BGE17 v Minister for Immigration - [2019] FCCA 1291

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGE17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1291

Catchwords:
MIGRATION – Application for review of decision of the Immigration Assessment Authority (IAA) – whether the IAA failed to consider a claim expressly made by the applicant – whether the IAA had regard to an irrelevant consideration or asked itself the wrong question or otherwise committed jurisdictional error – whether the IAA failed to consider all possible forms of statutorily defined significant harm when assessing the reasonableness of relocation – whether the IAA failed to consider the operation of s.5J(6) of the Migration Act 1958 (Cth) in relation to the applicant’s conduct in Australia – none of the grounds made out – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5J, 36, 476, 477

Federal Circuit Court Rules 2001 (Cth), rr.2.05, 2.07A

Cases cited:

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114;

(2013) 230 FCR 431; (2013) 136 ALD 547

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous

Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALR 630;

(2003) 75 ALD 630

AHG18 v Minister for Home Affairs [2019] FCA 410

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

Dranichnikov v Minister for Immigration and Multicultural Affairs

[2003] HCA 26; (2003) 214 CLR 496; (2003) 77 ALJR 1088;

(2003) 197 ALR 389; (2003) 73 ALD 321

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46;

(2009) 174 FCR 415

Hossain v Minister for Immigration and Border Protection [2018] HCA 34;

(2018) 92 ALJR 780; (2018) 359 ALR 1

Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister

for Immigration and Border Protection; BEG15 v Minister for Immigration and

Border Protection [2019] HCA 3; (2019) 93 ALJR 252; (2019) 363 ALR 599

Applicant:

BGE17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 878 of 2017

Judgment of:

Judge Nicholls

Hearing date:

9 April 2019

Date of Last Submission:

9 April 2019

Delivered at:

Sydney

Delivered on:

16 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr S. Tully

Solicitors for the Applicant:

Ryburn Solicitors

Counsel for the Respondents:

Ms N. Laing

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application made on 22 March 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 878 of 2017

BGE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

On 21 March 2017 the applicant electronically lodged with the Court’s registry an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Immigration Assessment Authority (“IAA”) made on 14 February 2017 which affirmed the earlier decision of the Minister’s delegate not to grant the applicant a Safe Haven Enterprise Visa (SHEV) (a protection visa).
The application was transmitted electronically to the Court’s registry at 11:57 PM on 21 March 2017. The IAA’s decision was made on 14 February 2017. Section 477(1) of the Act requires applications made pursuant to s.476 of the Act to be made within 35 days of the date of the subject decision. That means the application was required to be made on or before 21 March 2017.
Although, the application was transmitted electronically on that date, it was sent at 11:57 PM. The effect of r.2.07A and r.2.05(3)(b) of the Federal Circuit Court Rules 2001 (Cth) is that the document is taken to have been filed the next day (22 March 2017). That is on this basis it was filed one day outside the 35 day limit and was therefore, not competent.
The applicant sought, and the Minister did not oppose, that the time for the making of a competent application be extended to 22 March 2017 pursuant to s.477(2) of the Act. I made that order at the beginning of the hearing in this matter. The hearing therefore, proceeded as a final hearing of the grounds of the substantive, and now competent, application.

Background

The applicant is a citizen of Afghanistan who arrived in Australia on 27 August 2012. He subsequently made an application for a SHEV which was received by the Department on 8 December 2015 (CB 97– CB 146). The applicant was assisted by a migration agent in making the application.
The applicant claimed to fear harm if he were to return to Afghanistan from the Taliban, other (Sunni Islam) extremist groups, and the Pashtun population generally due to his being of Hazara ethnicity, of Shia Islamic religion, that he would be imputed with an anti–Taliban political opinion, and would return as a failed asylum seeker.
The delegate refused the grant of the visa on 5 September 2016 (CB 191 –CB 204). The applicant’s matter was referred to the IAA on 9 September 2016 (CB 207–CB 208).
The respondent’s written submissions provide a fair summary of the IAA’s findings at [6]-[10]:
“6. The IAA largely accepted the evidence provided by the applicant. The IAA accepted that:

(a)Kuchi Pashtuns grazed their cattle on land owned by the applicant’s family which resulted in livelihood issues;⁵

(b)the applicant and his family moved to Nawabad for financial and security reasons;⁶

(c)the applicant was stopped by the Taliban on election day in 2009. However, the IAA found this was a random incident, with the applicant being of no ongoing interest to the Taliban;⁷ and

(d)the applicant’s home province of Ghazni was one of the most volatile in Afghanistan. Roads linking Kabul and Hazara areas of Ghazni were unsafe, and anti-government elements carried out attacks and abductions against Hazaras.⁸Given the ongoing security concerns in the province,⁹the IAA accepted that there was a real chance that the applicant would suffer serious harm if returned to Ghazni.¹⁰

7. However, the IAA found that the applicant could safely relocate to the city of Mazar-e-Sharif in Balkh province.¹¹ The IAA came to this conclusion after finding that:

(a)Mazar-e-Sharif was one of the safest cities in Afghanistan. While some attacks do occur in the city, security is facilitated by the rule of the governor of Balkh province. The IAA was not satisfied that the applicant faced a real risk of harm on the basis of the city’s general security situation;¹²

(b)no particular group was targeted “solely on the basis of ethnicity”.¹³ Despite incidents of violence, there was nothing to indicate the applicant would face a real chance of harm from insurgents because of his ethnicity;¹⁴

