AZAEH v Minister for Immigration
[2014] FCCA 1438
•7 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZAEH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1438 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – challenge to Tribunal’s finding that it was reasonable for applicant to relocate within Afghanistan to Kabul – did Tribunal consider the practical realities facing the applicant in a proper, realistic and fair manner. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65,474, 476 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 2011 CLR 476 SZIED v Minister for Immigration & Citizenship [2007] FCA 1347 |
| Applicant: | AZAEH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 306 of 2013 |
| Judgment of: | Judge Brown |
| Hearing date: | 23 June 2014 |
| Date of Last Submission: | 23 June 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 7 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | PB & B Immigration Lawyers |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The amended application filed on 20 December 2013 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of six thousand six hundred and forty six dollars ($6,646.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 306 of 2013
| AZAEH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan. He was born in Gheganto, a small town in the Malestan District of Ghazni Province.
He is of Hazara ethnicity and a Shia Muslim by religion. He seeks asylum in Australia because he fears persecution in Afghanistan by reason of his religion and race and because he is likely to be regarded as a member of a particular social group and the holder of political opinions related to that group – namely the political opponents of the Taliban.
The applicant seeks to review a decision of the Refugee Review Tribunal “the RRT”, made on 19 September 2013, affirming a decision of a delegate of the first respondent “the Minister” not to grant him a protection visa under section 65 of the Migration Act 1958 (Cth). The Minister is authorised under the Act to grant such a visa.
In brief, the RRT found, on the basis of evidence from the applicant and country information relevant to Afghanistan available to it, that there was a real chance that the applicant could be identified and would therefore suffer persecution, at the hands of the Taliban, if he returned to Ghazni Province in the foreseeable future.
However, that was not the end of the RRT’s fact finding task. It was required to consider related issues, which can be conveniently summarised under the rubric of internal relocation.
Pursuant to this principle, a person, although found to have a well-founded fear of persecution, as a result of his experience in one particular part of his country of origin, should nonetheless be excluded from refugee status, because, by reference to other relevant circumstances, it would not be unreasonable to expect him or her to seek refuge in another part of the same country.
The RRT found that the applicant owned a small house in Kabul and had previously driven a taxi to and in Kabul. In these circumstances, the RRT considered that, given the applicant’s personal situation, it would not be unreasonable for him to relocate himself from Ghazni to Kabul. On this basis, it declined to interfere with the decision of the delegate not to grant him a protection visa.
In his amended application filed on 20 December 2013, the applicant seeks an order in the nature of certiorari to quash the decision of 19 September 2013 and an order in the nature of mandamus requiring the RRT to re-hear the matter according to proper principles of law. The Minister opposes this application.
The applicable legal framework
The applicant arrived at Christmas Island, by boat, on 20 May 2012. He is designated, by the Department of Immigration and Border Protection, as an irregular maritime arrival. As such, he is categorised as a non-citizen pursuant to the Migration Act. On his arrival, he applied for a Protection (class XA) visa.
The necessary criterion for the granting of such a visa is specified in section 36 of the Act. In brief, the applicant for such a visa must be a non-citizen, in Australia, in respect of whom the Minister is satisfied that Australia owes protective obligations, as a consequence of its execution of the Refugees Convention, as amended by the Refugees Protocol.
Refugee is defined by Article 1A(2) of the Refugees Convention as being 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.”
Section 36(2B)(a) of the Act provides statutory codification of the principle of internal relocation, in respect of non-Australian citizens seeking protection in Australia pursuant to the Refugees Convention. As previously indicated, this principle is germane to these proceedings.
On 9 July 2013, a delegate of the Minister refused the application for the visa in question. This decision is a privative clause decision as defined by section 474 of the Act. This means that the decision is deemed to be final and can be vitiated only if the person affected by the decision can demonstrate a jurisdictional error on the part of the decision-maker concerned.
The High Court in Plaintiff S157/2002 v Commonwealth of Australia[1] has held that the provisions of section 474 do not prevent the review of decisions, which are affected by jurisdictional error or have been made in bad faith.
[1] Plaintiff S157/2002 v Commonwealth of Australia (2003) 2011 CLR 476
Jurisdictional error is a difficult concept to explain to a lay person. A review process, based on a claim of such jurisdictional error, does not entail a merits review or a re-hearing of the evidence arising in the decision concerned. It is a concept which goes to the essential probity of the decision making process itself.
