BJI17 v Minister for Immigration
[2018] FCCA 2405
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJI17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2405 |
| Catchwords: MIGRATION – Protection visa application – judicial review of Immigration Assessment Authority decision – relocation within Afghanistan – whether the Authority erred in making findings that were not open to it – whether the Authority erred in finding that it was reasonable to relocate to Mazar-e-Sharif – whether the Authority erred in its assessment of real risk of serious harm – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 473CA Articles and other materials: |
| Cases cited: AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 CRI026 v The Republic of Nauru (2018) 355 ALR 216 CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14 |
| Applicant: | BJI17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 180 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 1 May 2018 |
| Date of Last Submission: | 14 June 2018 |
| Delivered at: | Sydney (Perth by video link) |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Draper, Granich Partners |
| Counsel for the Respondents: | Mr P Hannan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 180 of 2017
| BJI17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 10 March 2017. The Authority affirmed a decision of a delegate of the Minister of Immigration to refuse to grant the applicant a protection visa.
Background
The applicant is a citizen of Afghanistan who comes from the Malistan district of Ghazni province. He arrived in Australia as an unauthorised maritime arrival on 1 October 2012.
On 19 February 2016 the applicant lodged an application for a protection visa after the Minister had exercised his power under s.46A of the Migration Act 1958 (Cth) to allow him to do so. That application was made on the basis of his claim to fear harm because he is a Hazara Shi’a Muslim who would be imputed with an anti-Taliban or pro-Western political opinion and would be returning as a failed asylum seeker. He claimed in particular that he had been targeted by the Taliban because he had worked for the International Security Assistance Force (ISAF).
On 12 September 2016, a delegate of the Minister made a decision to refuse to grant the applicant a visa. The matter was then referred to the Authority pursuant to s.473CA of the Act. Subsequently, the applicant’s adviser provided a detailed outline of submissions to the Authority and, upon invitation by the Authority, made further submissions in relation to up-to-date country information and in particular, in respect of the question of the safety of certain areas of Afghanistan.
Authority’s decision
The Authority accepted the applicant’s factual claims concerning his religion, ethnicity and where he came from. It also accepted that he had worked for ISAF for around 3 months in 2005. However, it found that his main role there was guarding the perimeter base and, while it accepted that he had received some weapons training, it was satisfied that he had not engaged in any fighting. The Authority also accepted that the Taliban had issued a threat about people working for ISAF but found that the applicant was not personally or directly threatened or named by the Taliban. Further, the applicant’s family who remained in his village for 3 years after the applicant had quit ISAF were not threatened or harmed and were not questioned or pressured about the applicant’s whereabouts.
In light of those findings and after considering a DFAT[1] report from February 2016, the Authority was not satisfied that the applicant faced a real chance of persecution within Malistan or other Hazara majority districts in the Ghazni province. However, in light of country information about travel from Kabul to Ghazni province, it did accept that the applicant faced a real chance of serious harm on his return trip to his home district due to his Hazara ethnicity and/or Shi’a faith.
[1] Department of Foreign Affairs and Trade.
The Authority then noted that sub-s.5J(1)(c) of the Act required that the real chance of persecution faced by the applicant must relate to all areas of Afghanistan. In the section headed “All areas of Afghanistan” of its reasons, the Authority addressed that issue by reference to the city of Mazar-e-Sharif. The applicant’s single ground of review focuses upon the Authority’s reasoning in connection with this question. In light of that, it will be necessary later in these reasons to analyse the Authority’s reasoning process in some detail.
For present purposes, it is sufficient to observe that the Authority found that the applicant would be able to safely and legally access Mazar-e-Sharif after being returned to Kabul airport [56] and that the applicant did not face a real chance of being killed or otherwise suffering serious harm in Mazar-e-Sharif in the reasonably foreseeable future: [57]. In light of that conclusion, the Authority found that the applicant did not meet the definition of refugee in s.5H(1) of the Act and so did not satisfy sub-s.36(2)(a) of the Act.
The Authority next considered whether the applicant satisfied the criterion in sub-s.36(2)(aa) of the Act.