(c)societal discrimination in the form of nepotism based on ethnicity, family, and religion, is widespread in Afghanistan. The IAA accepted that, as a Hazara (being an ethnic minority in Mazar-e-Sharif) with no familial links in the city, the applicant may be subject to a degree of discrimination. However, the IAA was not satisfied that there was a real chance that the discrimination would rise to the level of serious harm within the meaning of s.5J of the Act.¹⁵ Nor was the IAA satisfied that the applicant’s capacity to exist or earn a livelihood would be threatened, nor “that he would face other forms of harm in Mazar-e-Sharif as a Shia Hazara”;¹⁶

(d) attacks against Shias had occurred in Mazar-e-Sharif,¹⁷but “purely inter-faith violence is rare”¹⁸ in Afghanistan. Further, the Taliban had spoken out against sectarianism. The IAA was not satisfied that a recent attack was indicative of a sectarian campaign. It was not satisfied that the applicant faced a real chance of persecution as a Shia Hazara upon return to Mazar-e-Sharif;¹⁹

(e)there were reports of returnees to Afghanistan being targeted due to their perceived pro-Western values or political opinions.²⁰ However, the IAA noted that none of the reports were from Mazar-e-Sharif and that DFAT otherwise considered that low-profile Hazaras faced a low risk of being targeted. The IAA did not accept that the applicant would be imputed with an adverse political opinion if returned to Mazar-e-Sharif;²¹ and

(f)the applicant’s first name and photograph has been published in a local newspaper and their website in Australia.²² The IAA accepted the applicant was identified as an asylum seeker. However, there was no evidence to indicate that the Taliban would become aware of the article. On the evidence, the IAA found that returnees to Mazar-e-Sharif are not targeted simply for being a returnee or failed asylum seeker with an imputed pro-western political opinion. As such, it was not satisfied that the applicant would face a real chance of harm for this reason.²³

8. The IAA also found that it would be reasonable for the applicant to relocate to Mazar-e-Sharif. The IAA considered the applicant’s financial support of his family, his lack of familial ties in Mazar-e-Sharif, and the economic situation in Afghanistan.²⁴However, it found that the applicant was an able bodied male with no health problems or other specific vulnerabilities identified by country information.²⁵ The IAA found that the applicant’s ability to establish himself in Iran and Australia demonstrated that he was “resilient and resourceful”. It was satisfied that the applicant would be able to obtain employment, subsist and establish himself in Mazar-e-Sharif.²⁶
9. The IAA accepted that the applicant’s relocation would require continued separation from his family for the reasonably foreseeable future. However, the IAA noted that the applicant had previously “demonstrated a capacity and willingness to live apart” from his family through his extended time in Iran and Australia.²⁷ Taking into account the applicant’s personal circumstances, the IAA found that it would be reasonable for the applicant to relocate to Mazar-e-Sharif where he would not face a real risk of significant harm.²⁸
10. Accordingly, the IAA affirmed the Delegate’s decision.”

[Footnotes omitted.]

The Application to the Court

The grounds of the application are in the following terms:
“1. The IAA failed to consider a claim expressly made by the applicant.

Particulars
a. The applicant claimed to fear persecution from extremist Sunni groups and the Pashtun population as a Shia Hazara.

b. The IAA identified this claim in its reasons for decision (at [6]) but failed to consider it in its decision.

2. The IAA had regard to an irrelevant consideration, asked itself the wrong question or otherwise committed jurisdictional error when assessing the nature of the harm which the applicant may suffer upon relocation.

Particulars
a. When considering the reasonableness of the applicant relocating to Mazar-e-Sharif, the IAA considered whether the applicant had the “capacity to subsist” in that area (at [46] and [47] of its reasons for decision).

b. A person’s “capacity to subsist” is relevant to considering serious harm under s 5J(5)(e) and (f) of the Migration Act 1958 (Cth) (the Act), whereas s 36(2B)(a) of the Act required the IAA to consider whether the applicant would suffer significant harm as defined in ss 36(2A) and 5(1).

3. The IAA failed to consider the operation of s 5J(6) of the Act in its application to conduct in Australia.

Particulars
a. In its reasons for decision at [6], [30]-[32] and [41], the IAA accepted that the applicant’s photograph had been published in a regional Australian newspaper and on its website.
b. The IAA failed to consider the application of s 5J(6) of the Act as it was required to do in relation to conduct engaged in by the person in Australia.”

Consideration: Ground One

Ground one asserts that the IAA failed to consider a claim expressly made by the applicant. The particulars assert that the IAA identified (at [6]) the applicant’s claim to fear persecution from extremist Sunni groups and the Pashtun population due to his being a Shia Hazara.
The complaint is that having identified this claim the IAA did not proceed to consider it. Failure to consider a claim expressly made was said to constitute jurisdictional error.
In submissions before the Court the applicant explained that there were two elements to this particular claim to fear harm. The first was fear from Sunni extremist groups, the second from the Pashtun population generally.
The applicant referred the Court to his Statutory Declaration which was before the IAA (CB 138–CB 142). At [23] the applicant declared:
“23. If I were forced to return to Afghanistan, I fear the Taliban will harm me. I also fear harm from other extremist Sunni groups in Afghanistan such as IS / Daesh and the Pashtun population.”

Further at [8] of the same document:
“8. Soon after the Taliban commenced occupation of our town, they allowed other local Pashtun farmers to graze their cattle on our land, destroying our crops. As we feared being attacked or killed by the Taliban for protesting, we were rendered helpless and could not stop them.”

