AZACC v Minister for Immigration - [2013] FCCA 927

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZACC v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 927

Catchwords:
MIGRATION – Review of Independent Merits Reviewer – offshore entry person – applicant Hazara Shia Afghani – jurisdictional error – failure to consider essential integer of claim – consideration of whether reasonable for applicant to seek refuge in another part of Afghanistan – procedural fairness – no error found.

Legislation:

Migration Act 1958, ss.5, 46A; 476 & 477

Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 75 ALD 630
S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
SZMCD v Minister for Immigration (2009) 174 FCR 415

Applicant:

AZACC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

INDEPENDENT MERITS REVIEWER

File Number:

ADG 104 of 2012

Judgment of:

Judge Brown

Hearing date:

27 March 2013

Date of Last Submission:

27 March 2013

Delivered at:

Adelaide

Delivered on:

31 July 2013

REPRESENTATION

Counsel for the Applicant:

Ms Gray

Solicitors for the Applicant:

Bourne Lawyers

Counsel for the Respondent:

Mr Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
The applicant should pay the respondent’s costs fixed in the sum of six thousand four hundred and twenty-one dollars ($6,421.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 104 of 2012

AZACC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is an offshore entry person,[1] who arrived at Christmas Island, by boat on 14 April 2010. He did not have a valid visa, entitling him to remain in Australia.
[1] See Migration Act 1958 (Cth) at section 5
By nationality, the applicant is an Afghani. He is a person of Hazara ethnicity and a Shia Muslim by religion.
The applicant was born in a village, near to Sangi Masha, in the Jaghori District of Ghazni Province. He claimed to be a minor, when he arrived at Christmas Island.
The applicant claims he left Afghanistan because of fears he would be persecuted by either members of the Taliban or other Pashtuns, because of his Hazara ethnicity and Shia Muslim religion.
In addition, the applicant asserts that, because he is an Hazara, the Taliban and other extremist groups in Afghanistan are likely to impute to him political views to the effect that he is a supporter of the current Afghani government and its western allies, who are opposed by the Taliban.
Finally, the applicant asserts that because of his youth and because he has lived away from his family for many years, he is more vulnerable to persecution, as a consequence of his ethnicity and religion, in the event of his return to Afghanistan.
The applicant claims he left Jaghori at some time in 2005 and went to live in Kandahar, where he worked briefly as a baker. In 2005, he moved to the western district of Kabul, where he again worked as a baker, until he left Afghanistan in 2010.
Whilst living in Kabul, the applicant claimed he led an extremely circumspect life, rarely leaving the premises of the bakery, where he worked, because of his fears that he might be targeted by the Taliban, particularly that he might be forcefully recruited by them and forced to act as a suicide bomber.
In these circumstances, it is the applicant’s position that it is unsafe for him to return to Afghanistan in general and Kabul in particular, because he will be subject to persecution by extremist groups because he is a vulnerable Shiite Hazara.
As a consequence of these various factors, the applicant seeks protection, for himself, from the Australian authorities and claims that he cannot return to Afghanistan because of a well founded fear of persecution in that country.
In summary, the applicant claims to be entitled to the protection of Australia because he is a refugee as defined by article 1A(2) of the Refugees Convention (hereinafter referred to as “the convention”) which defines a “refugee” as any person who:
“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Australia is a signatory to the Refugees Convention which, subject to some provisions in the Migration Act 1958 (hereinafter referred to as “the Act”), is part of the municipal law of this country.
The second respondent, Mr Hardy (hereinafter referred to as “the reviewer”) conducted what is known as an independent merits review (hereinafter referred to as “IMR”) of the applicant’s claim for protection, delivering his report on 4 January 2011.
In the IMR, the reviewer found that the applicant would not suffer persecution in either the Jaghori District or in Kabul, on the basis that he was a Hazara and/or Shiate or for any convention – related reason.
In effect, the reviewer determined that Australia was not bound to offer the applicant protection pursuant to its obligations under the convention. He made a recommendation, to this effect, to the first respondent, the Minister for Immigration & Citizenship (hereinafter referred to as “the Minister”).
The applicant seeks judicial review of this decision and contends that the reviewer fell into error in his conduct of the IMR to such an extent that he exceeded the jurisdiction conferred upon him.
As a consequence of this error, it is submitted that the court should declare that the reviewer’s recommendation, in the IMR report, to the first respondent, was not made in accordance with the law and an injunction should therefore lie restraining the Minister from relying on the recommendations in any way.

The legislative and administrative framework leading to the IMR

Christmas Island is excised from the Australian migration zone. As such, asylum seekers who arrive there by boat are categorised as “offshore entry persons”. Such persons are excluded from applying for protection visas, via orthodox channels, to enable them to remain in Australia, pursuant to the provision of the Refugees Convention.
However, pursuant to section 46A(2) of the Act, the first respondent is granted a discretion to grant an offshore entry person such a visa if the Minister “thinks that it is in the public interest to do so …”.
As a result of this legislative discretion, invested in the Minister, an administrative protocol was devised by the Department for Immigration & Citizenship (hereinafter referred to as “the Department”), which was intended to provide specific advice to the Minister as to whether Australia’s protection obligations, under the Refugees Convention, were engaged in the case of each person who arrived in Australian territory, at an excised offshore place (such as Christmas Island), and claimed to be a refugee.
This protocol envisaged two distinct and independent steps. Firstly, each such arrival would be subject to a Refugee Status Assessment (“the RSA”) by officers of the Department. Secondly, if necessary, there would be an IMR of each such Refugee Status Assessment. The intention being that there would be an independent and arm’s length review of any decision made by Departmental officers, which was contrary to any applicant concerned.
The purpose of the IMR was to make a recommendation, to the Minister, about whether Australia had protection obligations to any persons claiming so. If the reviewer concerned did conclude that Australia did owe a protection obligation to any such claimant, advice would be provided to the Minister in such terms, so that the discretion arising under section 46A(2) could be properly exercised.
The nature of the ministerial discretion, contained in section 46A(2) and the constraints on its exercise, were considered by the High Court in Plaintiff M61/2010E v Commonwealth of Australia.[2] The High Court concluded that those making inquiries, on which the Minister would act, were bound to act according to law and afford procedural fairness to the persons potentially affected by the Minister’s decisions.
[2] See Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14
In addition, in Plaintiff M61/2010E, the High Court held that decisions in respect of applications for protection visas, arising at the IMR stage, were subject to judicial review in the original jurisdiction of the High Court as a consequence of paragraph 75(v) of the Constitution. This provision grants the High Court original jurisdiction in all matters in which writs of mandamus or prohibition or an injunction are sought against an officer of the Commonwealth.
The Federal Magistrates Court’s (subsequently the Federal Circuit Court) jurisdiction to deal with applications for judicial review, in migration matters, is founded on section 476 of the Act. Pursuant to this section, the court has the same original jurisdiction in relation to migration decisions, as does the High Court under section 75(v) of the Constitution.

