Bdu22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 273
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BDU22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 273
File number(s): BRG 179 of 2021 Judgment of: JUDGE VASTA Date of judgment: 3 March 2022 Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed Legislation: Migration Act 1958 (Cth): s36(2B), s 91R(2) Cases cited: CRI028 v Republic of Nauru [2018] HCA 24
Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submission/s: 3 March 2022 Date of hearing: 3 March 2022 Place: Brisbane Counsel for the Applicant: Mr Karp Solicitor for the Applicant: Fisher Dore Lawyers Counsel for the First Respondent: Ms Hoiberg Solicitor for the First Respondent: Sparke Helmore ORDERS
BRG 179 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BDU22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
3 MARCH 2022
THE COURT ORDERS THAT:
1.The application filed on 4 May 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,853.
NOTATION:
A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
On 19 April 2021, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, BDU22, a protection visa. This matter has a somewhat long history.
The applicant made his application for a protection visa which was dealt with by the IAA. The IAA affirmed the decision not to grant the applicant a protection visa. The matter came to this Court where this Court dismissed an application for review. That decision was appealed to the Federal Court. The Federal Court allowed the appeal and issued the writs.
The matter was then assessed again by another IAA reviewer. At the end of that assessment, the IAA, again, affirmed the decision not to grant the applicant the protection visa. That matter was brought to this Court for review and this Court found a jurisdictional error and remitted the matter back to the IAA.
The decision of the IAA of which I have just spoken, the one delivered on 19 April 2021, was the third application. Because of this, there was a great deal of material that the IAA had to consider before making that decision.
The Applicant asked this Court on 4 May 2021 to review that decision that was made on 19 April 2021.
The claims that were made by the Applicant can be summarised as follows. He is an ethnic Hazara and Shia Muslim. In 1998 he was a driver, and he was contracted by the Wahdat political party to deliver food from one village to several frontline military groups that were around 40 minutes away. He did this job for about 14 months before his contract finished. After the contract ended, he began to deliver goods between Mazar-i-Sharif, Ghazni, Bamyan and Pul-e-Khumri. None of those deliveries had any political overtones to them. The Applicant took his family to Pol-e-Khomri and lived there for about six months.
He said that the Taliban came to his house and they asked him whether his truck was privately owned or belonged to the government. He and his brother showed them the ownership certificate for the truck. The Taliban didn’t accept the certificate and wanted to take the truck away. The Applicant said his brother insisted that they had owned the truck for many years. The Taliban then forcibly took the key and started to drive away in the truck. The brother begged them and insisted that they not take the truck. The Taliban then shot his brother dead and drove away. A few weeks later the Taliban started to send rockets into the city of Pol-e-Khomri and the Applicant and his family escaped to Mazar-i-Sharif.
After about three months, fighting broke out in Mazar and the Taliban captured that city for the first time. The Applicant said that one morning people announced that the Taliban had arrived, and his mother asked the Applicant’s younger brother to go and inform his uncle who lived in the next street. Soon after the brother left, the Taliban started to emerge from everywhere. They all ran towards a nearby mountain. It turned out that no one could find the youngest brother. The Applicant saw his uncle on the way and asked about his brother, but his uncle said that the brother never arrived at his home. The Applicant attempted to go back to the area, but the military groups were not letting people into the city.
The Applicant and his family then returned to Pol-e-Khomri and they lived there for another two years. The Applicant said he searched many places trying to find his youngest brother but there was no trace of him. During this second stay in Pol-e-Khomri, he was arrested several times simply for being Hazara. At one stage, he said that the Taliban told him that someone reported that he, the Applicant, had guns and they demanded money or the guns. Because he had neither, the Applicant said he was imprisoned for several nights, and he was beaten severely. After some time he was then released. Because of this, he said, in the year 2000, he left Afghanistan for Pakistan and he lived in Peshawar, Pakistan for about six years.
He said that he returned to Afghanistan after the establishment of the Karzai government, and he returned to live in his original village. He lived there for about two years, and he said that it was quiet and peaceful. He said that he bought two trucks and his remaining brother and he were driving them. He said that they were delivering goods between Kabul, Shaikh Ali, Bamyan and Yakawlang. In 2009, he said that the Taliban set up their military base in the Ghorband area and the warlords and robbers from their village started to connect with the Taliban. These people then started reporting to the Taliban those people with money and wealth. As a consequence, the Applicant said that the Taliban was stopping those people in the street whenever they passed by the area. They would arrest them and demand large sums of money. If the money was not provided, they would kill the person.
