BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 443
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
File number(s): MLG 685 of 2018 Judgment of: JUDGE A KELLY Date of judgment: 6 June 2022 Catchwords: MIGRATION – Application for judicial review of decision of Immigration Assessment Authority – Safe Haven Enterprise (Subclass XE-790) visa – where applicant arrived in Australia by boat – where applicant stated in statutory declaration he operated a convenience store in Afghanistan – where applicant had worked in Australia – where applicant submitted he required immediate and sufficiently profitable employment in Kabul – where applicant’s family living as refugees in Pakistan – where applicant submitted he could not relocate in Afghanistan due to need for employment – where Authority found it would be reasonable for applicant to relocate to Kabul – where applicant advanced singular ground for judicial review – applicable principles – whether it was reasonable, in the sense of practicable (viable or realistic), to expect applicant to return to a particular place (it having been assessed as one where he did not have a well-founded fear of persecution) – whether it would be reasonable and practicable for applicant to relocate to Kabul – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 29, 30, 31, 35A, 36, 65, 474, 476
Migration and Maritime Powers Legislation Amendment (Resolving the Legacy Caseload) Act 2014 (Cth)
Migration Amendment (Complementary Protection) Bill 2011 (Cth)
1951 Convention and 1967 Protocol Relating to the Status of Refugees, art 1A
Cases cited: AH (Sudan) v Secretary for the State for the Home Department [2008] 1 AC 678
AHK16 v Minister for Immigration [2018] FCAFC 106
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Craig v South Australia (1995) 184 CLR 163
DEO19 v Minister for Immigration, Citizenship, Multicultural Affairs and Migrant Services [2022] FCA 608
DRS16 v Minister for Home Affairs [2020] FCA 318
E v Secretary of State for the Home Department [2004] QB 531
FCS17 v Minister for Home Affairs (2020) 276 FCR 644
Januzi v Secretary of State for Home Department [2006] 2 AC 426
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 25 May 2022 Place: Melbourne Solicitor for the applicant: Bardo Lawyers Counsel for the applicant: Mr A. Aleksov Solicitor for the first respondent: Australian Government Solicitor Counsel for the first respondent: Mr V. Murano ORDERS
MLG 685 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIJ18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
6 JUNE 2022
THE COURT ORDERS THAT:
1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship and Multicultural Affairs.
3.The amended application dated 22 April 2022 be dismissed.
4.The applicant pay the costs of the first respondent fixed in the sum of $7,853.
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
KELLY A, J
Introduction
By amended application dated 22 April 2022, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 14 June 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant a Safe Haven Enterprise (Subclass 790) visa (SHEV) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
In the way in which the parties framed their submissions, the single issue presented in this application for judicial review was whether the Authority ‘failed altogether’ to deal with a clearly articulated objection to relocation or whether the manner of the Authority’s reasoning supported a conclusion that the rejection of such objection was subsumed in its decision. As the careful submissions of counsel for the applicant distilled the ‘objection’, relocation to Kabul was opposed on the basis that “he had to support his family who were living as refugees in Pakistan” and, as the argument ran, “relocation to Kabul would be unreasonable, not just because it would be hard for him to find employment there, but that he needed to find employment immediately [so as] to continue to support his family . . . [i]mplicitly, any such employment would need to be profitable enough to enable him to send money to his family.”
As will appear, it was common ground that the foregoing claim was clearly articulated before the Authority. And it was expressly made in a post-hearing submission. Consideration of this claim by the Authority, and an appreciation of the “task on judicial review to determine whether the state of satisfaction was lawfully formed”, thus requires an examination of the statutory framework: cf AHK16 v Minister for Immigration [2018] FCAFC 106, [29] (the Court).
The application should be dismissed. In substance, I am satisfied that the applicant’s claim opposing relocation to Kabul by reason of the need to find employment immediately and which was of a sufficiently profitable nature to enable him to send money to his family in Pakistan was subsumed in the Authority’s rejection of the his broader objection and its conclusion that it was reasonable for the applicant to relocate to Kabul having regard to all of the circumstances including the submissions made before, during and after the hearing. The Authority clearly considered whether it would be reasonable, in the sense of practicable, for the applicant to relocate to Kabul, including upon consideration of the impact of relocation upon him.
Background
The applicant, a male citizen of Afghanistan, now aged 34 years, first arrived in Australia by boat as an irregular maritime arrival on 19 December 2012.
On 9 January 2013, the applicant was interviewed by an officer of the then Department of Immigration and Citizenship (Department).
On 23 November 2016, the applicant lodged the SHEV application together with a statutory declaration made by him on 15 November 2016 which contained the following information:
(a) the applicant is a Pashtun and a Sunni Muslim;
(b)the applicant moved to Pakistan with his family after fleeing Afghanistan in around June or July 2012;
(c)until then, the applicant had operated a convenience store for about six to seven years while in Khujamulk, Kandahar Province;
(d) the applicant was forced to leave Afghanistan because in 2012 his store was raided by military forces and he was mistakenly arrested (but later released);
(e)two days after being released the applicant received a threat letter from the Taliban accusing him of working for the Americans as a spy and ordered he be killed;
(f)the applicant reported the letter from the Taliban to the local police station;
(g)the applicant’s daughter and brother were shot and killed by Taliban gunmen while he was in his store;
(h)the applicant fled to Pakistan the day after his brother and daughter’s joint funeral;
(i)the applicant feared he would be harmed or killed by members of the Taliban if returned to Afghanistan;
(j)the applicant could not relocate because:
(i)the Taliban were active throughout Afghanistan;
(ii)he feared being identified because of his distinguishing features if he were to depart Kandahar;
(iii)the Taliban maintained a local presence in all major cities and urban centres.
