BBV18 v Minister for Home Affairs
[2020] FCCA 2096
•30 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBV18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 2096 |
| Catchwords: MIGRATION – Safe Haven Enterprise visa – whether IAA unreasonably failed to obtain new information – whether finding made in absence of evidence – whether finding as to relocation unreasonable, illogical or irrational – whether IAA erred in assessment of ‘real risk’ – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss 36, 36(2A), 473DD, 473DC and Part 7AA |
| Cases cited: FGF17 v Minister for Immigration & Border Protection & Anor [2020] FCCA 1828 Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475 |
| Applicant: | BBV18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 91 of 2018 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 5 November 2019 |
| Date of Last Submission: | 5 November 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 30 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Marcus |
| Solicitors for the Applicant: | Beena Rezaee Legal & Migration |
| Counsel for the Respondents: | Ms L Butler |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application is dismissed.
The applicant do pay the respondent’s costs, pursuant to Division 1, Part 3 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth), as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 91 of 2018
| BBV18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the second respondent the Immigration Assessment Authority (‘the IAA’), made on 7 February 2018 which affirmed an earlier decision of a delegate of the first respondent which had refused to grant the applicant a Safe Haven Enterprise visa (‘the visa’).
The applicant relies on four grounds as follows:
1.The IAA failed to exercise its jurisdiction to conduct a review by unreasonably refusing to exercise its discretion to obtain new information
Particulars
1.1.The IAA found the applicant was faced a real risk of serious harm in traveling by road within Afghanistan.
1.2.The IAA found travel by air from Kabul to Mazar-e-Sharif was available.
1.3.The IAA found the applicant had not claimed he could not finance an air ticket.
1.4.The issue of air travel was determinative.
1.5.The issue of air travel was not put to the applicant by the delegate or the IAA, nor was the issue so obvious the applicant should have addressed it.
1.6.The reliance on the ability to travel by air was adverse to the applicant’s claim.
1.7.There was no information in relation to the applicant’s ability to travel by air before the IAA.
1.8.Information in relation to the applicant’s ability to travel by air was relevant.
1.9.The IAA acted unreasonably in its failure to exercise its discretion to invite the applicant to provide further information on this topic.
1.10.In so acting the IAA denied the applicant procedural fairness.
1.11.The IAA’s failure to consider the exercise of its discretion and the denial of procedural fairness to the applicant amount to a constructive failure to conduct a review of the decision.
1.12.The constructive failure to exercise the jurisdiction amounts to jurisdictional error.
2.The IAA acted on a factual basis for which there is no evidence.
Particulars
2.1.The IAA found the applicant faced a real risk of significant harm in traveling by road within Afghanistan.
2.2.The IAA found travel by air from Kabul to Mazar-e-Sharif was available.
2.3.The IAA found the applicant could travel by air to Mazar-e-Sharif.
2.4.There was no evidence to support this finding.
2.5.The positive finding made absent evidence amounts to jurisdictional error.
3.The IAA misapprehended the statutory test in s 36 in being satisfied it was reasonable for the applicant to relocate to Mazar-e-Sharif.
Particulars
3.1.The satisfaction it was reasonable to relocate within Afghanistan is a jurisdictional fact.
3.2.The IAA’s reasons for being so satisfied are illogical and unreasonable.
3.3.In so reasoning the IAA misapprehended the statutory test to be applied.
3.4.The misapprehension amounts to a constructive failure to exercise the jurisdiction.
3.5.The constructive failure to exercise the jurisdiction amounts to jurisdictional error.
4.The IAA misapplied the statutory test in s 36 in being satisfied there was not a real risk the applicant would suffer significant harm in relocating to Mazar-e-Sharif.
Particulars
4.1.The satisfaction there was not a real risk the applicant was suffer significant harm is a jurisdictional fact
4.2.The IAA’s reasons for being so satisfied are illogical and unreasonable
4.3.In so reasoning the IAA misapprehended the statutory test to be applied
4.4.The misapprehension amounts to a constructive failure to exercise the jurisdiction
4.5.The constructive failure to exercise the jurisdiction amounts to jurisdictional error.”
