the Second Authority Decision is characterised as a failure to intellectually engage with the claims made and materials provided in support of the claims, or as a failure to undertake the statutory task set out in s 36(2B)(a) of the Migration Act, or as a failure to consider claims actually made, or as a failure to consider relevant issues and material, or as a purported, rather than real, exercise of power, or as an amalgam of some or all of these matters, it is plain that the Authority’s statutorily derived task of assessing the reasonableness of relocation within Afghanistan for AXZ18 has miscarried, and that the Second Authority Decision is affected by jurisdictional error. It is plain that the jurisdictional error or errors affecting the Second Authority Decision are material in the sense described by the High Court in MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ, because had the issue of reasonableness of relocation been properly considered by the Authority there is a realistic possibility that the Second Authority Decision may have been differently decided.
TAKEOVER OF AFGHANISTAN BY THE TALIBAN
Following the takeover of Afghanistan by the Taliban in August 2021, in EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10 (“EGZ17”) at [35] per Judge Street this Court held as follows:
Given the fact that the Taliban has now taken over Afghanistan and that the country of Afghanistan as applied by the IAA to the applicant in considering the protection visa obligations no longer exists, the IAA has exceeded its statutory powers under Part 7AA of the Act, and the outcome is legally unreasonable. The applicant feared harm from the Taliban prior to the cessation of Afghanistan, that country that no longer exists. There can be no issue as to the materiality of the new country and new receiving country being the Islamic Emirate of Afghanistan to the correct application in the review under Part 7AA of the protection criteria under s 36(2)(a) or s 36(2)(aa) of the Act. A fresh review must be conducted according to law under Part 7AA of the Act that addresses the country and receiving country that now exists, being the Islamic Emirate of Afghanistan.
EGZ17 was controversial. It was described as “plainly wrong” by the Court, differently constituted, in DVF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 135 (“DVF18”) at [22] per Judge Egan. In DVF18 at [30] per Judge Egan the Court found as follows:
Being bound by established authorities referred to above, and thereby necessarily uninfluenced by the humanitarian implications arising from the crisis which has unfolded consequent upon the ascendancy of the Taliban in Afghanistan, the Court finds that the learned primary Judge in EGZ17 was plainly wrong, and committed jurisdictional error, in:
(a)Being influenced by events in Afghanistan, subsequent to the handing down of the decision of the Authority on 25 August 2017, when handing down judgment in that matter; and
(b)Finding that the existence or otherwise of a changed regime in Afghanistan was relevantly a jurisdictional fact.
In EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177 (“EGW17”) at [5] per Farrell J the Federal Court observed that:
It is now well known that by late August 2021, the Taliban had gained control of Kabul and most of Afghanistan during the final withdrawal of international armed forces from Afghanistan. However, it is not open to the Court to take that fact into account on this appeal.
More recently, in GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9 (“GLX18”) this Court, differently constituted to EGZ17 and DVF18, concluded that the finding in EGZ17 set out at [29] above was in error: GLX18 at [134-138] per Judge Kendall, and at [139] per Judge Kendall said that (emphasis in original):
As outlined by Judge Egan (in DVF18) … , events which take place after the IAA exercised its power can play no part in assessing whether the IAA’s decision contained any instance of jurisdictional error …
and going on to find that the decision in EGZ17 “was plainly wrong”: GLX18 at [144] per Judge Kendall.
EGZ17 was appealed. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 (“EGZ17 Appeal”) the Full Court of the Federal Court allowed an appeal against EGZ17, and at [29]-[30] and [33] Beach, Thawley and Cheeseman JJ observed that:
The situation in Afghanistan, or whether Afghanistan existed in some form and if so what form, at the time of the court’s hearing was irrelevant to the question before the primary judge as to whether the IAA [Authority] had erred in a way going to jurisdiction …
As noted, the primary judge concluded that one country had ceased to exist (Afghanistan) and a different one had come into existence (Islamic Emirate of Afghanistan). This conclusion was not one about which judicial notice could be taken and nor was it based on findings of fact of which judicial notice could be taken. The conclusion was not open on the basis of the evidence before the Court, even if that evidence included the wrongly admitted evidence. A change in governance of a country, even if secured through activity which does not conform to the laws of the country, does not inexorably lead to a conclusion that the country has ceased to exist as the primary judge appears to have assumed. Nor, obviously, does a change in name …
…
The IAA’s [Authority’s] power is not conditioned expressly on the existence of the relevant country of nationality or the objective existence of the receiving country the subject of the decision being reviewed and nor is any such condition implied … the existence or otherwise of the receiving country is not a jurisdictional fact in the sense of a fact the objective existence of which is a precondition to the exercise of power.
EGZ17 Appeal
is binding on this Court: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733;
(2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration and Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ. The judgments in EGZ17 Appeal, EGW17, DVF18 and GLX18 make it clear that this Court cannot take into consideration the Taliban takeover in Afghanistan when considering whether the Second Authority Decision is affected by jurisdictional error.
CONCLUSION AND ORDERS
The Court has concluded that the Second Authority Decision is materially affected by jurisdictional error. The following writs will therefore issue:
(a)certiorari quashing the decision of the Authority made on 24 March 2020; and
(b)mandamus requiring the Authority to re-determine the matter according to law.
The Court will hear the parties as to costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 29 March 2022
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