On 4 April 2017, the applicant attended an interview with a delegate of the Minister. For the purposes of that interview, he was advised of the importance of providing the particulars of his claims for protection including the provision of sufficient evidence to establish those claims.
On 13 April 2017, the applicant provided to the Department detailed written submissions together with photos of a deceased child purporting to be of his daughter. Those submissions addressed amongst other matters, relocation and the “Reasonability of relocation”. Those submissions included reference to the UNHCR Guidelines and PAM Guidelines respectively. As to the UNHCR Guidelines, the UNHCR had framed the following question and answer for relocation: “Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship? If not, it would not be reasonable to expect the person to move there.” As to the PAM Guidelines, attention was drawn to the need for decision-makers to have regard to circumstances “such as the applicant’s education, employment, background and ability to gain employment, financial situation and access to family networks when considering if relocation would be an appropriate solution.” The applicant’s post hearing submissions referred to country information respecting Kabul stating:
Our client instructs that he is the breadwinner for his family currently residing as refugees in Quetta, Pakistan. He has provided this level of support through his income and work in Australia and should this come to an end, his family’s fate would become uncertain.
Following reference to further country information, it was submitted that if the applicant was repatriated to Kabul, he would be competing with hundreds of thousands of other displaced persons for housing, employment and necessities and that this, together with other factors, emphasised his “need to find employment and earn an income immediately.”
On 12 May 2017, the delegate refused the visa application. While accepting claims made in respect to his identity (for example, that his ethnicity was Pashtun and that he originated from the Arghandab district of the Kandahar Province), the delegate did not accept the evidence to support his submissions for protection were credible. The delegate’s decisional record addressed the issue of relocation and included findings that the security situation in the Kandahar Province could be of concern due to generalised violence. It further recorded that when asked about relocation, the applicant stated he could not do so “as he would have to sell his house and find a job.” The delegate’s conclusion on this issue included a finding there was no profile for Pashtun Afghans relocating within Afghanistan. The delegate’s decisional record did not appear to engage with the applicant’s post-hearing submissions above.
Authority’s decision
On 17 May 2017, the Minister’s decision was referred to the Authority and the applicant was advised of that referral, being provided a copy of the Authority’s Practice Note respecting the provision of submissions in relation to the process of fast track review.
On 13 June 2017, the applicant made a submission to the Authority, including as to relocation.
On 19 February 2018, the Authority made a decision affirming the delegate's decision not to grant the visa and provided a statement of reasons for doing so (Reasons). In making its decision, the Authority made findings that: (1) there was a more than remote chance that the applicant could be targeted for harm: [16]; (2) however, as it was reasonable to relocate, it was not satisfied the applicant faced a well-founded fear of persecution: [18], [37]-[42].
As the sole ground of review concerns the reasonableness of relocation to Kabul, it is convenient to examine those reasons in further detail below.
Procedural history
On 19 March 2018, the applicant filed an application for judicial review together with an affidavit to which his solicitor exhibited a copy of the Authority’s decision and Reasons.
By way of response filed on 23 April 2018, the Minister sought that the application be dismissed on the basis the decision under review was not affected by jurisdictional error.
On 5 March 2019, a registrar of the Court made orders, by consent, for the parties to file and serve documents prior to the hearing.
On 29 April 2022, an amended application was filed.
Judicial review
If the decision is a privative clause decision, it is not amenable to judicial review: Act, s 474(2). A decision upon the merits review of a visa application is not amenable to judicial review unless it is vitiated by jurisdictional error: Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76].
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Ground of review – failure to consider ‘objection’ to relocation
By his amended application, the applicant abandoned his two original grounds of review and advanced in their place a single ground of review which reads (omitting underlining):
The IAA failed to consider the applicant’s objection to relocation based on the need for immediate employment. (Emphasis added)
The ground of review contends that the Authority failed to consider the applicant’s objection.
Applicable principles
The applicable principles were not the subject of submissions, however, it remains useful to examine them so as to appreciate the parameters of the task that was to be performed by the Authority and indeed for the purposes of reminding oneself of the framework within which this court is required to undertake the process of judicial review: AHK16 v Minister for Immigration [2018] FCAFC 106, [29].
Subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to travel, enter and or remain in Australia, whether on a temporary or permanent basis: Act, ss 29(1), 30. There are several prescribed classes of visa, one of which is a protection visa: Act, ss 31, 35A. Certain criteria for a protection visa are provided by s 36.
Two such criterion are that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee or 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’: Act, pars 36(2)(a), 36(2)(aa).
Earlier, the term ‘refugee’ had been defined in s 36(2). This earlier definition was drawn from the definition in Art 1A of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Convention): SZATVv Minister for Immigration and Citizenship (2007) 233 CLR 18, [12]. Self-evidently, the making of this Convention was of great international significance: FCS17 v Minister for Home Affairs (2020) 276 FCR 644, [4] (Allsop CJ). Article 1A of the Convention supplied a definition of the term ‘refugee’. Until 2014, the Convention definition of ‘refugee’ supplied by Art 1A had been adopted and applied in Australia to define the circumstances in which a person could obtain a protection visa under the Act: FCS17 at [23]. However, that is no longer the case.
