BCV16 v Minister for Immigration - [2019] FCCA 2968

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCV16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2968

Catchwords:
MIGRATION – ITOA Assessment – procedural fairness – applicant of Hazara ethnicity fears harm from Taliban if he returns to Afghanistan – whether Hazaras without characteristics other than their ethnicity have an increased risk profile – whether applicant’s apparent wealth made him a target or at increased risk – where applicant’s claim to be imputed to be wealthy had been considered and addressed by Assessor – whether Assessor’s conclusion or reasoning as to risk of harm based upon supposed wealth was illogical or irrational – where applicant advances claim to fear harm on the basis of an imputed political opinion – where claim was not established or clearly articulated – whether Assessor obliged to re-consider applicant’s claim on basis of posing test “What if I am wrong” – Assessor in no real doubt as to risk and not obliged to apply such test – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 5J, 46A

Cases cited:

Abebe v The Commonwealth (1999) 197 CLR 510

AXG15 v Minister for Immigration and Border Protection (2016) 69 AAR 388

Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

(2003) 216 CLR 473

BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418

Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93

FCR 220

MZYPB v Minister for Immigration: [2012] FMCA 226

NABE v Minister for Immigration and Multicultural and Indigenous

Affairs (No2) (2004) 144 FCR 1

Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319

Applicant:

BCV16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRATION SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

PAUL JOHNSON IN HIS CAPACITY AS DELEGATE OF THE MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRATION SERVICES AND MULTICULTURAL AFFAIRS

File Number:

MLG 987 of 2016

Judgment of:

Judge A Kelly

Hearing date:

9 November 2018

Date of Last Submission:

9 November 2018

Delivered at:

Melbourne

Delivered on:

24 October 2019

REPRESENTATION

Counsel for the Applicant:

Ms Burt

Solicitors for the Applicant:

MP Migration Law

Counsel for the Respondents:

Mr McDermott

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The name of the second respondent be amended in the title of the proceeding to Paul Johnson in his capacity as delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The applicant have leave, now for then, to file the amended application dated 29 October 2018.
The amended application dated 29 October 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,328

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 987 of 2016

BCV16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

PAUL JOHNSON IN HIS CAPACITY AS DELEGATE OF THE MINISTER CITIZENSHIP, MIGRATION SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

Introduction

By amended application filed on 29 October 2018, the applicant seeks judicial review of an International Treaties Obligation Assessment (ITOA) made by the second respondent in his capacity as delegate of the Minister on 11 April 2016, which concluded that Australia was not subject to non-refoulement obligations in respect of the applicant.
The application should be dismissed. When considering whether the applicant had a well-founded fear of harm, the ITOA Assessor gave proper consideration to his claim that he was to be imputed with the characteristic of a person of wealth and did not engage in illogical or irrational reasoning in the requisite sense. Further, although the applicant did not make an explicit claim to fear harm due to his political opinion, the Assessor did consider a claim based on imputed political opinion. The Assessor’s reasons were not otherwise affected by an error of law. Nor was the applicant denied procedural fairness.