In this respect the Authority was satisfied, for the reasons that it had given in connection with the earlier criterion, that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Afghanistan, he would face a real risk of significant harm if he returned to, and lived, in his home area. The Authority noted however, that s.36(2B) of the Act provided that there is taken not to be a real risk that the applicant would suffer significant harm in Afghanistan if it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant would suffer significant harm. On the basis of its earlier findings concerning Mazar-e-Sharif, the Authority found that there was not a real risk of suffering significant harm in that city and then went on to consider whether it would be reasonable for the applicant to relocate to that place.
This aspect of the Authority’s reasoning is also the subject of one of the applicant’s arguments. For that reason, it will be necessary to consider the Authority’s reasoning in some detail later in these reasons and it suffices for present purposes to note that the Authority concluded, at [77] that, having considered the applicant’s personal circumstances it was satisfied that it was reasonable for him to relocate there, a place where he would be able to earn a livelihood and have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. In light of that conclusion the Authority found that the applicant did not meet the criterion in sub-s.36(2)(aa) and so affirmed the decision of the delegate.
Consideration
There are 2 grounds in the application. The applicant abandoned the second ground. The first ground is that “the Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution”.
That ground, as particularised in the application, is plainly addressed to the way in which the Authority addressed the criterion in sub-s.36(2)(a) of the Act. However, the applicant’s submissions went beyond that ground and addressed 2 further issues. Both concerned the way in which the Authority dealt with the issue of whether the applicant could reasonably relocate to Mazar-e-Sharif.
The applicant argued, first, that the Authority had unreasonably concluded that it was reasonable and practicable for the applicant to relocate to Mazar-e-Sharif; and secondly, in submissions that addressed the decision of the High Court in CRI026 v The Republic of Nauru (2018) 355 ALR 216, that the Authority erred by relying on information that was not reliable. Although there was no application to amend the application to include those arguments, I consider that there is no unfairness to the Minister arising from them and I will deal with them as though they were formally before the Court.
Before doing so, it is necessary to briefly examine why the Authority was concerned with what might happen to the applicant if he were to go to Mazar-e-Sharif, a place to which it accepted the applicant had never been before.
There are two reasons for the Authority’s focus on that city. First, in order to satisfy the criterion in sub-s.36(2)(a), the applicant had to have a well-founded fear of persecution that related to all parts of Afghanistan: sub-s.5J(1)(c). Secondly, in order to satisfy the criterion in sub-s.36(2)(aa), there had to be a real risk that he would suffer significant harm in Afghanistan. However, s.36(2B) relevantly provides that there is no such risk if:
...
(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
...
The question of reasonableness of relocation arises under sub-s.36(2)(aa), but not under sub-s.36(2)(a): DFE16 v Minister for Immigration & Border Protection (2017) 317 FLR 215 at [26].
In light of those provisions, the Authority’s conclusions that there was no real risk of harm to the applicant in Mazar-e-Sharif and that it would be reasonable for him to relocate there were both critical to the Authority’s decision. If they were not arrived at reasonably, or on a proper understanding of the law, then the Authority’s decision would be affected by jurisdictional error.
The real risk of serious harm in Mazar-e-Sharif
Essentially, what the applicant must establish in order to succeed in his first argument is that the particular findings that are impugned were not open on the material before the Authority. In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, Justices Crennan and Bell explained at [131] that it was insufficient that different minds might reach different conclusions on the jurisdictional fact and that the test for illogicality or irrationality:
… must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109, the Court said, after referring to SZMDS:
[47]Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”. Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error...
(References to authorities omitted)
In his first argument the applicant focuses on the manner in which the Authority relied upon country information in reaching conclusions regarding the circumstances that might affect the applicant upon return to Afghanistan. While the Authority’s consideration of such information is, like its consideration of any other material, governed by the same principles of logic and reason as discussed immediately above, the identification of relevant information and the weight to be attributed to it is entirely a matter for the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [81] and SZUEP v Minister for Immigration & Border Protection [2017] FCAFC 94 at [27].
