BLZ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 548
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BLZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 548
File number: MLG 685 of 2017 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 29 June 2023 Catchwords: MIGRATION LAW – application for judicial review - decision of the Immigration Assessment Authority (IAA) - Safe Haven Enterprise (subclass 790) visa – Afghan national – where IAA found that the Applicant could reasonably relocate to another part of Afghanistan - whether the IAA considered the Applicant’s claims – whether the IAA properly assessed the reasonableness of relocation – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2B)(a), 64A, 473CA, 476 and 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 sch 2, pt 2, div 1, item 3
Cases cited: EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12
MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
SZNCY v Minister for Immigration and Border Protection [2018] FCA 691
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of last submission: 12 October 2021 Date of hearing: 6 October 2021 Place: Melbourne (by videoconference) Counsel for the Applicant: Mr A Aleksov Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr K Hoyle SC Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent: Submitting an appearance, save as to costs ORDERS
MLG 685 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BLZ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
29 june 2023
THE COURT ORDERS THAT:
1.The Application filed on 5 April 2017 as amended on 22 September 2021 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,853.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an amended application filed in this Court on 22 September 2021 (Amended Application), the Applicant seeks judicial review of the decision of the Immigration Assessment Authority (IAA) decision, dated 8 March 2017 (IAA Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The IAA affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Safe Haven Enterprise (subclass 790) Visa (Visa).
This matter was heard on 6 October 2021 and proceeded by way of videoconference on Microsoft Teams (Final Hearing) as a result of the health protocols adopted by the Federal Circuit and Family Court of Australia at the time in Victoria, due to the ongoing COVID-19 pandemic. The Court is satisfied that the hearing provided a meaningful opportunity for the Applicant to engage with the Court.
ISSUES IN DISPUTE
The issues in dispute were whether the IAA, in deciding that the Applicant, an Afghan national, could reasonably relocate to Afghanistan, and properly considered the Applicant’s claims concerning:
(a)The possibility of foreign troops leaving Afghanistan;
(b)The Applicant’s need to travel on roads outside of Mazar-e-Sharif; and
(c)The effects of nepotism in Afghanistan and the Applicant’s ability to earn a sustainable living.
BACKGROUND TO THE PROCEEDING
The Court has before it a Court Book numbering 298 paginated pages. The Outline of Submissions filed by the Minister on 1 October 2021 (Minister’s Submissions) accurately summarise the background to this matter at [1] to [7]. The Court adopts those submissions as its own, with some amendments, as follows.
The Applicant is a citizen of Afghanistan.
On 6 November 2021 the Applicant arrived in Australia by boat.[1]
[1] Court Book (CB) 129.
On 17 November 2012 the Applicant had an “Irregular Maritime Arrival & Induction Interview”.[2] On 22 May 2015 the Applicant was invited to make a protection visa application following the lifting of the s 64A bar under the Migration Act.[3] A further invitation was provided to the Applicant on 6 July 2015.[4]
[2] CB 12-26.
[3] CB 31-36.
[4] CB 41-46.
On 22 November 2015, with the assistance of his migration agent, the Applicant lodged an application for a Safe Haven Enterprise Visa (Visa Application).[5] The Visa Application was received by the Minister on 2 December 2015.[6]
[5] CB 47-102.
[6] CB 48.
The Applicant provided a statutory declaration, dated 22 November 2015 in support of his Visa Application (Statutory Declaration), which can be summarised as follows:[7]
[7] CB 103-105.
(a)The Applicant feared harm from the Taliban because of his pro-government opinion and his family’s role in providing fuel to Afghan and international forces;
(b)The Applicant’s Tajik ethnicity, Shi’a faith and status as a returnee from the West puts him at further risk of harm;
(c)The Applicant’s father had been killed by the Taliban because he was a fuel importer who supplied the government and the American forces;
(d)After his father’s death, the Applicant was employed at a petrol station owned by his brother (in partnership with another man) which had business contracts with the army and therefore was targeted by the Taliban;
(e)The Applicant was subjected to harassment by the Taliban during his employment, which culminated in a violent attack in 2010 where the Applicant was seriously injured. During the period the Applicant was unwell from his injuries, he did not leave the house for over two (2) years. The Applicant’s brother went missing during the attack and had been missing since the event;
(f)The Applicant will be harmed if he returned to Afghanistan based on prior violence and his ability to identify his attackers; and
(g)The Applicant cannot relocate within Afghanistan on the basis that:
19.The entire country is unsafe and things are getting worse with the withdrawal of foreign troops. As a Tajik Shia, I do not believe I could live in any part of Afghanistan. The roads are very dangerous so it is impossible to travel. I fear that if I flew to Kabul and had to travel back to my home village by road I would be at real risk of being targeted by the Taliban or other extremists. My father was killed while travelling and I have heard of many attacks against Shia Muslims on roads.[8][9]
[8] CB 103-109.