I also note what was stated at, in particular the last sentence of [37] at CB 168):
“37. As submitted above and in his PVA and SHEV, the Applicant feared harm form the Taliban in Afghanistan on the basis of his race and ethnicity as a Shia Hazara, also the Taliban were actively stealing the Applicant’s livelihood rendering it difficulty for his family to subsist. As a consequence of the Applicant’s fear, he was helpless in addressing the issue due to retribution. Furthermore, the Applicant feared harm from Pashtun farmers who occupied his family’s land. These concerns were the motivation for him fleeing Afghanistan.”
[Emphasis Added.]
This latter claim (the Pashtun farmers) was described as being one aspect of the fear of harm from the Pashtun population. That is, Pashtun farmers grazing “their cattle on our land”.
The applicant’s (first) representative made written submissions to the delegate (CB 164–CB 190). At [20] (CB 166) the following was stated:
“20. Furthermore, the continual conflict with Pashtun farmers regarding land disputes, his family continued to find it difficult to subsist and lived in fear of harm travelling about the community due to ethnic conflict.²”
[Footnote omitted.]
Further at [39] (CB 168–CB 169):
“39. To that end, the Danish fact-finding mission of March/April 2004 reported that UNHCR had advised that there were ethnic conflicts in the Ghazni and Uruzgan provinces between the Hazaras and the Pashtuns. “In some areas the Hazaras cannot travel through areas
controlled by Pashtuns. Moreover the source stated that there have been tensions in Ghazni province between the Hazaras and the Kuuchis [Kuchis], Afghanistan’s nomadic people. These disputes were concerning the right to land and water.⁶”
[Footnote omitted.]
On 16 December 2016 a (second) migration agent made submissions on behalf of the applicant (CB 230). Those “submissions” appear, for the great part, to be a bundle of various reports, articles and comments concerning Afghanistan (CB 231–CB 308).
Before the Court the applicant referred to a part of what is reproduced at CB 287:
“Complicating the issue is the seething enmity between Pashtuns and Tajiks that goes back at least to the participation, even leadership, of the Tajiks in the “Northern Alliance” which helped to bring down the Taliban government in 2002⁶⁹. Furthermore, if the Taliban forces or ISIS operatives were able to enter the city of Mazar-e Sharif, there is no doubt the Hazaras, as Shias, would be especially vulnerable, Certainly it can be said that not only is there well known enmity between Pashtuns and Hazaras, but there is historic tension between Tajiks and Hazaras. The governor certainly could not be counted on to protect the Hazaras of Mazar-e Sharif in the event of a Taliban attack.”

A further facet of the fear from the Pashtuns claim was said by the applicant now to have been set out in the IAA’s own decision record. See at [11] (CB 315–CB 316):
“11. The applicant claims that during the Taliban rule the Taliban occupied his village in Malistan and imposed sharia law, encouraged the local Kuchi Pashtuns to graze their cattle on the family land and also took supplies from the family grocery store. He claims that due to these problems he went to Iran in 1998/99 to work and did not return until 2002. When he returned in 2002 to his village his family still had financial difficulties arising from the Taliban and Pashtun occupation and the applicant returned to Iran within a few months to work. The applicant returned in 2005 but only stayed for four or five months as there continued to be conflict with the Kuchi, and as a consequence of the Taliban presence around the area, he and his family feared traveling in the region. In late 2007 the applicant again returned to his village so that he could relocate with his family to Nawabad where they believed that they would be safe from the Taliban and Kuchis.”

See also at [15] (CB 316–CB 317):
“15. Country information also indicates Ghazni is one of the most volatile provinces in Afghanistan in terms of attacks on defence forces, international forces and civilians due to the activities of the Taliban and other insurgent groups present in Pashtun majority districts, which therefore have high levels of insecurity and are unsafe.⁶ Roads linking Hazara-dominated areas in Ghazni with Kabul also suffer from a high level of insecurity.⁷ DFAT also referred to a United Nations Assistance Mission in Afghanistan (UNAMA) report which indicated that anti-government elements (AGEs) abducted at least 97 members of the Hazara community in the first half of 2015 and all but one incident took place in areas of mixed Hazara and non-Hazara communities including in Ghazni province. Motives for the abductions varied, and included financial gain, intimidation, hostage exchange, suspicion of being members of Afghan national security forces, and in some cases motives were unknown.⁸ DFAT also cites the kidnapping of 31 people in February 2015 who were almost all Hazaras travelling on buses through Zabul province⁹ and reports several incidents of Hazaras being kidnapped in Ghazni province in the second half of 2015 including a group of 7 Hazaras who were kidnapped and killed.¹⁰ While DFAT assesses that ethnicity is rarely the primary motivating factor in these incidents, it can be a contributing factor, in some circumstances.¹¹ DFAT also assesses that Hazaras travelling by road between Kabul and the Hazarajat face a greater risk than other ethnic groups and if a bus is stopped in these areas with a mixture of ethnic groups on board, ethnic Hazaras are more likely to be selected for kidnapping or violence.¹²”
[Footnotes omitted.]
It must be said there was some difficulty in eliciting from the applicant’s counsel a clear delineation between what the applicant is said to have expressly claimed (after all that is what is alleged in ground one) and possible claims, or integers of claims, that may, or may not, have been available to him to claim from the large mass of country information given to the IAA without any satisfactory explanation from the applicant’s (second) representative as to how this related to the applicant’s actual claimed fear or to his circumstances.
What ultimately can be understood about this aspect of the applicant’s ground, from the explanation for it, is that the IAA identified the applicant’s claim to fear harm from the Pashtuns generally (as a Shia Hazara) and specifically from Pashtuns whom the Taliban allowed to graze their cattle on the applicant’s land. The applicant’s complaint now is that having identified that claim, the IAA did not subsequently consider it.
In relation to the fear from Sunni extremists groups, the applicant submitted that at [6] of its decision record the IAA identified this claim. However, it subsequently also did not “consider” this claim.