With those principles in mind, it is necessary to consider the relevant findings made by the Authority.
After finding that the applicant faced a real chance of serious harm in travelling to and on his return to his home area, the Authority noted that sub-s.5J(1)(c) of the Act required that the real chance of persecution faced by the applicant must relate to all areas of Afghanistan. It also noted that it had invited the applicant to comment on information relating to relocation to Mazar-e-Sharif, the capital of Balkh province, and that the applicant had replied, saying amongst other things, that he would be harmed anywhere he went in Afghanistan.
The Authority then considered the country information before it relevant to the risk that the applicant may be harmed in Mazar-e-Sharif: [26] – [54] [. It concluded that that risk was remote. In summary, its reasons were as follows:
a)there is no information to suggest that state protection is not available and “Hazara Shi’as are free to participate fully in public life and do not face discrimination from the government or authorities”: [27];
b)the applicant may face societal discrimination but that would not constitute serious harm within the meaning of s.5J of the Act: [29];
c)although the security situation in Afghanistan is fluid and unpredictable, Mazar-e-Sharif has been described as one of the safest cities in Afghanistan, the government has maintained effective control over it: [30]- [32];
d)while militant attacks do occur in Mazar-e-Sharif, the incidents have been infrequent and primarily aimed at government or international community targets: [32];
e)Islamic State (IS) is trying to inject sectarianism into the conflict in Afghanistan, but it remained a limited threat and it was unlikely that it could single-handedly succeed in that aim and it was not likely that sectarianism would take hold in Afghanistan in the reasonable foreseeable future: [39];
f)although IS will probably continue to conduct attacks in urban areas, they will be infrequent and the continued efforts of the Afghan government, international community and the Taliban’s efforts will limit any expansion in the year ahead: [40];
g)the Taliban continue to threaten stability across Afghanistan, however, recent security incidents in Mazar-e-Sharif have been infrequent and have also been generally targeted against government or international community institutions and the applicant does not have a pro-government, pro-security forces or international community profile. Further, there was no evidence of the Taliban targeting Hazaras or Shi’as in Mazar-e-Sharif: [43];
h)sectarianism would not increase violence to extend it beyond sporadic attacks: [44];
i)the Taliban and other insurgents have not maintained any interest in the applicant by reason of his former employment by ISAF and have not developed any interest in him for any other reason: [48];
j)the applicant does not face a real chance of being killed or otherwise harmed in Mazar-e-Sharif on the basis of his previous ISAF/American links, for returning from a Western country where he lived and sought asylum, because of his Hazara Shi’a identity, residence in Iran and Pakistan, his family’s residence abroad or any imputed support for the Afghan government or international community: [54];
k)the chance of the applicant being harmed in generalised violence while in or in transit to Mazar-e-Sharif was remote: [56], [57].
The applicant makes a number of attacks on the Authority’s reasoning on this issue.
First, he argues that the Authority rejected a report from the Jamestown Foundation[2] without any reasons. The report, dated December 2016, stated that the IS had strengthened its position and was taking a leadership within the insurgency. The Authority referred to that report at [37] and accepted it in part. It said, at [39]:
... Having regard to the Jamestown Foundation’s suggestion that the Islamic State are taking a leadership position above that of the Taliban, while I accept this may be true in some regions, I am not satisfied that its overall influence is such that the Taliban will support its sectarian slant in the reasonably foreseeable future.
[2] Jamestown Foundation, Terrorism Monitor “Foreign Fighters and Sectarian Strikes: Islamic State Makes Gains in ‘Af-Pak’ Region”, Volume: 14 Issue: 24, 15 December 2016.
Contrary to the applicant’s argument, the Authority gave a number of reasons why, on the one hand, it accepted the potential threat of the IS and yet, on the other, found that it was not such as to give rise to a well-founded fear of persecution in Mazar-e-Sharif. At [39] it referred to information about the limited numbers of IS members and its struggle to expand beyond a particular area. At [40] it referred to information about the efforts of the government, international community and the Taliban to counter the influence of IS, and at [41] referred to more information concerning the limited geographical reach of IS.