The Applicant said, in late 2010, he received a phone call from a Taliban man based in the Ghorband area. This man told him that they (obviously meaning the Taliban) knew of him very well. They told him that he had been supporting the Wahdat political party in the past delivering food to militia groups. The man said, “We know you have money and we request you give us 2 million Afghani currency units as an osher,” which is a religious donation. Because the Applicant didn’t have any money to give, he told them he would call them about it. He said that he went to the local government and spoke to the governor at the time, and the governor didn’t believe the threat. The officials called the telephone number, that had been the one that had rung the Applicant, but the number was switched off.
He said, about 20 days later, he received a call from the same number and this man mentioned the same matters as in the last call, but the Applicant said it sounded more serious. The Applicant said he was intimidated. He went back to the governor, and this time he said the governor spoke with one of his commanders. The Applicant said he was interviewed, the number was called but the number was switched off again. The governor and commander both told him that they couldn’t do anything because the number was off and there was no-one to pursue.
He said, about three to four months later, he received the same sort of phone call several times. On one such call, he answered the phone and the person said to the Applicant to talk to his brother. He then heard gunshots over the phone. He tried to call them back, but the phone was off. He again went to the governor and told them about the incident, and the governor told him it was too late and asked him to come back the next day. Before he went back there, a truck came and brought his brother’s body and dropped it in front of his house.
I pause to say that this meant that the Applicant, who said that he had three brothers, now had none left; the first one being shot by the Taliban in relation to the truck in 1998 or ’99, the second brother going missing when the Taliban came to Mazar, and the third brother now, in 2010, having been shot by the Taliban assumedly because the Applicant had not paid a religious offering. The Applicant said about 10 days he later received another phone call from the same person who demanded that they pay the money or that they would kill him in his home.
He said the village put in place night guards, but the night guards had no guns. Those night guards were supposed to protect them from the Taliban. The Applicant said after about two or three weeks he realised that nothing was going to stop the Taliban from capturing him. He then escaped from his village. He said he and his family gathered some basic belongings and left for Kabul. The Applicant said that he thought that he could be found or harmed at any time or in any area. He said he left his family in Kabul and sought asylum in Australia. He said that if he was forced to return to Afghanistan he fears he will be targeted, attacked, abused and/or killed, and he fears that he would be harmed or mistreated by the Taliban.
He said that there were numerous incidents where Shia Hazara people have been targeted by the terrorist group in various parts of Afghanistan. He said he would be harmed or mistreated for reasons of his race and previous involvement with the Wahdat party, and he didn’t consider that the authorities had the capacity to protect him; they weren’t able to help in the past and they were unable to protect the population from the Taliban or other criminals. He was fearful of returning to Afghanistan, and he said that there was no safety or security at all.
Added to this, was information that was given to the IAA as to the mental health of the Applicant; that opinion coming from a Dr Oertel.
The IAA considered the claims in a very thorough manner. The IAA accepted the Applicant’s identity. It found that Parwan was his home area. It accepted the history in Afghanistan prior to leaving for Pakistan. The IAA was not satisfied that the mistreatment he suffered before he went to Pakistan resulted from his work with the Wahdat but, rather, because of insecurity and the threat to him as a Shia Hazara.
The IAA accepted that he retained a limited profile with the Wahdat after his return to Afghanistan in 2006. It could not rule out that the past profile, however limited it was, was a factor in the targeting, and murder, of the remaining brother in the threats that were made to him over the phone in 2010. The IAA accepted that it was necessary for the Applicant and his family to leave Parwan for safety, and they travelled to Kabul where they settled before the Applicant left Afghanistan and came to Australia.
The IAA ended up accepting that there was a small, but real, chance that the Applicant would face harm in Parwan if he were to return there because of his specific profile but found that he did not have a profile and, therefore, would not be harmed outside of Parwan because of his past affiliation with the Wahdat.