Background
The applicant arrived in Australia as an unauthorised maritime arrival in May 2012 at the age of 17 years. He is a Hazara Shi’a from Ghazni province in Afghanistan and an Afghani citizen.
The relevant background to these proceedings was not in issue and has been helpfully summarised by the first respondent in its Outline of Submissions. I have incorporated that summary verbatim below:
“3.The applicant is a 23 year old citizen of Afghanistan who arrived in Australia as an unauthorised maritime arrival on 16 August 2012.
4.The applicant applied for the visa on or around 5 September 2016 (visa). He sought the visa on the basis of fear of harm from Islamic insurgent groups due to his Shi’a Muslim religion and his Hazara ethnicity. In a statutory declaration, the applicant claimed that his brother and his sister-in-law were abducted in January 2012 after travelling to Kabul from their home district of Ghazni for medical care. He claimed that it was suspected the Taliban were responsible for the disappearance. The applicant claimed that if returned to Afghanistan, he would be killed or significantly harmed by the Taliban due to being a failed asylum seeker, and because he would be suspected as a spy. He also claimed to fear being subjected to generalised violence in Afghanistan.
5.On 9 November 2017, the delegate refused to grant the visa.
6.The decision refusing the applicant the visa was referred to the IAA on 15 November 2017.
7.On or around 15 January 2018, the applicant, via his representative, provided written submissions to the IAA. The representative otherwise provided the agent with 3 tranches of documents and country information on 19 January 2018. On or around 29 January 2018, the representative provided the IAA with a further 5 tranches of documents and country information.
8.On 7 February 2018, the IAA affirmed the delegate’s decision.
New information
9.The IAA considered whether the documents and information provided by the representative met the matters at s 473DD(a) and (b) of the Migration Act 1958 (the Act), so that they could be considered.
10.To the extent that the submission of 15 January 2018 made arguments in relation to country information before the delegate, the IAA found that it was not new information. The IAA otherwise found there were exceptional circumstances for considering recent country information referred to in the submission, and was satisfied that this information could not have been provided to the delegate.
11.The IAA also had regard to the tranches of documents provided on 19 and 29 January 2018. The IAA noted the documents in each tranche that post-dated the delegate’s decision and was satisfied that they could not have been provided to the exceptional circumstances to justify considering those documents. The only exception to this was a document dated the day before the delegate’s decision. The IAA was satisfied that it could not have been provided to the delegate given the short timeframe and it was subsequently considered. The IAA found that the remainder of the documents in the tranches did not satisfy the relevant statutory requirements for them to be considered either because they pre-dated the delegate’s decision, contained general country information, or related to matters on which there was already a substantial amount of information before the IAA.
Protection claims
12.The IAA was satisfied that the applicant was a Hazara Shi’a from Ghazni in Afghanistan. It also accepted the applicant’s claims regarding his experience in Ghazni, including that his brother and sister-in-law disappeared in early 2012 on a trip to Kabul and may have been taken by the Taliban. Given the applicant did not claim that he or his family had any other past incidents with the Taliban, the IAA found that the disappearance was an opportunistic attack, and was not satisfied that the applicant faced a real chance of harm from any organisation, group or person arising from his relationship with his brother.
13.Based on the country information before it, and the material provided by the applicant, the IAA was satisfied that there was a small but nonetheless real risk that the applicant would come to the attention of local Pashtuns or would be identified by the Taliban or other insurgents as a recent returnee if he returned to Ghazni after 6 years of living outside the province. If so identified, the IAA was satisfied that the applicant would face a small but nonetheless real risk of being abducted, be subjected to serious physical violence or killed if he came to the Taliban’s attention, and on that basis, found that the applicant would face a real chance of serious harm if he returns to Ghazni.