Other than a reference to Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [62] for the proposition that a failure to consider a claim constitutes jurisdictional error, the applicant made no other reference to relevant authorities.
However, as the Minister submitted direction and guidance, in the circumstances of this case, is also provided by the Full Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”) at [47]:
“47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

Before the Court the applicant did not dispute that at [6] of its decision record the IAA identified the claim as described in the particulars to his ground.
Despite attempts to refer to Tajiks and Kuchis in his submissions (and the references to country information) the claim to fear harm as stated in the ground is a fear of “persecution” from “Sunni groups and the Pashtun population” due to his being a Shia Hazara.
There is no dispute from the applicant that the IAA “identified” this claim at [6] of its reasons. It cannot be said therefore, that the IAA “overlooked” this claim. The “issue has at least been identified at some point” (with respectful reference to WAEE at [47]).
Although, not expressly articulated in this way it appears the applicant’s argument is that, the IAA did not subsequently consider, in the sense of an intellectual engagement, with this express claim.
As set out above the IAA identified the applicant’s claims at [6] of its decision record. It is relevant to note that the applicant claimed to have been born in his home village of Sang Dek in the Malistan (also referred to as Malestan) district of the Ghazni Province of Afghanistan. He relocated, with his family, to Nawabad near Ghazni city in 2008.
The IAA accepted that there was a real chance that the applicant would suffer serious harm in the Ghazni Province given the security concerns in that Province, including the attacks on Hazaras on the roads linking Hazara areas in Ghazni to Kabul ([15]–[17] at CB 316–CB 317).
However, the IAA correctly identified that, given the provisions of s.5J(1)(c) of the Act, it was required to consider the fear of harm in relation to all of Afghanistan ([18] at CB 317–CB 318).
In this light the IAA was not satisfied that the applicant faced a well-founded fear of persecution in Mazar–e–Sharif, the capital of the Balkh Province in Afghanistan.
It is in this context therefore, that the applicant’s ground must be considered. The applicant’s submissions before the Court that referred to fear of harm from local Kuchi Pashtuns whom the Taliban allowed to graze their cattle on the applicant’s land was a claim specific to his local area. Once the IAA accepted that there was a well-founded fear in his local area it was not required to further consider this specific integer of the applicant’s claim.
The question therefore, is whether the IAA “considered” the applicant’s claim to fear persecution from extremist Sunni groups and the Pashtun population with reference to Mazar–e–Sharif.
Two things may also be added to this given the circumstances presented in the material before the IAA. One, the claim to fear harm from the Taliban is also to be included here. If for no other reason, given the ground as pleaded, it can be described as a Sunni extremist group. Two, there was country information before the IAA of ethnic violence in Afghanistan.
The IAA had regard to various sources of country information available to it concerning the situation in Mazar–e–Sharif ([20]–[28] of its decision record).
The country information to which the IAA had regard included the situation of Shia Hazaras living in Mazar–e–Sharif, and the security situation in that city, which was said to be “one of the safest cities in Afghanistan” and a “melting pot of diverse cultures” (at [20] CB 318).
At [21] of its decision record the IAA stated:
“…DFAT also indicated that people from all ethnic groups are at risk of violence from anti-government elements, but no particular group is systematically targeted solely on the basis of ethnicity.²³ DFAT in its September 2016 report indicated that high-profile suicide and complex attacks continued, particularly in Kabul, with most attacks carried out by the Taliban against targets linked to the Afghanistan government or international security forces. The Taliban specifically targeted civilian groups such as human rights defenders, journalists, lawyers and judges, aid workers and civil servants, and used indiscriminate tactics.²⁴”
[Footnotes omitted.]
The applicant’s submission before the Court was that while a reference here was made to the Taliban there is no specific reference to other “Sunni extremist groups”.
As set out above in his submissions before the Court the applicant identified these, at best, as being those extremist groups in his home area. The applicant’s submissions to the Court did not satisfactorily identify what other groups (other than the Taliban) outside his home area constituted the basis for his fear.
The applicant’s Statutory Declaration made clear at [8] that the fear (other than from the Taliban) emanated from “Pashtun farmers” in his home area.
The reference to “other extremist Sunni groups in Afghanistan such as IS / Daesh” (at [23) of the Statutory Declaration) was not satisfactorily explained with reference to the applicant’s specific circumstances, in the voluminous material submitted to the delegate and the IAA on his behalf.
The submissions from his (first) migration agent again were focused on the Taliban and Pashtun farmers (at [37] CB 168). In context this again was a reference to his home area (see also [39] of these submissions at CB 168–CB 169).
While the “submissions” from the (second) migration agent did refer to country information concerning Mazar–e–Sharif this was in the context of the Taliban and the “well known enmity between Pashtuns and Hazaras”. As explained now before the Court this was a part of the ethnic violence facet that fuelled extremist Sunni groups, Pashtun enmity and violence towards Hazaras, which underpinned the applicant’s claimed fear.
This is what the IAA considered at [22] (CB 318–CB 319), and with specific reference to the submissions made by the applicant’s (second) representative as they related to the situation in Mazar–e–Sharif.
At [25] (CB 319) the IAA considered further country information specifically in the context of the claimed fear as a Shia. This was one part of the religious/ethnic characteristics which the applicant said was the basis for the violence and attacks by the Sunni extremists and Pashtuns generally.
At [27] (CB 320) the IAA considered country information concerning various Sunni extremist groups operating in Mazar–e–Sharif and the surrounding Balkh province. For current purposes this included the Taliban and IS/Daesh, and attacks on Shia Hazaras. It is important to note that the IAA made specific reference to the submissions made by the applicant’s representatives in this regard.
It must be said that the applicant’s submissions before the Court in relation to each of these paragraphs of the IAA’s reasoning adopted the approach of viewing each paragraph in isolation rather than a fair, holistic, reading of the entire decision record.
For example, the submission was variously made that there was no specific reference to Sunni extremist groups in [20], [21], [22], [25] and [26] of the IAA’s decision record. The applicant’s submissions accepted that at [27] there was a reference to ISIS or Daesh, to the Islamic Movement of Uzbekistan and the Taliban. However, the submission was there was no consideration of “Sunni extremist groups generally”.
Before the Court, the applicant was unable to satisfactorily explain exactly what other extremist groups were the subject of his claim to fear harm before the IAA [a reference in the (second) representative’s submissions to the IAA to other groups (CB 281.8), does not assist the applicant given no satisfactory attempt was made to link these to the applicant’s claims in relation to, or circumstances in, Mazar–e–Sharif]. It appeared that the proposition relied upon now by the applicant was that there was a broad “collection” of Sunni extremist groups and the IAA was required to trawl through the voluminous country information given to it to find any other group that may fit this description.
The IAA identified, and considered the applicant’s claim to fear harm as a Shia Hazara from extremist Sunni groups and Pashtuns generally, in the context, and with reference to, how the applicant, and his representatives advanced these claims.
To argue, as the applicant does now, that the absence of the words “other extremist Sunni groups” (in general) from the text of the IAA’s reasoning, is to ignore what the applicant actually claimed, and how the IAA considered it.
In relation to the claim to fear harm from Pashtuns generally the IAA identified, considered, and rejected, this claim as revealing a real chance of harm in Mazar–e–Sharif. The IAA found that religious or ethnic violence was rare in that location. Further, that the level of societal violence the applicant would likely face in Mazar–e–Sharif would not rise to a real chance of serious or significant harm from Pashtuns.
It is also important to note that the consideration of the applicant’s claim to fear harm from Sunni extremist groups and Pashtuns, and in the context of ethnic violence due to his being a Shia Hazara (which in context implied a fear from Pushtuns), was specifically also considered in the context of relocation to Mazar–e–Sharif, and as that related to the complimentary protection criterion (see generally [35]–[51] of the IAA’s decision record).
At [40] of its decision record the IAA had regard to country information that Mazar–e–Sharif “is known as a melting pot of diverse cultures and religious influences where liberal attitudes coexist with conservative traditions.⁴³” [Footnote omitted.]
Further, the IAA had regard to findings of fact expressed previously in its decision record and appropriately “imported” these into its consideration of the significant harm consideration. For example [40] of its decision record:
“…I have also found that there is not a real chance that he would face other forms of harm in Mazar-e-Sharif as a Shia Hazara and as the ‘real risk’ test imposes the same standard as the ‘real chance’ test, I am also not satisfied that there is a real risk of the applicant suffering such harm on the return to Mazar-e-Sharif as a Shia Hazara.”

