BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 1220
•16 October 2023
FEDERAL COURT OF AUSTRALIA
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1220
Appeal from: BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 File number: VID 344 of 2022 Judgment of: SNADEN J Date of judgment: 16 October 2023 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) – where primary judge dismissed application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) – where IAA rejected application for protection visa – where relocation was considered reasonable – whether IAA failed properly to consider objection to relocation based on asserted need for immediate employment – no jurisdictional error – no error on part of primary judge – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) ss 5, 5AA, 5H, 35A, 36, 473BB, 473CA, 473DB, 476)
Cases cited: AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 31 Date of hearing: 21 August 2023 Counsel for the Appellant: Mr A Aleksov (pro bono) Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: Mr V Murano Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
VID 344 of 2022 BETWEEN: BIJ18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
16 OCTOBER 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s cost of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
INTRODUCTION
The appellant is a citizen of Afghanistan. He arrived in Australia on 19 December 2012 as an “unauthorised maritime arrival” (within the meaning attributed to that phrase by s 5AA of the Act). On 23 November 2016, he made an application under the Migration Act 1958 (Cth) (hereafter, the “Act”) for a safe haven enterprise visa (or “SHEV”) (hereafter, the “Visa Application”). On 12 May 2017, a delegate of the first respondent (the “Minister”—or, more accurately, a delegate of the Minister for Immigration and Border Protection, as the relevant department was then known) refused that application (the “Delegate’s Decision”).
On 17 May 2017, the Delegate’s Decision was referred for review to the Immigration Assessment Authority (“IAA”). The IAA affirmed the Delegate’s Decision on 19 February 2018 (I shall refer to that decision hereafter as the “IAA Decision”).
On 19 March 2018, the appellant applied to the Federal Circuit Court of Australia (the “FCCA”), as it was then known, for judicial review of the IAA’s Decision. He maintained that the IAA Decision was a product of jurisdictional error that ought to be corrected via a grant of prerogative relief.
On 6 June 2022, the FCCA (by then known as the Federal Circuit and Family Court of Australia (Division 2)—hereafter, the “FCFCOA”) dismissed that application with costs: BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 (the “FCFCOA Judgment”; Judge Kelly).
By notice of appeal dated 13 June 2022, the appellant appeals from the FCFCOA Judgment. He contends that the FCFCOA erred by failing to find that the IAA Decision was vitiated by jurisdictional error.
For the reasons that follow, the appeal shall be dismissed with the usual order as to costs.
THE APPELLANT’S CLAIM TO PROTECTION
The present appeal engages with only one aspect of the applicant’s claim to protection. In support of his Visa Application, the appellant addressed the notion that he might be able to avoid the prospect of harm by relocating from his home village to Kabul. He submitted (via the agency of his representative) as follows (errors original):
Reasonability of relocation
In addition to the uncertainty concerning the security for our client across Afghanistan, it would be unreasonable for [the appellant] to relocate to a new unfamiliar region in the context of his personal circumstances. …
…
[T]he situation in Kabul remains extremely challenging and difficult for Afghan repatriates. Given our client has never lived in Kabul, forcibly returning him there would categorise him as internally displaced. The country information annotated below suggests this is unsuitable, particularly for someone in his circumstances given his family who he will need to support, including his young child. …
…
[H]e 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.
Liza Schuster, a former Kabul resident whose Afghan expertise has been referenced by the Department of Immigration, AAT and other agencies extensively, states that there are huge barriers to relocating to Kabul:
…
‘Unemployment is at least 48%. Those who do find work, accommodation or support find it through social networks.
There is no welfare system here [in Kabul]…
Kabul is currently experiencing unprecedented population growth due to the high influx of forced returnees from the EU and Pakistan as well as internal migration. This has caused the city to become overwhelmingly overpopulated and fall in the top five fastest growing cities in the world, causing shortfall in shelter, welfare, sanitation, employment and even water and electricity.
If repatriated to Kabul, [the appellant] would be competing with hundreds of thousands of other displaced persons for housing, employment and necessities, in circumstances where no effective protection from anti‑government elements exists. [The appellant] does not even have temporary shelter in Kabul emphasising his desperation – the need to find employment and earn an income immediately.