Time limits

The Act prescribes a timeframe for the making of applications for judicial review of migration decisions. Pursuant to section 477, the time prescribed for such applications is within thirty-five days of the making of the decision which is sought to be challenged.
The applicant commenced these proceedings on 18 May 2012, some sixteen months after the IMR report was delivered. At the time, the applicant did not have a solicitor and prepared his own documents. His application was supported by a brief affidavit, which stated as follows:
“The reviewer of my case made a legal error and I want it reversed.”[3]
[3] See applicant’s affidavit filed 18 May 2012 at paragraph 1
The Minister filed a response to the application on 18 June 2012. The Minister asserts that the recommendation of the reviewer is not affected by jurisdictional error. In addition, the minister seeks the dismissal of the application because of the “unexplained and unwarrantable delay” in bringing it.
Accordingly, the application is out of time. Pursuant to section 477(2) of the Act this Court may extend the time period if it is satisfied that it is necessary in the interests of justice to do so.
The applicant’s solicitor, Simon Bourne has deposed an affidavit setting out the reasons for delay, from his client’s perspective, in the institution of the proceedings.[4] Mr Bourne deposes that his client changed solicitors and migration agents, shortly after the decision was made.
[4] See affidavit of Simon Matthew Bourne filed 26 March 2013
Thereafter there was a delay whilst advice was sought as to whether or not the applicant had grounds to challenge the decision. A pro bono legal advice organisation was involved in this process and it was difficult to obtain advice from experienced counsel. There were also delays occasioned whilst the applicant’s various interviews, at different stages of the assessment process, were transcribed.

The current application

On 21 June 2012, the applicant was directed to file any amended application, on which he wished to rely, on or before 22 August 2012. He filed such an application on 30 July 2012. A further amended application was filed on 11 December 2012. This was in breach of an order of Lindsay FM, who granted an extension of time to file such a document to 28 November 2012.
The Minister objects to the applicant relying on the further amended application. I granted leave to allow the applicant to rely on the further amended application. This is the application currently before the court. It raises ten specific grounds of review as follows:
“1.    The second respondent failed to understand and correctly apply the law that regulates the decision making power.
2. The second respondent had regard to irrelevant considerations and there was manifest unreasonableness in the decision making process.
3. There was procedural impropriety as the process by which the second respondent reached the decision failed to observe the basic rules of natural justice including a failure to act with procedural fairness to the applicant and a failure to properly observe the appropriate process.
4. The second respondent failed to properly consider each of the relevant claims concerning the real chance of convention related persecution that the applicant faced in his primary location, which included the following:
a. his Hazaran ethnicity;
b. his Shi’ite Islam religion;
c. an imputed anti-Taliban opinion as a result of his ethnicity and faith;
d. persecution from the Taliban and other extremist groups in Afghanistan for those reasons;
e. substantial persecution in the form of societal discrimination against Hazaras from other sects and ethnic people in Afghanistan;
f.   persecution and societal discrimination as a young person returning to Afghanistan in the context of those returning to Afghanistan being overwhelmingly Sunni and non-Hazaran;
g. governmental discrimination to the detriment of other minorities, particularly the Hazaras;
h. the deteriorating security situation in Afghanistan with a corresponding decrease in the central governments capacity to protect the Hazara minority from Taliban persecution;
i.   the rising powers of warlords within Afghanistan posing a direct threat to the Hazara community in the absence of state presence and the rule of law;
j.   that the Taliban was taking an ever increasing role in the government of the state which was likely to increase;
k. young men were soft targets for Talibans and other criminal groups “recruiting” in Kabul and other urban centres;
l.   the lack of support for young people returning to Kabul without family supports; and
m. the Afghan National Army and local police within Kabul discriminatorily enforce the law within Kabul assisting the Taliban to indiscriminately kill Hazarans in areas of West Kabul to repress demonstrations by Hazarans within Kabul against such attacks.
5. The second respondent failed in considering the issue of relocation to properly consider each of the relevant claims including those specified in paragraph 4 (a) – (m).
6. The second respondent failed to understand and correctly apply the correct legal principles concerning whether it is reasonable to expect the applicant to seek refuge in another part of the same country, in that the second respondent failed to consider:
a. where the applicant could have no well-founded fear of persecution; and
b. where the protection of the applicants country would be available to him; and
c. where he could reasonably be expected to relocate.
7. The decision of the second respondent contained an error going to jurisdiction by determining the question of reasonableness of living in another part of the country by reference only to whether the applicant would have a well-founded convention fear of persecution within that place.
8. The decision of the second respondent contained an error going to jurisdiction by failing to consider the reasonableness of relocation, including whether it was reasonable or practicable as a question of fact and practical reality to expect the applicant to return and live in the place of relocation having regard to all his individual circumstances.
9. The decision of the second respondent contained an error going to jurisdiction by failing to consider the international responsibility of the country of nationality to safeguard the fundamental rights and freedoms of its nationals.
10.    The second respondent failed to properly understand and consider the Applicant’s claim that young men were soft targets for Talibans and other criminal groups “recruiting” in Kabul and other urban centres. The Independent Merits Review Panel had regard to irrelevant reasons in rejecting this claim.”
Of these grounds a number are in the nature of inchoate complaints of jurisdictional error, relating to breaches of natural justice by way of procedural unfairness and the regard to irrelevant considerations. These grounds were relied upon only in a general sense by the applicant.
His more specific grounds of complaint relate to the following areas:
·The reviewer fell into jurisdictional error by failing to consider a ground for the granting of asylum, which was raised on the material before him, namely the real chance that the applicant might be coerced into joining criminal gangs or the Taliban, because of his youth, if he returned to Afghanistan;
·The reviewer failed to apply the relevant test, as to whether it was reasonable, in the sense of being practical, when considering the issue of whether the applicant could relocate to another party of Afghanistan, namely Kabul, as opposed to Jaghori.
As this, in all cases relating to the claims for asylum in Australia, the starting point must be what are the concerns raised by the applicant concerned regarding his alleged fear of persecution, for a convention reason, in Afghanistan. In this context, it is necessary to identify the issues raised by him at the various stages of the asylum seeking process.