Background

The applicant is an unmarried Afghani national of Hazara ethnicity and Shia faith aged 37 years who was born in the village of Haidar, district of Jaghori in the Ghazni province of Afghanistan. Before coming to Australia, the applicant had variously worked on his family’s farm and as a taxi driver.
On 29 March 2010, the applicant first arrived at Christmas Island as an unauthorised maritime arrival. Subject to an exception which is not material, the applicant was precluded by s 46A(1) of the Migration Act 1958 (Cth) (Act) from making a valid application for a protection visa.[1]
[1] Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319, [13] (The Court).
On 21 April 2010, the applicant completed an Unauthorised Arrival Entry Interview with the Department of Immigration and Border Protection which detailed his journey from Afghanistan to Australia. On 26 June 2010, the applicant made a statement in which he set out the basis for his claims. On 29 June 2010, the Department conducted a Refugee Status Assessment Interview with the applicant at Christmas Island. On 9 July 2010, the applicant’s migration lawyers lodged a post interview submission which provided country information concerning the fear of persecution held by Afghans of Hazara ethnicity and Shia religion.
During those interviews and in his statement, the applicant described his purchase of a vehicle that he intended to employ in a taxi driving business. He claimed to have been involved in an incident in 2009 in which he was travelling with his mother, his brother and another passenger, all of whom were Hazaras. The journey took place between Ghazi and Kabul. While in Kabul the applicant had purchased one (while one passenger had purchased another three) solar panels, all of which were intended to be taken back to their home village and to that end, had been secured on the roof of the applicant’s vehicle. The applicant claimed that in the course of this journey he and his passengers were stopped at gunpoint by three Taliban who took one passenger away but released the applicant, his mother and brother. Before doing so, the Taliban had removed, then damaged, the four solar panels and had also taken his Taskera (a form of identification card) and his brother’s Taskera. The Taliban apparently said that if the applicant and his brother returned the following day they would return the Taskeras to them. The applicant claimed his mother had said that it was was too dangerous for him to continue driving taxis. Shortly thereafter, the applicant fled from his country. It appears that the applicant’s journey from Afghanistan to Australia was made via Pakistan, Indonesia and Malaysia. The Entry Interview records that, when prompted, the applicant did not volunteer that there were any further reasons for leaving Afghanistan.
On 1 November 2010, the delegate notified the applicant of the refusal of his Refugee Status Assessment. The delegate’s assessment recorded that he was satisfied of the applicant’s identity, ethnicity, religion and origin as claimed. The assessment provided a summary of the applicant’s claims, including his reference to threats against and attacks upon Hazaras in his province and the absence of government protection in Jaghuri, Kabul or elsewhere in Afghanistan. Having listed all of the material which was before him and provided a summary of the relevant law, the delegate found that while the applicant feared harm for a Convention reason and that such harm amounted to persecution, effective state protection was available and internal relocation was reasonably practicable. For those reasons the reviewer was not satisfied that the applicant was a refugee within the meaning of the refugees Convention, and accordingly that he was not a person to whom Australia owed protection obligations.
On 11 November 2010, the applicant applied for an independent merits review of the delegate’s Refugee Status Assessment.
