BMR17 v Minister for Immigration and Border Protection
[2018] FCA 1250
•22 August 2018
FEDERAL COURT OF AUSTRALIA
BMR17 v Minister for Immigration and Border Protection [2018] FCA 1250
Appeal from: BMR17 v Minister for Immigration & Anor [2017] FCCA 2834 File number: NSD 2194 of 2017 Judge: BESANKO J Date of judgment: 22 August 2018 Catchwords: MIGRATION – where appellant claimed to be a Hazari Shia from Afghanistan – where appellant lodged an application for a Safe Haven Enterprise visa, claiming to fear harm from the Taliban due to his Hazari ethnicity, Shia religion and as an Afghani who is easily identified as a person who has resided in Pakistan – where delegate of the Minister for Immigration and Border Protection (Delegate) refused to grant the appellant a visa – where appellant’s visa application was referred to the Immigration Assessment Authority (IAA) – where the IAA affirmed the Delegate’s decision – where appellant sought judicial review of the IAA’s decision not to grant the appellant a Protection visa – where Federal Circuit Court made an order that the appellant’s application for judicial review of a decision of the IAA be dismissed
MIGRATION – appeal from an order made by the Federal Circuit Court – whether primary judge erred in failing to find that the IAA failed to consider conflicting country information before it when assessing the reasonableness of the appellant’s relocation – whether IAA failed to consider all of the evidence relevant to whether the appellant’s relocation was reasonable – whether primary judge erred in failing to find that the IAA failed to complete its statutory task of determining whether relocation was reasonable – whether IAA failed to take into account its own finding that the appellant would be exposed to societal discrimination if he were to relocate to Mazar-e-Sharif in Afghanistan – whether IAA failed to examine with the “required referability” to the appellant’s particular circumstances, specifically, his ability to obtain employment in Mazar-e-Sharif
Legislation: Migration Act 1958 (Cth) ss 5J, 36 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SZATV v Minister for Immigration and Citizenship [2017] HCA 40; (2007) 233 CLR 18
Date of hearing: 24 May 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 44 Counsel for the Appellant: Mr M Guo Solicitor for the Appellant: Beena Rezaee Legal & Migration Counsel for the First Respondent: Mr J Maloney Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent entered a Submitting Notice, save as to costs ORDERS
NSD 2194 of 2017 BETWEEN: BMR17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
22 AUGUST 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
Introduction
This is an appeal from an order made by the Federal Circuit Court of Australia on 20 November 2017. On that day, the Federal Circuit Court made an order that the appellant’s further amended application be dismissed. In that application, the appellant had sought judicial review of a decision of the Immigration Assessment Authority (the IAA) made under Part 7AA of the Migration Act 1958 (Cth) (the Act). The Federal Circuit Court held that the IAA had not committed a jurisdictional error and, in those circumstances, the Court dismissed the further amended application (BMR17 v Minister for Immigration & Anor [2017] FCCA 2834).
The appellant claimed to be a Hazari Shia from Afghanistan. He was born in the Jaghori district, Ghazni Province. In 1992 when the appellant was four to five years of age, he moved from the Jaghori district to Pakistan. He started work as a shoemaker at an early age, and worked in Pakistan as a shoemaker until 2012. At some point, he was conducting his own business. The appellant came to Australia in 2012. He has not worked since he has been in Australia. On 26 October 2015, the appellant lodged an application for a Safe Haven Enterprise visa, claiming to fear harm from the Taliban due to his Hazari ethnicity, his Shia religion, and as an Afghani who is easily identified as a person who has resided in Pakistan. On 6 October 2016, a delegate of the Minister for Immigration and Border Protection refused to grant a visa. On 12 October 2016, the appellant’s application was referred to the IAA. On 13 March 2017, the IAA affirmed the delegate’s decision.
The IAA accepted the appellant’s identity was as he claimed and that he was an Afghani national and that Afghanistan was his receiving country.