[The appellant’s] circumstances are exacerbated because he has spent little time in Afghanistan and consequently does not have networks in other regions. This will inhibit his ability to subsist as his rural upbringing and distinct dialect and religion will act as a barrier for him to integrate. This will, in turn, impede his ability to find employment, shelter and generally his ability to subsist making him vulnerable and susceptible to harm.
THE STATUTORY FRAMEWORK
The Act establishes a class of visas known as “protection visas”: the Act, s 35A. A SHEV is a type of protection visa: s 35A(3A). Section 36 of the Act identifies the criteria upon satisfaction of which the grant of a protection visa—including a SHEV—is conditioned. Relevantly, it provides as follows:
36 Protection visas—criteria provided for by this 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; or
…
(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…
…
…
The appellant was a “fast track applicant”, and the Delegate’s Decision was a “fast track decision” within the meaning of s 5 of the Act. A fast track decision in relation to a fast track applicant constitutes a “fast track reviewable decision”: s 473BB of the Act. The Delegate’s Decision was therefore automatically referred to the IAA for review: s 473CA of the Act.
It is uncontroversial that:
(1)the IAA had jurisdiction to review the Delegate’s Decision (see s 473DB of the Act);
(2)the FCFCOA had jurisdiction to judicially review the IAA’s Decision (see s 476 of the Act); and
(3)this court has jurisdiction to determine the correctness of the FCFCOA Judgment on appeal (see s 24 of the Federal Court of Australia Act 1976 (Cth)).
THE IAA DECISION
It is convenient to address, as the learned primary judge did, the IAA’s findings as to what the appellant had advanced.
First, the IAA concluded that the appellant was not a refugee within the meaning of s 5H of the Act, and therefore that s 36(2)(a) of the Act did not apply. It observed (references omitted):
9.Section 5H(1) of the Act provides that a person is a refugee if, in a case where the person has a nationality, he or she is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Well‑founded fear of persecution
…
16.…Overall, I consider there is more than a remote chance that the [appellant] could be targeted for harm by the local Taliban if he returned to his home region. I am satisfied that his imputed political opinion would be an essential and significant reason for the harm.
17.However, pursuant to s.5J(1)(c) of the Act the real chance of persecution must relate to all areas of the receiving country.
18.I have considered whether the [appellant] would be at risk of serious harm on the basis of his imputed political opinion or other profile elsewhere in Afghanistan. For the reasons given below, I am not satisfied that the applicant faces has a well‑founded fear of persecution in Kabul.
19.In his SHEV statement, the [appellant] claimed that the Taliban are active all over Afghanistan and that he cannot return to the country because the Taliban now consider him an informant. He also claimed that if [he] was to relocate from Kandahar he would be easily identified because of distinguishing features that tie him to his birthplace, including his southern Pashto dialect which is significantly different from normal Pashto spoken across the majority of Afghanistan, including Kabul. The [appellant] further claimed that if he interacted with persons from a different region it will be obvious that he is an outsider. He fears that he will be exposed by the Taliban’s network of agents and spies which exist throughout the country. In the SHEV interview, he advised the delegate that his name now appears on a list held by the Taliban. He said he can be found by the Taliban in any part of the country.