Secondly, the applicant attacks the Authority’s findings about IS’s struggle to expand (see [39], [41]). First, he says that it ignored “the fact that, irrespective of who carried out the attacks, there have been significant, recent mass casualty attacks in Mazar-e-Sharif” and that the “identity of the perpetrators is not a reasonable or relevant consideration in determining the extent of the risk of harm facing the applicant”. Secondly, he says that there was no reason given for the finding. This submission must be rejected.
The Authority accepted, at [32], that there had been attacks in Mazar-e-Sharif and that, while the identity of the perpetrators was unclear, it accepted that they were AGE’s (anti-government elements). That acceptance was in the applicant’s favour because he relied on an imputed connection with the government to argue that he faced a real chance of persecution. The Authority then examined in some detail the material before it concerning the activities of the AGE’s in Afghanistan. These included the Taliban, IS and IMU (Islamic Movement of Uzbekistan): [33]. The information concerning each group was different. For that reason alone, far from being irrelevant to the review, it was incumbent on the Authority to examine whether IS posed a threat to the applicant’s safety.
As I have already observed, the Authority’s finding concerning the IS was based on information before it. It gave its reasons at [37] – [41]. The applicant’s argument overlooks these paragraphs.
Thirdly, the applicant argues that his profile was irrelevant to the assessment of harm. He relies on a DFAT report that suggests that, even though attacks are targeted, they can result in civilian casualties. The difficulty with this argument is that there is no inconsistency between the fact that civilians can be harmed in attacks that are focused on government or international targets and the conclusion that, in all of the circumstances considered by the Authority, there was no real risk that the applicant would be harmed in such an attack. Simply put, the fact that a civilian can be harmed in targeted attacks does not require the conclusion that there is a real chance that the applicant will be harmed in such an attack.
Fourthly, the applicant attacks the Authority’s finding at [44], that, in spite of increased attacks on civilian targets in Mazar-e-Sharif and the fact that Hazara Shi’as have been targeted, the infrequency and profile of the intended targets, not being Hazara Shi’as, the influence of IS will result in its campaign of violence being limited to sporadic attacks”. The applicant says two things about this: first, there was no evidence to suggest that IS’s “influence will wane into an ineffective organisation incapable of carrying out more attacks in light of DFAT’s concerns” to the contrary, and secondly, the chances of a person being harmed is more than simply a “numbers game”.
The applicant’s arguments overlook 2 important matters. First, the Authority was examining the specific location of Mazar-e-Sharif. Some of the evidence about IS generally supported an increased influence of IS, but did not go all one way in respect of that city. As I have noted, there was information about the limited numbers of IS and the difficulty it had had in expanding geographically. Secondly, while it may be accepted that an assessment of the risk of future harm is not entirely a “numbers game” (the focus on specific targets is often a very important consideration), it is not necessarily irrelevant, or unreasonable, to take into account the mathematical probability of an event’s occurrence. This will be affected by the nature, actions and intentions of the perpetrators but also potentially by the number of potential victims. This is particularly the case where, as here, a number of attacks had been on civilian targets. The fact that such attacks take place in a large city with a large population necessarily affects the likelihood of any one of the residents being harmed in such an attack.
For those reasons, the applicant’s attacks on the Authority’s findings about the risk of serious harm in Mazar-e-Sharif must be rejected.
Reasonableness of relocation to Mazar-e-Sharif
The analysis of whether it is reasonable for an applicant to relocate within his or her country of nationality is a fact intensive one which must focus on the applicant’s specific circumstances and those of the place of relocation: CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14 at [48]. In AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 the Full Court explained:
[27]It is well accepted that how an administrative decision-maker (including the Tribunal) approaches the question of whether it is reasonable to expect a protection visa applicant to return to a particular part of her or his country of nationality will 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: see SZMCD at 438 [123]; Randhawa at 443 (Black CJ); SZATV at [24] (Gummow, Hayne, Crennan JJ), at [81] (Kirby J); SZSCA at [27], [31]-[33] (French CJ, Hayne, Kiefel, Keane JJ); CSO15 at [26]-[27], [47]-[48] and MZYPW at [9] (Flick and Jagot JJ). However as Mortimer J noted in MZANX at [58]:
There is no doubt that the “framework” set by an applicant may be an important factor. Indeed, the appellant submits the reviewer did not pay sufficient attention to the framework set by his adviser’s submissions on the two questions of “insecurity, political instability and social problems” and “unemployment such as to impact his ability to meet his basic needs”. However, it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.