The Decision of the Independent Assessment Authority
The IAA first considered the appellant’s claim under s 36(2)(a) of the Act. The IAA accepted that the appellant had a well-founded fear of persecution as a Shia Hazara on surrounding roads leading to Jaghori, Ghazni Province if he attempted to return there. The IAA then turned to consider whether the appellant faced a real chance of persecution in all areas of Afghanistan. The appellant was required to establish that by reason of the terms of s 5J(1)(c) of the Act. The IAA was not satisfied that the appellant would face a well-founded fear of persecution in Mazar-e-Sharif, which is the capital of the Balkh Province. That conclusion led to the further conclusion that the appellant did not meet the requirements of the definition of a refugee in s 36(2)(a).
The IAA then turned to consider the appellant’s claim for complementary protection under s 36(2)(aa) of the Act. That paragraph required the IAA to consider if it was satisfied that Australia has protection obligations because the IAA has substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Afghanistan, there is a real risk that the appellant will suffer significant harm. The term, “significant harm” is defined in s 36(2A) to mean:
…
(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 subject to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
The IAA accepted that there is a real chance that the appellant may be killed or physically harmed by the local Taliban on the roads if he returns to Jaghori and that this harm is significant harm. For the same reason, the IAA was satisfied that the appellant faces a real risk of significant harm on the roads to Jaghori.
The IAA then turned to consider the operation of s 36(2B) of the Act which relevantly provides:
(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 IAA divided its consideration of this matter into two parts.
First, the IAA considered whether Mazar-e-Sharif was a place in which there would not be a real risk that the appellant will suffer significant harm. The IAA decided that Mazar-e-Sharif was such a place. It rejected arguments by the appellant that Mazar-e-Sharif was a place where there would be a real risk that he will suffer significant harm because of the following matters: (1) discrimination because of nepotism; (2) imputed political opinion as a returnee from the West; or (3) generalised violence in Mazar-e-Sharif.
The IAA then considered matters relevant to the issue of whether it would be reasonable for the appellant to relocate to Mazar-e-Sharif. It considered the time which had elapsed since the appellant last lived in Afghanistan, his family circumstances, his work experience and qualifications, conditions in Mazar-e-Sharif, UNHCR Guidelines with respect to the reasonableness of relocation, in particular, employment opportunities in Mazar-e-Sharif and the appellant’s skills, resilience and resourcefulness and the appellant’s ability to live in a different place from his family. Having regard to those matters, the IAA concluded that it was reasonable for the appellant to relocate to Mazar-e-Sharif where he does not face a risk of significant harm.
The Application for Judicial Review in the Federal Circuit Court
There were three grounds in the appellant’s further amended application, but only two were pursued before the Federal Circuit Court. They were as follows:
2.The IAA erred in its assessment of the reasonableness of relocation by failing to consider the conflicting country information before it that the presence of a particular ethnic community in Mazar-e-Sharif did not make relocation reasonable.
Particulars
The conflicting country information is set out at:
i.page 84 of the “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan”, 19 April 2016;
ii.Professor William Maley’s report dated 24 July 2016, at CB 117-119;
iii.the submissions of the Applicant to the IAA dated 16 November 2016, at CB 183.
3.The IAA erred by failing to complete its statutory task of determining whether relocation was reasonable.
Particulars
The incompleteness of the assessment of the reasonableness of relocation to Mazar-e-Sharif is comprised of:
i.the failure to take into account the IAA’s own finding that the Applicant would be exposed to societal discrimination if he were to relocate;
ii.the failure of the IAA to examine with the required referability to the Applicant’s particular circumstances his ability to obtain employment there.
With respect to Ground 2, the Federal Circuit Court said that it did not accept the premise of the argument, namely that the country information identified was conflicting or inconsistent. Furthermore, the Court held that the IAA had engaged with the submissions and country information and it was not necessary for the IAA to refer to all the country information. The Court said that it was not a case where the Court should infer that the IAA had failed to take into account the three pieces of information identified in Ground 2.
With respect to Ground 3, the Court held that the IAA had engaged in a “factual nuanced assessment” in relation to the appellant’s circumstances, including his illiteracy and work experience, and that it could not be said that the IAA had not carried out its statutory task.