20.Having regard to the [appellant’s] circumstances, I find it difficult to accept that his adverse Taliban profile extends beyond his home area. As noted above, nearly six years have passed since the applicant came to the attention of the Taliban in [the appellant’s] village. The [appellant] has not claimed that the Taliban pursued him or his family following his departure from Afghanistan in July 2012. While the applicant claims that his wife and child now live in Pakistan, I note his evidence in the entry interview (January 2013) was that his family remained living in [the appellant’s] village following his departure from Afghanistan some six to seven months earlier. The United Nations Assistance Mission in Afghanistan (UNAMA), the UNHCR, the International Organization for Migration (IOM) and the Afghanistan Independent Human Rights Commission (AIHRC) consider it unlikely that the Taliban would seek to track down a low profile person of interest outside their place of origin in Kabul. According to AIHRC, this includes persons who have had a previous conflict with a Taliban commander in their place of origin. IOM and other sources are of the view that the Taliban’s priority is on high profile persons, like for example high level government employees, high level politicians, or high level employees of the Defence Ministry. Other sources indicate it is difficult to track a person who has fled from conflict in their place of origin in a major urban area like Kabul. Having regard to the evidence, I am not satisfied the [appellant] now faces a real chance of being pursued or harmed by the Taliban in a large urban area like Kabul, for reasons connected with his past encounters in mid‑2012, or for any other reason. While I accept the [appellant] may be identified in Kabul as a person that originates from a different region due to his accent or dialect, I am not satisfied it follows that he will be identified by the Taliban in Kabul in connection with the events in his home region in mid‑2012. I find the [appellant’s] claim that his name appears on a Taliban ‘list’ speculative. I am also mindful that Kabul is the largest and fastest growing city in Afghanistan with a large IDP and migrant population. Kabul is an ethnically diverse city with communities of almost all ethnicities, with Pashtuns forming one of the major ethnic groups. I find the [appellant] 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 these factors.
21.In his SHEV statement, the [appellant] claimed that he could not relocate to a major urban area because there have been numerous large scale attacks, including in Kabul. In the post‑SHEV interview submission, the [appellant’s] representative documented a number of attacks carried out by the Taliban and other insurgents such as Islamic State that occurred in the city during 2016 and 2017. I note that the majority of the attacks were against the government, media and international targets, and the Shia community. Country information indicates that recent attacks carried out by the Taliban and other AGEs in Kabul have been against government and security personnel, media personnel, and the international community. While certain high‑profile and other vulnerable groups remain at risk in the country, I am satisfied the [appellant] has no association or proximity with those other risk profile groups, nor is there any suggestion he would have such an association or proximity when he returns.
22.Country information advises that many Afghans travel abroad to Iran, Pakistan, Europe or other western countries to seek employment or educational opportunities, and that between 2002 and 2013 an estimated 5.8 million refugees returned to Afghanistan from Iran, Pakistan, as well as western countries. DFAT assess that in general returnees from western countries are not specifically targeted on the basis of being failed asylum‑seekers, although there were some reports in 2014 of returnees from western countries alleging they had been kidnapped or otherwise targeted on the basis of having spent time in a western country. Some reports indicate that simply being identified as a returnee has put persons at risk as returnees face a general assumption that they have adopted values and/or appearances associated with western countries while abroad and are reportedly at risk of being mistaken for collaborators with the government and the international community. Other reports indicate that returnees from the west may be viewed as foreigners or spies and targeted. However, the reports and incidents cited by the UNHCR and DFAT do not refer to Kabul as an area where returnees are targeted on the basis of being perceived as western. Further, there have been no reports of individual returnees from Australia being targeted since the two incidents in 2014 involving returnees of Hazara ethnicity (both in Ghazni, removed from Kabul).
23.DFAT assess that returnees who are identified as having associations with the government or the international community face a high risk of being targeted by AGEs. I have accepted that the [appellant] had a brief encounter with the ANA and coalition forces in 2012. Apart from being a returnee, I am satisfied the [appellant] does not now hold any other such profile affiliated with the government or international community, nor any proximity to persons who are so affiliated and there is no information to indicate he would upon return. For reasons stated above, I am not satisfied the [appellant] is at risk of harm from the Taliban in Kabul, or any other group, on account of the events of mid‑2012 now, or in the reasonably foreseeable future.
24.Country information does not indicate that in Kabul there is systematic targeting of returnees, including those who return from Australia, or who are failed asylum seekers. As noted above, Kabul is a large urban centre with a diverse ethnic population. There have been no reports of people being targeted for returning from a foreign or western country or for being a returnee asylum seeker on that basis in Kabul. Even accepting that the [appellant] may be identified as a former asylum seeker from Australia, the [appellant] does not have identifiable affiliations with international organisations or the Afghan government which would raise his profile and lead to him being specifically targeted by insurgents in Kabul for a pro‑western political opinion. On the evidence before me, I am not satisfied that returnees like the [appellant], who have lived in a western country like Australia for several years and have sought asylum, are targeted by insurgents or other groups due to a pro‑western political opinion, a profile as a perceived informant, or as a returnee asylum seeker. I am not satisfied the [appellant] faces harm on this basis now, or in the reasonably foreseeable future.