The entry interview

On entry to Australia the applicant indicated employment at the Faizgul Bakery in Kabul, between 2005 and 2009. He further indicated that he had previously been a baker in Kandahar, prior to going to Kabul, but only for a period of weeks.
He indicated that he left Afghanistan because his life there was in danger, as a Hazara and Shia, because the Taliban killed and kidnapped Hazara and Shia people. He further stated that he had been present in a vehicle, with four others, when it had been stopped by the Taliban and searched and its occupants threatened with a gun. The Taliban were alleged to have been searching for government sympathisers.
Prior to the RSA the applicant completed a statutory declaration, in which he identified his village as Safarqool, Sangi Masha, Jaghori, Ghazni. He indicated that the Taliban had control of all roads leading from the village, including the main Ghazni to Kandahar road.
The applicant claimed that his father, who was a truck driver, had been killed by the Taliban approximately eleven years earlier, whilst driving from Sangi Masha to Ghazni.
In addition, the applicant claimed that his brother, who was a taxi driver, had also gone missing, approximately six years earlier, when driving from Sangi Masha to Ghazni. The applicant indicated his belief that the Taliban must have murdered him.
In terms of his own interaction with the Taliban, the applicant indicated that approximately eighteen months earlier, he had been travelling from Kabul to Ghazni and then onto his village, when the Taliban had ambushed his car. He and the other passengers had been searched and threatened, whilst the Taliban searched for evidence of the attachment of the vehicle’s occupants to either the army or the government. The applicant stated that the Taliban had held their guns to his neck and threatened him.
The applicant expressed a fear of the Taliban, Pashtuns and the government army. He stated that he could not leave his village because it was surrounded by the Taliban and Pashtuns, who were liable to kill him, on the road, because he was a Hazara and Shia.
He further stated that he could not live in Kabul because there was a lot of kidnapping there, as well as suicide bombing. He indicated that the Taliban disguised themselves, in traditional clothing, so that they could kidnap people.

The RSA

An officer of the department interviewed the applicant, on 24 May 2010, for the purpose of an RSA. In this interview, the applicant reiterated his claim that he had been threatened, whilst travelling from Kabul to his village, by members of the Taliban. He denied that his assailants, on this occasion, had been criminal elements.
The RSA accepted that it was plausible that the applicant’s father had been killed by the Taliban, in 1999, when the Taliban regime was in power. It was also accepted that it was possible that the applicant’s brother had been murdered, whilst driving between Sangi Masha and Ghazni.
In addition, at the RSA stage, it accepted that it was plausible that the applicant’s car may have been ambushed by the Taliban, as country information available indicated that the roads leading from Ghazni to Kabul and from Kabul to Kandahar are not safe. However, the officer conducting the RSA considered that these attacks were random acts of harassment, rather than the targeted actions of the Taliban.
The RSA assessor identified Jaghori as being one of the main districts of Ghazni Provence and one which was almost entirely Hazara in its composition. As such, it was not considered that the applicant had a well founded fear of persecution arising from residing in the Jaghori district of Ghazni.
However, in the event that the applicant had a subjective fear of the Taliban or other insurgence in Ghazni, more generally, it was considered by at the RSA stage that it was a safe and reasonable option, for the applicant, to relocate to Kabul, as country evidence available to him indicated that there were more than 1,000,000 Hazaras currently living in Kabul, which was a quarter of the city’s population.
The RSA made this specific finding:
“I believe relocation is a viable option as he may prefer to live in one of the cities of Afghanistan that have a significant Hazara population rather than rural Jaghori from where he originates.”[5]
[5] See casebook [hereinafter referred to as CB at page 82]

Submissions to the IMR

Prior to the IMR, the applicant’s advisor provided a lengthy written submission. Under the heading claims the applicant was characterised as an unaccompanied minor of Shia faith and Hazara ethnicity, from a village in the Jaghori district of Ghazni Provence. It was contended that the Taliban control the entire area surrounding the applicant’s village of origin, including all roads connecting it to the outside road.
In this submission, the applicant restated his claim regarding the death of his father and his brother, at the hands of the Taliban, whilst travelling on the Ghazni road.
The submission also stated that the applicant had moved to Kabul, four years previously, to work as a baker but during his time in Kabul, the applicant had faced constant threats of persecution from the Taliban. In addition, as a consequence of extreme levels of violence in Afghanistan, the applicant found it “unsafe even to leave his residence in Kabul.”
In the submission, the applicant reiterated his claim that he had been ambushed, by the Taliban, whilst on route from Kabul to Ghazni. During this attack, he claimed to have had a gun pointed at his neck and been threatened with death for refusing to cooperate in the identification of individuals associated with the Government of Afghanistan.
The submission rejected any contention that Hazaras are currently integrated into Afghani society and are no longer subject to systematic persecution by the Taliban, on the basis of their religious and ethnic identity. Further that the applicant, as an individual, could avoid potential persecution by relocating within Afghanistan, to Kabul.
Under the heading Possibility of Relocation it was asserted, in the submission, that there was a lack of employment opportunities in Kabul and therefore the applicant would struggle to support himself or his family there.[6] It was also asserted that there was a failure of effective state protection, in Kabul, because of the escalating activities of the Taliban.
[6] See CB at 111 -113
In a further written submission, dated 2 November 2010, the applicant’s advisor asserted that their client would be “subject to future persecutions as the Afghan child [sic] to deprivation of school, generalised violence, physical abuse and threats, forced recruitment and child labour by the Taliban for the reasons of being Shia Hazaras minor; if he is forced to return to Afghanistan.”[7]
[7] See CB at 120
In support of this assertion reliance was placed on an article entitled “A study on asylum-seeking children in Sweden”, which originated with the United Nations High Commissioner for Refugees Regional Office for the Baltic and Nordic countries.