14.However, the IAA was satisfied, based on country information before it, that the applicant would not face a real chance of serious harm arising from his religion, ethnicity, any imputed political opinion or from generalised violence, in Mazar-e-Sharif. The IAA was also satisfied, based on country information, that the applicant could access Mazar-e-Sharif by air without facing a real chance of harm, noting that the applicant would only be required to transit through Kabul for a short period, and also noting that the applicant had not claimed that he would not be able to finance an air ticket from Kabul to Mazar-e-Sharif.
15.The IAA further found that it would be reasonable for the applicant to relocate to Mazar-e-Sharif such that there was taken not to be a real risk of him suffering significant harm in Afghanistan under s 36(2B) of the Act. It noted that country information indicated that it was reasonable for young, able-bodied, single men without specific vulnerabilities to relocate within Afghanistan. It also noted that the applicant had been provided an opportunity before the delegate to comment on relocation generally, including the fact that the applicant was young, resourceful, had no physical vulnerability and had shown as ability to find work through Hazara connections in Australia. The IAA accepted that there were substantial economic and other challenges with relocating. However, it found that the government control, relative stability and economic opportunities would be conducive to the applicant finding employment in Mazar-e-Sharif.
16.The IAA then considered the applicant’s personal circumstances and noted his resourcefulness in Australia in being able to link into the Hazara community, obtain employment and arrange shared accommodation, and was satisfied that the applicant would be able to link in with the local Hazara community in Mazar-e-Sharif and seek support and assistance from that community, and would be able to earn a livelihood and have access to essential services to sustain himself and meet the basic necessities of life. The IAA then considered a submission regarding the inadequacy of medical services in Mazar-e-Sharif but was not satisfied, in light of the applicant’s young age and good health, that he would be unable to access or would be denied access to medical treatment. The IAA was also satisfied on the information before it that Mazeer-e-Sharif was under effective government control and found nothing indicating that this would deteriorate in the reasonably foreseeable future.”[1]
(footnotes omitted)
Submissions
[1] First Respondent’s Outline of Submissions filed 3 October 2020.
Applicant’s submissions
As to ground one, the applicant submits that the IAA failed to exercise its discretion to obtain further information pursuant to s 473DC and that this amounted to a constructive failure to exercise its jurisdiction to conduct a review. The topic on which there was a paucity of information which required the IAA to get further information was the question of air travel between Kabul and Mazar-e-Sharif. Having noted that there were two domestic flights between Kabul and Mazar-e-Sharif each day, the IAA found that the applicant had not claimed that he would be unable to finance an air ticket.[2] This reasoning was said to be fundamentally flawed because there was no evidence before the IAA that the applicant would be able to afford an air ticket and further, that matter or even the possibility of obtaining a flight was not raised with the applicant. That was not such an obvious matter that the applicant should have been expected to put information about it before the delegate or the IAA. The availability of air travel was a determinative matter insofar as the applicant’s ability to safely relocate to Mazar-e-Sharif was concerned. The applicant noted that the IAA was clearly empowered to obtain new information which it considered relevant. The failure to obtain information about this matter led the IAA to reason along the lines that not only was there no impediment to the applicant being able to access travel by air but that he would be able to access it. It was unreasonable for the IAA to reach that conclusion without requesting further evidence from the applicant. It would hardly have been a difficult thing for it to do. In effect, the IAA reasoned that the applicant would be able to access air travel solely on the basis of an absence of evidence that he would not be able to do so. The failure to consider exercising its discretion means that it had failed to conduct a review in particular with respect to whether or not the applicant met the refugee criteria. It was submitted that it is well-established that a constructive failure to exercise jurisdiction amounts to jurisdictional error.
[2] Court Book (‘CB’), 1006 [35].
With respect to ground two, the applicant repeated his submission with respect to ground one. There was simply no evidence to support a finding, firstly, that air travel was available and, secondly, that the applicant would be able to avail himself of it. There was no evidence of the cost of flights between Kabul and Mazar-e-Sharif, the financial affairs of the applicant, or that the applicant would be able to afford such a flight or be able to afford to cater for reasonable contingencies such as the cancellation or delay of any flight.