On 5 April 2011, the applicant’s migration agent lodged a further submission which addressed, in detail, country information relevant to the position of Hazaras in Afghanistan and the question of relocation. On 18 April 2011, the applicant and his agent attended an interview with the Independent Merits Reviewer. On 14 May 2011, a further post interview submission was lodged on behalf of the applicant to which was attached a presentation made in 2010 respecting life in Afghanistan.
On 6 June 2011, an Independent Merits Reviewer notified the applicant of the refusal of his application. The reviewer’s recommendation was that the applicant did not meet the criterion for a Protection visa and that he was not a person to whom Australia had protection obligations under the Refugees Convention. A detailed statement of reasons was provided for that recommendation which considered, amongst other things, the applicant’s written submissions, including his post hearing submission.
On 28 July 2011, the applicant applied for judicial review, which application was dismissed by order made on 30 March 2012.[2] It appears that on 17 September 2013 the applicant lodged an appeal from that decision and on 19 November 2013 the Minister withdrew from the proceeding.[3] What followed in that proceeding is not apparent.
[2] MZYPB v Minister for Immigration: [2012] FMCA 226.
[3] Reviewer’s reasons at p. 9.
On 21 July 2015, the Department notified the applicant that by reason of legal developments and certain policy changes, it would no longer rely on its previous Post Review Protection Claims Assessment and would instead conduct a re-assessment of the applicant’s protection claims as part of a new ITOA.
On 14 August 2015, the applicant’s representative provided the Department with further submissions in support of the applicant’s ITOA re-assessment. Attached to the submissions was a statutory declaration made by the applicant dated 7 August 2015 to the effect that he was afraid of returning to Afghanistan from a western country such as Australia due to possible reprisals which meant it would not be safe for him to live in Kabul, or any other part of Afghanistan. The applicant’s statutory declaration also attached copies of his Taskera[4] and a letter from village elders in Haidar stating that the applicant would not be safe in Jaghori. On 12 February 2016, the applicant participated in an ITOA interview in which the applicant again outlined his claims for refugee status. On 3 March 2016, the applicant’s representative provided post-interview submissions attaching a translated letter of support from an official of Afghanistan’s Ministry of Interior. The closing paragraph of this translation of the letter read:
. . . On the other hand, living in dream country such as Australia for asylum seekers who have languished for years, is considered to be the ultimate goal. However, if these asylum seekers who have lived in those countries for years, are not granted citizenship and if they return back to the countries, they would be first in line to be swallowed by the ransom seekers and spies. These people not only see their future lives in the villages and district in danger but Kabul will also be safe of them. Ransom baits and plotters will not leave them by their own, instead they will wait (if necessary for a long time) for opportunities to hunt them down in order to earn a living.
Annotations to the translation of this letter indicate that the signature was not legible but that it had been stamped by the Islamic Republic of Afghanistan, Ministry of the Interior, Senior Deputy of Security Affairs, Kabul Provincial, Security Directorate, Operational Assistance.
[4]It appears the applicant had retained a copy of his Taskera at the time of his arrival in Australia as an irregular maritime arrival.
On 12 February 2016, the applicant participated in a further interview with the second respondent (Assessor).
On 3 March 2016, the applicant’s migration agent provided further submissions to the ITOA for consideration by the Assessor.