The IAA also had regard to the question of violence in Mazar–e–Sharif and relevantly considered country information (which it noted) that “…the Taliban is being supported by other Sunni extremist groups…” ([42] at CB 323.8).
Importantly, and further, the IAA had specific regard to the applicant’s (second) representative’s submissions of the reasonableness of relocation and country information referred to by those submissions (see relevant to violence and fear from extremists at [50] CB 325–CB 326).
I agree with the Minister’s submission that in the circumstances presented, and on the material before it, there was no other aspect of the applicant’s claims, as presented, and as they arose from the material before it, that required further explicit findings (WAEE at [46]–[47] and AHG18 v Minister for Home Affairs [2019] FCA 410 at [21]).
In all, and in particular in relation to the “other extremist Sunni groups” argument the applicant’s ground is an argument relying on artifice and construct, rather than one of substance. Ground one is not made out.

Consideration: Ground Two

Ground two takes issue with the IAA’s consideration of the question of the reasonableness of relocation to Mazar–e–Sharif.
The assertion of error is that the IAA had regard, in that context, to the applicant’s “capacity to subsist” in that location (with reference to [46]–[47] of the IAA’s decision record). The applicant’s argument is that the capacity to subsist is a relevant consideration to the determination of serious harm pursuant to s.5J(5)(e) and (f) of the Act, whereas s.36(2B)(a) of the Act “required the IAA to consider whether the applicant would suffer significant harm as defined in” s.36(2A) and s.5(1) of the Act.
Before the Court the applicant’s submissions were not directed to the ground as stated (“irrelevant consideration, asked itself the wrong question”). When pressed to explain, the applicant’s counsel submitted, ultimately, that the ground was “infelicitously worded”.
In any event, the assertion of legal error was said to be, simply, as follows. In the context of its consideration of relocation, the IAA did consider all of the forms of significant harm in relation to social discrimination, and nepotism ([40] at CB 322–CB 323). Further, that the IAA did make conclusions regarding the reasonableness of relocation at [43] and [50] of its decision record.
However, the applicant submitted, the IAA made “generic conclusions” which he “would have to go behind…to contend that there was no consideration in relation to the other forms of significant harm”.
The complaint as expressed in the applicant’s written submissions is as follows: (at [23])
“…The IAA expressly considered whether the applicant had the “capacity to subsist” in Mazar-e-Sharif at [46] and [47] of its decision. However, the IAA erred by failing to consider the risk to the applicant of other possible forms of statutorily-defined forms of significant harm when assessing the reasonableness of him relocating to Mazer-e-Sharif.”