By amendments to the Act effected by the Migration and Maritime Powers Legislation Amendment (Resolving the Legacy Caseload) Act 2014 (Cth), ss 5H and 5J were inserted which separately defined the term ‘refugee’ and the expression ‘well-founded fear of persecution’. Fundamental consequences flowing from these amendments were, relevantly, threefold: (1) removal of most references in the Act to the Convention, it being intended that the Act would create a new, independent and self-contained statutory framework articulating Australia’s interpretation of its protection obligations under the Convention; (2) criteria within the new statutory definition of ‘refugee’ fell to be interpreted upon domestic principles of statutory construction (rather than according to the customary principles applying to the interpretation of international instruments); (3) the removal, by par 5J(1)(c), of an element of the Convention definition of refugee denying a person refugee status if he or she could reasonably relocate to a part of his or her country of nationality: FCS17 at [23]-[25], [30], [36], [66], [74] (White and Colvin JJ, Allsop CJ agreeing generally, [1] and see [11]-[12]).
Consequently, the issue of relocation no longer arose as a relevant consideration in deciding whether a person met the criteria for the grant of a protection visa on the ground in par 36(2)(a); namely, that they met the definition of ‘refugee’. Contrastingly, the question of relocation remained relevant in deciding whether complementary protection obligations were owed by Australia where the criteria prescribed by par 36(2)(aa) were said to be satisfied.
The meaning of the expression ‘significant harm’ is now provided by s 36(2A) and identifies five circumstances in which, for the purposes of the Act, a person is taken to be at a real risk of suffering significant harm for the purposes of par 36(2)(aa). As counsel for the applicant correctly submitted, the meaning of ‘significant harm’ as supplied by s 36(2A) is subject to a ‘carve out’ in the terms provided by s 36(2B) which, as relevant to this application, provides:
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)-(c) . . . .
Contextually, in s 36(2B)(a) the phrase “there is taken not to be a real risk” must be understood as referring to the requirement in par 36(2)(aa) that, in order for complementary protection to be owed, the Minister must be satisfied there are 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. Thus, the criterion imposed by s 36(2)(aa) (that the Minister must be satisfied of substantial grounds for believing there is a real risk that the non-citizen will suffer significant harm), is not open to be satisfied (and so, the obligation of complementary protection is not engaged) where it would be reasonable for the non-citizen to relocate to an area of a receiving country where there would not be a real risk that the non-citizen would suffer significant harm.
In contrast with the amendments effected in 2014 by ss 5H and 5J, the insertion of
sub-ss 36(2A)-(2B) to the Act were amendments effected by the Migration Amendment (Complementary Protection) Bill 2011 (Cth). Stated purposes of that Bill were to introduce greater efficiency, transparency and accountability into Australia’s arrangements for adhering to its non-refoulement obligations under certain international covenants and “to better reflect Australia’s long-standing commitment to protecting those at risk of the most serious forms of human rights abuses.” The Explanatory Memorandum stated that the Bill reflected “that a high threshold is required to engage Australia’s non-refoulement obligations . . .” and, to that end, certain circumstances were specified in which a non-citizen would be taken not to face a real risk of suffering significant harm including where “it would be reasonable for the non-citizen to relocate to an area of the country of which they are a national or habitual resident where there would not be real risk that the non-citizen will suffer significant harm.” The removal of Australia’s complementary protection obligations in circumstances where relocation was possible was confirmed in the Second Reading Speech for the Bill.
The Explanatory Memorandum identified that over a period of a decade, several committees had considered issues relating to Australia’s non-refoulement obligations. Contextually, in E v Secretary of State for the Home Department [2004] QB 531, [23]-[24], Lord Philips MR, Simon Brown and Ward LJJ examined circumstances in which relocation in a safe haven in a visa applicant’s country of nationality may or may not provide an alternative to seeking refuge outside of that country. A test posed in that decision, then adopted by the House of Lords in Januzi vSecretary of State for the Home Department [2006] 2 AC 426, was stated as follows:
Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country 'is outside the country of his nationality by reason of a well-founded fear of persecution'.
If this approach is adopted to the possibility of internal location, the nature of the test of whether an asylum seeker could reasonably have been expected to have moved to a safe haven is clear. It involves a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker. What the test will not involve is a comparison between the conditions prevailing in the safe haven and those prevailing in the country in which asylum is sought.
Four features of the test may be noted. First is that the test requires a comparison between conditions in the visa applicant’s habitual place of residence with those of the proposed safe haven. Secondly, the test does not involve a comparison of such conditions as against those prevailing in the country where asylum was sought. Thirdly, the United Kingdom decisions which resulted in the adoption of the test stated above involved rejection of an alternative rule (“the Hathaway/New Zealand Rule”), under which the reasonableness of relocation would have required consideration of “whether basic norms of civil, political and social-economic human rights (basic rights) were observed in the place in a person’s home country where there was freedom from persecution”: FCS17 at [32]-[34]. Under this rejected rule, a comparison would have been required between the observance of those basic rights in the proposed safe haven as against the place where asylum was being sought (i.e., Australia). Fourthly, the foregoing matters contraindicate, relevantly, a comparison being made between the economic rights in the proposed safe haven as against those of the country in which asylum is sought.