The applicant placed particular reliance upon the decision of Mortimer J in MZANX v Minister for Immigration & Border Protection [2017] FCA 307 in which her Honour said:
[51]In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.
…
[55]In the context of relocation, detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship (see [60] to [61] below). Likewise, the circumstances of that individual – her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope. …
After the hearing of this matter, the High Court handed down its decision in CRI026 v The Republic of Nauru (2018) 355 ALR 216. That decision was made on appeal from the Supreme Court of Nauru concerning the issue of internal relocation in the context of the Refugees Convention Act 2012 (Republic of Nauru). The appellant contended that the question of reasonableness did not apply in determining whether there was an obligation of complementary protection under that Act because, if it did, it would be incumbent upon an applicant for complementary protection to undertake the practically impossible task of establishing that there is no place in his or her country of nationality to which he or she could reasonably relocate.
The Court rejected that contention:
[39]That contention should also be rejected. Implicitly, it proceeds from the false premise that a claim for complementary protection is in the nature of an adversarial proceeding in which the burden of proof is on the applicant and, therefore, that, in the event of the applicant failing to discharge the burden of proof, the claim for complementary protection must fail. To the contrary, however, as appears from BL v Australia, before a decision maker may properly reject a claim for complementary protection on the basis of the availability of reasonable internal relocation, the decision maker needs reliable information as to the safety and suitability of the place of relocation. Moreover, as Gummow, Hayne and Crennan JJ observed in SZATV v Minister for Immigration and Citizenship in relation to a claim for refugee protection:
What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant’s personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable that the claim for complementary protection may be rejected on that basis.
(Citations omitted)
As will be seen, the applicant relies on one aspect of this passage in support of his third argument. For present purposes it is necessary to note that, subject to that argument, the decision in CRI026 is consistent with the authorities considered above.
Here, the applicant argues that the Authority failed to consider matters that affected the practical and realistic ability of the applicant to relocate to Mazar-e-Sharif. First, he points to the accepted facts that the applicant had never lived there and had no family connections in the city, he is illiterate with limited work experience and there is high underemployment and unemployment. He says that the information before the Authority did not allow it to conclude that there were employment opportunities in Mazar-e-Sharif and, further, that the information from DFAT about the “poor economic opportunities” in Afghanistan meant that the Authority’s reliance on the size of the city was unfounded and unreasonable. He suggests also that, in light of those matters, it was unreasonable for the Authority to conclude that he could reasonably relocate to Mazar-e-Sharif.
Consistently with the principles referred to above, the Authority addressed the question of reasonableness of relocation by reference to the “objections” put forward by the applicant: [69]. Thus, it considered the applicant’s lack of family connections, his western way of life, his illiteracy, the fact that he had never lived in Mazar-e-Sharif and his family’s residence in Pakistan. It did so against the background of information from the UNHCR[3] about the ability of single able bodied men and married couples without identified specific vulnerabilities, to subsist without family and community support in urban and semi-urban areas that have the infrastructure and livelihood opportunities to meet the basic necessities of life and are under effective government control: [70].
[3]UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan”, 19 April 2016.
It accepted the information from DFAT concerning the economic circumstances in Afghanistan but differentiated Mazar-e-Sharif on the basis of other information particular to that city. That is a point that the applicant’s arguments overlook. The information he relied on was not specific to Mazar-e-Sharif. Indeed, that information spoke of “push factors” for internal relocation. That supported the Authority’s view that some places in Afghanistan were better economically than the country in general. Mazar-e-Sharif was one of those as it was “one of the biggest commercial and financial centres in Afghanistan”: [71].