The applicant’s submission with respect to ground three was that the finding by the IAA that it was satisfied of the reasonableness of the applicant relocating to Mazar-e-Sharif was inconsistent with other matters which it accepted relevant to difficulties the applicant was likely to face in that place were he to do so.[3] This rendered the finding as to relocation unreasonable in the sense that it was irrational. It was irrational of the IAA to place apparently decisive weight on the applicant’s ability to adapt to life in Australia as being indicative of his ability to obtain employment and resettle in Mazar-e-Sharif. It was not open to the IAA to make such a comparison because it was essentially meaningless. It was inherently unreasonable for the IAA to conclude that the applicant would simply fit into the Hazara community in Mazar-e-Sharif and given the difficulties which it accepted the applicant would face, its reasoning process was unfathomable. It was submitted that the IAA did not even attempt to reconcile those matters with the conclusion it reached. By virtue of those matters, the applicant submitted that it could be seen that the IAA misapprehended the statutory test to be applied and that such misapprehension amounted to a constructive failure to exercise its jurisdiction and hence a jurisdictional error.
[3] CB, 1004 [27], 1008 [44]-[47], 1009-1010 [49]-[54].
The applicant’s reasoning in ground four was similar to the reasoning in ground three. That is, that the IAA’s finding that there was not a real risk that the applicant would suffer significant harm if he were to relocate was inconsistent with matters it accepted, findings it made, and the evidence before it. For example, the IAA appeared to be satisfied that the applicant’s status as a returnee from the West might exacerbate his risk profile as a Hazara Shi’a in Ghazni Province and yet made a directly inconsistent finding in the assessment the risk to him of relocating to Mazar-e-Sharif when it found that he did not have, “a profile, links or associations that would mark him out as any different to any other Hazara Shi’a in other parts of Afghanistan.’[4] It was not possible to discern from the reasoning of the IAA how it factored in the risk to the applicant due to his status as a returnee in light of the absence of support networks available to him in Mazar-e-Sharif.
[4] CB, 1005 [32].
Similarly, the IAA appeared to find that applicants who took measures to conceal their association with the West and kept a low profile did not face a significantly higher risk of violence or discrimination than other Afghans with a similar ethnic and religious profile.[5] The applicant submits that such a finding could not logically act as a protective factor in light of the IAA’s further finding that the applicant would be able to and would need to actively approach strangers in the community in order to obtain support, guidance and assistance.[6] Indeed, it was that second finding which appears to be the basis on which the IAA found that the applicant would be able to obtain both employment and housing. An analysis of the reasons of the IAA demonstrates that its conclusion that the applicant did not have a well-founded fear of persecution in Mazar-e-Sharif was unreasonable, irrational and illogical because they did not illustrate why it was satisfied that the accepted acts of violence in that place towards Hazara Shi’as coupled with the apparent disregard for civilians did not place the applicant at a real risk of significant harm there. In reasoning in the way it did, the IAA misapprehended the statutory test to be applied which was a constructive failure to exercise its jurisdiction and for that reason a jurisdictional error.
[5] CB, 1002 [22].
[6] CB, 1009 – 1010 [51]-[52].
First Respondent’s submissions
In the submission of the first respondent, there is a fundamental reason why ground one is misconceived. The applicant was on notice by virtue of the reasons given by the delegate that relocation would not result in facing a real chance of persecution in Mazar-e-Sharif. In part, that finding was based on a conclusion that the applicant would be able to travel there from the Kabul international airport and the fact that there was also an international airport in Mazar-e-Sharif. For that reason, it can be seen that the IAA did not determine the application on a different basis to the delegate. Further, it was apparent from the materials in the Court Book that the applicant’s representative made substantial written submissions and provided a significant amount of the country information to the IAA, and in particular dealing with the question of relocation. At no time prior to the decision of the IAA did the applicant posit that he would not be able to afford a flight from Kabul to Mazar-e-Sharif. It was open to the IAA to conclude that the applicant would be able to safely travel there by air. That finding simply reflected the evidence including the country information that it had before it. The first respondent submitted that it could not be plausibly suggested that the IAA had made a finding in that regard in the absence of any evidence.