The IMR interview

In his interview with the reviewer, the applicant said he had not worked in his village. He had worked in Kandahar, in a bakery owned by a Pashtun person, Faizgul, who also owned a bakery in Kabul. He had left the bakery in Kandahar to work in the bakery in Kabul, because the situation in Kandahar was “not good”. A friend of Faizgul had driven him from Kandahar to Kabul.
The applicant identified the location of the bakery as being Koti Sangi, which is in West Kabul. The reviewer questioned the applicant regarding his circumstances, whilst living in this part of Kabul. The reviewer elicited the following information:
·He did not know how many Hazaras lived in the area, but if he walked about the neighbourhood for about half an hour, he might see one or two;
·He lived and worked on the bakery premises, with two Hazara bakers and a Pashtun;
·Kabul was not safe because of occasional suicide bombings;
·The Taliban moved around Kabul disguised as ordinary citizens. They kidnapped young men and forced them to support the Taliban and blow themselves up;
·The applicant indicated that he had never been personally harassed in Kabul but had endeavoured to avoid such treatment;
·He had never encountered the Taliban in Kabul, or street gangs there, but might have done so, if he had gone out more often;
·When asked about his reference to seeing one or two Hazaras, when he walked around his neighbourhood after work, the applicant stated that he would walk around his neighbourhood after work which finished in the evening;
·When asked how he had obtained a passport to leave Afghanistan, the applicant described a Teahouse, near where he worked, where Hazara men used to gather.
In the context of the applicant’s statement regarding his circumstances, whilst living in Kabul, following interview, the reviewer asked for his comments about this aspect of his claim, particularly as follows:
“You told me at interview that you used to go walking in the evenings in Kabul, apparently unaccompanied. Over time you have given conflicting information about the extent to which you were housebound or ‘imprisoned’ in Kabul.”[8]
[8] See CB at 170
In response to this query, the applicant, in writing through his advisor, indicated that he had spent his entire time in Kabul inside the bakery other than for going for short walks around the premises with his fellow workers. This occurred infrequently and for usually less than thirty minutes, if at all.
In addition, the applicant’s advisor provided a number of independent reports, detailing information gathered in Afghanistan. This information included the risk arising for children separated from their families, who were returned to Afghanistan; the concern expressed by Amnesty International that returning young men to locations, within Afghanistan, away from family and tribal connections, made them soft targets for the Taliban and other criminal gangs recruiting in Kabul; concerns raised by the Hazara International Forum regarding attacks on Hazaras in west Kabul and the failure of the Afghan national army and the local police to protect them.