An administrative tribunal exceeds its powers and thus commits a jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion, in a way which affects the exercise or purported exercise of the tribunal’s power.[2]
[2] See Craig v South Australia (1995) 184 CLR 163
On 19 September 2013, the RRT affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa. The applicant seeks a judicial review of this decision, in which the RRT stood in the shoes of the delegate.
Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution.” This provision of the Constitution confers original jurisdiction on the High Court in proceedings in which a prerogative writ is sought against an officer of the Commonwealth.
Accordingly, the Court has jurisdiction to entertain the current application, but only so far as it discloses a jurisdictional error. It is however, not the function of the Court to examine the merits of the decision in question.[3] In Wu Shan Liang the High Court warned that a court, such as this one, called upon to review a decision regarding refugee status:
“Must beware of turning a review of the decisions of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
[3] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The ground of review
The applicant filed an amended application on 20 December 2013. On the hearing of the matter, the applicant agitated only the following ground:
“The Refugee Tribunal misdirected itself in failing to apply the reasonable relocation principle.
a. The Tribunal did not assess whether it was reasonable for
the applicant to relocate to Kabul in a proper, realistic and fair way.
b. The Tribunal did not consider the reasonableness of relocation to Kabul in the light of the prospect that the applicant may not actually relocate to Kabul, but return to Ghazni province: SZIED v Minister for Immigration and Citizenship.”
In terms of this ground, the second limb was not advanced by counsel for the applicant. It being the case that no evidence had been raised, by the applicant, before the RRT, that he might feel compelled to return to Ghazni, if repatriated to Afghanistan. Another ground for review was specifically abandoned by him.
The applicant’s claims
The applicant was born in 1983. He is married and has three dependent children. In addition, his widowed mother also lives with his family and is dependent upon him.
The applicant is one of seven siblings. A brother, who worked for the Afghan National Army was killed by Taliban in 2009, leaving a widow and infant son. These individuals are also dependent upon the applicant.
The applicant’s family has a farm in the area of his home in Gheganto, on which he has worked in the past. More recently, the applicant indicated that he had worked as a welder for approximately three years. However, in 2008, he commenced to drive a taxi to supplement his income.
It was the applicant’s evidence that his taxi is the only one in his village with Kabul registration plates. As a consequence, he was able to travel to Ghazni City and beyond, including Kabul, where he had stayed for two or three days at a time.
The applicant worked as a taxi driver between 2008 and 2012. One of his regular fares was to drive students from Gheghanto to Ghazni City to enable them to take their exams. In early 2012, he took a party of eight girls to Ghazni City for this purpose. Previously, he had taken other girls to Ghazni for the same reason.
The applicant’s practice was to drive the girls on Friday and return them back home on Wednesday or Thursday, after they had completed their exams. During the time the girls were in Ghazni, they would stay at the same hotel with the applicant, who was asked to look out for them by members of their family.
The applicant claimed that a friend informed him that this practice had come to the notice of Taliban spies, who had followed the girls in question. The applicant was also told that the Taliban were looking for him and would kill him. As a consequence, he sold his taxi and purchased a new car, returning home alone. He arranged for the girls to go back in separate taxis.
In answer to questions from the Tribunal, the applicant indicated that his family property generated some income. In addition, he indicated that he owned a house in Kabul, which was rented out. He had purchased the house with income made from his earlier welding work.
Findings of the RRT
On the basis of country information relating to Afghanistan, available to it, the Tribunal accepted the applicant’s claim that he was at risk, from the Taliban in Ghazni, because the Taliban had previously targeted schools, teachers and students, especially in the context of girls receiving education and those who assisted in such a process.
Accordingly, it was accepted that the applicant, by virtue of him having transported students (particularly female ones) from his village to Ghazni City could have come to the attention of the Taliban and would have been perceived by them as facilitating the education of girls in Ghazni Province and thus being opposed to the aspirations of the Taliban and so having anti-Taliban political opinions.
Accordingly, the Tribunal found that there was a “real” chance that the applicant would be persecuted by the Taliban, for a convention reason, should he return to Ghazni Provence. On the basis of country information, it further accepted that State protection in Ghazni would be inadequate as the locale of Ghazni was subject to infiltration by insurgents, such as the Taliban.[4]
[4] See Case Book at 275 [69] – [70]
The RRT then considered whether it was reasonable for the applicant to relocate to another part of Afghanistan, in lieu of Ghazni, particularly whether he could move to Kabul. In doing so, it considered country information relevant to the situation of individuals of Shia and Hazara extraction, who were currently living in Kabul.
