BTP18 v Minister for Home Affairs
[2019] FCCA 2608
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTP18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2608 |
| Catchwords: MIGRATION – Review of decision regarding Applicant’s Application for Safe Haven Enterprise Visa – objective approach taken to consider whether Applicant can relocate to a different region in Afghanistan – IAA had proper regard to evidence it was required to consider – where not considering that evidence would have amounted to an error of law – Application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), s.5H(1), 5J, 36(2A), 36(2B), 473CB. |
| Cases cited: AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 CGA15 v Minister for Home Affairs [2019] FCAFC 46 CID15 v Minister for immigration and Border Protection [2017] FCA 780 |
| Applicant: | BTP18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | CAG 5 of 2018 |
| Judgment of: | Judge Neville |
| Hearing date: | 5 October 2018 |
| Date of Last Submission: | 12 November 2018 |
| Delivered at: | Canberra |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Kikkert Law |
| Counsel for the Respondents: | Mr Kaplan |
| Solicitors for the Respondents: | Clayton Utz Canberra |
ORDERS
The Applicant’s Application filed on 1st February 2018 be dismissed.
The Applicant is to pay the First Respondent’s costs of these proceedings in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 5 of 2018
| BTP18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 27th March 2017, a Delegate of the First Respondent Minister refused the Applicant a Safe Haven Enterprise Visa (SHEV) (subclass 790).[1]
[1] The reasons of the Delegate are at Court Book (“CB”) 146 – 159.
On 5th January 2018, the Immigration Assessment Authority (“the IAA” or “the Authority”) affirmed the decision not to grant the Applicant a SHEV. It is from this decision that the Applicant seeks relief in this Court.
For the reasons that follow, the Application filed on 1st February 2018 must be dismissed with costs in accordance with the usual scale set out in Schedule 1 Part 3 of this Court’s Rules.
Grounds of Review
Pursuant to an Amended Application, filed 31st August 2018, the Applicant’s Grounds of Review were as follows:
1. The Immigration Assessment Authority (IAA) fell into jurisdictional error by applying a relative, rather than an objective, approach in assessing whether the applicant could safely relocate to his home region of Surkh-e Parsa in Parwan.
Particulars
a. The applicant claims that there is a real chance and a real risk that he will suffer serious or significant harm if he were to be returned to his home region.
b. The IAA noted that “Surkh-e Parsa neighbours with Pashtun districts like Ghorband and Jairez and is in proximate distance to the Ghorband valley, areas which have seen a deterioration in their security” (at [44]).
c. The IAA also accepted that there were “credible security concerns in parts of Parwan and other areas” [at 44].
d. However the IAA then found that Surkh-e Parsa “remains relatively secure with very few security incidents in the past few years and there is no sign that the insurgent and criminal activities which have taken place in the other districts will spread to Surkh-e Parsa within the foreseeable future, or to the roads linking Surkh-e Parsa to in this region is more than remote [sic]” [at 44];
e. The IAA’s finding involved a misapplication of the ‘real chance’ test. The ‘real chance’ test is objective, not relative, and is not determinative whether the risk in one place is less severe than the risk in another place.
2. The Immigration Assessment Authority (IAA) fell into jurisdictional error by misapplying the real chance test.
Particulars
a. The applicant claims that there is a real chance and a real risk that he will suffer serious or significant harm if he were to be returned to Afghanistan;
b. At paragraphs [21], [32] and [39] of the decision record, the IAA refers to the applicant being of “low level interest” to the Taliban;
c. At paragraphs [49], the IAA found that there is not a real chance of the applicant being harmed;
d. Although the IAA accepted that the applicant was of interest to the Taliban, the IAA seems to have interpreted the real chance test as depending on the applicant’s level of interest to the Taliban. This was a misapplication of the ‘real chance’ test.
3. The IAA fell into jurisdictional error by asking itself the wrong question, or alternatively taking into account an irrelevant consideration, namely whether the Taliban’s threat to the applicant came through friend.
Particulars
a. At [17] the IAA placed lesser weight on the Taliban’s threat because it was passed on through a friend;
b. In considering whether the threat came through a friend, the IAA asked itself the wrong questions, or alternatively took into account an irrelevant consideration.