On 12 February 2016 the Applicant was invited to attend an interview with the Department of Immigration and Border Protection (Department) to discuss his Visa Application.[10] The interview was conducted on 3 March 2016.[11]
[10] CB 115-117.
[11] CB 115-121.
On 1 August 2016 the Applicant was invited to comment on adverse information received by the Department.[12] The Department described in detail the adverse information and offered the Applicant an opportunity to respond. The Applicant responded on 11 August 2016.[13]
[12] CB 118-121.
[13] CB 122-125.
On 3 October 2016, the Delegate refused to grant the Applicant the Visa (Delegate’s Decision).[14]
[14] CB 126-143.
On or about 7 October 2016, the Delegate’s Decision was referred to the IAA under s 473CA of the Migration Act.[15]
[15] CB 145-147.
On 28 October 2016 the Applicant’s legal representative provided a written submission in support of the Applicant’s claim to the IAA.[16]
[16] CB 164-171.
The Applicant provided the IAA with a total of five (5) annexures in support of his claims:
(a)Annexure 1 provided on 28 October 2016, contained further information about Facebook entries related to the Applicant’s missing brother;
(b)Annexure 2 provided on 28 October 2016, contained further country information, principally from a DFAT report, dated 5 September 2016;
(c)Annexure 3A and Annexure 3B provided on 7 November 2016, contained further information about Afghan identity documents; and
(d)Annexure 4 provided 10 November 2016, contained information about the Applicant’s father and the circumstances in which he was killed.[17]
[17] CB 170-202.
The Applicant’s representative provided written submissions with each annexure which outlined why the information should be considered by the IAA.
On 18 November 2016 the IAA wrote to the Applicant inviting him to comment on certain country information.[18] The relevant country information concerned whether it would be reasonable for the Applicant to relocate to another part of Afghanistan. On 2 December 2016 the Applicant provided a written response addressing the matters raised by the IAA and identified further country information that he wished to rely on. On 2 December 2016 the IAA followed up with Applicant to further explain certain information it had before it and invited the Applicant to provide further responses.[19] On 16 December 2016 the Applicant provided further written submissions and supporting documents.[20]
[18] CB 207-210.
[19] CB 224-226.
[20] CB 227-275.
The Applicant’s submissions sent to the IAA on 2 December 2016 and 16 December 2016 concerned country information about the circumstances in and safety of Afghanistan. The Applicant’s information focused on Afghanistan’s instability, security issues and problems said to be faced by Shi’a Muslims and Tajiks (as well as those speaking the Dari language) from the Taliban and other insurgency groups.[21]
[21] CB 211-221; 227-275.
THE IAA DECISION
The IAA Decision is at pages 277 to 298 of the Court Book. The Minister’s Submissions at [16] to [19] accurately summarise the IAA Decision. The Court adopts the summary provided in those submissions, with amendments, as its own as follows.
The IAA firstly set out the background of the case and summarised the Applicant’s evidence. The IAA then considered the Applicant’s claims and complementary protection.
The IAA found that there was a real chance of the Applicant being physically harmed if he returned to Kolangar due to an imputed political opinion. The IAA was satisfied that the Applicant might be imputed with a pro-Western political opinion by the Taliban due to a combination of his previous work in Kolangar, his lengthy absence, and his residence in a Western country.
The IAA found that the Applicant’s well-founded fear of persecution did not relate to all areas of Afghanistan. The IAA found that the Applicant faced a real risk of significant harm by the local Taliban if he returned to Logar Province. However, the IAA concluded that it would be reasonable for the Applicant to relocate to Mazar-e-Sharif.