The Appeal to this Court
There are two grounds of appeal and they are as follows:
1.The Federal Circuit Court erred in failing to find that the IAA failed to consider the conflicting country information before it when assessing the reasonableness of relocation.
Particulars
The conflicting country information is set out:
a.beginning at page 84 of the “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan”, 19 April 2016;
b.in Professor William Maley’s report dated 24 July 2016;
c.in the submissions of the Applicant to the IAA dated 16 November 2016, which included reference to information from the World Bank.
2.The Federal Circuit Court erred in failing to find that the IAA failed to complete its statutory task of determining whether relocation was reasonable.
Particulars
The incompleteness of the assessment of the reasonableness of relocation to Mazar-e-Sharif is comprised of:
a.the failure to take into account the IAA’s own finding that the Applicant would be exposed to societal discrimination if he were to relocate;
b.the failure of the IAA to examine with the required referability to the Applicant’s particular circumstances his ability to obtain employment there.
Ground 1
I begin by identifying the country information referred to in the Particulars.
The UNHCR Guidelines contain a section headed “Reasonableness Analysis” which address the reasonableness of relocation. The appellant made it clear that he was not suggesting that the Guidelines are a mandatory relevant consideration. The Guidelines themselves make it clear that the reasonableness of relocation is to be assessed on a case-by-case basis. It provides guidance as to the matters which should be considered in determining the reasonableness of relocation. The appellant referred to four of the five factors identified in the Guidelines as matters to which particular attention should be given when considering whether relocation is reasonable. They are as follows:
…
(ii) access to shelter in the proposed area of relocation;
(iii)the availability of basic infrastructure and access to essential services in the proposed area of relocation, such as potable water and sanitation, health care and education;
(iv)the presence of livelihood opportunities, including access to land for Afghans originating from rural areas; and
(v) the scale of internal displacement in the proposed area of relocation.
The appellant also referred to the following considerations discussed in the Guidelines. First, reports that people who return to Afghanistan after spending time abroad suffer from stigma and discrimination. Secondly, statements to the effect that returnees without support networks might find themselves in a position comparable to that of other urban internally displaced persons and, in those circumstances, it is necessary to consider the scale of displacement and the living conditions of such persons. Thirdly, statements to the effect that internally displaced persons have poor living conditions, including unemployment, limited access to water and sanitation and food insecurity. Finally, statements to the effect that the limited availability of adequate housing, in particular in the case of internally displaced persons, must be taken into account.
Later, the Guidelines contain the following passage:
UNHCR considers that the only exception to the requirement of external support are single able-bodied men and married couples of working age without identified specific vulnerabilities as described above. 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 referred in particular to the phrase in this passage, “in certain circumstances”, and submitted that the IAA had misunderstood or misapplied the Guidelines.
Professor Maley is a Professor of Diplomacy at the Asia Pacific College of Diplomacy. He prepared a report dated 24 July 2016 dealing with the risks facing members of the Hazara minority who return to Pakistan. The appellant relied on two aspects of Professor Maley’s opinions.
First, Professor Maley expressed opinions which are relevant to the extent of the security risk in all areas of Afghanistan. For example, Professor Maley said the following:
It is essential to appreciate that the situation in Afghanistan is extremely fluid, and assessments of the situation made even a year ago do not necessarily provide an adequate picture of the situation in the first half of 2016. Roads that may have been safe to traverse in 2012, 2013, 2014 or 2015 may be unusable in 2016.
A little later, Professor Maley said:
To depict this attack as an isolated incident misses the underlying history of antagonism towards Hazaras that is pertinent to assessing what the future holds.
Secondly, Professor Maley addresses the likely conditions for returnees to Afghanistan, particularly returnees to areas in respect of which the returnee has no previous tie. Professor Maley expresses the opinion that a Hazari who is returned to a region in which he lacks strong social connections is likely to end up destitute, or be exposed to gross exploitation or criminal predation.