The criteria relevant to the grant of the visa in this case are to be found at s.36(2) of the Act:
“(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm”.

“Significant harm” is defined at s.36(2A) and s.36(2B) of the Act:
“(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.

(2B) 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:

(a) 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 will suffer significant harm; or

(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.”

Implicit, if not explicit, in the applicant’s argument is that in all cases where a decision maker gives consideration to the matter of “significant harm” under the Act, the decision maker is compelled to consider each and every one of the items set out at s.36(2A). In the current case the applicant argues the IAA did not do this.
There are two immediate answers to the general proposition postulated by the applicant.
One, s.36(2A) is not a “shopping list” that requires some formulaic “ticking – off” of each item set out there. Rather, the decision maker’s task is to consider the circumstances presented, and attendant upon, claims expressly made or clearly arising from the material before it (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, and “WAEE”).
Those claims, and circumstances, and any “substantial, clearly articulated argument” (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24]) give shape, scope and focus to this consideration.
As was, with respect, made clear in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [123]–[124] (per Tracy and Foster JJ):
“123. The Tribunal considered relocation in a framework dictated by the evidence and claims advanced to it by the appellant. It was not obliged to consider all theoretical possibilities including the question of whether or not the appellant would continue to behave in a way which might attract persecution from different Islamic fundamentalists.

124. The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR 437 at 442–443, especially at 443C–D.”

[Emphasis Added.]

Two, in that light regard must also be had to the entirety of the IAA’s consideration. For example, as set out above findings of fact made by the IAA under different headings in its decision record are available and may be “imported” into the consideration under the heading of “Real risk of significant harm” (CB 322.3).
As the respondent’s counsel submitted in the current case there is no suggestion that the IAA was unaware of the “various means” by which a person may suffer significant harm (see the IAA’s references in [35], and see also [37]).
In this regard also I note that the IAA found that the same factual basis for its finding that the applicant would suffer serious harm in his home or local area, applied to its finding that he would also suffer significant harm in his home or local area (see [36] – “[f]or the same reason”).
There was no need in making this finding for the IAA to repeat all those findings of fact which it had set out earlier in its decision record which informed its finding as to the significant harm as it applied to the applicant’s home or local area.
It is important therefore, to note exactly what the applicant claimed, and relevantly, what were his objections to relocation to Mazar–e–Sharif. In this regard, the applicant’s submissions before the Court were essentially focused on what the IAA did not consider in its decision record as compared with the items at s.36(2A), rather than what the IAA was obliged to consider as drawn from what had been put before it from the circumstances presented and arising.
The applicant’s arguments as to why he could not relocate to another part of Afghanistan were set out at [27]–[29] of his Statutory Declaration:
“27. I am unable to relocate to another part of Afghanistan as the security situation is poor throughout all areas of Afghanistan.

28. I would not be able to relocate to another area of Afghanistan as the roads in Afghanistan are subjected to constant attack and it would be too dangerous for me to attempt to relocate.

29. It would be unreasonable for me to relocate to another area in Afghanistan as I have no family or tribal connections in other areas of Afghanistan. Due to my lack of education and limited previous work experience, it is likely I would be unable to find employment in other areas of Afghanistan and I would therefore be unable to support myself ofr my family.”

[Error in the original.]

His claimed inability to support himself can be understood in the context of “denied of an ability to subsist” (the Statutory Declaration at [22]).
In submissions made on his behalf by his (first) migration agent the following “objections” to relocation were stated at [126] (CB 190):
“126. It would not be reasonable for the Applicant to relocate to Kabul or elsewhere within Afghanistan as he is financially responsible for his wife, two children, mother and five siblings, has no formal education and has limited employment experience. Due to the Applicant’s, limited skill and work experience, being a farmer, stone worker and shop keeper, it is likely that he would be unable to re-establish himself, find employment and be unable to financially support himself or his family. The Applicant lacks familial and social support networks in another part of Afghanistan as his entire family resided in the Ghazni region. Furthermore, given the Applicant’s lack of family ties and years spent overseas, he will not be accepted as part of the Hazara community.”