In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, the High Court held that a person would be excluded from refugee status if, under all of the circumstances, it would be reasonable to expect him or her to seek refuge in another part of the same country. In so holding, the plurality followed Januzi v Secretary of State for Home Department [2006] 2 AC 426. There, Gummow, Hayne and Crennan JJ accepted a submission by the Minister that the term ‘reasonable’ imported considerations of whether relocation was practicable. The plurality further stated at [24] that what was 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.” In doing so their Honours endorsed the reasoning in Januzi, that by Art 1A(2), the term ‘persecution’ had a defined meaning for the purposes of the Convention and was not concerned with living conditions in a broader sense or to “the level of rights prevailing in the country of nationality”: see at [10], [25]. In addressing the error in approach taken by the decision-maker, the plurality stated that the Tribunal could not sidestep “consideration of what might reasonably be expected of the appellant with respect to his ‘relocation’ in Ukraine.”
Kirby J, who was in substantial agreement with the reasons of the plurality, concluded that the only possible textual basis for a foundation for the test of relocation turned on “the notion of well-foundedness”: [38], [61], [89], [95]-[96]. As to textual foundations for a relocation test, his Honour at [53(1)], [54] rejected an analysis that would admit of complementary protection where a visa applicant was simply seeking to improve his or her economic condition:
The words ‘owing to’: The first (and new) textual thesis latches onto the words ‘owing to’ in the definition of "refugee" (above). If, although exhibiting ‘fear’, the refugee applicant is outside the country of nationality or habitual residence not ‘owing to’ the propounded fear but "owing to" some extrinsic reason, immaterial to the Refugees Convention's purposes, the definition is not engaged. Thus, if the applicant is simply seeking to improve his or her economic, social or humanitarian condition, the Refugees Convention definition will not be attracted. A practical test for such a case might be whether the applicant has failed, or refuses, to select the most proximate, economic and available solution to relieve the propounded ‘fear’, by moving elsewhere in the country of nationality. A failure to select that option, or to reclaim it whilst outside the country of nationality would, on this thesis, demonstrate that the claim for refugee status was unfounded and should be rejected.
Callinan, J also agreed with the plurality at [105].
In Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317, the majority held that the internal relocation principle was well-established and that a person was not a refugee within the meaning of the Convention if, by relocating to another part of that country, he or she could avail him or herself of protection of their country of nationality. Applying SZATV, French CJ, Hayne, Kiefel and Keane JJ held as to relocation, that the question was what may reasonably be expected of an applicant in all the circumstances. While dissenting as to the result, Gageler J at [35] identified as the fourth cumulative element of the definition of refugee that a person must be outside the country of his or her nationality owing to a well-founded fear of persecution. His Honour at [39] considered the principle to be derived from SZATV and SZFDV was that this fourth element would be absent “if it would be reasonable for the person concerned to return to a region within the country of nationality where, objectively, there is no appreciable risk of the persecution of which the person has the fear that is well-founded.” His Honour explained that the causative connection imported by the words “owing to” in the Convention definition was that the person was not in need of protection by the international community “if it would be reasonable for the person to return to a region within that country where the person would be safe from persecution”, adding that the standard of reasonableness in relation to relocation must be informed by the purposes of the Convention. As to this, His Honour accepted it would not be consistent with the purposes of the Convention for a person to be expected to relocate at the cost of sacrificing his or her dignity or depriving him or her of the enjoyment of fundamental rights or freedoms but also stated at [43]:
There is, however, a real difference between the enjoyment of fundamental rights and freedoms in the level of enjoyment of fundamental rights and freedoms. The reasoning of the plurality in SZATV applied the reasoning [in Januzi] in emphasising that the Convention is not directed (apart from persecution) to the level of civil, political, social or economic rights prevailing in the country of nationality.
Gageler J at [44] also rejected the notion that the test of reasonableness was concerned with:
. . . assessing the quality of life which the person concerned might be expected to have within the safe region of the country of nationality against the quality-of-life which the person could expect to have if the person were able to move freely about the country of nationality without fear of persecution.”
The pluralities in both SZATV at [22]-[23] and SZSCA at [26]-[27] respectively, endorsed the reasoning in Januzi that a person will be excluded from refugee status if, in all the circumstances, it would be reasonable to expect him or her to relocate to another part of the same country and that, for this purpose, what is ‘reasonable’ was to be equated with ‘practicable’ provided that proper account was taken of the circumstances of the particular visa applicant. Further, and as noted above, in Januzi the House of Lords endorsed a statement that the reasonableness of relocation was to be assessed as against whether the proposed safe haven was a viable or realistic alternative to the place where persecution was feared.
The scope and content of the concept of internal relocation was also examined in AHK16. There, Mortimer, Moshinsky and Thawley JJ held at [3] that there were two components to the assessment of whether a person could return to his or her country of nationality:
The first concerns an assessment of the risk of harm, and the level of harm, which a person might face in those parts of her or his country to which she or he might be expected to return; and the second concerns whether it is reasonable, in the sense of practicable, to expect a person to return to a particular place if it has been assessed as one where she or he does not have a well-founded fear of persecution.
In AHK16, the Full Court at [26] concluded that the appeal involved consideration of whether established principles relating to internal relocation had been correctly applied. Their Honours observed at [27] that it was well accepted that the approach to the question of whether it was reasonable to expect a person to return to a particular part of her or his country of nationality would “depend to some extent on the framework set by the claims made by the visa applicant about why it is not safe, and/or not reasonable for her or him to return to a particular location or locations (citations omitted).” However, as the Full Court explained, quite apart from the framework supplied by a visa applicant’s claims, it remained important to recall the task of the administrative decision-maker “to form a state of satisfaction on the basis of all the material . . . [the task of review being] an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters” citing MZANX v Minister for Immigration and Border Protection [2017] FCA 307, [58] (Mortimer J).