The IAA then looked at the situation in Kabul and found that the Taliban did not have a sectarian agenda at the time of the decision and, although the group ISKP did have such an agenda, its ability to orchestrate attacks against Shias, Hazaras and others had been considerably reduced.
The IAA found that the Applicant had a remote chance of harm because of his race and religion if he were returned to Kabul in the immediately foreseeable future.
The IAA then considered whether it was reasonable for the Applicant to relocate to Kabul and found that he may have some proximity to violence but that did not mean it was unreasonable for him to live there.
In making all of those findings the IAA ended up affirming the decision.
The grounds of the application are as follows. I will look at ground one first.
1.The IAA erred in its consideration of the applicant’s proposed relocation to Kabul.
Particulars
(a) The IAA failed to consider a claim raised by submissions made to it and the evidence and information before it that the exacerbation of the appellant’s mental health symptoms expected to be caused to his witnessing, hearing about or otherwise being exposed to violent incidents in Kabul, even if such exposure does not reach the level to induce a well-founded fear of persecution or a real risk of serious harm, makes it unreasonable for him relocate to Kabul.
In looking at the relocation aspect, s 36(2B) says that, however, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen would suffer significant harm.
The submission of the Applicant before the IAA, relevant to this particular aspect, is found at CB 2403. At paragraph 3 of that submission, the Applicant argued that it was unreasonable for the Applicant to relocate to Kabul because exposure to violence and war-related events, and the exacerbation of his psychological symptoms, would doubtless cause him immense distress, even if it does not result in interference with his occupational functioning to the extent of affecting his ability to obtain, undertake and retain employment. What the Applicant submits is that there was no true consideration of that submission.
The reasons of the IAA at paragraphs 157 to 158 detail that the IAA considered this aspect:
157.Beyond his profile, I’ve considered the issue of generalised violence. If the applicant was to return to live in Parwan, I consider the prospect of him being harmed in generalised violence would be remote. Parwan Province is described as ‘among the relatively calm provinces in Afghanistan’. Statistics from EASO and UNAMA would appear to confirm that. Parwan Province had the fifth lowest civilian casualty rate in Afghanistan through 2020. The applicant’s home district of Shaikh Ali, saw single digit security incidents through 2019. EASO described indiscriminate violence in Parwan being so low, that in general there is no real risk of a civilian being affected by such violence, with previous advice indicating low numbers of incidents and a security situation described as relatively calm. While I acknowledge that submission that serious incidents do occur, I accept that analysis and find generalised violence in Parwan remains at a very low level.
158The situation is, obviously, more severe in Kabul. However, it, too, has shown considerable improvement. Kabul saw a significant reduction in – in security through 2020, with the city’s casualty rate falling by nearly half, totalling 817 casualties (255 killed, 562 injured) in the context of an overall reduction of civilian casualties in the country through 2020 and the lowest number since 2013.
The opinion of Dr Oertel is found at CB 303 and, specifically, paragraph 36, which I will now read into the record. 36:
If [the applicant] were to return to Afghanistan, this would provide him constant stimuli or cues that symbolise and resemble his past traumatic experiences and consequently prolong and exacerbate his psychological symptoms. It is also likely that if he were to return to Afghanistan that he will be exposed to further social violence and war-related events which will compound his existing psychological symptoms and thus exacerbating his features and associated features of Post-Traumatic Stress Disorder and Major Depressive Disorder. As symptoms of Post-Traumatic Stress Disorder and Major Depressive Disorder cause considerable distress and impairment, this could significantly interfere with [the applicant’s] occupational functioning when living in Afghanistan including obtaining, undertaking and retaining employment. It is not uncommon for individuals suffering from trauma and depression to exhibit problems with employment due to their fear-based re-experiencing, emotional and behavioural symptoms, dysphoric mood states, arousal and reactive symptoms, and negative cognitions. These symptoms can reduce the efficiency with which tasks are accomplished. They can cause individuals to become easily distracted, experience memory difficulties and struggle with making minor decisions. Their ability to engage in cognitively demanding pursuits can also be reduced. If [the applicant] were to experience significant disability or impairment in occupational functioning, this will subsequently have long-term impacts on his economic achievement and productivity.