The delegate found that there was a real chance of harm if the applicant were to return to his home province in Afghanistan (CB 199.5). The delegate then considered the effect of s.5J(1)(c) of the Act with reference to relocation to Kabul (CB 199.6–CB 200.9).
In the bundle of information provided to the IAA by the applicant’s (second) migration agent (see also the commentary by the agent – CB 217–CB 222) in subsequent information provided by the same agent reference is specifically made to the matter of relocation to Mazar–e–Sharif (“Viability of Mazar –e Sharif as a relocation venue” – CB 285–CB 291).
In this context the matters raised were “Safety” (CB 285.5–CB 288.2), “Economic viability” (CB 288.3–CB 289.5), “Access” (CB 289.6–CB 290.6) and “Accommodation and Family support” (CB 290.7–CB 291.3). (See with reference to “accommodation and employment without familial support”).
When regard is had to the entirety of the IAA’s decision record each of the “objections” to relocation and each of the substantial and clearly articulated arguments against relocation to Mazar–e–Sharif, was considered.
The matters of “Safety” and “Access” in the applicant’s submissions can reasonably be understood as a reference to security in Mazar–e–Sharif and the surrounding area. At [21]–[23] and [25]–[26] the IAA set out country information to which it had regard, which to a large extent went to the question of security.
At [27] the IAA considered the real risk of harm that the applicant would likely face if he were to relocate to Mazar–e–Sharif. While the final sentence is a finding as to “persecution”, (in context serious harm) what precedes it are various findings made by the IAA that are factual findings as to the real risk of harm.
Given that these factual findings arise from the circumstances presented in relation to relocation, and are purely findings of fact about the relevant circumstances, they provide, equally, the basis for the IAA’s finding at [51] that the applicant would not face a real risk of significant harm.
Further, and specifically under the heading of “Real risk of significant harm” the IAA set out additional considerations in relation to the security situation in Mazar–e–Sharif (see at [42] and [50]).
In relation to “Economic viability” the IAA had specific regard to this. Its extensive consideration was set out at [44]–[50].
Two things may be said about the applicant’s submission before the Court concerning the matter of the capacity to subsist. One, it was not unreasonable for the IAA to focus on this given the applicant’s claims and arguments about relocation to Mazar–e–Sharif. Two, as the Minister submits this was not the only element in the IAA’s relevant consideration.
For example, the IAA considered the applicant’s circumstances in light of his claimed personal circumstances, his concerns about the economic well-being of his family, his capacity to re-establish himself in Mazar–e–Sharif, employment concerns and relevant familial and social networks. In addition the IAA addressed the matters raised as being “Accommodation and Family support”.
Contrary to the applicant’s submissions now, this went beyond a simple consideration of the applicant’s capacity to subsist but, properly, considered the reasonableness, and practicability of relocation in the context of the applicant’s own circumstances, and his objections to relocation.
In all therefore, the IAA understood the question posed by s.36(2)(aa) and s.36(2A), and its application of s.36(2B) does not reveal jurisdictional error. Ground two is not made out.

Consideration: Ground Three

Ground three asserts that the IAA failed to consider the operation of s.5J(6) of the Act in relation to the applicant’s conduct in Australia.
Section 5J(6) is in the following terms:
“(6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.”

The particulars to the ground directed attention to [6], [30]–[32] and [41] of the IAA’s decision record.
In written submissions the applicant’s argument appeared to be as follows. At [6] (the last dot point) the IAA made reference to the applicant’s claim to fear harm because his photograph had been published in an Australian local newspaper and on a “local” website.
The IAA then “recounted” that in 2014 the applicant, while participating in a refugee home hospitality program in regional New South Wales, the applicant’s photograph was published in a local newspaper and on its website as part of an article about the program (at [30] and [6] (the last dot point) of its decision record).
The article did not identify the applicant by full name as an asylum seeker in Australia, or information about the applicant’s claims.
The IAA accepted that the applicant’s photograph and his first name had been published (at [31] of its decision record). However, it found that there was no evidence that the Taliban (from whom he claimed to fear harm) would become aware of the article and be able to identify the applicant if he were to return to Mazar–e–Sharif. Further, the applicant would return to Afghanistan to a location where he was not associated with groups targeted by insurgents, and would not be targeted for being a failed asylum seeker returnee with an imputed pro-western political opinion.
The submissions before the Court drew attention to the IAA’s finding at [41]:
“41. I have otherwise found that there is not a real chance that the applicant will face serious harm in Mazar-e-Sharif due to his imputed political opinion as a returnee/failed asylum seeker from the West, or due to publishing of his personal information in a regional Australian newspaper. As the ‘real risk’ test imposes the same standard as the ‘real chance’ test, for the reasons stated above I am also not satisfied that there is a real risk of the applicant suffering significant harm on the return to Mazar-e-Sharif for those reasons.”