In AHK16 at [27]-[29], the Full Court, having recognised the framework supplied by an applicant’s submissions may be an important factor for the purposes of assessing the questions posed by relocation, emphasised the essentially inquisitorial nature of the task presented to an administrative decision-maker and cautioned that the use of labels such as ‘objection’ had no conceptual or statutory status in the causal element whether a person was outside his or her country of nationality ‘owing to’ a well-founded fear of persecution: [3], [29]. Their Honours disapproved the use of an applicant’s ‘objections’ as a sufficient checklist as against which the decision-maker (or court on review) should consider the issue.
Contrastingly, in MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541, the Court at [9] affirmed that an evaluation of the reasonableness of relocation may require consideration of a variety of factors, but at the same time the variety of factors identified in the authorities should not “be construed as a statutory list of considerations which must necessarily be taken into account in every case.” This observation also informs the approach to be taken to the question whether internal relocation was reasonable (in sense of objectively practicable, viable or realistic), and that while an applicant’s submissions opposing relocation may provide part of the framework for such evaluation, ultimately it was a matter for the decision-maker to consider those factors that were of relevance having regard to the unique circumstances of the particular applicant and the impact upon him or her of relocating to another place within their country. The inquiry in each case is necessarily fact intensive.
In FCS17, White and Colvin JJ examined a series of authorities as to what must be established by a visa applicant to demonstrate that relocation would not be reasonable. Of immediate significance is the manner in which the content of the test was variously stated including an evaluation whether the person “could reasonably be expected to relocate” or “in part of that country to which he or she could reasonably relocate”: [27]-[30]. The plurality also examined authorities in which the issue of relocation had been considered following the insertion in 2014 of ss 5H and 5J of the Act. Their Honours confirmed that while no room remained to consider the reasonableness of relocation in the determination whether a person satisfied the new criteria for the statutory definition of ‘refugee’, by force of par 36(2B)(a) the reasonableness of relocation remained a consideration for the purposes of complementary protection with the result that “a person would be excluded from refugee status if, under all the circumstances it would be reasonable to relocate within the applicant’s home country to an area outside the applicant’s home area”: [67]. Earlier, Allsop CJ at [4] affirmed that under the Convention definition, “a person would not be excluded from being considered to be a refugee because he or she could have sought refuge in another part of the same country in which he or she feared persecution, if it was reasonable not to expect him or her to do so, what was reasonable depending upon the particular circumstances of the person concerned and the impact of relocation within the country of nationality”; cf SZATV, (2007) 233 CLR 18 [24].
More recently, the applicable principles were summarised in DEO19 v Minister for Immigration, Citizenship, Multicultural Affairs and Migrant Services [2022] FCA 608, [35]. There, Cheeseman, J stated as follows:
The principles applicable to the approach to be adopted when considering whether relocation is reasonable in the context of a complementary protection claim are well established and may be summarised as follows:
(1)reasonableness is referable to what is practicable for the appellant to relocate to a region where, objectively, “there is no appreciable risk of the occurrence of the feared persecution”;
(2)the enquiry is fact dependent and will turn on the particular circumstances of the applicant and the impact of relocation within the receiving country;
(3)a ‘broad brush approach’ typified by general statements will be insufficient. Detailed consideration of the circumstances ‘on the ground’ in the area proposed for relocation will be required. Likewise the circumstances of the individual taking into account the individual’s strengths and weaknesses; skills; and material and family support will need to be considered in some detail;
(4)assessing reasonableness is an inquisitorial task that is informed by what the applicant puts forward but is not necessarily confined to those matters;
(5)a decision-maker is not obliged to deal with claims that do not clearly arise from the material . . . The task is not limited to the material submitted by the applicant and extends to claims arising clearly on the decision-maker’s own findings;
(6)there are no mandatory relevant considerations applicable to the question of whether it is reasonable to relocate. Minute examination of every circumstance of the proposed relocation is not required;
(7)a failure to consider a relevant matter going to the reasonableness of relocation can be a jurisdictional error. (Citations omitted)
Whatever form in which the assessment of the reasonableness of relocation may be stated, it will be recalled that the consideration whether a person can relocate so as to avoid persecution arises in a context in which an objective evaluation is to be made whether his or her fear of persecution in their country of nationality is well-founded: cf MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99, [7]-[9] (the Court).
Submissions
It was common ground that the applicant had clearly articulated an objection to relocation based on his need to support his family who were living as refugees in Pakistan. It was submitted that the applicant was the sole breadwinner and claimed that his family’s fate would become uncertain if he could not continue to provide support for them as he had done whilst in Australia. As counsel submitted, the applicant objected that relocation to Kabul would be unreasonable, not just because it would be hard for him to find employment there, but that he needed to find employment immediately to continue to support his family (and might not be able to do so, thereby imperilling his family). As counsel further submitted, any such employment would need to be profitable enough to enable him to send money to his family. In the course of argument, counsel for the applicant properly accepted that a comparison between the applicant’s earning capacity in Australia and in Kabul was not relevant.
