BSL17 v Minister for Immigration

The applicant, a citizen of Afghanistan, sought judicial review of a decision by the Immigration Assessment Authority (IAA) which affirmed the refusal of his application for a Safe Haven Enterprise Visa (SHEV). The applicant had arrived in Australia in 2012 and claimed a fear of persecution upon return to Afghanistan, alleging he would be targeted by the Taliban and associated local Hazara people due to his past actions of detaining and handing over Taliban sympathisers to the Afghan army. The IAA had initially found a real chance of persecution from the local Hazara and Taliban in Jaghori, but ultimately affirmed the refusal.

The court was required to determine whether the IAA had erred in law in its assessment of the applicant's claim for protection. Specifically, the court needed to consider whether the IAA had correctly applied the provisions of section 5J of the *Migration Act 1958* (Cth), which defines a "well-founded fear of persecution," particularly in relation to the requirement that the real chance of persecution must relate to all areas of a receiving country and the possibility of modifying behaviour to avoid such persecution. The court also considered whether the IAA had adequately considered all claims and issues arising from the material before it, in accordance with established case law.

The court found that the IAA had appropriately considered the provisions of section 5J of the Act. While the IAA accepted a well-founded fear of harm in Jaghori, it concluded that there was only a remote possibility of the applicant being targeted if he relocated to Mazar-e-Sharif, a large urban area where his background was not known. The IAA reasoned that in Mazar-e-Sharif, the applicant could resume his work as a taxi driver and avoid travelling through contested areas, thereby modifying his behaviour to avoid a real chance of persecution. This modification was not considered to conflict with fundamental aspects of his identity. The court agreed with the IAA's finding that the real chance of persecution did not relate to all areas of Afghanistan, and that the applicant could take reasonable steps to avoid persecution. The IAA also considered the applicant's other skills and experience, and country information regarding the treatment of failed asylum seekers in Mazar-e-Sharif, finding no real chance of persecution.

Consequently, the court dismissed the applicant's amended application for judicial review and ordered the applicant to pay the first respondent's costs.