4. The IAA fell into jurisdictional error by asking itself the wrong question, or alternatively taking into account an irrelevant consideration, namely whether the application’s motivation to fix government vehicles was financial.
Particulars
a. At [16] the IAA considered that his profile as a supporter of the government was low-level due to his motivation for fixing government vehicles being financial;
b. In considering this, the IAA asked itself the wrong questions, or alternatively took into account an irrelevant consideration;
c. Instead of asking itself what the motivation of the applicant was, the IAA should have asked itself whether the applicant’s actions of fixing government vehicles resulted in their being a “real chance” that the Taliban would harm him.
5. The IAA fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
Particulars
The following reasoning by IAA was unreasonable:
a) That the applicant’s profile as a supporter of the government was low-level due to his motivation for fixing government vehicles being financial (at [16]);
b) That the Taliban could have harmed the applicant if they wanted to, and the fact that he hadn’t as yet been harmed him shows that he was of little interest to the Taliban (at [18] and [19]);
c) That the applicant doesn’t face a real risk of harm despite accepting that ”country information does indicate that in certain circumstances, persons with connections to, or who are perceived as supporting the Afghan government are targeted by Anti-Government Elements (AGEs) including the Taliban” (at [15]);
d) That the chance of the applicant being harmed through a targeted attack or generalised violence in Kabul before travelling to his home area is remote and not real” despite finding that “Hazaras resident in Kabul may face risk of harm through targeted insurgent attacks” (at [45]).
The IAA’s Decision
The IAA’s decision may be summarised as follows.
At pars.3 – 8, the IAA set out the information before it, notably what was referred to it by the Secretary of the Department of Immigration and Border Protection under s.473CB of the Migration Act 1958 (Cth) (“the Act”).
At par.6, the IAA concurred with the Applicant’s representative, who argued that the Delegate relied mostly on country information that was over a year old. The IAA considered that it was necessary and proper to consider updated information given the fluidity of the security situation in Afghanistan.
At par.7 the IAA referred to new information that was not before the Delegate, namely information about the developing security situation in Afghanistan for classes of persons of which the Applicant is a member, being Shi’a Muslims, Hazaras and returnees who originally come from Surkh-e Parsa in Parwan.
At par. 9 and following, the IAA summarised the Applicant’s claims for protection.
The IAA accepted (par.10) that the Applicant is a Hazara Shi’a who originates from Surkh-e Parsa district, Parwan Province in Afghanistan. The IAA also accepted (par.14) that the Applicant was living in Surkh-e Parsa and working in a Pashtun area of the district.
In pars.13 – 21 the IAA considered the Applicant’s contention that he was a target of the Taliban because of his employment profile as a self-employed mechanic whose customers included local government workers.
At par.15 the IAA acknowledged that country information indicated that persons with connection to, or who are perceived as supporting, the Afghan government are targeted by Anti-Government Elements (AGEs), including the Taliban. The IAA accepted that the Applicant believed that the Taliban equated fixing government cars with working for the government. The IAA also accepted that the Applicant had been informed by a friend on a number of separate occasions that the Taliban intended to kill him. However, the IAA held that, on the evidence, it was not satisfied that the Applicant’s circumstances were such that he would be targeted in Afghanistan by AGEs, including the Taliban.
At pars.16- 21 the IAA set out its reasons for making the determination that the Applicant would not be targeted upon his return to Afghanistan as a result of his work as a mechanic who serviced Government vehicles.
At par.16 IAA accepted that the Applicant had a profile as a supporter of the government, but characterised the Applicant’s support for the government as “low level”. The IAA formed this conclusion by imputing that the Applicant’s motive for fixing government vehicles was solely financial and not political.
At pars.17–18 the IAA said that the Taliban’s threats to the Applicant were conveyed indirectly through a friend. The IAA accepted that the Applicant had faced a frightening experience and in particular he was fearful that the Taliban would harm him. However, the IAA concluded that the evidence confirmed that the nature and level of the threats never rose above or escalated beyond messages from his friend. Moreover, the IAA concluded further that the threat to the Applicant. As such, the IAA said that having only given indirect threats to the Applicant was indicative that the Taliban did not have a “significant adverse interest in him”.