In this context, it was noted that involuntary returns of failed asylum seekers, from the west, would be made to Kabul. In addition, in general terms, it was noted that there were approximate one million Hazaras resident in Kabul, which comprised approximately 25 per cent of the city’s population. This population was concentrated in the western part of Kabul, which was described as a Shiite stronghold.[5]
[5] See Case Book at page 272 [53]
Again in general terms, the RRT noted that there had been recent terrorist attacks in Kabul but the city was safer than other locations in Afghanistan as a result of the greater efficiency of the Afghan Army and police there. As a consequence, the Tribunal found that the quality of internal protection, in Kabul, did not fail to meet basic norms of civil, political and social-economic human rights.[6]
[6] See Case Book at page 273 [56] – [57]
In these circumstances, the Tribunal did not accept that an ordinary Shia Hazara individual, with the applicant’s profile, would face a “real” chance of suffering serious harm in Kabul. Rather, it found that the persecution feared by the applicant was limited to his home region, where he had a specific and individual profile with the Taliban, as a taxi driver, who had transported teachers and female students for the purposes of facilitating their education.
Specific findings of the RRT regarding the reasonableness of the applicant relocating to Kabul
The RRT noted that the applicant had indicated, in his evidence to it, that he had, in the past, travelled to Kabul for his work as a taxi driver. However, the applicant also deposed that there were many drivers, like him, in Kabul and it would be difficult for him to obtain work there.
As previously indicated, the applicant had also indicated that he owned a house in Kabul. It was put to him that he could live in this house. However, the applicant claimed that the house in Kabul was too small and would not be able to accommodate his extended family.
He further claimed that the rental income derived from the property was used to support his family and supplement farming income. The applicant also indicated that he would not be able to sell his family home, in Malestan, because of the interests of other family members in it.
In regards to whether it was reasonable, given the applicant’s particular circumstances, for him to relocate, the RRT found as follows:
“The Tribunal has considered the applicant’s submissions that it would be difficult for him to secure work in Kabul. The Tribunal finds that the applicant is 30 years old, he is an experienced driver who admitted that he has driven his taxi to Kabul in the past. The Tribunal also notes the applicant has welding skills which assisted him to earn a living in the past. The Tribunal finds the applicant’s past work experience and skills provide him with a strong foundation to securing work in Kabul. The Tribunal notes the applicant’ s submissions that his house in Kabul is small and would not be able to accommodate his extended family. The Tribunal finds that the applicant’s house in Kabul will provide him with a secure base which can assist him to obtain larger premises to accommodate his family.
The Tribunal has considered the guidance offered by the UNHCR in considering whether in the circumstances it would be reasonable for the applicant to relocate to Kabul. The Tribunal finds in all the circumstances it is a reasonable option open to the applicant. Having considered the applicant’s personal circumstances, the Tribunal finds the applicant is in a unique situation where he owns a house and has the ability to continue work as a taxi driver in Kabul and in this regard he is not reliant on extended family, community or tribe to obtain employment or shelter.
The Tribunal accepts that initially relocation to Kabul may result in a reduction of income which is available from the rental property, however, as stated above the Tribunal finds the applicant would be able to drive a taxi and seek and do welding work in the future. The Tribunal finds that there is no real chance that the applicant will be denied the capacity to earn a livelihood for the reason of his race, religion or any other Convention reason in Kabul. The Tribunal finds that there is no real chance that the applicant will be subjected to significant economic hardship for a Convention reason in Kabul.
The Tribunal concludes that it would be reasonable for the applicant to relocate to Kabul.”[7]
[7] See Case Book at page 277-278 [84] – [87]
The principle of internal relocation
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, as defined by the Convention, if safety is available to them, within their country of origin, through the agency of their own State. As previously indicated, the principle is part of the domestic law of Australia as a consequence of provisions incorporated into the Migration Act.
In Randhawa v Minister for Immigration[8] Black CJ discussed the principle and indicated that the question, which a decision maker, in respect of refugee status, should ask, was whether the applicant’s “fear [of persecution] was well founded in relation to his country of nationality, not simply the region in which he lived.”