In terms of the appellant’s submissions referred to in Particular 1c, the appellant relied on statements in the submissions about a World Bank Analysis to the effect that as to Mazar‑e‑Sharif, “the medium term outlook points towards a slow recovery over the next three years … however, further deterioration in the security environment pose significant downside risks and could weaken growth prospects. Any economic gains by this northern city are jealously guarded. Afghanistan being in such a parlous economic state overall, and that newcomers without any contacts who have never been in the north of Afghanistan will not be welcomed”.
The appellant seeks to make two points about these observations. First, the prognosis for the economy in Mazar-e-Sharif is poor and secondly, returnees without any contacts will not be welcomed.
Ground 1 relates to the issue of whether it was reasonable for the appellant to relocate to Mazar‑e-Sharif. The IAA addressed that issue and decided that it was reasonable for the appellant to relocate. It had regard to country information and the appellant’s circumstances and made various findings leading to its conclusions. The nub of the contention in Ground 1 is that the IAA failed to have regard to country information which was inconsistent with country information to which it did have regard or with its findings. As I have said, the appellant did not submit that the IAA had failed to have regard to a mandatory relevant consideration(s), but rather, that by failing to consider the identified country information, the IAA had failed to carry out its statutory task of addressing whether relocation was reasonable. The appellant submitted that the IAA made a jurisdictional error of the same nature as the jurisdictional error identified by the Full Court of this Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (MZYTS). I turn to examine that case.
In MZYTS, the Full Court said the following (at [31]-[32]):
Before both the Federal Magistrates Court and this Court the asserted error in the Tribunal’s decision was often described as a “failure to consider more recent information”. That description might suggest as a corollary some kind of freestanding legal obligation on the Tribunal to consider the most recent information. In our opinion, while those descriptions may explain the path leading to error, the error itself is a failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Migration Act.
The Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it. Relevantly, and almost uniformly for the Tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the Refugees Convention.
The Full Court held that the Tribunal in that case had failed to address a critical issue, namely, the risks the returnee would face on his return to Zimbabwe and that was shown by its failure to consider the most recent information about conditions in Zimbabwe. The Minister contended that it could not be said that the Tribunal had failed to consider the most recent information. The Full Court rejected this submission saying (at [48]-[50]):
The Minister’s submission was that this first question — whether the Tribunal has in fact ignored or overlooked any recent and significant material which is centrally relevant to the decision — can be answered by an inference to be drawn from the Tribunal’s reasons. He submitted the Court could not infer the Tribunal had ignored any such material. Rather, he submitted the Tribunal simply preferred other material which was probative of the question about what would happen to the visa applicant on return to Zimbabwe, as an “ordinary” MDC member and supporter.
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf at [10], [44], [69].
We do not accept the Minister’s submission. The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
In my opinion, this case is different from that before the Full Court in MZYTS. The IAA considered the issue of whether relocation was reasonable. The burden of the appellant’s argument is that the IAA did not consider all of the evidence relevant to that issue. I do not think that it can be said that a failure to consider evidence relevant to an issue means, at least in every case, that the issue has not been considered in the sense that the decision-maker has failed to perform its statutory task. I do not need to consider this issue in any detail because I am not satisfied of a necessary prior step in the argument that the IAA did not consider the information and matters which the appellant identified.
The IAA is not obliged to refer to every item of evidence. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, the Full Court of this Court said (at [46]-[47]):
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In the context of considering the then Refugee Review Tribunal’s obligation to give reasons, McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 said (at [65]):
In my opinion, this passage correctly sets out the effect of s430(1)(c) and s430(1)(d). However, the obligation to set out “the reasons for the decision” (s430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal…
The appellant put his argument in relation to the UNHCR Guidelines in two related ways. First, he submitted that the passage in the Guidelines which I have set out above (at [18]) was qualified by the phrase, “in certain circumstances” and that the IAA overlooked that qualification and secondly, he submitted the IAA overlooked those parts of the Guidelines which, when applied to the facts of this case, suggest that relocation was unreasonable. I do not think that the IAA did either of those things as can be seen in the following passages in its reasons (at [39]-[40]):
I have had regard to the applicant’s circumstances raised by both representatives and the UNHCR recommendations in considering the reasonableness of relocation. With limited exceptions, in UNHCR’s view the reasonableness of relocation is dependent on the effective availability of traditional support mechanisms, provided by members of the applicant's extended family or ethnic group, and advises that the only exceptions for the requirement of external support are single able bodied men and married couples of working age 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. DFAT has also advised that traditional extended family and tribal community structures are the main protection and coping mechanisms for people in Afghanistan, however in practice, lack of financial resources and employment opportunities are the greatest constraints to successful internal relocation which is generally more successful for single men of working age although lack of family or tribal networks for single men can impact on their ability to reintegrate into the Afghan community.