Further, at par.19, the IAA said that while the Applicant closed his repair shop and stopped working on government owned vehicles (a possible cause of the threats the Applicant had received), it said that had the threats been serious, it was more likely that the Taliban would have followed through on them. They obviously did not do so.
At pars.20 - 21 the IAA noted that the Applicant’s Wife and children continue to reside in his home region and that there is no evidence that the family has received threats or faced harm in the Applicant’s absence. The IAA also noted that five years have passed since the Applicant left, and that there is no evidence that the Taliban have shown interest in the Applicant or his family over this time.
At pars.22 – 23, the IAA set out the operation of s5H(1) of the Act regarding who constitutes a refugee. It also referred to the operation of s.5J regarding what are the constitutive parts of a “well-founded fear of persecution” for the purposes of the Act.
At pars.24 – 48 the IAA systematically assessed whether or not the Applicant met the “refugee criteria”, particularly whether the Applicant would face a “well-founded fear of persecution” in Afghanistan. In particular, par.24 provide a summary of the Applicant’s claims regarding relevant risks he said he faced if he returned to Afghanistan.
The IAA provided evidence of insecurity in the Applicant’s home province of Parwan. The IAA said that the security situation in recent years had deteriorated steadily due to insurgent activity and clashes between AGEs, including the Taliban, Islamic State, Hezb-e-Islami, Islamic Movement of Uzbekistan and Al Qaeda, as well as generalised criminal activity (par.25). The IAA characterised security concerns in Parwan as “credible” and more generally noted the “fluidity of the security situation” in Afghanistan.[2] (par.44).
[2] See also the IAA’s comments at par.44 in this regard.
Even in this context, the IAA remain satisfied that the district of Surkh-e Parsa in Parwan remained relatively safe. The basis for this finding was that Surkh-e Parsa remains under Afghan government control and that there have been “relatively few security incidents in recent years… [and] limited insurgent activity” (par.27). The IAA cited European Asylum Support Office (“EASO”) country information, which stated that of the 424 recorded security incidents in Parwan between January 2015 and May 2017, around 3% of these occurred in the Applicant’s district (par.27).
At pars.28 – 31 the IAA considered evidence of religious and racial violence in Parwan province. The IAA determined that while the Taliban is active in parts of Parwan, there is no evidence of them conducting racial or religious targeting against Hazaras or Shi’as in Parwan. At par.29 IAA also cited reports from the United Nations Assistance Mission in Afghanistan, which has found that while Hazaras have been subject to roadside abductions recorded in other areas of Afghanistan, there have been no such abductions in any part of the Parwan province for at least the last 3 years. The IAA noted that in Surkh-e Parsa the Hazaras make up the dominant, or at least one of the dominant, groups. The IAA was not satisfied that the Applicant would face a real chance of being harmed in racial or sectarian violence in Surkh-e Parsa.
The IAA then considered the Applicant’s claim that he would face a real chance of harm if he returned on account of his past employment fixing government vehicles (par.32). The IAA reasoned that the Applicant had been out of the country for 5 years, and in consequence the IAA was not satisfied that he would be of any interest to the Taliban. In considering the Applicant’s future employment prospects, the IAA accepted that the Applicant may from time to time work on government vehicles without facing any risks or creating an adverse profile (par.33).
Pars.34 – 35 considered the risk to the Applicant as a returnee to Afghanistan from a Western country. DFAT noted, as recorded by the IAA, that “people who have been identified as having international associations face a high risk of being targeted by anti-government elements (AGEs) and that this may possibly include returnees” (par.34). In the same paragraph, the IAA cited a DFAT report that said that two Hazara returnees from Australia were targeted by AEGs in 2014 due primarily to their status as returnees from a western country.
Despite this information, the IAA concluded that the Applicant does not face a real chance of harm as an identifiably Hazara/Shi’a returnee. The reasons cited for this decision are that the Applicant has only spent five years in Australia and that he still possesses knowledge of and familiarity with Afghan culture. The IAA imputed that this meant that any foreign mannerisms could be concealed and would not put him at risk of harm. Relatedly, the IAA reasoned that the Applicant does not continue to hold any other actual or imputed affiliation with the government or international community (par.36).