The Courts have talked about what needs to be looked at with regard to whether a relocation is reasonable. Firstly, there must be a finding that there is an area within the receiving country where an applicant would not suffer significant harm and then, secondly, whether it would be reasonable for the applicant to relocate to that area.
The applicant has referred me to CRI028 v Republic of Nauru [2018] HCA 24. In particularly, at paragraphs 25 and 26:
25.Whether a person could reasonably be expected to relocate to another area in the country of their nationality involves a comparison between the circumstances or conditions that prevail in the person's existing area of residence and those circumstances or conditions that prevail in the other identified area, with a view to assessing the impact of the relocation on the person. The assessment is not concerned with comparing a person's quality of life in the other identified area with the basic norms of civil, political and socio-economic human rights recognised in international human rights instruments. Importantly, the reasonableness of relocation "depend[s] upon 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".
26.Put in different terms, the assessment of whether a person can relocate is not answered only by reference to the risk of harm. The assessment also requires consideration of the individual circumstances of the person, and what is practicable and reasonable for that person. As this Court said in SZATV v Minister for Immigration and Citizenship, "[w]hat is 'reasonable', in the sense of 'practicable', must depend upon 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". The practical realities must be carefully considered. And, as will be explained, the particular circumstances may include the person's family situation. It will be necessary to return to those principles.
In Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32, at paragraph 111, the Court said:
111.Fourthly, even if the Authority implicitly treated the “remote” risk of generalised violence in Mazar-e-Sharif as irrelevant in assessing the reasonableness of relocation, that did not amount to a jurisdictional error in the circumstances of the present case. That was because the question of reasonableness involved a comparison between the conditions prevailing in the place of habitual residence and those in the putative place of relocation. That had the consequence that, in the complementary protection context, it would not be unreasonable for a person to relocate to a proposed safe haven if he or she would not be substantially worse off there than in his or her place of habitual residence. Hence, a particular risk present in a putative place of relocation was not logically capable of weighing against relocation unless that risk was absent or significantly lower in an applicant’s place of habitual residence. To the extent that the cases upon which the primary judge relied omitted this step in their analysis of relocation, they should not be followed.
The IAA ended up making their decisions at paragraphs 187 onwards. At 187, the IAA said that:
187A further key consideration in this assessment is the applicant’s current mental health. The applicant has made persuasive submissions about his mental and overall health and the limited health care available in Afghanistan…
The IAA then went through as to what the current situation is in Afghanistan. At paragraph 190, the IAA said:
190The applicant’s submissions refer, in general terms, to the negative impact of PSTD and a person’s employment prospects. However, the evidence before me does not yet indicate that his mental health situation is at a point where he cannot work. It appears the applicant has been steadily employed as a tow truck driver in Australia for some time and he has been able to send money to his family in Kabul. In the circumstances, I am not satisfied his mental health is a barrier to him finding work in Kabul. In a related sense, I have accepted above that there is some stigma around mental health. But I am satisfied it would not be a major barrier for the applicant. The applicant is obviously high functioning. And the evidence before me indicates that trauma, common depression and anxiety are common in a country that has faced a long cycle of conflict. As reasoned above, I do not consider the level of stigma or discrimination he may experience would be at a high level and would prevent him from finding work or otherwise make relocation not reasonable.
191A further consideration here is the insecurity in Kabul and impact on the applicant’s mental health and its potential to exacerbate his condition. Dr Oertel states that if the applicant returns to Afghanistan, he will be exposed to further social violence and war-related events, which will compound his existing psychological symptoms and thus exacerbate his conditions.
192I accept that returning to Afghanistan may exacerbate his conditions, however, the context of the security environment in Afghanistan is an important consideration…
The IAA talk then about the country information that spoke of an easing of violence in the capital, Kabul. Such that the IAA found that the applicant would not face a real chance of risk or harm, in terms of generalised violence in Kabul. At paragraph 194, the IAA said that
194.Dr Oertel states that if the applicant returns to Afghanistan, this would provide him constant stimuli or cues that symbolise and resemble his past traumatic experiences and consequently prolong and exacerbate his psychological symptoms.I accept that, but also note in relocating to Kabul, he would be in a city with significant security measures. He would also be away from the areas of his past trauma (Parwan, Mazar and Pol-e-Khomri). I give that some weight.