With respect to grounds three and four, it was submitted that given the stringent test for illogicality and irrationality the submissions of the applicant on these grounds could not succeed. The fact that the IAA had made note of the difficulties the applicant was likely to experience on relocation was not of itself a bar to finding that relocation would in the circumstances be reasonable. A fair reading of the IAA’s reasons for decision taken as a whole did not suggest that they lacked an evident and intelligible justification with respect to either of these grounds.
Consideration
As to the failure to obtain new information with respect to the availability, cost, and accessibility of air travel from Kabul and Mazar-e Sharif, s 473DC provides as follows:
“(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.”
In FGF17 v Minister for Immigration and Border Protection and Anor[7] I made the following observations about the question of alleged unreasonableness in the failure to obtain new information:
“The test is whether it has been established by the applicant that it was unreasonable in the legal sense for the IAA not to consider getting documents or information from the psychologist who had treated the applicant. The practical application of the test was considered by the Full Court in the matter of CRY16:
“… The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.”
I do not understand the decision in CRY16 to mean that every failure to consider whether to exercise the discretion to get new information will necessarily amount to jurisdictional error on the basis of unreasonableness. It will depend on the factual background against which the failure to consider exercising the discretion occurred. To my mind there is an obvious difference between the factual background in CRY16 and that complained of here. In that matter, the IAA decided to affirm the delegate’s decision but on a different basis. It concluded that relocation was reasonable, but of course, the applicant had not had an opportunity to comment or put material before any decision maker as to why it would not be reasonable in the sense of being practicable for him to be required to relocate. His views on the matter were likely to be inherently relevant to the question of practicability. In that context, the conclusion of the Full Court that the failure to consider the exercise of the discretion lacked an evident or intelligible justification is, with respect, readily understandable.”[8]
[7] [2020] FCCA 1828; Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475.
[8] Ibid [24]-[25].
I am satisfied that my observations in FGF17 are applicable here.
The onus is on the applicant to demonstrate that a failure to obtain new information from him (or any other source) about the air travel issue was unreasonable in all of the circumstances. It was not the role of the IAA to make his case for him. Whether or not a decision is unreasonable must be determined in the context of the scope, purpose and objects of the statutory source of power under which the decision was made.[9] That context illustrates the scope of ‘decisional freedom’ available to a decision-maker.[10] Part 7AA establishes a fast track method of merits review with limited natural justice requirements. Pursuant to Part 7AA, the IAA is not required to accept or request new information. Section 473DC itself has been described as ‘entirely facultative’.[11] Where new information is submitted by an applicant its’ reception is strictly regulated by s 473DD.
[9] Minister for Immigration and Border protection v SZVFW [2018] HCA 30.
[10] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [28].
[11] Plaintiff M174/2016 v Minister for Immigration and Border Protection and Anor (2018) 353 ALR 600 [23].
Given that the air travel issue had been squarely raised by the delegate, the IAA was entitled to act on the basis of the case presented to it by the applicant. In the absence of the applicant requesting it to consider new information on that issue pursuant to s 473DD, the IAA was entitled to proceed on the basis that that aspect of the delegate’s decision was not the subject of dispute. There was nothing ambiguous about the findings of the delegate with respect to access to Mazar-e-Sharif. The applicant was clearly on notice that the availability of air travel was an important component of the delegate’s finding as to relocation. The delegate found as follows:
“There is an international airport in Mazar-e Sharif accepting flights from Kabul and international locations. I previously found the applicant will be able to safely access Kabul via the international airport in that city and I am satisfied that he can transit by air to Mazar-e Sharif.”[12]
(Citation omitted)
[12] CB, 857.