The IMR

In addition to country information provided by the applicant, through his advisor, the reviewer consulted other country information regarding Afghanistan. This included the Finish Immigration Service Report entitled “The Current situation in the Jaghori District of Ghazni and the Australian Department of Foreign Affairs & Trade Advice Afghanistan: Situation in Ghazni Provence – Views of member of parliament.”[9]
[9] See CB at 176 - 177
The reviewer summarised the applicant’s claims for asylum as follows:
“The applicant claims fear of persecution in Afghanistan from the Taliban, a non-state agent, for reasons of his Hazara “race” and his Shi’a “religion” and for pro-government and pro-foreign “political opinion” imputed on account of Hazaras having supported the 2002 invasion that lead to the pushing back of the Taliban. He claims that his status as a minor exacerbates the risk of harm he might face for the Convention-related reasons cited and would also make it harder for him to relocate. He claims his age minority increases his vulnerability generally.
The applicant claims that, for reasons of his race religion and age minority it is not reasonable for him to repatriate or relocate anywhere with Afghanistan, such as Kabul.”[10]
[10] See CB at 180
It was accepted, by the reviewer, that the applicant is a Shiite Hazara, who originated in a village in the Jaghori District of Ghazni Province. He also accepted that the Taliban are particularly distrustful of Hazaras generally but are not currently targeting Hazaras, other than those who are evidently supporting the Government, Coalition Forces or NGO’s or are employed by such organisations.
The reviewer accepted that the applicant’s father had been killed, whilst driving on the Jaghori Ghazni road eleven years earlier. He also accepted that the applicant’s brother had disappeared, in similar circumstances, about six or seven years earlier. On the basis of the evidence available to him, the reviewer did not think it possible to conclude that the Hazara ethnicity and Shiite religion of the applicant’s father and brother were the essential factors leading to their demise.
It was accepted by the reviewer that Kandahar was a dangerous place for young Hazaras, at the time the applicant was there. Accordingly, it was accepted as being quite plausible that the applicant moved to Kabul because it was more secure than Kandahar.
The reviewer found that the applicant had a close, viable and supportive family network in Jaghori and, as such, was likely to be able to live and work there safely. The reviewer then turned to the issue of the applicant accessing Jaghori, particularly from Ghazni city, given the claims made by the applicant regarding the dangers for Hazaras travelling in the region.
The reviewer believed that the applicant had embellished his account of being ambushed and threatened by the Taliban on the Kabul/Ghazni/Jaghori Road. However, on the basis that the reviewer was aware of the dangers arising for Hazaras, on that particular road, he was cautious about dismissing the applicant’s claim, in its entirety.
In particular, the reviewer was prepared to accept that the applicant had been stopped and searched, with other Hazaras, by Taliban, on the Kabul/Ghazni/Jaghori Road and had been questioned about his association with the government and foreign interests.
In this context, it was accepted that the Taliban had intimidated and threatened the applicant by placing a gun to his neck, as a warning or act of intimidation to the others present.
However, the reviewer also noted that the applicant had apparently travelled to Jaghori, by road, approximately one month before leaving Afghanistan and had not come to any harm. In this context, the reviewer accepted that it was customary for young Hazara men, from Jaghori, to visit their families there, once they had moved away.
Accordingly, the reviewer accepted that the applicant might be targeted by the Taliban, on the Kabul/Ghazni/Jahori road and a political opinion – that he was sympathetic to the government or was employed by it in some way – might be imputed to him in future. In this context, the reviewer turned to consider the issue of internal relocation, by the applicant, in Afghanistan, particularly Kabul. The reviewer wrote as follows:
“The evidence of the applicant’s establishment in the bakery in Kabul under the auspices of the Pashtun Mr Gul easily argues that Kabul has become his home. As shown, I have treated Sangi Masha and Taqus and their environs in Jaghor as the applicant’s primary location in Afghanistan due to the importance placed in his and independent evidence on family links. Nevertheless, not least in view of the risks of travelling on Afghan roads, I must consider whether it would be reasonable for the applicant to reside in locations alternate to Jaghori and, in the course of this consideration, I must on the evidence consider Kabul. [11]
[11] See CB at 186
In this context, the reviewer made the following findings:
·The applicant had lived and worked in Faizgul’s bakery, in Western Kabul, since 2005;
·Western Kabul is predominantly but not entirely Hazara;
·The applicant had worked harmoniously, in the bakery, with other Hazaras and one Pashtun worker;
·As a consequence, the applicant had a small, overlapping Pashtun and Hazara support network in Kabul;
·As the applicant had used private transport in Western Kabul, whilst living there for four years, he would have known that Western Kabul had a sizeable Hazara population;
·The reviewer considered that the applicant had consciously understated his experience of interacting with other Hazaras in Western Kabul, in his interview with the reviewer;
·As such, the reviewer considered Western Kabul, a place with a high concentration of Hazaras, as a safe place for the applicant to reside.
The reviewer noted that the applicant had not specifically claimed that he had been subject to any specific incident of harm or targeting by the Taliban or others, whilst he had lived in Kabul. However, it was also noted that this state of affairs had arisen, on the applicant’s account, because he had led an extremely restricted lifestyle, whilst living and working at the bakery in Kabul. In regards to this aspect of the applicant’s claim, the reviewer made the following finding:
“I do not accept that the applicant restricted his movements in Kabul to the boundaries of the premises on which the bakery stands, let alone to 30 minutes or less on infrequent occasions in the company of others in the middle of the day or afternoon. He told me he took walks in the “suburb” or neighbourhood. He told me he went out for strolls after finishing work at 7 or 8 or 9 in the evening. I reject the position advanced in the last letter to me that he never said or suggested to me that he ever went walking in the evenings in Kabul unaccompanied, or that he ever went walking in the evenings in Kabul at all. I find that the applicant revised the evidence he presented to me to reverse the impression he was conveying of a fairly safe and secure life in the neighbourhood in which he lived. I also find that the picture he tried to paint of a person who never went out of the bakery or its grounds inconsistent with the behaviour of a person who took the risk she claims have taken on the road between Kabul and Jaghori.
I do not accept that Kabul’s security situation or infrastructural capacity makes it unreasonable, impractical or, from any Convention-related perspective, unsafe for the applicant to live there. Whilst I understand that individuals make their own potentially imperfect assessments of the dangers they might face, the applicant’s evidence about his Hazara colleagues continuing to work in the bakery at the time he left Afghanistan adds to the impression that it would have been safe for him to remain there. No evidence suggests to me that the applicant could not again access the social and economic contacts in Kabul like the ones he maintained there over the four years before he left.”[12]
[12] See CB at 187
In addition, the reviewer found that Afghans, including Hazaras, were returning to Afghanistan in large numbers. He found that insurgency activities, including suicide bombings, in and around Kabul, were isolated and infrequent and neither tacitly nor actively condoned by the authorities in Kabul.
Finally, the reviewer made specific reference to the concerns raised by Amnesty International regarding isolated young men, in Afghanistan, being a soft target for recruitment by the Taliban and the vulnerability of such young people to become involved in criminal youth gangs. In this regard, the reviewer made the following specific findings:
“I note Amnesty International’s concerns about “sending other young men back to the country with no family or tribal connection will make them soft targets for the Taliban and other criminal gangs recruiting in Kabul and other urban centres”. I gave the applicant an opportunity to argue whether or not he feared being recruited by criminal gangs in Kabul. He said he faced a risk of being recruited by the Taliban in Kabul and forced to act as a suicide bomber. He said the Taliban, who disguise themselves in Kabul, abduct Hazaras and make them “take orders or die”. I put to the applicant that I had never heard or read of Hazaras even being suspected of committing acts of terror under instruction from the Taliban. In reply, he said the abducted Hazaras in these instances would always disobey and therefore be killed. I do not accept that this explanation supports the contention he started to make, which was that that Taliban look for recruits amongst the Hazaras of Kabul. I find that he improvised when I questioned the reliability of what he was suggesting. Whereas it is well-reported that the Taliban recruit Pashtuns and other Sunnis into their ranks in various parts of Afghanistan, I find the applicant’s claims that they do the same to Shi’ite Hazaras in Kabul unreliable and far-fetched.
I find that the chance of the applicant being kidnapped or killed by Taliban gangs in Kabul to be remote.
The applicant’s adviser provided additional evidence about the presence of criminal youth gangs in Kabul and the vulnerability of young people, particularly internally displaced youths, in Kabul to being recruited into criminal gangs. It is appropriate to consider the prospect of his happening to the applicant. On the evidence he has presented to me, I do not regard him as being at all impressionable, and I do not accept that he would be in any way vulnerable to co-option by criminal gangs, even though, as I discussed with him and his adviser, I do not accept that the co-option of youths in such gangs in Kabul does occur. On consideration of his evidence, I believe there is only a very remote chance of this happening to the applicant, who, though still young, has lived and worked a stable life in Kabul and who, I believe, could easily reintegrate into such a life. In the remote event that it were to happen, I cannot see on the information before me that co-option into a criminal gang or the ensuing existence of a gang-member would amount as such to, or give rise to a real chance of, the applicant suffering serious harm amounting to persecution for a Convention-related reason.”[13]
[13] See CB at page 187 & 188
The applicant asserts that the reviewer did not consider a specific integer of his claim, namely that the applicant might be coerced rather than coopted into such criminal gangs. Accordingly, it is asserted that the reviewer did not understand this aspect of his claim.
In summary, the reviewer accepted the following matters:
·The applicant is a minor or young person;
·The applicant was subject to an incident, on the Ghazni/Kabul/Jaghori road, when a gun had been held to him; by the Taliban. This incident had been a factor in him deciding to leave Afghanistan;
·His father and brother had been killed and had disappeared on the same road, eleven and six years ago respectively;
·The applicants primary base, in Afghanistan, was Jaghori, where he had been born and where his family, particularly a brother lived;
·The applicant would have some degree of difficulty accessing Jaghori, by road, and as such might be at risk of persecution, for a convention reason, in so doing.