ITOA decision

On 13 April 2016, the Assessor notified the applicant of his assessment that Australia did not have non-refoulement obligations to the applicant, providing him a copy of the ITOA, which was comprehensive.
The Assessor examined the applicant’s background and migration history in detail. Throughout this section of the assessment, the Assessor identified the claims that had been made. After identifying Australia’s non-refoulement obligations and the materials which were before him, the Assessor noted certain new claims that were made including, relevantly, that the applicant feared his life and liberty would be threatened on account of his imputed political opinion.
The Assessor then examined country information, including material that was considered to be adverse to the applicant and which he had been invited to comment on. In the course of addressing whether it would be reasonable for the applicant to relocate to Kabul, the Assessor noted at p. 24 that the applicant’s brothers were all of working age and well educated. The Assessor stated that: “I also noted that the Claimant’s family is wealthy and have a lot of experience operating businesses and leasing properties for businesses, and are well-placed to offer support to the Claimant.” Referring then to the potential risk faced by Hazaras at the hands of the Taliban and ISIS, the Assessor observed that ethnicity was really the primary motivating factor, but could also be a contributing factor, in relation to hostage taking by such groups, observing:
It is unclear whether this targeting is being conducted because of the Hazaras ethnicity, because of a perceived association with the government or international community, or because Hazaras can often appear wealthy, making them an attractive target for kidnap and ransom. Furthermore, Pashtun kidnappers may be less likely to kidnap other Pashtuns, partly due to the risk that this could create a cycle of intertribal violence and retribution; Hazaras may represent a lower risk target from the kidnappers’ perspective.
The Assessor then asked why the applicant would be imputed to be wealthy or an associate of foreign groups in Afghanistan. To this question the applicant responded that there had been multiple attacks in Kabul in the preceding 18 months. The Assessor noted that none of those attacks were against Hazaras without any other distinguishing characteristic that might draw the attention of anti-Shia elements. After addressing further country information, the Assessor considered the applicant’s responses to various issues that were considered adverse information and concluded that “there was little country information to support a claim that Hazaras, without other characteristics that may give them a profile risk level, were being targeted by insurgents, the Taliban, or anti-Shias in Afghanistan during 2015 or 2016.”
When addressing his findings of fact, the Assessor found that certain of the applicant’s claims were plausible. These included the applicant’s claim that he had been stopped by the Taliban and forced out of his vehicle and that the Taliban had stolen or damaged property, including his identity papers, and detained the other Hazara who held US currency, but that the applicant and his family had been allowed to continue their journey.
In undertaking a refugee assessment, the Assessor accepted that the applicant’s claims to fear persecution were made on the grounds of race, religion, imputed political opinion and as a member of a particular social group (westernised failed asylum seekers). The Assessor found that the harm feared by the applicant was serious harm which amounted to persecution, and proceeded to examine whether that fear of harm was well-founded. In doing so, the Assessor considered the following topics: (a) that applicant’s brother went missing in 2008 or 2009; (b) the applicant was stopped in his taxi by the Taliban; (c) the applicant and his brother had been identified by the Taliban and were seen as pro-western; (d) the applicant’s family had abandoned their landholding and moved to Pakistan; (e) Hazaras travelling from Hazara districts were not safe and were targeted by the Taliban; (f) the applicant’s risk from the Taliban as a member of an ethnic minority; (g) ISIS (Daesh) was recruiting fighters in the outskirts of Kabul; (h) the applicant’s profile as a westernised Hazara; (i) the situation for Hazara’s in Kabul; (j) relocation, and; (k) state protection. By way of overview, I note that the Assessor undertook a detailed analysis of the application and that the reasons were comprehensive.