The finding in the first sentence of the passage quoted above was clearly footnoted to an item of country information. There being no indication in the submissions of the applicant to the IAA that the above findings were challenged in their entirety or in any way disputed, on what basis can it now be contended that it was unreasonable for the IAA not to unilaterally exercise its discretion to obtain new information on those matters by way of s 473DC?
To the extent that the applicant now complains about the absence of information before the IAA that might not have been within his direct knowledge, for example, the cost of airfares or the reliability of air services into Mazar-e-Sharif, there is no evidence that the applicant requested the IAA to consider exercising its’ discretion under s 473DC to obtain information on those matters. There was no ‘trigger’ which required it to exercise the discretion at the request of the applicant.[13] That is particularly significant given the voluminous nature of the submissions and country information provided to the IAA by the applicant’s representative which took issue with the delegate’s decision.[14] The thrust of those submissions and the country information provided was all directed to the dangers and risks in Afghanistan and certain regions generally, and the difficulties which the applicant would face once he was in Mazar-e-Sharif if he were to be required to relocate there. As I have noted above, nothing was mentioned about those matters now complained of in this review relating to air travel to Mazar-e-Sharif.
[13] DUZ17 v Minister for Home Affairs [2019] FCA 1593 [51].
[14] CB, 885-990.
I am not satisfied that jurisdictional error has been demonstrated and I dismiss ground one.
Ground two fails for similar reasons. Contrary to the submission of the applicant, there was evidence properly understood on which the IAA could conclude that the applicant would be able to travel to Mazar-e-Sharif by air. The country information on which the delegate relied, and to which I have referred above, established not merely that there were flights between Kabul and Mazar-e-Sharif but also that there were international flights into Mazar-e-Sharif. It appears from the reasons of the IAA that it relied on the same country information.[15] That was a sufficient foundation on which to conclude both that air travel was available and could be utilised by the applicant to avoid the dangerous road journey between Kabul and Mazar-e-Sharif. The IAA went further than the delegate and considered whether it was safe to travel between the Mazar-e-Sharif airport and the city, concluding that country information indicated it was safe during daylight hours.[16] The relevant passage in the decision record of the IAA is worth noting:
“I have considered whether the applicant may face a real chance of suffering harm accessing Mazar-e-Sharif. Country information indicates that most returnees to Afghanistan are returned to Kabul airport. I have taken account of the information before me (including that provided by the applicant) which refers to bombings and other security incidents in Kabul but I am satisfied that the amount of time that the applicant would have to spend in Kabul would be brief and would only be for the period required to arrange transit to Mazar-e-Sharif. Other information before me indicates that as at March 2017, Mazar-e-Sharif was accessible by air from Kabul airport, with two domestic flights per day. The road from Mazar-e-Sharif airport to the city (approximately 9 kilometres away) is patrolled regularly and daylight travel on this road is assess to be generally safe. The applicant has not claimed that he would be unable to finance an air ticket from Kabul to Mazar-e-Sharif. Having regard to all of the above I am satisfied that the applicant does not face a real chance of suffering harm accessing Mazar-e-Sharif.”[17]
(citation omitted)
[15] CB, 1006 [35].
[16] Ibid.
[17] CB, 1106 [35].
I am not satisfied that the above passage indicates a finding made in the absence of evidence. As noted by Derrington J, in an authority to which the applicant referred me:
“Where a fact is found in the absence of any material to support it, it necessarily follows that an error in the decision making process authorised by statute has occurred. Where there is some evidential support for a finding, even if it is only slight, it is often said that no jurisdictional error will arise.”[18]
[18] EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 [119].
I have not been directed to any competing evidence before the IAA as to the existence or accessibility of flights. The fact that flights to Mazar-e-Sharif were available was a sufficient basis in the absence of any countervailing evidence on which the IAA could conclude the applicant would be able to safely travel there by air. I dismiss ground two.