In assessing the applicant’s ability to relocate to Mazar-e-Sharif I have considered that the applicant presents as a single able bodied male of working age with no health problems or other specified vulnerabilities identified by UNHCR as requiring durable support including family or community support. Although he does not have family or tribal support in Mazar-e-Sharif and his family continue to reside in Pakistan, I am satisfied that the applicant has the necessary skills and capacity to subsist in Mazar-e-Sharif.
(Footnotes omitted.)
Whether another decision-maker would have reached a different conclusion about the appellant’s ability to subsist in Mazar-e-Sharif is not to the point. The fact is the IAA addressed the issue and there was material upon which it could reach its conclusion.
As to Professor Maley’s report, the IAA referred in its reasons to the fact that the appellant relied on, inter alia, Professor Maley’s report to refute the delegate’s findings. It did not otherwise refer to Professor Maley’s report, or to any particular opinion expressed therein. I have referred to the two matters in Professor Maley’s report which the appellant relied on (at [20]-[21]). I do not think the fact that the IAA did not refer to Professor Maley’s opinion that the situation in Afghanistan is extremely fluid or that roads previously considered safe might become unusable, is a jurisdictional error. That is a general comment and the IAA addressed the issue of safety and security carefully. It found that the roads to the Jaghori district were unsafe, but that Mazar‑e‑Sharif could be safely accessed by air. I do not think that the IAA erred in a manner going to its jurisdiction in not referring to Professor Maley’s opinion that a Hazara who is returned to a region in which he lacks strong social connections, is likely to end up destitute or be exposed to gross exploitation or criminal predation. This statement must be read in the context in which it is made. The point being made by Professor Maley is that it should not be concluded that relocation is reasonable simply because there are other Hazaras in the relevant place, and what must be considered are social relations or family connections. The IAA did consider these matters and did not approach the issue in a way which Professor Maley considered would be “simplistic and superficial”. The IAA considered the significance of an absence of family connections and referred to Department of Foreign Affairs and Trade (DFAT) reports. The IAA said (at [34]):
The applicant claims that as he has lived outside of Afghanistan for most of his life and no longer has family there, he will be identifiable as someone who has lived in Pakistan. Country information indicates that Mazar-e-Sharif is known as a melting pot of diverse cultures and religious influences where liberal attitudes coexist with conservative traditions. Despite this DFAT indicates that there is societal discrimination at a community level usually in the form of nepotism which is primarily as a result of the important role of played by ethnic, tribal and familial networks in Afghan society. DFAT indicates that ethnic, tribal or family connections will often be more important than merit in employment decisions for both government and private sector positions. Given that he does not have family links to support him, I accept that the applicant may be subject to nepotism on return to Mazar-e-Sharif. However on the evidence I am not satisfied that there is a real risk that such nepotism/discrimination would result in the applicant being denied the capacity to subsist or that it would result in him being arbitrarily deprived of his life, or would constitute the death penalty, or torture. Nor am I satisfied that there is a real risk that such nepotism or discrimination would intentionally inflict pain or suffering, or severe pain or cause extreme humiliation which is unreasonable such that it amounts to degrading treatment or punishment. I do not accept that such treatment constitutes significant harm as defined in s.36(2A) of the Act. I have also found that there is not a real chance that he would face other forms of harm in Mazar-e-Sharif as a Shia Hazara and as the ‘real risk’ test imposes the same standard as the ‘real chance’ test, I am also not satisfied that there is a real risk of the applicant suffering such harm on the return to Mazar-e-Sharif as a Shia Hazara.