As for the practical realities of life in Mazar-e-Sharif in relation to the availability of employment, the Authority noted that construction was amongst the top sectors there and that the applicant had experience in that industry, was able-bodied, of working age and possessed a Taskera (national identification) that may be necessary to obtain employment: [74]. Those were all matters that supported the conclusion that the applicant would be able to obtain employment in Mazar-e-Sharif. That, in turn, supported the conclusion that it would be reasonable for the applicant to relocate to Mazar-e-Sharif on return to Afghanistan.
I am not satisfied that the Authority misunderstood what was required by sub-s.36(2B)(a) of the Act, or that it was not open for it to be satisfied that relocation to Mazar-e-Sharif was reasonable for the applicant. In other words, the Authority’s conclusion to that effect was not unreasonable in the sense required to give rise to jurisdictional error.
The applicant also argued that, in light of CRI026, the Authority could only be satisfied that it was reasonable for the applicant to relocate on the basis of reliable information about the relevant circumstances in Mazar-e-Sharif.
The passage in CRI026 relied on by the applicant is set out at [38] above. He argues that this passage means that the Court must undertake an evaluation as to the accuracy and reliability of the country information considered by the Authority. His argument was that where, as here, there was information that was contradictory and inconsistent with the information relied on by the Authority, the latter information was, for that reason, unreliable and so the Authority’s reliance on it was unreasonable.
There are many difficulties with that submission. Leaving to one side the different statutory context in which CRI026 was decided, there are two particular issues. First, what was meant in CRI026 by the word “reliable”; and secondly, whether the information here was “reliable”.
The applicant contends that information is reliable if it is “suitable or fit to be relied on” and “of proven consistency in producing satisfactory results”. The error in this approach is that the words of the High Court in CRI026 are not to be examined as though they were part of the Act. The Court adopted this word from a communication of the United Nations Human Rights Committee[4] concerning whether Australia would breach its obligations under the International Covenant on Civil and Political Rights[5] if it were to return a citizen of Senegal to Senegal. In a concurring opinion, one of the members of the committee said[6]:
... The duty of ascertaining the location where adequate and effective protection is available in Senegal does not rest upon the authorities of [Australia]. Their duty is limited to obtaining reliable information that Senegal is a secular State where there is religious tolerance.
[4] United Nations Human Rights Committee, Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014).
[5] International Covenant on Civil and Political Rights, opened for signature 16 December 1966 (entered into force 23 March 1976).
[6] Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014) at Appendix II per Dheerujlall B Seetulsingh.
There is nothing in either CRI026 or the communication from the United Nations Human Rights Committee to suggest that information had to be consistent with all other information before it could support the view that relocation would be reasonable. It may be accepted for present purposes, and without the benefit of any argument from the Minister on the point, that any administrative decision must be based on “reliable” information in the sense that the information must provide a logical basis for the decision maker to be satisfied of the likelihood of the existence of a fact in issue. Even if “reliable” required more, as suggested by the applicant, it was not, and could not have been, submitted that there was no such information here.
The Authority relied on information from sources including DFAT and the UNHCR. It would be surprising if the views of the Australian government or the international agency with responsibility for the Refugees Convention[7] could not be a sufficient basis for determining the question of reasonableness of relocation: see, albeit in a different context, Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 428 (McHugh J).
[7] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2).
The fact that there may have been information inconsistent with the information relied on by the Authority did not mean that either information was unreliable. Contrary to the applicant’s argument, the High Court in CRI026 did not overrule the well-established principle that it is a matter for the Authority, and not the Court, to decide what information it accepts: NAHI at [11]. The High Court did not specifically refer to that proposition because it was not relevant to any of the issues before the Court. It is not only a principle stated in a decision binding on me but is also consistent with a long line of authority about the limits of the Court’s role in the judicial review of administrative action: see, for example, Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J).
Conclusion
The applicant has not established that the Authority’s decision is affected by jurisdictional error. The application must be dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 7 September 2018
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