The applicant further submitted that the Authority was required, but failed, to address his claim objecting to relocation on the basis of an immediate need to be able to obtain employment that would be profitable enough to enable him to send money to his family in Pakistan. Attention was drawn to the expression employed in the Reasons that indicated the Authority was more focussed upon a gradual process of integration ‘over time’. The use of such expressions in the Reasons was said to demonstrate a failure to consider the claim as put and in particular, whether relocation was not reasonable if the applicant could not immediately secure employment in Kabul that was sufficiently profitable to ensure that he could transfer funds for the support of his family in Pakistan. Upon this basis, relocation was said to be unreasonable in a derivative sense because of the impact that it would have, not upon the applicant, but upon his family.
The Minister submitted the ground advanced by the applicant failed on the basis the Authority’s findings that the applicant could relocate to Kabul (and find employment there) sufficiently addressed the matters raised by him or were otherwise subsumed in its more general findings. As I understood those submissions, it was also said that the Reason demonstrated that the Authority’s response was reasonably proportionate to the way in which the subject claim and evidence had been advanced in the course of the fast track review.
Resolution
In assessing the reasoning adopted by the Authority I am conscious “that it is a mistake for courts, considering applications for judicial review of administrative decisions . . . to conduct the review in an over-zealous way”: SZATV, (2007) 233 CLR 18, [98] (Kirby J) citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272, 291. To the contrary, such reasons “must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error”: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [76] (Perram, Murphy and Lee JJ).
Those principles are to be applied in the consideration of an administrative decision-maker’s reasoning when evaluating the lawfulness of a decision upon the question of relocation: MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 9, [13]-[14].
For that reason, where the reasons of a decision-maker fail to deal expressly with an issue and so may support an inference of a failure to consider that issue, the inference is not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [47] (French, Sackville and Hely JJ); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [91] (McHugh, Gummow and Hayne JJ, Gleeson CJ agreeing); see also [35]-[38], (Gaudron J), [117]-[118] (Kirby J).
In the context of relocation, the correct question for the decision-maker to have asked was whether it would be reasonable for the applicant, in his particular circumstances, to live in Kabul. Encapsulated within that question is an objective consideration of the impact upon the applicant of relocation within the country of nationality: SZSCA, [39]; FCS17, [4]; DRS16 v Minister for Home Affairs [2020] FCA 318, [65] (Forster J) and cases cited. In my opinion, the Authority posed these questions, answering them adversely to the applicant’s submissions.
As in AHK16, the present case also concerns the second component of the assessment whether a person could return to his or her country of nationality; namely, whether it is reasonable, in the sense of practicable (viable or realistic), to expect a person to return to a particular place if it had been assessed as one where she or he did not have a well-founded fear of persecution.
In MZANX at [58], the applicant complained insufficient attention was paid to the framework set by his submissions upon the question of unemployment such as to impact his ability to meet his basic needs. There, Mortimer J referred to the statement of Lord Bingham in AH (Sudan) v Secretary for the State for the Home Department [2008] 1 AC 678, 683 that:
The humanitarian object of the Refugee Convention is to secure a reasonable measure of protection for those with a well-founded fear of persecution in their home country or some part of it; it is not to procure a general levelling-up of living standards around the world, desirable though of course that is.
After recognising that the humanitarian object of the Convention was to secure a reasonable measure of protection, her Honour observed at [60]-[61]:
Thus, while lesser living standards, and indeed living standards that are far below that experienced in a Western country, will not render relocation unreasonable, it is unreasonable to expect a person to relocate to a place where she or he must exist “below at least an adequate level of subsistence”
One of the measures, to which Professors Hathaway and Foster point at p 357 of their text, is that the Refugees Convention itself contains a set of standards that must be observed by states granting protection. These are standards dealing with health, housing, education, employment, liberty, and freedom of speech – the civil and political, social and economic rights that are common, and fundamental, to all people. It is to those kinds of matters that a decision-maker must look in considering whether relocation is reasonable and practicable – these are the kinds of measures which give content to the concepts of reasonableness and practicability. That is not to say that any utopian aspirations, or Westernised standards are to be imposed, as the decisions in Januzi and SZATV make clear. Standards commensurate with reasonable expectations of the local community in which an applicant is expected to live would be appropriate . . .
Applying those principles in MZANX, Mortimer J observed at [62] “What might be “reasonable” or “practicable” for a resourceful young man with no family is not the same, at a factual level, as what might be reasonable and practicable for a young man, his wife and young child.” Later, at [69], her Honour emphasised the fact intensive nature of the inquiry.
To similar effect, in FCS17, White and Colvin JJ observed at [34]:
The recognition of a need to evaluate whether relocation was reasonable to be adjudged by reference to whether there was a viable or realistic alternative place to live was a significant aspect of the interpretation of the Convention definition of refugee adopted by the House of Lords in Januzi. To move from a place where there was housing, ready access to food and work to a place where there was no housing or no work may not be a viable or realistic alternative, even though it may afford safety from persecution. Even if it afforded the same access to housing, food and work as was available in a person's home area, it may not be a viable or realistic alternative because it posed other threats and dangers much worse than the threat of persecution for Convention reasons (even though it offered freedom from such persecution). One can contemplate unsafe places such as war zones or anarchic places where the risk of harm is not due to any particular persecution of an individual.