…
26.I am aware that there have been reports of occasional insurgent attacks near Kabul airport in recent years. I have further taken into account information about mass‑casualty attacks in Kabul. While serious, I am not satisfied these attacks are indicative of a threat of harm to the applicant. Having regard to the country information which was before the delegate, I am satisfied that there is a strong military presence in Kabul and there is likely to be so in the reasonably foreseeable future. I am satisfied that such attacks have been infrequent, and the government and security forces maintain effective control in Kabul, including at the airport and I am satisfied that this will not change in the reasonably foreseeable future. Accordingly, I am not satisfied the [appellant] faces a real chance of harm in accessing Kabul.
27.I have found there is no real chance of the [appellant] facing persecution in Kabul on the basis of the events in his home area in mid‑2012, his dialect or accent, his time spent in Australia, his western links (including imputed links), as a returnee asylum seeker, or for any other reason. As noted above, the threats from AGEs in Afghanistan have been against high profile targets such as persons and locations associated with the government, the military, and the international community. While certain high‑profile and other vulnerable groups remain at risk in the country, I am satisfied the [appellant] has no association or proximity with those other risk profile groups, nor is there any suggestion he would have such an association or proximity when he returns to Afghanistan.
28.After having regard to the [appellant’s] claims individually and cumulatively, I find that he does not have a well‑founded fear of persecution within the meaning of s.5J.
Refugee: conclusion
29.The [appellant] does not meet the requirements of the definition of refugee in s.5H(1). The [appellant] does not meet s.36(2)(a).
The IAA next assessed the appellant’s claim to complementary protection under s 36(2)(aa) of the Act, and accepted that he was at real risk of significant harm if returned to his home village. The following observations were recorded in its reasons:
32.I have found above that the [appellant] would face a real chance of serious harm in returning to his home region of Arghandab District, Kandahar Province. For the same reasons, I am also satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the [appellant’s] removal to Afghanistan, the [appellant] will face a real risk of significant harm if he returns to Arghandab District.
However, the IAA ultimately rejected the appellant’s claim to complementary protection on the basis that he could reasonably avoid that risk by relocating to Kabul. That analysis comprised two parts. First, the IAA considered whether the appellant might be subjected to the prospect of significant harm in Kabul. It concluded that he would not. Second, it turned to consider whether it would be reasonable for the appellant to relocate to Kabul. In that regard, it observed:
37.Having regard to the [appellant’s] personal circumstances, I have considered whether it is reasonable for him to relocate to Kabul. In the SHEV interview, the [appellant] stated he would find it hard to survive in Kabul or another city because he does not have a house or a job there. In the post‑SHEV interview submission, the [appellant’s] representative stated it was unreasonable for the [appellant] to relocate to Kabul and raised concerns about the [appellant’s] ability to find employment and housing. He also raised concerns about the [appellant’s] rural upbringing, his regional dialect, his lack of networks, and his religion, which he stated will all act as a barrier to the [appellant’s] ability to integrate. He further stated that the [appellant’s] child cannot receive education in Kabul because he does not speak Dari.
38.Country information in the review materials indicates that large urban areas in Afghanistan, such as Kabul, offered greater opportunities for employment, access to services and a greater degree of state protection than many other areas. Many residents of Kabul live in informal settlements although it is estimated that some 70 per cent of Kabul’s population live ‘informally’. Although unemployment is widespread in Kabul, the country information indicates the city offers better employment opportunities for many. Retail and manufacturing are considered two of the larger sectors of employment in Afghanistan and I note the [appellant] previously operated his own convenience store from 2004 until 2012, and has been working in a process/packaging role in Australia since May 2016. I accept that due to Kabul being a major urban area where IDPs and refugee/returnee populations are likely to settle in, there will be pressures in terms of accommodation, employment and basic services. I also accept these factors would make settling in Kabul challenging. However, on the evidence before me and considering the [appellant’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 [appellant’s] religion or ethnicity will act as a barrier to him successfully relocating.