195.Nevertheless, given the overall situation in Afghanistan, I accept there may be a deterioration in the applicant’s circumstances due to insecurity, or at least the threat of insecurity, in the context of a country in which the applicant has a different – has a difficult history. I consider those risks would be present in Kabul, Parwan or Mazar-e-Sharif. Even if there were to be a deterioration in his mental health, I do not consider that would mean relocation to Kabul is not reasonable. I do not consider it would put him at risk of harm or destitution. While it may impact his employment at some point, I again consider he would have the support of his family and at least proximity to access the best version of healthcare available in Afghanistan.
The Applicant submits that the IAA has misconstrued Dr Oertel’s assessment. The Applicant says that her assessment was not that the Applicant’s mental health was at a point where he cannot work in Australia;’ it was that if he were removed to Afghanistan and exposed to violence or the atmosphere of violence his symptoms may be compounded and exacerbated and, thus, having become exacerbated may become a barrier to gaining, undertaking or retaining employment. Because of this the IAA has failed to confront and address the claim as made.
Secondly, the Applicant says that the IAA failed to confront and address the claim contained in the submission that the exacerbation of his symptoms and that the stress caused by exposure to violence and all related events itself if returned to Kabul, made relocation to Kabul unreasonable. The submission was, in effect, that the distress that the Applicant would face made it unreasonable to relocate. That aspect was not addressed according to the Applicant.
It doesn’t seem to me that Dr Oertel’s report has been misconstrued. Dr Oertel clearly says that if the Applicant were to return to Afghanistan, very broadly, that just being in Afghanistan would provide him constant stimuli or cues that symbolize and resemble his past dramatic experiences, that such exposure would consequently prolong and exacerbate his psychological symptoms.
Dr Oertel then says that it is also likely that, if he were returned to Afghanistan generally, he would be exposed to further social violence and war-related events which would compound his existing psychological symptoms, thus, exacerbating his features and associated features of PTS and MDD, and it was that if the Applicant were to experience significant disability or impairment in occupational functioning that this would subsequently have long-term impacts on his economic achievement and productivity.
The IAA had to compare the Applicant’s home area which was Parwan with Kabul. What the IAA did was to look at the difference. Whilst there may be greater objective insecurity in Kabul as opposed to Parwan, the fact is he would not be exposed to the constant stimuli or cues that symbolise and resemble his past traumatic experiences. This is why the IAA, at paragraph 194, has given weight to the fact that Kabul is different to Parwan, Mazar or Pol-e-Khomri when looking at the individual circumstances of the Applicant.
Any deterioration would lead to, according to Dr Oertel, a significant interference with occupational functioning which would include the obtaining, undertaking and retaining of employment. The IAA looked at what would occur in Kabul and looked at those particular aspects and came to the conclusion that it did not mean that relocation to Kabul was not reasonable. The IAA specifically found that relocation to Kabul would not put the Applicant at risk of harm or destitution.
Having looked at Dr Oertel’s reporting in the way that the IAA did, it seems to me that that aspect of the report was not an issue that went to the reasonableness of the relocation. In that respect, the IAA has addressed the claim as made.
The second aspect of the claim that the IAA did not address whether the distress that would be caused to the Applicant, simply by being in Kabul (where the IAA had already found that there would be some forms of violence occurring in the city) was not fully considered, or considered at all, by the IAA. It seems to me, though, that the IAA explicitly did refer to this in paragraph 191. The IAA specifically said that they had regard to a further consideration that the insecurity in Kabul could impact the Applicant’s mental health and lead to a potential to exacerbate his condition, which was one of distress, if one looks at Dr Oertel’s report.
That claim was, to my mind, exactly articulated at paragraph 191, and what is said in paragraphs 192 and 193 as well as 194 and 195, answer that submission. Because it does answer that submission, and that the IAA has looked at the fact of the applicant’s distress because it has looked at the exacerbation of his symptoms and found that it would not mean that relocation was not reasonable, to my mind, illustrates no jurisdictional error.
For that reason, ground one is not made out.
Ground two was not pursued.
Ground three is phrased in this way:
3. The IAA erred in its consideration of whether the applicant had a well founded fear of persecution, or faced a real risk of significant harm in Kabul.