The assertion of legal error is also that the IAA considered only the article printed in the newspaper, and did not consider the publication through the website.
The written submissions also appear to argue as follows. The IAA appears to implicitly accept that the applicant engaged in certain conduct in Australia. Namely, that he provided his personal information to a regional newspaper in Australia and had his photograph taken.
The IAA did not make any findings about whether this conduct was engaged in otherwise than for the purpose of strengthening his claim to be a refugee (with apparent reference to s.5J(6) of the Act), or whether that conduct was to be disregarded. In short, the IAA was required to consider s.5J(6) of the Act and legal error is revealed because it did not do so.
This latter argument appears to flow from the ground as stated, in contrast to the earlier explanation of the ground proffered in written submissions.
The applicant’s oral submissions on this ground before the Court began, not with an explanation of his ground, but apparently what he perceived to have been put against him in the Minister’s written submissions. This included an apparent argument said to be derived with reference to Hossainv Minister for Immigration and Border Protection [2018] HCA 34 and Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, that jurisdictional error is revealed because it was “material” to the IAA’s decision to consider and address in the decision record the question posed by s.5J(6) of the Act.
This left the state of the explanation for the applicant’s ground as having one part of his submissions capable of being connected to the ground as stated, and the other part left without some appropriate clarity in the pleading.
The state of the applicant’s oral and written submissions elicited, understandably, the respondent’s concern in understanding the “precise nature” of how the applicant intended his ground to be understood. I agree. In any event taking each of the “elements” of the argument, the ground, in all its apparent explanations, is not made out.
Before the Court the applicant assumed, but did not satisfactorily explain, how the publication of his photograph and his first name, was his conduct, so as to relate to s.5J(6).
To be clear the applicant did not claim to fear harm because he posed for a photograph. The claimed fear was said to emanate from the subsequent publication of the photograph. That conduct was not his conduct. He did not claim to have published the photograph himself in print, or to have put it on the newspaper’s website. That conduct was the conduct of the newspaper’s publisher or its employees.
That part of the newspaper article relied on by the applicant now is reproduced at CB 146. The applicant’s ground makes reference only to the publication of the applicant’s photograph by way of the newspaper article.
It may be that what the applicant now sought to raise is that he attended a refugee program and posed for the photograph and this was the relevant conduct for the purposes of s.5J(6). In his Statutory Declaration provided with his visa application, to which a copy of the newspaper article is annexed, the applicant stated:
“19. Information about the refugee home hospitality program and Reza and I’s photo was published in the local Eden newspaper as well as on their website.¹ Annexed hereto and marked B is a copy of the news article. At the time I was very excited and happy to have my photo in the newspaper and thoroughly enjoyed my times in Eden. However, on reflection afterwards, I feared that this article and my photo could possibly endanger me or family if the Taliban were to become aware of it.”
[Footnote omitted.]
This illustrates in the applicant’s own words that it was the publication of the photograph which created, or added to, his fear, not that the claimed persecutors in Afghanistan would otherwise learn of his participation in the program other than by publication of the photograph in the newspaper in print, and on its website.
It is the case that in its relevant analysis ([30]–[32] at CB 321 for “persecution”, and [41] at CB 323 for “significant harm”) the IAA made no reference to s.5J(6). Therefore, it cannot be said that the IAA disregarded this conduct (the photograph publication). On what is set out above, given that this was not the applicant’s conduct, then had the IAA done so that may well, have possibly, revealed jurisdictional error.
In any event and further, even if the claimed fear could be said to arise from the applicant attending the program, and posing for the photograph, and even if what was written in the article, which in any event contained no quote from the applicant, could be said to be part of his complaint, the applicant did not, before the Court, point to any authority for the proposition that in all cases the IAA is required to consider the question posed by s.5J(6).
In the current case it is important to note what the applicant actually claimed. Paragraph 19 of his Statutory Declaration is set out above at [116] of this judgment. Further in his Statutory Declaration the applicant claimed:
“24. If I were forced to return to Afghanistan, I fear I will be harmed for reason of:
…
d. My membership to particular social groups: “failed Shia Hazara asylum seekers”, “failed Shia Hazara asylum seekers who left their village without the Taliban’s permission”, and “failed Shia Hazaras who are considered to be supportive of the West”. I am at higher risk of harm due to my photo being published in the Eden newspaper and website.”

This is exactly what the IAA considered at [30]–[32] of its decision record. That is, for reasons given (at [32] CB 321):
“32. I am not satisfied that the applicant as a Shia Hazara or as a returnee/failed asylum seeker from the west, whose personal information was printed in a regional Australian newspaper faces a real chance of persecution upon return to Mazar-e-Sharif in the reasonably foreseeable future.”

There is nothing in the reasoning of the IAA, nor its findings, to say that it found adversely to the applicant because of his conduct in Australia (including the “wider” view of what his conduct may be said to be). The IAA proceeded to consider what the applicant had put before it. The reason for its finding, including the matter of the publication of the photograph, was as the IAA explained at [30]–[31] CB 321.
It must be said that the applicant’s complaint in ground three lacked consideration of the consequences for the applicant if the IAA had done what he now says it should have done. That is refer to s.5J(6).
If the IAA had referred to it, and decided that the information should not be disregarded then the outcome would have been the same in circumstances where the IAA plainly did not disregard it.
Had the IAA disregarded this conduct, then the outcome would also have been the same, because there would be no conduct to consider in the context of the applicant’s claim to fear harm. In that sense even if the applicant had somehow otherwise been able to establish the basis for his ground, the ground would not reveal jurisdictional error because the claimed failure of the IAA to refer to s.5J(6) would not have affected its conclusion.
Two points remain. First, of course s.5J(6) does not relate to the question of significant harm. The applicant’s reference to [41] of the IAA’s decision record does not assist him. That is, the IAA did consider whether the publication of the newspaper article would lead to significant harm. For reasons which were entirely logical the IAA found it would not.
Second, as set out above the applicant also complained in written submissions that the IAA did not consider publication of the photograph on the newspaper’s website.
At [41] when considering “significant harm” the IAA made reference to the “publishing of his [the applicant’s] personal information in a regional Australian newspaper.” The complaint is that there was no reference to the website.
The difficulty for the applicant is that he did not satisfactorily explain why the reference to “regional Australian newspaper” excluded a reference to publication on the newspaper’s website. Whether the publication was said to be in “print” on a piece of paper, or electronically reproduced in some digital version of the newspaper, both come within the IAA’s reference to “publishing of his personal information in a regional Australian newspaper”.
This fair reading of the IAA’s decision is reinforced when earlier in its decision record the IAA recorded that the publication of the article in the newspaper had been said by the applicant to have occurred in print and on its website (see [6] at CB 314.9 – the last dot point)
In all ground three is not made out.

Conclusion

None of the grounds in the application reveal jurisdictional error. Therefore, it is appropriate to dismiss the application. I will make the appropriate order.

I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 16 May 2019