Procedural history

By application filed on 12 May 2016, the applicant sought judicial review of the ITOA decision.
The applicant’s representative made an affidavit in support of the application on 12 May 2016 exhibiting a copy of the ITOA decision.
By a Response filed on 23 May 2016, the Minister sought that the application be dismissed on the grounds that the decision under review was not affected by jurisdictional error.
On 24 October 2018, orders were made by consent regulating the interlocutory steps required before trial.
On 29 October 2018, the applicant filed an amended application together with detailed written submissions to which the Minister has replied.

Jurisdiction

This court is seized of jurisdiction to determine an application for review in relation to an ITOA: Minister for Immigration and Border Protection v SZSSJ.[5] As the court observed:[6]
A challenge to conduct undertaken by an officer of the Department under the Act and for the purpose of assisting the Minister’s consideration of the exercise of a non-compellable power can be heard and determined by the Federal Circuit Court.
[5] (2016) 259 CLR 180, [58]-[73].
[6] (2016) 259 CLR 180, [71]
The Minister accepted that the court had jurisdiction to grant the declaratory relief as sought by the applicant in relation to the assessment: Minister for Immigration and Citizenship v SZQRB.[7] In that appeal, a five member Full Court examined the scope of the relief that may be available by way of declaration or injunction (where necessary), in relation to administrative decisions made by a member of the Executive. Special leave to appeal from that decision was refused.[8]
[7](2013) 210 FCR 505, 158-164, 200 (propositions 14-17), 264 (Lander and Gordon JJ); cf 296 (Besanko and Jagot JJ agreeing); 342 (Flick J agreeing).
[8] [2013] HCATrans 323.

Consideration

By his amended application, the applicant abandoned the three grounds of review that had been originally made. In their place, the amended application advanced six overlapping grounds of review, three of which were progressively abandoned at the hearing.[9] I address the remaining grounds of review.
[9] Grounds 3, 5 and 6 were abandoned.

Grounds 1 – illogicality

Ground 1 reads:
The second respondent erred in engaging in illogical reasoning in relation to whether the applicant would be targeted on the basis that he would be imputed to be wealthy. Alternatively, the second respondent failed to take into account a relevant consideration.
Ground 1 was not further refined by any particulars.

The applicant submitted, correctly, that the ITOA made a finding that a Hazara person would require some additional characteristic in order to attract the Taliban’s attention. However, it was said that a wealthy person, especially a wealthy Hazara, was more likely to be kidnapped. The applicant further referred to the ITOA’s reference to country information that it was unclear whether targeting was being conducted because of a Hazara’s ethnicity or for other reasons where Hazaras often appeared to be wealthy. It was submitted that those matters supported a conclusion that the fact of being a wealthy Hazara provided a basis upon which a person faced persecution.
The ITOA found there was no circumstantial evidence that the applicant would be imputed to be wealthy. It further found that he did not have distinguishing characteristics that might indicate him to be a wealthy person. Contrastingly, the applicant relied upon the fact that four solar panels were secured to the roof of his vehicle and that those items may have sufficiently signalled wealth to the Taliban as well as providing a possible association with foreign forces. The applicant referred to the ITOA’s finding that, in the context of whether his family could support him, “the claimant’s family is wealthy and have a lot of experience operating businesses and leasing properties for business.”
The Assessor found it was possible that one of the applicant’s passengers may have been imputed by the Taliban as being wealthy or having foreign association by reason of US currency being found on his person. However, the applicant his mother and brother had been of less interest to the Taliban, and they were released together with his vehicle and left to complete their journey to their village. The Assessor did not accept that the Taliban would regard the applicant as more than an anonymous Hazara, or that he would be identified by the Taliban because of the taxi incident. Further, the applicant was considered to have no significant profile that could lead to adverse attention in circumstances where Hazaras were not targeted by the Taliban by reason of their race or ethnicity. Nor was there evidence that the applicant would be imputed as wealthy or a potential kidnapping target based merely on his having driven taxis. The Assessor concluded that the applicant would not face a real chance of being seriously harmed by the Taliban in the reasonably foreseeable future on the basis of the taxi incident.
The applicant submitted that the ITOA’s process of reasoning was irrational or illogical in the requisite sense.[10] Alternatively, the applicant submitted that it demonstrated a failure to take into account a relevant consideration, namely, that he was a wealthy person. As to the alternative ground, it is clear that the Assessor did consider the issue.
[10] Citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Ground 1 and the matters upon which it is based demonstrated no more than the applicant’s emphatic disagreement with the Assessor’s conclusions,[11] and otherwise seeks an impermissible merits review. In my view, there was nothing irreconcilable, illogical, or otherwise irrational for the Assessor to conclude that the applicant would not be imputed as being wealthy. Such a conclusion was one that could have been reached by some other logical and rational decision-maker.[12] A challenge based upon illogicality or irrationality meets a high threshold.
[11] Cf SZMDS (2010) 240 CLR 611, 129 (Crennan and Bell JJ).
[12] SZMDS (2010) 240 CLR 611, 135.
It is clear from the comprehensive reasons that this aspect of the applicant’s claim had been considered and addressed by the Assessor. Contrary to the applicant’s submission, there was little or no cogent evidence in support of this aspect of the applicant’s claim.[13] I consider that the Assessor’s treatment of the applicant’s claim that he was to be imputed with the characteristic of being a person of wealth was more than sufficient and broadly proportional to the manner in which that claim was advanced. This is a case in which the court should be slow to interfere,[14] and in my view nothing in the Assessor’s reasons supports a conclusion that the finding the applicant would not be imputed with the characteristic of being a wealthy person was arbitrary, capricious or unreasonable.
[13] cf Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, 112.
[14] SZMDS (2010) 240 CLR 611, 130.
Ground 1 is rejected.