(Footnotes omitted.)
The issue was addressed by the IAA and I am not prepared to infer that this aspect of Professor Maley’s opinion was overlooked.
With respect to the appellant’s submissions, the matter identified by the appellant was the reference in the submissions to the World Bank Analysis. The findings which the IAA made about economic conditions in Mazar-e-Sharif were as follows: (at [41]):
Country information indicates that Mazar-e-Sharif is under the effective control of the Afghan government. Although DFAT reports unemployment and underemployment are high across Afghanistan large urban areas offer greater opportunities for employment and access to services, with Mazar-e-Sharif being reported as one of the biggest commercial and financial centres of Afghanistan. Agriculture, wholesale and retail trade, manufacturing and construction are the main sectors of employment. I accept that despite there being relatively more employment opportunities in Mazar-e-Sharif there is unemployment and underemployment. However the applicant despite having no formal education has worked as a street vendor from the age of 12 and at the age of 13 moved to Khozdar to learn shoe making, a trade which he engaged in from 2001 until 2012 including running his own shop for over 4 years in Quetta. Although the applicant has not worked in Australia he has demonstrated he is resilient and resourceful and I am satisfied that the applicant will be able to obtain employment to enable him to subsist in Mazar-e-Sharif.
(Footnotes omitted.)
In making those findings, the IAA relied on the country information it identified. Whilst the World Bank Analysis might present a more pessimistic view, the IAA’s findings, particularly of unemployment and underemployment, are not directly inconsistent with that analysis. I am not prepared to infer that the IAA did not take into account the World Bank Analysis. To the extent that the World Bank Analysis is more pessimistic than other country information, the IAA does not commit a jurisdictional error in preferring certain country information over other country information.
I reject Ground 1 of the Grounds of Appeal.
Ground 2
In Ground 2, the appellant alleges that the IAA failed to complete its statutory task of determining whether the appellant’s relocation to Mazar-e-Sharif is reasonable. As set out above, there are two particulars in support of this allegation. First, the IAA failed to take into account its own finding that the appellant would be exposed to societal discrimination if he were to relocate. Secondly, the IAA failed to examine with the “required referability” to the appellant’s particular circumstances, his ability to obtain employment there.
With respect to the first particular, the IAA accepted that the appellant has no family in Afghanistan and it accepted that there is societal discrimination at a community level, usually in the form of nepotism, as a result of the important role played by ethnic, tribal and familial networks in Afghan society. The IAA said that this has the consequence that ethnic, tribal or family connections will often be more important than merit in employment decisions for both government and private sector. The IAA accepted that, as the appellant does not have family links to support him, the appellant may be subject to nepotism on being returned to Mazar‑e‑Sharif. As I have said, the IAA went on to hold that this nepotism (or discrimination) did not give rise to a real risk that the appellant would suffer significant harm on being returned to Mazar-e-Sharif.
The appellant’s complaint was not that the IAA had failed to consider whether the nepotism (or discrimination) gave rise to a real risk of significant harm should the appellant be returned to Mazar-e-Sharif. The appellant’s complaint was that the IAA had failed to consider the nepotism (or discrimination) in the specific context of whether relocation was reasonable, having regard to the effect such nepotism (or discrimination) would have on the appellant’s employment prospects. I reject this submission. The IAA did consider the nepotism (or discrimination) and the effect this may have on the appellant’s opportunities when addressing the issue of the reasonableness of relocation. It did that in paragraphs 38 to 42 of its reasons, in particular, paragraph 42. In paragraph 38, it acknowledged the submission made by the appellant that he would be unable to find employment as a result of, among other matters, his “lack of family networks”. In paragraph 42, the IAA concluded that the appellant would be able to establish himself in an area of Mazar-e-Sharif where employment, accommodation and other services would be available to him, whilst at the same time acknowledging “the appellant’s lack of family and other connections” and “his lack of connections”.