39.I accept that the [appellant] has no family or other existing support network in Kabul. The [appellant’s] immediate family now reside in Pakistan and I accept that he has no current status or residence permission in that country. I accept that on return to Afghanistan he would likely be unable to return to Pakistan to visit his immediate family. I also accept this would be difficult for the [appellant], but these difficulties would exist regardless of where he lived in Afghanistan. While family or existing support networks are deemed advantageous by DFAT and UNHCR, they are not deemed a prerequisite for successful relocation for able‑bodied men. DFAT considers that men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, but that the lack of family networks for single men can also impact on their ability to reintegrate into Afghan community. In UNHCR’s view, the reasonableness of relocation is dependent on the effective availability of traditional support mechanisms, provided by members of the [appellant’s] extended family or ethnic group, and advises that the only exception for the requirement of external support are single able bodied men, such as the [appellant], without identified specific vulnerabilities. Such persons may in certain circumstances be able to subsist without family and community support in urban and semi‑urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective Government control. The [appellant’s] immediate family reside in Pakistan and as noted above, Pashtuns form a significant ethnic group in Kabul and the [appellant] 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 [appellant’s] rural upbringing or lack of established networks in Kabul will act as a barrier to him successfully relocating.
40.The [appellant] claimed that he would be disadvantaged because he speaks a dialect of Pashto that is different to that spoken in Kabul. The [appellant’s] representative submitted that if returned to Kabul both the [appellant] and his child would also be disadvantaged due to not being able to speak Dari. The representative provided a hyperlink to a March 2007 report published by the United Nations Educational, Scientific and Cultural Organisation, which he said states that education in Kabul is only taught in Dari; however, the report cannot be accessed via the link and no extract was provided. Other information before me indicates that both Dari and Pashto are both recognised as official languages in Afghanistan. Dari is spoken by an estimated 50 per cent of the population and Pashto by 35 per cent. I accept that Afghans relocating from rural areas may initially have communication difficulties due to language or dialect limitations. However, I am not satisfied that the dialect spoken by the [appellant] is not understood in Kabul or that his dialect will act as a barrier to integration. I accept the [appellant’s] claim in the SHEV interview that he is illiterate having only ever attended school for one year as a child. However, information before me suggests that illiteracy is common in Afghanistan, and I note that DFAT suggest that the majority of the Afghan National Police force is illiterate. 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.
41.Overall, I accept there are economic and other challenges in relocating to Kabul. However, the [appellant] 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 [appellant] 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.
42.I have noted the [appellant’s] and his representative’s concerns about the reasonableness of relocation to Kabul. However, in considering the [appellant’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 [appellant] to relocate to and remain in Kabul.
Complementary protection: conclusion
43.There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the [appellant] will suffer significant harm. The [appellant] does not meet s.36(2)(aa).
THE FCFCOA JUDGMENT AND THE PRESENT APPEAL
Before the FCCA, the appellant sought orders on judicial review to the effect that the IAA Decision be quashed, that his Visa Application be remitted back to the IAA for redetermination, and that the Minister pay his costs. That application proceeded upon a single ground, namely:
1.The IAA failed to consider the [appellant’s] objection to relocation based on the need for immediate employment.
It was submitted before the FCFCOA that the appellant had claimed, in support of his Visa Application, that he was the sole breadwinner for his family and that their fate would become uncertain if he could not continue to provide support for them as he had done whilst in Australia. The appellant submitted that relocation to Kabul would be unreasonable, not just because it would be hard for him to find employment there but also because he would need to do so immediately to continue to support his family. He submitted that the IAA was required to, but did not, address his objection to relocation on the basis of his need to secure employment immediately (in a form profitable enough to enable him to send money to his family in Pakistan).
The FCFCOA rejected the contention that the appellant’s submission had gone relevantly unconsidered. It is not necessary to set out the reasons of the FCFCOA. The analysis that follows focuses upon whether the IAA can be said to have made its decision without considering what was advanced. If it did, it will follow that the FCFCOA’s conclusion to the contrary was in error and that the appeal should succeed. Otherwise, it will follow that the FCFCOA did not err and that the appeal must fail.