The IAA relied on various country information about Mazar-e-Sharif and took into account the Applicant’s personal circumstances. The IAA found that:
(a)Mazar-e-Sharif is regarded as one of the biggest commercial and financial centres in Afghanistan, and one of the safest cities in Afghanistan. There was no evidence that ethnic or religious groups had been targeted there since 2011, and general violence in Mazar-e-Sharif was sporadic;
(b)There was evidence of societal discrimination in Mazar-e-Sharif which the Applicant may be subjected to. However, the IAA was not satisfied that discrimination would deny the Applicant an ability to earn a livelihood;
(c)The Applicant’s was a single able-bodied male of working age with no ongoing health problems, nor any other specified vulnerabilities described by UNHCR as requiring durable support;
(d)The Applicant had limited formal education and training but had undertaken two (2) years of English study while in Australia. The Applicant was literate in Dari and spoke Pashto (which were official Afghan languages) and had experience in the retail trade (working at his brother’s petrol station); and
(e)The Applicant’s family were not currently reliant on him financially, despite the Applicant’s indications during his interview that he had to financially support his family upon his return.
The IAA was not satisfied that the Applicant would face a real risk of significant harm due to the general security situation of Mazar-e-Sharif. On this basis, the IAA found that relocation was reasonable and the IAA affirmed the Delegate’s Decision.
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 5 April 2017 within 35 days of the date of the IAA Decision pursuant to s 477 of the Migration Act. The Application was accompanied by an affidavit of the Applicant’s representative, affirmed and filed on 5 April 2016 (Applicant’s Affidavit).[22]
[22] CB 2-9.
Pursuant to orders made by the Court on 21 September 2021,[23] the Applicant filed the Amended Application, along with written submissions of the same date in support of the Amended Application (Applicant’s Submissions).
[23] Orders made by consent on 21 September 2021 by Her Honour Judge C.E. Kirton KC, Orders 2(a) and 2(c).
The Applicant relied on three (3) grounds of review (Grounds of Review) outlined in the Amended Application as follows:
1. The applicant clearly claimed that there was a possibility of foreign troops leaving Afghanistan (at CB 105 [19]). How prophetic this was. The IAA altogether failed to consider this claim (Ground 1).
2. The applicant claimed that he may need to travel on roads, and that these are dangerous. This claim was not limited to his home region and extended to apply to any relocation to Mazar-i-Sharif (at CB 105 [19]). The IAA did not consider this claim. This was important because the IAA did not make any finding that the applicant would, or would need to, remain in Mazar-i-Sharif indefinitely, if he were to return there (Ground 2).
3. The IAA made a specific finding that “nepotism” was an issue in Afghanistan (IAA Reasons [46]). The IAA considered this issue only in relation to the question of whether the applicant could safely relocate, insorfar as nepotism might deprive him of the capacity to subsist. Since this was the IAA’s own fact finding, it was required to, but did not, assess the impact of nepotism on the reasonableness of relocation. Importantly, at IAA Reasons [53]-[54], the IAA found that the applicant could establish himself in Mazar-i-Sharif, including because he had been able to do so in Australia away from his family. But Australia does not suffer from nepotism as does Afghanistan. The reasoning is formulaic and rehearsed, and fails to grapple with this obvious point (Ground 3).
(Words in italics added. Otherwise without alteration)
The Court notes that a fourth ground of review was included in the Application and at the Final Hearing the Applicant abandoned the fourth ground.[24]
[24] Transcript P3:L25-27.
The Applicant relied on the following documents at the Final Hearing:
(a)The Applicant’s Affidavit;
(b)The Amended Application;
(c)The Applicant’s Submissions; and
(d)The Applicant’s List of Authorities, filed on 5 October 2021.
The Minister relied on the following documents at the Final Hearing:
(a)The Minister’s response filed on 19 April 2017;[25] and
(b)The Minister’s Submissions.
[25] CB 11.
At the Final Hearing I made an Order for the Minister to file submissions detailing the authorities referred to in earlier submissions.[26] The Minister filed a list of authorities on 12 October 2021 and I have reviewed those submissions and authorities. At the Final Hearing I also made an Order that the Minister and the Applicant each advise the Court by way of email of the costs that they respectively sought.[27] The Minister advised the Court of the costs sought by the Minister on 12 October 2021.