[8] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 442-443
However, given the humanitarian objects of the Refugee Convention, this question was not to be approached in a “narrow way”. Accordingly, a person’s fear of persecution would remain well founded in respect to the country as a whole, if, as a matter of practicality, the part of the country in which protection was available was not reasonably accessible to the person claiming asylum.
In this context, Black CJ expressed the consideration as follows:
“If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded.”[9]
[9] See Randhawa (supra) at 443
In Minister for Immigration & Multicultural Affairs v Khawar[10] the High Court indicated that the satisfaction of the definition of “refugee” provided by the Convention, depended upon the satisfaction of two conditions – firstly, the person seeking refugee status was outside the country of his nationality; secondly, this was as a consequence of a fear of persecution, which was well founded.
[10] Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 at 21 per McHugh & Gummow JJ
In this second context, it was held that the use of the expression well founded engendered both a subjective and objective test. That is, the claimant must personally fear for his safety and his fear was objectively reasonable.
In SZATV v Minister for Immigration & Citizenship[11] the High Court considered the second limb of this definition, in the context of the principle of internal relocation. In so doing, it considered what considerations had to be satisfied if it was deemed to be reasonable for a person who feared persecution, in one part of his country of origin, to move to another region within it.
[11] SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18
The High Court considered that a decision maker, in respect of refugee status, must consider whether it was reasonable, in the sense of being practicable, for an asylum seeker to relocate to a region, where objectively there was no appreciable risk of the occurrence of the feared persecution occurring.
It was considered that such a formulation did not turn upon any hypothetical assumption regarding possible safe areas within the country concerned nor did it prevent “account being taken of the presence of a subjective fear of persecution … ”on the part of the applicant seeking asylum status.[12]
[12] SZATV (supra) at 26
Accordingly, considerations germane to what is subjectively practicable for an applicant for refugee status to do, are relevant to whether it is reasonable, in overall terms, for that person to move to another region, within his country of origin, where in objective terms, there is no likelihood of persecution for the individual concerned in that region.
The High Court (Gummow, Hayne and Crennan JJ) said as follows:
“What is ‘reasonable’, in the sense of ‘practicable’, must depend on the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”[13]
[13] SZATV (supra) at 27
Accordingly, an essential component of the decision making process as to whether it is reasonable for an applicant for refugee status to relocate to another part of his country of origin is a consideration of his “particular circumstances”. A failure to do so will constitute a jurisdictional error and vitiate any resulting decision.[14]
[14] See Plaintiff M 13-2011 v Minister for Immigration & Citizenship [2011] HCA 23 per Hayne J at [22]
It is essentially the current applicant’s submission that the RRT failed to consider whether it was reasonably practicable for him, given his idiosyncratic circumstances, to return to Kabul. In particular, it is submitted that the RRT did not properly consider the number of dependents he had to maintain and the inadequacy of his accommodation, in Kabul, to do so. It is submitted that the RRT failed to make a proper factual assessment of the particular circumstances of the applicant in this case and so fell into jurisdictional error.
Ground of review
In support of the ground of review, counsel for the applicant places significant emphasis on the decision of Moore J in SZIED v Minister for Immigration & Citizenship. [15]The applicant in SZIED was a Columbian national who had previously grown coffee in a rural part of the country. He had joined a particular political party and come to the notice of another group which had practised extortion on small farmers, which the applicant had resisted.
[15] SZIED v Minister for Immigration & Citizenship [2007] FCA 1347
It was accepted that the applicant had been subjected to persecution, as a consequence of his political views, in the area of Columbia, where he had lived prior to seeking asylum in Australia. The question for the decision maker concerned was whether it was reasonable for him to relocate to another part of Columbia, namely its capital Bogota pursuant to the Internal Relocation principle as enunciated in Randhawa.
In this regard, the RRT concerned noted that the applicant had lived in Australia for the past eight years and had not been obliged to seek rural employment during that time, as he had obtained cleaning and construction work. It was further found that the applicant would be able to find employment in these fields in an urban setting in Columbia as would his wife who was a qualified beauty therapist.
During the course of the hearing before the RRT, the applicant deposed that he would feel compel to return to his farm in Columbia and return to the type of life which he had previously led. Moore J held that the RRT fell into error in the manner in which they considered this evidence.
In particular, Moore J found the Tribunal’s finding that, because the applicant had managed not to return to a rural lifestyle, during the period of his residence in Australia, he would be able to do the same thing in Columbia, to be erroneous, as it did not entail a proper assessment of the applicant’s circumstances.