Ground One

In my view, the first ground of appeal is generic in nature. No particulars are supplied as to how the reviewer failed to understand and correctly apply the legal principles applicable. In isolation, this ground is not helpful.

Ground Two

Again, the assertion that the reviewer had regard to irrelevant considerations and his decision was manifestly unreasonable is an assertion, not supported by any particulars or examples. As such, this ground, in isolation, cannot sustain any claim of legal error in the relevant decision.

Ground Three

The applicant claims that he was not occasioned procedural fairness by the reviewer. No specifics are provided to this omission. In these circumstances, I can find no evidence of procedural unfairness.
The applicant’s advisor was able to provide a lengthy submission to the reviewer. There is nothing to indicate that the interview between the reviewer and the applicant miscarried in any way or was unfair to the applicant. In addition, the reviewer gave the applicant the opportunity to comment on his (the applicant’s) concerns, arising from the interview between the two, regarding the circumstances of the applicant’s life in Kabul, which were germane to the reviewer’s ultimate decision.

Ground Four

The applicant contends that the reviewer has failed to consider properly each of his claims for protection arising under the Refugee’s Convention. These relate to his ethnicity; religion; imputed political views; other forms of societal and governmental discrimination; risk of recruitment by the Taliban and other criminal groups in Kabul; and lack of state protection.
A reviewer is required to consider all claims for asylum, which arise from the material before him or her. If the reviewer fails to properly consider an aspect or a component of a claim for protection, it will amount to an error in the application of the jurisdiction of the reviewer concerned and render any resulting decision liable to vitiation.
An error which goes to the jurisdiction of an administrative body was described in these terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[14]
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
[14] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
This hearing is directed towards the legality of the IMR’s decision not its merits. It is the role of the decision maker alone to make the necessary findings of fact on which his decision is predicated, from the evidence which was properly available to him. It is not the function of this court to substitute its own findings of fact in respect of that evidence.[15]
[15] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
The applicant contends, in this ground of appeal, that the reviewer failed to consider the totality of his claims for refugee status. Thereafter, each conceivable permutation of his claim has been enunciated in sub clauses (a) to (m).
In my view, a reading of the reviewer’s reasons indicates that close consideration was given to the applicant’s claims for protection, which arose from his situation as a Hazara and a Shia person potentially returning to Afghanistan. In addition, the reviewer had access to country information pertaining to Afghanistan regarding the political and security situation in that country, particularly as it pertained to Hazara people.
The question, at this stage, is whether the reviewer failed to consider an aspect or integer of the applicant’s claim for asylum, which was impliedly rather than expressly made in the material (including in the form of the various interviews with the applicant and the submissions made on his behalf by his advisors) put before the reviewer.
The applicable principles which apply to cases, where it is asserted a jurisdictional error arises because it is said an administrative tribunal has failed to deal with an aspect of a claim said to be impliedly rather than expressly put are enunciated by the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[16] as follows:
“The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised on the material before it…There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case are not articulated…It has been suggested that an unarticulated case must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it…The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.” (citations omitted)
[16] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]
From this passage, I take it the reviewer is required to consider all claims which appear expressly on the face of the material before him, whether they are specifically articulated or not. However the reviewer is not required to seek out such a ground in a creative manner. He is not required to consider a case which is not expressly made out or which does not arise clearly on the materials before him.
The failure of a reviewer to consider a claim raised by the evidence (whether or not articulated) amounts to a failure of procedural fairness and therefore leads to a jurisdictional error. However a judgement that a reviewer has failed to consider a claim not expressly advanced is not one which should be lightly made. If such a claim is required to be considered it must emerge clearly from the materials available to the reviewer.
The important distinction is that although the reviewer is required to consider claims which although not articulated arise clearly on the face of the material, it is “not obliged to deal with claims which are not articulated and which do not clearly arise from the material before it.”[17]
[17] Ibid at [60]
The emphasis being on whether such claims arise clearly. Each such case must be judged on its own circumstances to determine whether an error of jurisdiction has arisen. In NABE the Full Court of the Federal Court said as follows:
“…a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and it is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Errors of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected.’ ” [18]
[18] Ibid at [63]
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[19] the Full Court of the Federal Court pointed out that a tribunal determining refugee applications, although dealing with matters of great importance was nonetheless an “administrative body operating in an environment which requires the expeditious determination of a high volume of applications.”
[19] ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 75 ALD 630 at 641
As such, it was not necessary for such a tribunal to provide reasons of the kind that might be expected of a court or was it necessary for such a tribunal “to refer to every piece of evidence and every contention” made by an applicant.
In this context the Full Court reiterated the off quoted warning to courts performing a judicial review function in respect of such administrative tribunals that they were not to scrutinise the reasons of these tribunal “with an eye keenly attuned to error.” Rather, the court was required to give a fair reading to their reasons.
In this context, the Full Court in ApplicantWAEE said as follows:
“The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which the contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”[20]
[20] Ibid at 641 [47]
In my view, the review properly considered each of the applicant’s claims that he had a well founded fear of persecution at the hands of the Taliban because of his Hazara ethnicity; his Shia religion; and his membership of a particular social group, namely young Hazara males. Each of these issues was squarely raised and properly considered and ultimately rejected by the reviewer in question.
The applicant contends that the reviewer failed to give proper consideration to the contention that he might be persecuted by other extremist groups in Afghanistan, because of his ethnicity and religion. This claim was made in his written submission. There is no specific nomination or identification of these extremist groups.
In addition, complaint is made that the reviewer failed to consider an aspect of the applicant’s claim relating to the rising power of warlords in Afghanistan, which was identified as a factor adversely affecting Hazaras in the UNHCR Eligibility Guidelines. Similar complaints were made about the alleged failure of the reviewer to consider country information regarding the apparent reluctance of the Afghan National Army and the Local Police to protect Hazaras in Kabul.
In this case, the applicant’s advisors have provided a plethora of country information, from a diverse variety of sources. No attempt was made to tie this information to the applicant’s idiosyncratic circumstances. Rather, the applicant now asserts that these issues have not been properly considered, although impliedly raised. In my view, in this context the following comments of Gleeson CJ in S395 v Minister for Immigration and Multicultural Affairs [21], albeit in dissent, are apposite:
“Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.”
[21] S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 quoted in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) at [62]
In my view, these are not issues which can be described ones which have been squarely raised by the applicant. They are peripheral issues, of a generic nature, relating to Afghanistan, which are contained in the extensive country information mustered by the applicant’s advisors. They are not matters which were raised by the applicant in interview or which can be said are specific to him and his circumstances.
In any event, in my view, the failure to consider issues of this type specifically is subsumed by the reviewer’s more general finding regarding security circumstances currently prevailing in Kabul. The reviewer found that insurgency activity in Kabul, including suicide bombings were isolated and infrequent and neither actively nor tacitly approved by the authorities in Kabul. He found that the applicant’s neighbourhood, in Kabul, was, by necessary implication, a fairly safe one for Hazaras because of their numbers in the city.
In my view, a fair reading of the reviewer’s decision overall indicates that he had an awareness of the historical and societal issues facing minority Hazaras and Shia Muslims in Afghanistan. He indicated that he had considered a range of material related to Afghanistan generally and to Hazaras, in Afghanistan, in particular.[22]
[22] See CB at 181
It is not, in my view, necessary for him to refer to each and every piece of country information submitted by the applicant and indicate specifically whether it has been considered and, if so, whether it has been rejected or accepted. It is unreasonable to expect the reviewer to discharge his administrative functions on such a premise.
The applicant, through his counsel, places significant weight on the submission that the reviewer misconstrued an aspect of his claim, raised on the material, that he was fearful that he might be coerced, through either force or intimidation, rather than simply co-opted by either criminal gangs or the Taliban, upon his return to Afghanistan.
In this regard, I note that this specific aspect of the applicant’s claim is not specifically raised in this ground of appeal. In any event, it seems to me that the reviewer did give consideration to this aspect of the claim and explicitly rejected it.
The applicant, in interview, asserted that disguised members of the Taliban abducted Hazaras and made them “take orders or die”. This included being forced to act as suicide bombers. This, in my view, encompasses consideration of the issue of potential forced recruitment to a terrorist organisation. On the basis of information available to him, the reviewer did not accept this claim. He also found the applicant’s claim, in this regard, to be “unreliable and far fetched”.
In my view, the reviewer identified the issue of forced recruitment and rejected it. In any event, he did not accept that the Taliban were particularly active in the part of Western Kabul, where the applicant had previously resided. In my view, this is an example of the relevance or application of one issue being subsumed by a finding of greater generality par excellence.
The material submitted by the applicant’s advisors from the UNHCR Regional Office for the Baltic and Nordic Countries[23] is directed to the issue of forced recruitment, by the Taliban, of youths and young people, into its terrorist organization. In my view, for the reasons outlined above, this issue was considered by the reviewer in this particular case and rejected.
[23] See CB at 130 -131
I do not accept that the issue of possible forced recruitment of the applicant, into a criminal gang, as opposed to the applicant joining such a gang because of his particular personal circumstances was an issue that was squarely raised on the material before the reviewer. In my view, it was an after thought, which has been raised in this review proceeding.