Particulars
(a) Failure to consider and address a claim arising on the evidence and submissions before it, and on its own findings, that the psychological harm that may be experienced by the applicant, were he to attempt to live in Kabul, would of itself amount to persecution or significant harm.
The gravamen of this ground comes from the submission that was made again at page 2403 of the Court Book. The submission was, were he to return to Kabul, he would be very likely be exposed to violence and war related events targeted at his community, including himself, which would compound his existing symptoms of PTSD and MDD to the extent that it could interfere with his occupational functioning including obtaining, undertaking and retaining employment. Psychological harm can amount to serious harms for the purposes of the former s 91R(2) of the Act.
There are a number of premises to this ground. The first premise is a factual one which was, were the Applicant to return to Kabul, he would very likely be exposed to violence and war related events targeted at his community, including himself. The second premise is that attacks that target Shia Hazaras are attacks that necessarily cause psychological harm; that is, that if one is living in a city like Kabul and there is an event which (there is no doubt) targeted Hazara Shias, and one is a Hazara Shia, therefore there will be psychological harm felt because of that.
To the first premise to start with, that is, that if the Applicant were to return to Kabul, he will be likely to be exposed to violence and war related events targeted to his community, the IAA made specific findings as to that. At paragraphs 108 to 118 the IAA went through what the country information spoke of with regard to the risks to Shia Hazaras generally and in Kabul. At paragraph 118 the IAA said that:
118.When looking to the reasonably foreseeable future, I find that ISKP remains a credible, but diminished threat to Shia Hazaras and other risk profiles in Afghanistan. I acknowledge the chance or risk of harm for Shias is more elevated in a city such as Kabul, however, I consider the group’s ability to orchestrate attacks against Shias and Hazaras and other targeted groups has been substantially reduced throughout the country, including the capital, and that the Afghan security forces continue to work and reduce the group’s ability to operate in the country. I consider that was the case through 2020 and I am satisfied this will be the case into the reasonably foreseeable future. I consider the chance or risk of harm to the applicant as a Shia Hazara in Kabul would be credible but remote and not a real chance.
Similarly, in paragraph 193 the IAA said:
…I again note above that I found that the applicant would not face a real chance or risk of harm in terms of generalised violence in Kabul.
It seems to me that the premise of the submission has been well and truly answered, and the IAA has said that it is not very likely that the applicant will be exposed to violence and war related events targeted at his community.
The second part of the submission is an attempt to make a general statement a specific fact. Whilst one may think that it is common sense that if one were a Shia Hazaras in Kabul and there was an incident that targeted Shia Hazaras, there would be some psychological harm. Therefore, the applicant submits, that if the applicant were in that situation, that there would be likely that the applicant would suffer psychological harm because of the applicant’s own personality. There is no evidence of this at all. What the Applicant is attempting to do is elevate that generalised statement into a fact. If that elevation succeeds, it means that what it is that Dr Oertel has said now becomes that there are then three aspects to there being some exacerbation of features of the Applicant’s PTSD and MDD.
Dr Oertel talks of two aspects only: firstly that being that the constant stimuli or cues that symbolise this past dramatic experience would prolong and exacerbate the symptoms. The second is that if he were exposed to further social violence and war-related events that that would compound his psychological symptoms. The Applicant is attempting to then put a third aspect on it: that if the Applicant were to feel that he was targeted because he was a Shia Hazara at any generalised violence targeting Shia Hazaras, that that too would exacerbate his features and associated features of post-traumatic stress disorder. Therefore, if that aspect were to be considered as fact, it would mean that there was another string to the concept of whether he would suffer persecution.
The Applicant submits that as the IAA did not specifically speak of this particular aspect of persecution, there was a jurisdictional error.
It seems to me that such a claim does not arise on the evidence in this case. What, as I have said, has happened is that there is a general statement that has been made, which general statement does not appear anywhere in the evidence. This is simply a general statement elevated to a fact, which is then superimposed upon an existing opinion to form the basis of a claim.
Because the basis of such a claim has not been established, it does not seem to me that such a claim does arise on the evidence. For those two reasons, ground three does not illustrate jurisdictional error.
I therefore dismiss the application with costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 14 April 2022
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