I accept the submission of the first respondent that whilst grounds three and four assert a misapprehension or misconstruction of the statutory tests in s 36, those grounds were argued in terms of unreasonableness, illogicality and irrationality.
Ground four refers to s 36 but was argued on the basis of a jurisdictional error in the assessment of complementary protection obligations, namely the question raised by s 36(2A), whether the applicant would face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Afghanistan, in particular to Mazar-e-Sharif. The IAA found that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal to Afghanistan he would face a real risk of significant harm in Ghazni province.[19] It was not satisfied that such a risk existed in Mazar-e-Sharif.
[19] CB, 1007 [40].
The applicant submitted that having noted country information relating to recent attacks in the province of Balkh and near Mazar-e-Sharif, the IAA did not explain how such risks were apparently mitigated. Further, in considering the risks to the applicant, the IAA was satisfied that his status as a returnee from the West might exacerbate his risk profile as a Hazara Shi’a in Ghazni, it made an inconsistent finding with respect to the risk posed to him if he were to relocate to Mazar-e-Sharif, because it found that he did not have a “profile, links or associations that would mark him out as any different to any other Hazara Shi’a in other parts of Afghanistan.”[20] In my view, the difficulty with that submission is that the risk identified by the IAA to which the applicant referred the Court, and which was said to be inconsistent with the Mazar-e-Sharif finding, was an assessment made as to risks in the Ghazni province generally and his home village in particular.[21] It noted that his home village was a small Hazara enclave in a larger Pashtun area. It was for those reasons that it concluded that the applicant faced a small but real chance of being identified by insurgents, “in his local area, including being identified as a Shi’a Hazara who has returned from the West.”[22] As I have noted above, that finding was specifically in relation to his home province of Ghazni.[23]
[20] CB, 1005 [32].
[21] CB, 1002 [21]-[22].
[22] CB, 1002 [23].
[23] CB, 1002 [24].
In considering country information which dealt with whether the Taliban and other anti-government elements systematically targeted civilians supportive of the Afghan government and the international community, the IAA relied on a DFAT assessment which suggested that returnees who took measures to conceal their association with the country from which they have returned and who kept a low profile did not face a significantly higher risk of violence or discrimination than other Afghans with a similar ethnic and religious profile.[24] Nonetheless, it still made the finding above with respect to the home province. The IAA considered separately the question of whether there was a real risk of harm in Mazar-e-Sharif, which is in the province of Balkh.[25] Having surveyed a significant amount of country information, including material provided to it by the applicant, the AAT expressed its finding in the following way:
“While I accept that attacks on Shi’as, Hazaras and Shi’a Hazaras have occurred for religious, ethnic and political reasons in the past, the information does not indicate that Mazar-e-Sharif has experienced any such attacks since the incident in October 2016. The most recent violence in Mazar-e-Sharif has been targeted at the military, government and international presence. Further, while there continues to be armed persons and incidents of criminal activity, the information before me does not indicate that these are targeted at any particular ethnic or religious group. There is nothing in the information before me that leads me to conclude that the situation in Mazar-e-Sharif will deteriorate in the foreseeable future. Having regard to all of the information and evidence before me, I am satisfied that the applicant will not face a real chance of harm arising from his religion or ethnicity, on the basis of an imputed political opinion, and/or at the hands of the Taliban, ISKP or any other insurgent or criminal groups or individuals in Mazar-e-Sharif.
The information before me reports that civilians have been caught up in generalised violence in Mazar-e-Sharif and have suffered death or injuries as a result. I take into account the large population of the city and the fact that recent attacks in Mazar-e-Sharif have targeted specific government and military locations. The applicant has no military or government affiliations and I am satisfied that he would not need to regularly attend military or government offices. While the threat of harm from attacks cannot be ruled out in Mazar-e-Sharif, I am satisfied that the chance of civilians who haven no profile or associations with the government or military (such as the applicant) being caught up in such attacks is remote and therefore not a real chance.”[26]
[24] CB, 1003 [22].