Grounds five to nine

These grounds relate to a contention that the reviewer has failed to consider each of the applicant’s grounds for asylum in the context of his possible relocation within Afghanistan and has further applied an incorrect test to the question of such a relocation by failing to consider whether it was reasonable or practicable for him to live in Kabul, given his personal circumstances.
The principle of internal relocation is predicated on the basis that it is not reasonable for the nation signatories to the Refugees Convention to be required to offer protection to the sufferers of persecution, if safety is available to such persons, within their country of origin, through the agency of their own state.
The principle of internal relocation has been adopted into Australian domestic refugee law. In Randhawa v Minister for Immigration Black CJ said as follows:
“Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.”[24]
[24] Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 440-441
In SZATV v Minister for Immigration and Citizenship the High Court stipulated that the test for relocation is whether it is practicable in the particular circumstances of the particular applicant. The answer to that question in turn depends upon the framework set out by the particular objections raised to the relocation.[25]
[25] See SZMCD v Minister for Immigration (2009) 174 FCR 415 at 438-439 per Tracey & Foster JJ
In Randhawa, Black CJ agreed that the question, which a decision maker, in respect of refugee status should ask of himself, was whether the applicant’s “fear was well founded in relation to his country of nationality, not simply the region in which he lived.” However an important gloss was applied to this consideration. Black CJ considered that, given the humanitarian aims of the Convention, this question was not to be approached in “a narrow way”. This is the basis of the practicality test, so far as intra country relocation is concerned.
In particular, in the case concerned, Black CJ said as follows:
“This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.”
Also in Randhawa, Beaumont J said as follows:
“…if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution.”[26]
His Honour categorised this consideration as being a question of fact to be determined within the particular context of the case concerned.
[26] Ibid at 451