[26] Orders made on 6 October 2021 by Her Honour Judge C.E. Kirton KC, Order 1(a).
[27] Orders made on 6 October 2021 by Her Honour Judge C.E. Kirton KC, Order 1(b).
The Court has also considered the transcript of the Final Hearing where Counsel for the Applicant and the Minister made submissions.
CONSIDERATION
Was the finding that relocation by the Applicant to Afghanistan reasonable?
As submitted throughout the Minister’s Submissions, the Grounds of Review form part of the Applicant’s broader contention that the IAA committed jurisdictional error by failing to correctly assess the security situation in Afghanistan, and consequently concluding that the Applicant’s relocation to Maraz-e-Sharif in Afghanistan was reasonable.
The Applicant alleged that the IAA erred in its finding that it was reasonable for the Applicant to relocate, as two (2) claims that he raised were not considered and two (2) findings by the IAA were not properly considered. The Applicant submitted that the assessment of the reasonableness of relocation as set out in s 36(2B)(a) of the Migration Act were material to the IAA Decision.[28]
[28] Submissions of the Applicant, filed on 22 September 2021, [2].
Section 36(2B)(a) of the Migration Act provides that:
36
[…]
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)It would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
[…]
The Applicant contended that the IAA should have properly considered how the foreign troops, unsafe roads and nepotism affected security risks, and that if the IAA had done so, then it would not have found that s 36(2B)(a) of the Migration Act was satisfied. Consequently, the IAA would not have affirmed the Delegate’s Decision.
The Minister accepted that a decision-maker may fall into error if they fail to consider a claim that is clearly advanced by an Applicant.[29] The Minister cited the authority of SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and submitted that “it is not contentious that what is reasonable is referrable to what is practicable and that it is dependent on the particular circumstances of the person concerned and the impact on that person of relocating”.[30]
[29] First Respondent’s Outline of Submissions, filed on 1 October 2021 (Minister’s Submissions) [21].
[30] Minister’s Submissions, [30].
The Minister further submitted that the framing of the claims advanced by the Applicant was significant, as the decision-maker is not required to make further enquiries, raise issues or otherwise investigate possibilities: MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 at [81]; and SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [124].[31] The Minister also noted that a decision-maker can rely on earlier factual findings when considering issues of complementary protection: SZNCY v Minister for Immigration and Border Protection [2018] FCA 691 at [49].[32]
[31] Minister’s Submissions, [32].
[32] Minister’s Submissions, [34].
The Minister’s Submissions at [38] and [39] accurately reflect the law regarding the assessment of reasonableness under the Migration Act. The IAA’s enquiry is fact dependent, and the IAA should consider all of the relevant circumstances within the framework of the Applicant’s actual claims.
Senior Counsel for the Minister made no submissions regarding materiality of the claims but noted that materiality was for the Applicant to demonstrate.[33] The Court accepts Counsel for the Applicant’s submission that the test for whether the IAA was required to consider a claim or fact in its decision making process is “was the point important enough to require specific attention?” or in other words, was the claim or fact material.[34] Counsel for the Applicant contended that all three (3) grounds of review contain material claims that the IAA should have given specific attention to and not just provided an acknowledgment. [35] The Court accepts that all three (3) claims were brought to the attention of the IAA and therefore required consideration in the decision-making process.
[33] Transcript P9:L14-15.
[34] Transcript P4:L8-9.
[35] Transcript P4:L39-44.
To the extent that Grounds of Review take issue with the weight to be given to the Applicant’s claims, this invites the Court to engage in impermissible merits review and does not disclose any jurisdictional error.
The Court notes that the Minister made submissions in regards to the application and effect of EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10 (EGZ17) in this case.[36] EGZ17 was successfully appealed in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 and therefore questions of jurisdictional fact regarding the state of Afghanistan do not need to be addressed and do not impact the assessment of reasonableness in this case.
[36] Transcript P10:L29-31; Minister’s Submissions, [40]-[56].
Each Ground of Review will be considered in turn below.
Ground 1
Ground 1 claims that the IAA altogether failed to consider the Applicant’s claim that the withdrawal of foreign troops may exacerbate the security situation.