Ground 2 – failure to consider political opinion

Ground 2 reads:
The second respondent erred in failing to consider the applicant’s political opinion when considering whether he would be targeted by the Taliban in the future.
Ground 2 was not further refined by any particulars.
The applicant submitted[15] that a reason he had been ‘detained’ by the Taliban was in part because he was “manifesting an aspect of his political opinion” which “was expressed by his having English language books.” As noted above, the Assessor identified the claim to risk harm as a result of an imputed political opinion as being a new claim: p. 21.
[15] Applicant’s submissions at [16], [19].
The applicant correctly recognised that the ITOA rejected the claim that he would be targeted because of his previous interaction with the Taliban. It was submitted that, as the Taliban had taken his Taskera, this served to undermine its finding that the Taliban did not have a systemic intelligence network that would enable the applicant to be identified. It was further observed that the ITOA had not accepted the Taliban would regard the applicant’s status as more than an anonymous Hazara, and that it was unlikely the Taliban would track down low-profile persons. The applicant complained that this reasoning ignored that the Taliban had been interested in him because of his ‘attributes’ as demonstrated by his possession of English-language books. It was further submitted, correctly, that a person cannot be required to suppress his or her political opinions,[16] and that this may cause the applicant to be targeted in the future if he was detained by them. Finally, it was submitted that the ITOA was required to consider all relevant parts of the applicant’s case.[17]
[16] Act, s 5J.
[17] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, [68].
The Assessor was required to construe and consider each claim made by the applicant. For that reason a failure to respond to a substantial, clearly articulated argument relying upon established facts may be characterised as a constructive failure to exercise jurisdiction; alternatively, it may be relied upon as evidencing a denial of procedural fairness. Those principles apply both in respect of a claim that has been made expressly and to one which, though not expressly made, was clearly raised by the evidence. In Htun v Minister for Immigration and Multicultural Affairs,[18] Allsop J explained that a failure to review a decision without having considered all of the claims made constituted a failure to complete the exercise of jurisdiction embarked upon. This statement was later endorsed by a Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2).[19] By extension, an administrative decision-maker is not required to consider a claim that is not expressly made or which does not arise clearly on the material before it.[20] For those reasons, a practical and common sense approach requires that an unarticulated claim must arise tolerably clearly from the material before a decision-maker can be required to consider it.[21] These principles were affirmed in BOZ16 v Minister for Immigration and Border Protection.[22]
[18] (2001) 233 FCR 136, [42] (Spender J agreeing)
[19] (2004) 144 FCR 1, [57].
[20] NABE, supra (2004) 144 FCR 1, [61].
[21] Htun (2001) 233 FCR 136, [15].
[22] [2018] FCA 418, [9]-[13] (Allsop CJ).
The applicant’s statement that the Taliban’s discovery of English books at the time of the taxi incident was a basis on which he would be imputed with a political opinion was squarely considered in the course of the Refugee Status Assessment. The various postulated risks posed to Hazaras on the basis of an imputed political opinion and to the applicant in particular, were also the subject of detailed examination in the course of the Independent Merits Review[23] and by the written submissions lodged by his migration lawyers which addressed the issue of imputed political opinion generally, the risks faced by Hazaras and the fact that two English text books had been located during the 2009 taxi incident.[24]
[23] Review reasons at [66]-[72], [83]-[91], [111]-116], [125].
[24] Submissions dated 14 August 2015 at pp. 34-37.
The claim to fear harm arising from an imputed political opinion based upon the Taliban discovery of English text books in the applicant’s taxi was clearly recognised by the ITOA Assessor: pp. 1, 2, 3, 8, 14, 15, 21. The Assessor addressed that claim in dealing with his Findings of Fact: pp. 29-30. The Assessor found the applicant’s testimony in relation to the taxi incident in 2009 to be essentially consistent and plausible. The Assessor further found that an essential and significant reason for the applicant’s subjective fear included an imputed political opinion and that the feared harm amounted to serious harm: p. 34.
In the consideration of whether the applicant’s fear of harm was well-founded, the Assessor re-examined the taxi incident and the claim that he had been identified as being pro-Western as a result: p. 35-37. In my view, the Assessor clearly included in his consideration of the question of imputed political opinion that when stopped the English textbooks had been found by the Taliban. A finding was made that the applicant would not face a real chance of being seriously harmed in Afghanistan by the Taliban for being pro-Western: p.37.[25]
[25] See also Assessor’s reasons at pp. 2-3, 15, 26, 29-30, 33.
The Assessor strongly doubted that the Taliban could identify the applicant or his brother if they were apprehended in the future. Further, the Assessor considered there was no material evidence to indicate that Hazara Shiites without any other characteristics that may draw adverse attention were at risk of being targeted by the Taliban or related groups. Having regard to the applicant’s evidence in its totality, the Assessor considered he was not a person of interest to the Taliban. Against that background, and contrary to the applicant’s submission, the claim based upon an imputed political opinion was considered by the Assessor.
Ground 2 is rejected.