In summarising the applicant’s claims for protection at [8], the Authority did not expressly address his objection to relocation on the basis of an immediate need to obtain sufficiently profitable employment upon return to Kabul. That was because the Reasons at [8] were not concerned with relocation. Further, it was common ground that such a claim had been clearly articulated before the Authority and further, was made expressly by his post-hearing submission. Relatedly, by its Reasons, the Authority acknowledged his submissions at [4]-[7] and, together with more recent country information, identified the extent to which it accepted those submissions and information as review material before it. It reiterated the concerns expressed by the applicant and his representatives about the reasonableness of relocation including by reason of economic considerations at [42].
The Reasons are in my opinion, otherwise comprehensive. At the very least, the Authority expressly acknowledged the submissions which were made. Upon settled principles, for those reasons, the court should be slow to infer a failure by the Authority to consider the subject claim.
The Authority found the relevant risk of harm to the applicant did not relate to all areas of Afghanistan because: (a) it was difficult to accept the applicant’s “adverse Taliban profile extends beyond his home area” and he “does not face a real chance of harm in Kabul in connection with the localised events of mid-2012, his accent or dialect, or a combination of those factors”: [20]; (b) the applicant was not a type of person who would be at risk from the Taliban and other insurgents in Kabul including by reason of being a failed asylum seeker returning to Afghanistan from Australia: [21]-[24]; and (c) it would be unlikely the applicant would be harmed by either being in or accessing Kabul: [25], [26].
The Authority addressed the topic, Real risk of significant harm at [31]-[42]. The Authority was satisfied that the applicant could face a real chance of serious harm if he returned to his home region and, for the same reasons, that he could face a real risk of significant harm if he did so: [32]. Having made that finding, the Authority referred to s 36(2B) and observed, correctly, that if it would be reasonable for a person to relocate to an area of their country where there would not be such a risk, then the person was not to be taken as facing a real risk of significant harm if he or she was to do so: [33].
The Authority then addressed various of the claims to a well-founded fear of harm and concluded the applicant was not a person of interest to the Taliban, did not face a risk of harm on the basis of an imputed political opinion or by reason of a perception he was an informant or by reason of his accent or dialect. The Authority further concluded that the applicant did not face a real chance of harm for any other reason including from generalised violence, the general security situation in Kabul, the fact of his having spent time in Australia, or having resided in a western country or as a returning asylum seeker: [34]. The Authority’s conclusion respecting complementary protection at [34] was that:
. . . I find that the applicant does not have a real risk of suffering significant harm for those reasons if he travelled to, and resided in, Kabul.
The Authority then addressed at [35]-[36] its consideration of the security situation in Kabul (this being an issue about which no complaint was made).
The Reasons at [37]-[42] then addressed the applicant’s personal circumstances and whether it was reasonable for him to relocate to Kabul. In doing so, the Authority paid regard to the matters identified by the applicant during his SHEV interview and in post SHEV interview submissions in objecting to relocation, such objections being grounded upon the absence of housing and difficulties in obtaining employment. Other issues raised by the applicant and his representatives drew attention to the applicant’s rural upbringing, his regional dialect, his lack of networks, his religion and inability to obtain an education: [37].
As concerned the reasoning at [37], counsel for the applicant drew attention to the absence of any reference in that paragraph to the applicant’s claim to being unable to immediately earn an income or to do so at a sufficiently profitable level as to enable him to send money to his family in Pakistan. Accepting that to be so, I consider the matters addressed by the Authority at [37] should properly be understood as introducing its consideration of relocation and, relevantly, whether it was reasonable (in the sense of being practicable, realistic or viable), to expect the applicant to return to Kabul. Those aspects of the Authority’s reasoning proceeded upon the basis of the earlier finding that the applicant had been assessed as not having a well-founded fear of persecution in Kabul. So much is explicit from the Reasons at [36].
Having provided an introduction to the topic, Relocation, the Authority proceeded to examine an extensive array of country information; namely, information available from the UNHCR and DFAT: see [38] fn 12-19. In doing so, the Authority observed this information indicated that areas such as Kabul offered greater opportunities including for employment than many other areas and that although unemployment was widespread in Kabul, “the country information indicates the city offers better employment opportunities for many.” After referring to the larger employment sectors of retail and manufacturing in Afghanistan, the Authority noted the applicant had operated his own convenience store from 2004 until 2012 and had likewise undertaken a process/packaging role in Australia since 2016: [38].
Further, the Authority acknowledged that Kabul was a major urban area where IDP’s (which acronym was not defined), refugees and returning populations were likely to settle and for that reason accepted there would be pressures in terms of accommodation, employment and basic services. It also accepted that those factors would make settling in Kabul ‘challenging’: [38].
Having addressed that country and other information, the Authority turned to a consideration of the evidence before it and stated at [38] as follows:
However, on the evidence before me and considering the applicant’s personal circumstances, although I accept he will face challenges, I am not satisfied he has any vulnerability which would act as a barrier to him obtaining employment to enable him to subsist and live in Kabul. According to DFAT, Sunni Muslims make up around 80 per cent of the population in Afghanistan and discrimination on the basis of religion is low. Pashtuns make up around 40 per cent of the population. DFAT reports that societal discrimination can manifest itself in the form of nepotism, including in relation to employment, within ethnic and religious communities. DFAT also indicate that it is minority ethnic groups in the area in which they reside who are particularly disadvantaged, which may include the denial of access to employment or housing. However, I am satisfied that Sunni Pashtuns form a significant majority in Kabul and on the evidence before me I am not satisfied that the applicant’s religion or ethnicity will act as a barrier to him successfully relocating. (Footnote omitted)
In my view, the tenor of this reasoning sufficiently demonstrates that the Authority was cognisant of the need to recognise that an assessment was required of the applicant’s particular circumstances as against those living and employment standards in the locality of Kabul.