[25] CB, 1004 [26].
[26] CB, 1005-1006 [33]-[34].
I am not satisfied that it is been demonstrated that the above finding was unreasonable, illogical or irrational. It could not be said to lack an evident and intelligible justification.[27] A distinction was drawn by the IAA between Ghazni and Balkh provinces. The reasons for it doing so were explained and apparently based on country information. It is not apparent to me that the IAA misconstrued or misapplied the test for the assessment of whether there was a ‘real risk’. The assessment of risk was not one that no rational or logical decision-maker could have arrived at on the same evidence.[28] It was at least open to the IAA.
[27] Op cit, Li [76].
[28] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
I dismiss ground four.
As to ground three, I accept the submission of the applicant that the IAA identified a series of what was described as “difficulties” that the applicant would face integrating with the community in Mazar-e-Sharif. I am satisfied that in considering those matters, the IAA actively engaged with the question of how they might impact upon the reasonableness of the applicant being required to relocate there. For example, it considered and relied on country information from the UNHCR which said, inter alia, that young able bodied men of working age without specific vulnerabilities did not come within its general assessment that relocation within Afghanistan was reasonable only where it can be established that the individual has access to livelihood opportunities and access to traditional support networks.[29] The UNHCR concluded that such persons may be able to subsist in urban and semi-urban areas which had necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective government control. The IAA appeared to give significant weight to that information. It did not conclude that any difficulties and challenges that might be faced by the applicant would be insurmountable. What was required was that relocation to another place in Afghanistan was reasonable in all of the circumstances. It was not necessary that such relocation be optimal. In noting the substantial economic and similar challenges the applicant would face in Mazar-e-Sharif in obtaining employment or having to cope with underemployment, the IAA concluded:
“However the government control, relative stability and greater economic opportunities will in my view the conducive to the applicant finding employment. The information before me does not indicate that he would be excluded from, denied or otherwise unable to obtain and undertake work.”[30]
[29] CB, 1007-1008 [43].
[30] CB, 1009 [51].
In considering the applicant’s personal circumstances further and in particular his lack of immediate family in Mazar-e-Sharif, the IAA noted the sizeable Hazara and Shi’a population there and concluded that the information:
“... does not indicate that returnees of particular ethnic groups or religions are necessarily or generally ostracised by those groups, or are otherwise unable to link into those groups. I take into account that the applicant speaks Hazaragi and was brought up in a Hazara family … until he was aged 17 and while I accept that he has not lived in Afghanistan as an adult, I am satisfied that he does speak the language and knows the local and general customs, including among Shi’a Hazaras. I also note that he has been able to link into the Hazara community in Australia, obtain employment and has arranged shared accommodation with other has RR is here. Having regard to these factors, I am satisfied that while there will be difficulties for him, he will nevertheless be able to link into the Hazara community in Mazar-e-Sharif and seek support, guidance and assistance from that community.”[31]
[31] CB, 1009-1010 [51].
Once again, the reasoning process in the above passage is intelligible, adapted to the circumstances of the applicant, and based on country information which the IAA accepted. It was logical and not unreasonable for the IAA to place weight on the applicant’s demonstrated ability to adapt to circumstances in Australia where he had no immediate family or established support network.[32] Finally, the IAA concluded on the basis of country information, that Mazar-e-Sharif was under the effective control of the Afghan government, and that notwithstanding the situation in Afghanistan, was fluid and subject to change and there was nothing in the information before it that led it to conclude that the situation in Mazar-e-Sharif would deteriorate in the reasonably foreseeable future. That finding was clearly relevant to any consideration as to the reasonableness of relocation to Mazar-e-Sharifand it gave significant weight to those matters. It was at least open to it to do so.
[32] CB, 1010 [52]-[53].
I am not satisfied that it is been demonstrated that the finding of the IAA that it was reasonable for the applicant to relocate to Mazar-e-Sharif was unreasonable, illogical or irrational. I dismiss ground three.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 30 July 2020
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