Ground 4 – failure to ‘step-back’

Ground 4 reads:
The second respondent failed to properly apply the test of whether the applicant had a well-founded fear of persecution in that the second respondent should, in the circumstances asked whether he was wrong about his finding about the role of ethnicity in attacks on Hazaras. (emphasis added)
Ground 4 was not further refined by any particulars.
The applicant noted that the Assessor examined an incident involving the kidnapping of some 19 hostages in early May 2015, in relation to which it had contemplated a number of theories as to why they had been targeted. The Assessor also made reference to a belief by some that ethnicity had been the motivating reason for the hostage taking, whilst other factors were also identified. The Assessor found that the applicant was not at risk, including by reason that he had not provided evidence as to responsibility for the kidnapping of Hazaras in May 2015. At the same time, the Assessor acknowledged DFAT country information that it was unclear whether kidnappings were being targeted at persons because they were of Hazara ethnicity, or because Hazaras may often appear to be wealthy.
The applicant submitted that as the Assessor appeared to contemplate the possibility of such kidnappings and attacks as being motivated by Hazara ethnicity, the Assessor ought to have tested the matter by reflecting upon whether the provisional assessment that ethnicity in itself was not sufficient to attract persecution was wrong: citing Minister for Immigration and Ethnic Affairs v Guo;[26] Abebe v The Commonwealth;[27] Minister for Immigration and Multicultural Affairs v Rajalingham.[28] As counsel for the applicant accepted, those decisions recognised that a “what if I am wrong” test may fall to be applied when assessing the risk of harm by reference to the occurrence or non-occurrence of a particular incident or event that had happened in the past. It was not concerned with the question of uncertainty as to the motivation for attacks that had been identified, or expressed, in certain country information.
[26] (1997) 191 CLR 559, 575-6.
[27] (1999) 197 CLR 510, [82].
[28] (1999) 93 FCR 220.
In Rajalingham, Sackville J (with whom North J agreed), stated:[29]
In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt" (to use the language in Guo) claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued. A "fair reading" of the reasons incorporates that principle that the RRT’s reasons should receive a "beneficial construction" and should not be "construed minutely and finely with an eye keenly attuned to the perception of error".[30] Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution. (emphasis added)
Kenny J stated: [31]
In deciding whether or not it is satisfied that an applicant has a well-founded fear of persecution for a Convention reason, the RRT may well, it seems to me, consider a range of matters, depending on the circumstances of the particular case. After consideration of the material before it, the RRT may be of the view that a claimed event relied on by the applicant did not occur (or not for the reason alleged), although it is ‘only slightly more probable than not’ that it did not occur as alleged. In that case the tribunal must take account of that uncertainty in considering whether it is satisfied, having regard to all the material before it, that the applicant has a well-founded fear of persecution. On the other hand, if the Tribunal is of the view that a claimed event did not occur and that it is unlikely to be wrong in that view, then the tribunal must exclude that event from its consideration of whether it has the relevant satisfaction. Nor can the tribunal, in the latter circumstance, be required to take into account any remaining uncertainty, albeit slight, that it might have about the happening of the claimed event, because it would have none that mattered.[32]
[29] (1999) 93 FCR 220, [67] citations omitted.
[30]Citing Wu Shan Liang at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287.
[31] (1999) 93 FCR 220, 137.
[32]Citing Guo, supra (1997) 191 CLR 559, 576; Chand v Minister for Immigration and Ethnic Affairs (unrep, Full Court, 7 Nov 1997); Zuway v Minister for Immigration and Ethnic Affairs (1998) 160 ALR 391.
In Applicants A233 of 2003 v Refugee Review Tribunal,[33] the Full Court stated, with reference to Guo, Abebe and Rajalingham and the test to be applied where doubt was entertained as to the possibility of harm that:
. . . the ultimate question for the Tribunal is whether it is satisfied that a visa applicant has a well-founded fear of future persecution, that is has a real substantial basis for the fear that something will occur or will occur for a particular reason. In forming that view, the Tribunal may not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
This principle was applied in AXG15 v Minister for Immigration and Border Protection.[34] Special leave to appeal that decision was refused.[35]
[33] [2004] FCAFC 296, [12] (Cooper, Marshall and Mansfield JJ).
[34] (2016) 69 AAR 388, [14] (Logan J).
[35] [2016] HCASL 256, (Gageler and Gordon JJ)
I accept the submission of counsel for the Minister that in this case the Assessor was under no obligation to apply a “What if I am wrong?” test in determining whether the applicant faced a real chance of persecution arising from his ethnicity. This submission was correctly made on the basis that, while that test might be engaged in some circumstances, conversely, where a decision-maker has no real doubt that its findings are correct about a relevant event, it is not bound to consider further whether those findings might be wrong.
On a fair reading of the reasons, I consider that the Assessor had no real doubt upon his assessment on the whole of the material before him that Hazaras were not adversely targeted and at risk of harm by reason of their ethnicity alone: pp. 27, 30, 35-36, 38-39, 42-43. The conclusion that the Assessor had no real doubt upon the issue of whether Hazaras generally, or the applicant personally, were at risk of harm meant that he was not obliged to apply that test. So much may be discerned from the conclusion at p. 43:
I note that the claimant has no demonstrated profile other than being a Hazara Shiite. He was not identified as a person associated with the government or international community. I do not accept the claimant was targeted as an imputed wealthy businessman previously or that there was a real chance this would happen in the future.
Despite the applicant’s submissions, I do not accept that the manner in which the Assessor considered the available DFAT and other country information was redolent of the expression of doubt as to what that information disclosed. To the contrary, it demonstrates consciousness by the Assessor that the relevant information was stated in qualified terms. To have approached the matter in that way was entirely consistent with the discharge of the Assessor’s inquisitorial function. However, it does not demonstrate that the Assessor entertained any real doubt on the ultimate question of whether the applicant had a well-founded fear of persecution. In my view, in the circumstances of this case, the “What if I am wrong?” test was not engaged.
Ground 4 is rejected.

Conclusion

As the applicant has not made out any of his grounds of judicial review, the application must be dismissed.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate:

Date: 24 October 2019

Submissions dated 3 March 2016 at pp. 1, 11-18.