WAS THE OBJECTION TO RELOCATE RELEVANTLY CONSIDERED?
The appellant submits that the submission that he advanced before the IAA was sufficiently clear: that relocation within Afghanistan would not be reasonable because he would be unable immediately to find employment, which in turn would imperil his family.
The appellant submits that the IAA failed altogether to grapple with that submission, and that, instead, it had in mind that he would reintegrate into life in Afghanistan “over time”. He maintains that the failure specifically to address his submission about the need to secure employment immediately amounts to jurisdictional error, in that it might, if considered, have led to a different conclusion.
The Minister concedes that the IAA was required to consider objections made to relocation in the context of an applicant’s “particular circumstances”: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, 27 [24] (Hayne, Gummow and Crennan JJ); AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457, 463‑464 [27]‑[29] (Mortimer, Moshinsky and Thawley JJ).
The Minister submits that, on a fair reading of its decision, the IAA did consider the appellant’s objection. As much was said to be clear from its conclusion that the appellant would be able to find employment in Kabul.
Additionally, the Minister submits that the finding in the IAA Decision that the appellant would, over time, be able to integrate into the local community is properly understood as a reference to the appellant’s general reintegration into life in Afghanistan (rather than to the gradual, or non-immediate, pace with which he might secure employment). It is said that, insofar as the IAA did not expressly address the appellant’s need to secure immediate and profitable employment, its rejection of his claim that relocation was not reasonable in light of that need was subsumed in its rejection of a more general objection to relocation based on employment prospects in Kabul.
To speak of the IAA’s obligation to consider the representations that the appellant advanced is to recognise that the IAA was obliged to read, identify, understand and evaluate the appellant’s representations: Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497, 512 [36] (Kiefel CJ, Keane, Gordon and Steward JJ).
The IAA was under no obligation to resolve—that is to say, to agree or disagree with—the contention that the appellant advanced: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398, 406-407 [14]-[15]. Its obligation was simply to bring to bear upon its assessment of the reasonableness of relocation the matters that he had advanced as to why relocation was not reasonable. Relevantly for present purposes, it was said that relocation was not reasonable because the appellant would not be able immediately to secure employment (which would visit the ramifications already outlined).
Whether a contention has been considered for the purposes of administrative decision making is a question of fact. Here, as in most cases, it can be established by a process of inference, in particular from the absence of specific reference within written reasons for the decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 330 [5] (Gleeson CJ); 346 [69] (McHugh, Gummow and Hayne JJ); 338 [37] (Gaudron J).
There are various circumstances in which a court should be slow to draw the inference that the appellant invites. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, 615 [63], Gummow J quoted with approval the following observations in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (at 604 [47] (French, Sackville and Hely JJ)):
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.
Here, it cannot properly be inferred that the IAA made its decision without consciousness of what the appellant had submitted regarding the reasonableness of internal relocation. On a fair reading of its reasons, it is apparent that the IAA considered that the appellant was somebody who was well-placed to secure employment in Kabul. The fact that the IAA Decision did not say that he would find employment “immediately” is neither here nor there. As a concept, immediacy is imprecise. Did the appellant mean to be understood as suggesting that he would require employment on the day that he arrived in Kabul? Within hours? Or days?
In context, “immediately” means without delay. That is what the IAA found was likely. Read fairly, the IAA’s conclusion must reasonably be understood as an expression of confidence that the appellant would not languish unemployed for anything more than an immaterial period. That the IAA considered that the appellant would integrate into the community “over time” does not detract from that.
As was said by the primary judge, the IAA’s consideration involved an objective assessment of the likely impact of relocation upon the appellant having regard to his personal circumstances: FCFCOA Judgment, [71]. The consideration that relocation would be unreasonable because the appellant would require “immediate” employment so that he could continue to support his family is subsumed in the IAA’s finding that he would secure employment upon his return.
DISPOSITION
It follows, with respect, that the learned primary judge was correct to conclude that the IAA Decision was not a product of jurisdictional error. The charge of error against his Honour in this appeal is not made good and the appeal should (and will) be dismissed accordingly.
There is no reason why the usual order for costs ought not to be made and it will be.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 16 October 2023
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