Counsel for the Applicant explained that the Statutory Declaration was the most important document before the IAA as it explained the Applicant’s fears and claims as to why the entire country was unsafe. The Applicant submitted that the presence of foreign troops was important to the security of Afghanistan as it provided stability to a nation with fighting and despotic regimes.[37]
[37] Transcript P4:L20-44.
Counsel for the Applicant submitted that this claim was material and required “active intellectual engagement”. [38] The Applicant contended that the IAA only acknowledged the Applicant’s claim regarding the withdrawal of troops and did not answer “is it reasonable for the applicant to stay in Mazar-e-Sharif given the circumstances on the roads?”[39]
[38] Transcript P4:L41-43.
[39] Transcript P5:L45-46.
The Minister accepted that there was no express reference to troops in the IAA Decision and characterised Ground 1 as a proximate cause for the alleged deterioration in Afghanistan’s security situation.[40] Senior Counsel for the Minister submitted that the IAA undertook an extensive and nuanced analysis of the security situation in Mazar-e-Sharif to answer “is it going to be unsafe for the applicant?” and that in doing so the IAA considered all the matters that were advanced by the Applicant.[41]
[40] Minister’s Submissions, [22].
[41] Transcript P15:L43-P17:L39.
Senior Counsel for the Minister drew attention to how the Applicant’s submissions to the IAA focused on the reasonableness of relocation by reference to a range of matters related to Mazar-e-Sharif but did not specifically identify and discuss foreign troops.[42] The Minister submitted that none of the Applicant’s submissions to the IAA referenced the existence of foreign troops as having particular significance to the general security situation and therefore nothing should flow from the fact that the IAA did not refer to a matter that was not featured prominently by the Applicant.[43]
[42] Transcript P12:L7-15.
[43] Transcript P12:L29-35 and P15:L45-47.
The Court accepts the Minister’s submissions. The IAA sufficiently considered the withdrawal and existence of troops as one (1) factor of the security situation and how that would affect the reasonableness of the Applicant’s relocation. In paragraph [26] of the IAA’s reasons for the IAA’s Decision (Reasons) the IAA identified the Applicant’s claim regarding the lack of safety in Afghanistan which was worsening due to the withdrawal for foreign troops.[44] In paragraphs [28] to [33] the IAA then goes on to consider various factors impacting the ‘exacerbation’ of the general security situation and the particular factors impacting the Applicant’s safety.[45] Based on the evidence the IAA concluded that the Applicant would not be systematically and deliberately targeted either individually or as part of a specific group. In paragraphs [30] to [33] the IAA considered the nature and risk of attacks in Mazar-e-Sharif and concluded that the “isolated events in or near Mazar-e-Sharif” did not pose a real risk for the Applicant.[46] The Reasons reveal how the security situation, in light of the withdrawal of troops, was considered. The Reasons indicate that the IAA gave consideration to the reasonableness of relocation having regard to the safety of the Applicant and the alleged exacerbation of the security situation.
[44] CB 287.
[45] CB287-289.
[46] CB 288.
Ground 1 cannot be sustained and is dismissed.
Ground 2
Ground 2 claims that the IAA failed to consider the Applicant’s claim that the roads are dangerous and that he may need to travel on the roads. Counsel for the Applicant claimed that the dangerous roads were not limited to his home region and extended to apply to any relocation, making it “very dangerous” and “actually impossible” to travel.[47]
[47] Transcript P5:L19-46.
The Applicant submitted that this express claim was not mentioned or considered and would have made a difference to the assessment of the reasonableness of relocation. The Applicant contended that the claim was material as the IAA did not make any finding that the Applicant would remain in Mazar-e-Sharif and therefore needed to consider what would happen when the Applicant travelled, which the IAA did not do.
The Minister submitted that this claim is a general assertion that the danger on the roads posed a significant risk. The Minister drew attention to how the Applicant’s submissions to the IAA did not specifically identify this claim, despite the alleged significance of the dangers of travelling. The Minister further submitted that the Applicant’s submissions to the IAA did not involve any suggestions that the Applicant would be required to travel on the roads, would need to travel back to the Logar Province, or provide information about why the danger on the roads made relocation to Mazar-e-Sharif unfeasible.[48]
[48] Minister’s Submissions, [23] and [24].