With respect to the second particular, the appellant submitted that the IAA did not consider in sufficient “depth” the appellant’s particular circumstances in addressing the appellant’s ability to obtain employment. The appellant developed this submission in the following way. The only employment that the appellant has had as an adult is as a shoemaker. The appellant worked as a street vendor from the age of 12 and, at the age of 13, moved to Khozdan in Pakistan to learn shoemaking. He carried out this trade from 2001 to 2012, including running his own shop for over four years in Quetta in Pakistan. The IAA said that Mazar-e-Sharif was reported as one of the biggest commercial and financial centres of Afghanistan. It said that agriculture, wholesale and retail trade, manufacturing and construction are the main sectors of employment. It accepted that, despite there being more employment opportunities in Mazar‑e‑Sharif, there is unemployment or underemployment. It placed considerable weight on the fact that the appellant had shown himself to be resilient and resourceful (at [41]-[42]).
The appellant submitted that this analysis did not involve a consideration of the appellant’s particular circumstances and the circumstances in Mazar-e-Sharif. He submitted that the IAA had not sufficiently considered the reasonableness of the appellant’s relocation in terms of his ability to secure employment. The appellant relied on the approach taken by Mortimer J in MZANX v Minister for Immigration and Border Protection [2017] FCA 307 (MZANX) where her Honour held that the Federal Circuit Court had erred in not concluding that the reviewer in that case had committed jurisdictional error in deciding that relocation to Kabul in Afghanistan was reasonable for an applicant who faced a significant risk of harm in his home district. Mortimer J said the following (at [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.
Her Honour said that the reviewer’s examination of this matter fell short of what was required in a number of respects, including as to the applicant’s employment prospects in Kabul. Her Honour said the following (at [66]):
The reviewer’s assessment of the appellant’s employment prospects provides another example of the failure of the reviewer to discharge the task concerning relocation. The reviewer accepted that the appellant was uneducated, save for a short time in a religious school, and had a farming background. In satisfying herself on reasonableness of the relocation to Kabul, she took into account the fact that the appellant had moved, with his family, to Tehran and found employment there making bags. That is in the circumstances a permissible and obvious aspect of the evidence for a decision-maker to consider. However, the reviewer moves from that fact immediately to a conclusion (in [85]) that the appellant will be able to re-establish his and his family’s residence in Kabul. It is true that employment was but one factor in such re-establishment, but it is also clear on the reviewer’s reasons that it was a factor of some weight. The difficulty is that the reviewer referred to no evidence about how the appellant might find employment in Kabul. She referred to no evidence about what kinds of jobs were available for uneducated Hazara. Could the appellant secure a similar kind of job to the one he had in Tehran? Perhaps, perhaps not: the factual investigation was not undertaken. Whether there was any similarity between the employment opportunities for Hazara in Tehran and those in Kabul was not the subject of any consideration. What the reviewer did know, and accepted, was that in Kabul there were “increased pressures being put on labour markets and resources and widespread unemployment” which limited the “ability of a large number of people to meet their basic needs” (see [84] of the reasons). It may well have been that despite this general finding, the reviewer would have been able, having examined the factual material more closely, to nevertheless conclude that the appellant was likely to secure employment. However, she did not undertake any such assessment.
I accept that in addressing the reasonableness of relocation, the decision-maker must consider the particular circumstances of the applicant and the impact on that person of relocation (SZATV v Minister for Immigration and Citizenship [2017] HCA 40; (2007) 233 CLR 18 at [24] per Gummow, Hayne and Crennan JJ). It seems to me that the IAA in this case addressed the correct question. It found that the appellant will be able to obtain employment to enable him to subsist in Mazar-e-Sharif. There was material to support that conclusion. In the end, it seemed that the appellant’s complaint is really one as to the sufficiency of the evidence and that, in the circumstances, is not a jurisdictional error.
I reject Ground 2 of the Grounds of Appeal.
Conclusion
The appeal must be dismissed with costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 22 August 2018
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