In this context, Moore J noted the difficulties which very often confront persons seeking refugee status when the issue of internal relocation is raised. Firstly, his Honour pointed out that invariably the issue was raised at the hearing stage and accordingly the applicant concerned had little time to respond to it and secondly, and more germane to the present case, the issue of relocation was necessarily speculative.
This is true, of course. No decision maker can necessarily determine, with absolute certainty, what will be the circumstances of any particular person on having to begin a new life in a different part of his or her country of origin to that which has been their habitual place of abode in the past. Such a process must be one of informed conjecture.
In this context, Moore J indicted the necessity for any decision maker to evaluate properly what the asylum seeker in question was actually saying about intra country relocation. His Honour said as follows:
“The issue requires consideration of not only whether a safe haven exists in another part of the country. Proper consideration must also be given to the issue of relocation as a practical matter, by considering whether it would be reasonable to expect the person to relocate in view of all the ‘practical realities’ facing that person.”[16]
[16] See SZIED (supra) at [42]
In SZIED Moore J considered that the Tribunal concerned had failed to consider properly the circumstances of the applicant, particularly his evidence that he would feel compelled to return to his farm. He said as follows:
“An assessment of whether it was reasonable in the circumstances to expect the appellant to relocate could not be made by merely pointing to the fact that the appellant had not been on the farm for some years because he is in Australia and had not been doing farm work whilst in Australia. The proper test propounded by Black CJ in Randhawa requires that the evaluation be proper, realistic and fair and all the circumstances be taken into account.”[17]
In these circumstances, his Honour found that the Tribunal had misunderstood the principle enunciated in Randhawa and its subsequent decision was therefore vitiated by jurisdictional error.
[17] Ibid at [52]
It is the applicant’s submission that the RRT, in this case, has fallen into a similar error by concluding merely from the fact that, because the applicant has a house in Kabul and has driven there in the past, he can reasonably relocate to the city.
In so doing, it has failed to undertake a proper, realistic and fair evaluation of his circumstances. Rather it has erroneously extrapolated backwards from one factor, namely his ownership of a house in Kabul, to reach conclusions about his subjective prospects of relocating to the city. This was unfair to the applicant, as it did not properly consider the effect of his evidence, which was that the house in question was and remains inadequate to accommodate both him and his extended family.
In this context, counsel for the applicant contends that the RRT failed to engage with the practical realities facing his client on being returned to Afghanistan, particularly in the sense that it failed to consider whether the house in question could reasonably (or even possibly) accommodate his extended family in Kabul, given that there are eight of them.[18]
[18] See Applicant’s written submissions at paragraph 20
In so doing, it is submitted that the question the Tribunal has asked itself is whether it is merely conceivable for the applicant to return to Afghanistan, rather than reasonably practicable to do so. In approaching the case in this manner, the Tribunal has not conducted the speculation implicit in the vast majority of internal relocation cases in a proper, realistic and fair way.
Unlike the situation in SZIED I have not been provided with a transcript of the applicant’s evidence before the RRT. There can, however, be no doubt the applicant clearly articulated his view to the Tribunal that the house in Kabul was too small to accommodate his extended family and, as such, this circumstance represented a bar to his relocation to Kabul.
The RRT noted the applicant’s house was small.[19] For obvious reasons, it was not itself able to evaluate its dimensions or other attributes. The evidence available to it was confined to that provided by the applicant himself, which the Tribunal was then required to evaluate fairly. On this basis it was required to speculate as to the subjective practicality of the applicant relocating to Kabul.
[19] See Case Book at page 277 at [84]
In MZYQU v Minister for Immigration & Citizenship [20] Dodds-Streeton J noted that “the mere recording of evidence or a statement of the appellant’s objections without analysis or resolution would not amount to ‘consideration’ in the relevant sense…” It would seem to be the current applicant’s position that, in the present case, the RRT merely reiterated his concerns without the required level of evaluation.
[20] MZYQU v Minister for Immigration & Citizenship [2012] FCA 1032
I do not agree. In my view, a fair reading of the Tribunal’s reasons as a whole indicates that it did consider the practical difficulties confronting the applicant, including issues relating to his accommodation, employment prospects and obligations to his extended family. Necessarily this involved some degree of speculation on the basis of the evidence available to it.