Randhawa was approved by the High Court in SZATV. The majority of the High Court (Gummow, Hayne and Crennan JJ) formulated the considerations relevant to whether a putative relocation to a place within a claimant’s country of origin was reasonable. It was held that it was a question of practicality depending on the particular circumstances of the applicant…and the impact upon that person of such a relocation.
However, in this context, it is necessary for any such applicant to raise squarely the grounds on which he contends that it would not be practical, given his or her circumstances, to relocate internally within the relevant country concerned.
In SZMCD v Minister for Immigration & Citizenship the Full Court of the Federal Court (Tracey and Foster JJ.) said as follows:
“The test for relocation is whether it is practicable in the particular circumstances of the applicant…The answer to that question in turn depends upon the framework set by the particular objections raised to the relocation. [27](citations removed)
Accordingly, a reviewer will fall into error if he or she fails to identify the factors germane to relocation identified by the particular applicant in question. It is the applicant who must create the framework.
[27] SZMCD v Minister for Immigration & Citizenship [2009] (ibid) at paragraph 124
In this particular case, the applicant currently contends that the reviewer has failed to consider the consequences of a relocation to Kabul for the applicant as a young person, who had no family connections in Kabul and who would not be able to visit his family in Jaghori. In addition, it is asserted that the reviewer did not assess claims that the Afghani Authorities were either incapable or unwilling to protect its citizens from insurgency activities in Kabul.
In my view, for the reasons already elaborated above, the reviewer did consider issue relating to the capacity and willingness of the Afghani Authorities to protect individuals with similar attributes to the applicant in Kabul. It was found that insurgency attacks and suicide bombings were isolated and infrequent and neither actively nor tacitly approved by the authorities in Kabul. Such findings of fact seem to me to fall within the ambit of the reviewer’s role as a fact finder.
The objections raised, by the applicant, to living in Kabul centred on the restricted conditions under which he lived; the possibility of being kidnapped by the Taliban and being forced to be a suicide bomber; and lack of employment opportunities there.
In my view, the reviewer considered each of these contentions. It was found that the applicant would be able to access social and economic contacts, in Kabul, as he had done during the fours years in which he had lived in the city.[28] The reviewer also found the applicant’s evidence regarding his mode of life in Kabul was unreliable and exaggerated.
[28] See CB at 187
In this context, I do not believe that the applicant has specifically raised the issue of the inadequacy of sources of familial support for him, in Kabul, as part of the framework as to why it is likely to be impracticable for him to relocate there.
The reviewer was alive to the importance of family links, for young Hazara men, in the sense of the need for such men to refresh and maintain those links by visiting family members in their village or district of origin. In this context, the reviewer noted the concerns raised by the applicant about what had previously happened to him, whilst in transit, on the Jaghori Road. The reviewer also noted that, notwithstanding this experience, the applicant had recently elected to expose himself to the potential dangers of the road.
These are different considerations of a different character to those now raised relating to a lack of familial support in Kabul itself. In my view, these concerns were not raised by the applicant, either specifically or by necessary implication, at any stage of the review process. In this context, the reviewer found that, whilst in Kabul, the applicant had a “viable, if small, overlapping Pashtun and Hazara support network in Kabul.”[29]
[29] See CB at 186

Ground ten

In this ground, the applicant contends that the reviewer failed to consider or misconceived the applicant’s claim that young men were soft targets for the Taliban and other criminal elements recruiting in Kabul. In this context, the reviewer accepted that co-option of youths into gangs in Kabul did occur. However, in his assessment, the applicant would not be vulnerable to such co-option because he was not impressionable as a consequence of his life experience in Kabul.
Essentially, it is no submitted that the reviewer failed to consider the possibility of the applicant being coerced into joining such an enterprise, regardless of his level or otherwise of life experience and lack of impressionability.
Again, in my view, the resolution of this ground of appeal must rest on whether is clearly articulated by the applicant, during the review process and, in the context of a possible relocation, within Afghanistan, whether it formed part of the particular framework raised by the applicant concerned as to whether it was objectively practicable for he or she to relocate.
For reasons already set out, I am satisfied that the reviewer considered the possibility of the applicant being forcibly recruited into the Taliban or compelled to act as a suicide bomber and rejected such contentions on the basis of country information available to him and his assessment of the credibility of the applicant himself.
In my view, the applicant has neither squarely raised the ground of forced recruitment into criminal gangs, as opposed to the Taliban, nor raised this issue as a possible bar to his internal relocation to Kabul. In submissions, counsel for the applicant contends that the issue arose in the written submissions of the applicant to the IMR.
In the second submission, dated 2 November 2010, the applicant’s advisor wrote as follows:
“We submit that our client will be subject to future persecutions as the [sic] Afghan child to deprivation of school, generalized violence, physical abuse and threats, forced recruitment, and child labour by the Taliban for the reasons of being Shia Hazaras [sic] minor; if he is forced to return to Afghanistan.”[30]
[30] See CB at 120
The inchoate expression forced recruitment is used but it is not clear as to what group or individual is likely to be the agency of such recruitment. The only such agency identified in the sentence in question being the Taliban, rather than criminal elements. In the preceding paragraph of the submission, the advisor draws attention to the applicant’s claim, in his earlier statutory declaration that he lived circumspectly in Kabul due to fears that the Taliban might kidnap or kill him. No specific reference is made to any other agency, criminal or otherwise
In the context of this statement, reference is made to the independent report Voices of Afghan children – A study on asylum-seeking children in Sweden, which originated with the UNHCR Regional Office for the Baltic and Nordic Countries. In this report under the heading Forced Recruitment are concerns relating to the risks for children of being forcibly recruited by “armed groups, including those associated with the Taliban.”[31]
[31] See CB at 131
In my view, the reviewer considered claims of such forced recruitment by the Taliban. However, this material did not clearly raise issues relating to the possible forced recruitment by other agents, including criminal elements. Accordingly, it was not necessary for the review to consider it as a possible ground on which to assess the applicant as fitting within the Convention.
In her submissions, counsel for the applicant relies on the view attributed to Amnesty International that “sending young men back to the country with no family or tribal connections will make them soft targets for the Taliban and other criminal gangs recruiting in Kabul and other urban centres.”[32]
[32] See CB at 172
However, no attempt has been made to marry up this generic statement to the idiosyncratic circumstances of the applicant, who was found by the reviewer to have lived in Kabul for four years. In particular the applicant did not represent himself as being at risk because he was a separated child.
In addition, the review indicated that he gave the applicant the opportunity to “argue whether or not he feared being recruited by criminal gangs in Kabul.”[33] It was in this context the applicant raised issues pertaining to his fear of recruitment by the Taliban, which the reviewer rejected.
[33] See CB at 187
He did not take the opportunity to raise concerns regarding any fears he had regarding possible forced recruitment by agencies other than the Taliban. In my view, the emphasis in his case was on his claims of being forcibly recruited by the Taliban, which the reviewer dealt with and rejected.

Conclusions

I have come to the conclusion that the applicant is unable to impugn the jurisdictional validity of the IMR in this case on the basis of any of the grounds of appeal raised. In these circumstances, it is not necessary for me to determine whether the application should nonetheless be dismissed because it is out of time.
It is also appropriate that the applicant should pay the first respondent’s costs, which I will fix in the sum of six thousand four hundred and twenty-dollars ($6,421.00).
For all the reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 31 July 2013