The express reference by the Authority to the applicant’s personal circumstances sufficiently indicates that it was concerned to evaluate the impact on him of relocating to Kabul.
This conclusion is confirmed elsewhere in the Reasons by the Authority’s reference to the applicant’s age work history, business activities ethnicity, the dialect of his language and other matters. To adapt the analysis in MZANX at [61], it was entirely appropriate for the Authority to pay regard to standards that were commensurate with the reasonable expectations of the local community in Kabul and in which an applicant may have been expected to live.
As to the question of impact, earlier findings by the Authority at [20] included acceptance that he was a Sunni Pashtun who had operated a convenience store in Afghanistan and held employment in Australia. In particular, the Authority stated it was mindful that Kabul was the largest and fastest growing city in Afghanistan with a large ‘IDP’ and migrant population. Further, it observed that “Kabul is an ethnically diverse city with communities of almost all ethnicities, with Pashtuns forming one of the major ethnic groups.”
Insofar as the Authority addressed the applicant’s family circumstances, it did not do so for the purpose of addressing the claim in relation to which the applicant now seeks judicial review. Instead, the Authority at [39] candidly acknowledged the difficulties which the applicant would face and recognised that his family were now residing in Pakistan such that he had no current status or permission to reside in that country and, accordingly, would likely be unable to do so. Having regard to country information available from the UNHCR, the Authority approached its assessment of the applicant on the basis that he was a single, able-bodied man of a working age where he would be more likely to be able to return and reintegrate in Kabul. It concluded:
The applicant’s immediate family reside in Pakistan and as noted above, Pashtuns form a significant ethnic group in Kabul and the applicant has demonstrated that he is resourceful and resilient and has successfully lived apart from his family and settled in unfamiliar places such as Pakistan and Australia. I also note that since his arrival in Australia he has resided in an urban area. I am not satisfied that the applicant’s rural upbringing or lack of established networks in Kabul will act as a barrier to him successfully relocating.
Having addressed those matters, the Authority dealt with the applicant’s claim to be disadvantaged because of the Pashto dialect which he spoke (however, counsel for the applicant made clear that he did not rely upon the reasoning at [40] for the purposes of the application). Nonetheless, counsel for the Minister drew attention to the conclusion in [40] that:
There is no independent evidence before me to suggest that Pashtun Afghans are vulnerable or otherwise experience hardship in Kabul because of their regional dialect or due to an inability to speak Dari.
The Authority’s overall conclusions in relation to the economic and other challenges of relocating to Kabul were addressed by the Reasons at [41]-[42] in the following terms:
Overall, I accept there are economic and other challenges in relocating to Kabul. However, the applicant is able-bodied, of working age, who does not present with any health problems or other specified vulnerabilities identified by UNHCR as requiring durable support, and I am satisfied he would have some relevant skills and attributes gained through his experience of being gainfully employed in Afghanistan and Australia which would support his ability to find employment and earn a livelihood upon return. I am satisfied the applicant would be able to access the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. I am also satisfied that over time, he will be able to integrate into the local community.
I have noted the applicant’s and his representative’s concerns about the reasonableness of relocation to Kabul. However, in considering the applicant’s personal circumstances and the country information relating to Kabul, including the social, economic and security situation, I am satisfied it is reasonable for the applicant to relocate to and remain in Kabul.
Upon my consideration of the Reasons, and with an appreciation of the applicant’s submission opposing relocation on the basis of a need to be able to immediately obtain employment that would be profitable enough to enable him to send money to his family in Pakistan, I consider the Authority gave proper consideration to whether it would be reasonable for him to relocate to Kabul. Its consideration of that matter clearly included an objective assessment of the likely impact of relocation upon the applicant having regard to his personal circumstances.
Viewing the claim to oppose relocation on the basis of a need to obtain immediate income in an amount sufficiently profitable to transfer funds to his family in Pakistan and in the context of his other related claims as disclosed in his SHEV interview, his post-SHEV submissions, and his other submissions to the Authority, I conclude the court should not infer there was a failure to consider this claim. Further, and in contrast with the principles identified above, nothing in the submissions advanced for the purposes of review by the Authority or judicial review in this court descended to a comparative assessment of, relevantly, the economic conditions in the applicant’s home area with those of Kabul. And as noted above, the applicant disclaimed the relevance of any comparison between the economic conditions in Australia with those of Afghanistan either generally or in Kabul. Having regard to the rejection in Australia of the proposed Hathaway/New Zealand rule, the submission was properly made.
I also consider the Reasons disclose that a proportionate response was given to the applicant’s opposition to relocation on the basis of the obstacles which he would face in securing employment in Kabul including because the Authority recognised that the applicant had a demonstrated ability, both in Afghanistan and in Australia to do so. Insofar as the Authority did not expressly address the applicant’s aspirations to secure immediate and profitable employment, the remuneration for which would meet the standards he now suggests, I conclude the Authority’s rejection of that claim to be subsumed in its rejection of his more general objection to relocation based upon employment prospects in Kabul.
Conclusion
The application should be dismissed.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 6 June 2022
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