In this regard, an analysis of the Tribunal’s decision reveals that it made the following specific findings:
·the applicant was an experienced driver;
·he had some skills as a welder, which had assisted him to earn his income in the past;
·he had driven his taxi to Kabul in the past.
Given these circumstances, the RRT formed the view that the applicant’s past work and experience provided him with a strong foundation to secure work for himself in Kabul. In my view, the Tribunal did attempt some speculative evaluation of the applicant’s employment prospects in Kabul. It was not merely giving lip service to his objections to working there.
In addition, it should be noted that the Tribunal also had access to generic country information regarding the situation for Hazaras in Kabul, which indicated an improving outlook for them, including in economic and social terms.[21] Accordingly the finding regarding the applicant’s personal prospects in Kabul was not made in a vacuum.
[21] See Case Book at page 272 at paragraph 54
In these circumstances, the RRT did not reject outright the applicant’s concerns regarding the suitability of his accommodation in Kabul. For the reasons outlined above, it was not in a position to make its own specific findings regarding the level of amenity it provided. However, the Tribunal was able to consider what advantage the possession of even a small dwelling conferred on the applicant and compare his situation with that of other returnees to Kabul.
In this context, the Tribunal had regard to information available from the UNHCR, which noted that of 5.7 million Afghan refugees who had returned to the country, albeit predominantly from Pakistan and Iran, 1.84 million had failed to reintegrate due to problem with access to land, shelter, services and livelihoods.[22]
[22] Ibid at page 276 at paragraph 74
Given this material, in my view, the RRT’s finding that the applicant was in a unique situation due to having a house and the ability to work as a taxi driver, cannot be characterised as a piece of ill-considered exaggeration on its part. Rather it was the product of the Tribunal’s attempt to consider all the evidence available to it and consider the practical ramifications of the situation confronting the applicant, on his potential return to Kabul.
In this context, the central finding of the Tribunal was that the ownership of the house in Kabul would provide the applicant with a secure base from which he could work to obtain larger accommodation for his family in due course. In my view, this finding indicates that the RRT did attempt a fair, realistic and proper appraisal of the practical realities likely to confront the applicant on his relocation to Kabul.
In so doing, it acknowledged that the house concerned was far from ideal and was likely to be unsuitable for the applicant’s family on any long term basis. However, in my view, a fair reading of the Tribunal’s decision requires close consideration being given to the related findings made by the RRT that the applicant had the necessary work skills to provide for himself and his family and so was not reliant on others to provide his and their needs for shelter.
Accordingly, the Tribunal considered that the shortcomings of the accommodation would be superseded in time by these other factors. In so doing, in my opinion, it fulfilled its fact finding role regarding the practical realities likely to confront the applicant, on his return to Kabul, and so discharged its jurisdictional obligations.
In my view, the RRT cannot be said to have merely re-stated the applicant’s objections to relocating as a prelude to rejecting them. Rather it placed them in the context of the applicant’s overall circumstances and gave them reasonable consideration. The question of whether safe internal relocation is reasonably available is one of factual determination for the Tribunal itself.[23] As such, it is not the function of this court to substitute its own view of the facts for that of the Tribunal.
[23] See Franco-Buitrago v Minister for Immigration & Multicultural Affairs [2000] FCA 1525 per Tamberlin J
As part of its fact finding task, the RRT was entitled “to accept or reject or give such weight to the evidence as it thinks appropriate in all the circumstances.”[24] In this context, courts such as this one, engaged in a review function, are frequently urged not to subject the reasons of any decision maker to over-zealous scrutiny “with an eye keenly attuned to the perception of error.”[25]
[24] See Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 467 at [27] per French J (as he then was)
[25] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (supra) at 272
In my view, in this particular case, the RRT correctly identified the practical factors relevant to the applicant’s possible relocation to Kabul. These factors primarily related to his personal accommodation, the accommodation of his family and how the applicant himself was to support himself financially.
Thereafter the Tribunal considered these factors, including the objections of the applicant himself. In my view, a fair reading of the Tribunal’s decision indicates that it gave a genuine consideration of each of them and made findings of fact, which reflected that level of consideration.
In so doing, it provided the fair, realistic and proper consideration of the practical exigencies likely to face the applicant on relocating to Kabul. As such, in my assessment the RRT did not fall into jurisdictional error in considering the individual practicalities of the applicant in this case.
For all these reasons, the application should be dismissed and the applicant should pay the first respondent’s costs fixed in the sum of $6,646.00.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 7 July 2014
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