The IAA was aware of and engaged with the Applicant’s claim regarding the risks of travelling on the roads. The IAA found that risks could be avoided as the Applicant could safely access Mazar-e-Sharif and travel directly to safe areas. In paragraph [39] of the Reasons the IAA concluded that the Applicant could safely access Mazar-e-Sharif by air.[49] The IAA’s reasoning was based on the Applicant not returning to Logar because of the risks there and the Applicant did not claim that he would return to that area. As discussed at [50] above, in paragraphs [28] to [33] of the Reasons the IAA considered the security and safety risks to the Applicant in Mazar-e-Sharif. The IAA concluded that the Applicant was unlikely to be targeted in attacks or at risk as a bystander.
[49] CB 290.
In the context of the Applicant’s claims regarding safety in Afghanistan, the IAA sufficiently considered how the dangers of travelling on the roads would affect the reasonableness of relocation. The Reasons reveal how the IAA considered that the Applicant could travel safely to Mazar-e-Sharif and found that it gave some weight to the dangers of travelling but found it would not affect the Applicant. The IAA considered the security situations and risks of travelling in and around Mazar-e-Sharif and concluded that the dangerous roads did not extend to apply to relocation to Mazar-e-Sharif. Ground 2 must be dismissed.
Ground 3
Ground 3 alleges that the IAA did not take into account its finding about the existence of nepotism in Afghanistan. The Applicant submitted that IAA recognised the existence of nepotism and commented on the ability to subsist, but failed to assess the impact of nepotism on the reasonableness of relocation. At the Final Hearing, Counsel for the Applicant explained that the IAA failed to expressly address whether it was reasonable for the Applicant to relocate in circumstances where he will face nepotism in the employment market.[50]
[50] Transcript P7:L1-32.
Senior Counsel for the Minister accepted that the IAA made a finding about the existence of nepotism in Mazar-e-Sharif.[51] Senior Counsel for the Minister contended that the IAA engaged with the issue and made an appropriate finding, as it considered how and whether nepotism would affect the Applicant’s capacity to earn a livelihood and subject him to economic hardship.[52] Senior Counsel for the Minister submitted that the Applicant’s submissions to the IAA focused entirely on security issues and neither nepotism nor other aspects of social discrimination formed part of the Applicant’s case that he would be exposed to any risk should he move to Mazar-e-Sharif.
[51] Transcript P16:L5-7.
[52] Transcript P16:L24-46.
The IAA assessed evidence of social discrimination in Afghanistan. This evidence was included in its consideration of the real risk of harm to the Applicant and the reasonableness of relocation. In particular, the findings on social discrimination were important in the context of whether the Applicant could relocate to Mazar-e-Sharif. In paragraph [29] of the Reasons the IAA noted that “DFAT advised that in areas under government control there is no evidence of any official policy of discrimination but that there is evidence of societal discrimination at a community level”.[53] In paragraph [34] of the Reasons the IAA acknowledged its findings that societal discrimination exists in Afghanistan on the basis of ethnicity and religion. The IAA considered the possibility that the Applicant may be subjected to discrimination as a result of nepotism along with the fact the Applicant, as a Tajik, is part of the majority group in Mazar-e-Sharif and that he speaks an official language of Afghanistan. After assessing the impact of nepotism in the context of the Applicant’s particular circumstances the IAA was “not satisfied there is a real chance that as a consequence of such discrimination he would be denied the capacity to earn a livelihood or that he would be subject to economic hardship such that it would threaten his capacity to exist”.[54]
[53] CB 287.
[54] CB 289.
In these circumstances, a claim that the IAA did not consider the claims raised by the Applicant cannot be sustained. The IAA considered the matters raised by the Applicant in Ground 3 in the required sense, namely, it gave active and adequate considerations to these claims.
Ground 3 must therefore be dismissed.
CONCLUSION
The IAA Decision took into account each claim made by the Applicant and its own findings regarding relocation in its consideration of reasonableness of relocation. Therefore, the IAA Decision is not affected by jurisdictional error.
The Application as amended by the Amended Application must therefore be dismissed. Orders will be made accordingly.
The Minister sought costs in the amount of $7,853. The amount is in accordance with item 3, Division 1, in Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, applicable at the time of the Final Hearing. Accordingly, an Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $7,853.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 29 June 2023
[9] CB 105, [19].
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