At par.37 the IAA considered the Applicant’s claim that he would fear discrimination and a threatened capacity to subsist in Afghanistan. In this regard the IAA noted the economic situation and poverty levels in Afghanistan. The IAA acknowledged that Hazaras outside Hazarajat face discrimination affecting their employment prospects; it accepted that the Applicant may face such discrimination as a Shia Hazara. However, the IAA did “not accept discrimination will be such that he will be denied employment in this region”. The IAA was satisfied that the Applicant would be able to find employment because he has previously run a successful mechanic business and also has farming experience. It also referred to the Applicant having his Wife, his siblings and his own connections, such that he would be able to find other work in his home area.
The IAA then assessed the Applicant’s ability to return safely to his home region of Surkh-e Parsa in Parwan, notably as a returnee, and in the light of travel difficulties, either because of dangers in travelling by road, or waiting in Kabul for a flight to Bamyan (pars.39 – 48).
Country information indicated that most returnees are returned to Kabul airport (par.39). The IAA accepted that Hazaras may face a risk of harm in Kabul from a targeted insurgent attack (par.45). However the IAA was satisfied that as the Applicant would only be in Kabul for a short period of time and because there was a strong military presence in Kabul, the risk of harm was remote and not real.
The IAA also accepted that travelling by road between Kabul and Surkh-e Parsa would constitute a risk to road travellers when passing through areas contested by insurgents, and that the most direct route had “higher levels of insecurity” (par.40). The IAA acknowledged those who appear wealthy or are associated with the government may be targeted (par.39). However, the IAA was satisfied that the Applicant would not appear to be wealthy, and that his association with the government was low-level.
At par.40, the IAA accepted that there were general risks to road travellers on this route between Kabul to Surkh-e Parsa. The IAA considered information about targeted incidents of violence against Hazara Shi’as as well as reports of generalised violence, finding that “all ethnic groups are reported to be vulnerable to attacks and it can be difficult to ascertain the motivation for attacks, and to separated criminal attacks from insurgent activity” (par.40).
The IAA referred to country information that indicated that the Applicant could return to his home region by flying from Kabul to Bamyan, and then travelling by road from Bamyan to Surkh-e Parsa (par.41).
The IAA cited EASO and DFAT information that indicated that there are regular flights from Kabul to Bamyan (par.41). From Bamyan, the IAA said that there are a number of routes available to the Applicant. The IAA cited information provided by DFAT, which concluded that Hazaras are able to travel through Bamyan’s areas without facing undue security risks, and “[t]he is no evidence of ordinary Hazara Shi’as or returnees being targeted on Bamyan roads” (par.40). The IAA concluded (par.43) that the risks to the returnee if he took this route for his return trip to Surkh-e Parsa were “remote” and “therefore not real”.
At par.44, in the light of previously referred to material and in particular material provided by the parties, the IAA considered the fluidity of the security situation in Afghanistan. It considered the neighbouring districts to Surkh-e Parsa. It concluded that, while there were credible security concerns in parts of Parwan and other areas, “on the evidence, Surkh-e Parsa remains relatively secure with very few security incidents in the past few years.” In this regard I recall that earlier in its reasons (e.g. par.27) the IAA had outlined in some detail the various security incidents, based on EASO reports between January 2017 and May 2017, and noted that only around 3% of such incidents occurred in the Applicant’s district.
The IAA accepted that all of Afghanistan is affected by crime and that, constrained by lack of resources, there is limited capacity for police to maintain law and order (par. 46). However the IAA was not satisfied that the Applicant would be targeted by criminal elements. He would not be perceived as wealthy or as having connections to a foreign country in such a way as to attract possible attention from criminal elements.
At pars.49 – 50 the IAA concluded that the Applicant does not meet the requirements of the definition of refugee in s.5H(1).
In relation to the IAA’s considerations of the complimentary protection assessment under s.36(2A) of the Act, the IAA found the Applicant’s claim did not meet the requirements for a protection visa. Based on evidence before it, the IAA considered that the Applicant would not face a “real risk” of “significant harm” upon his return to Afghanistan.
At pars.53-54 the IAA referred to its previous analysis to establish that the Applicant would not be at risk of particularised, targeted harm. The Delegate was satisfied (par.55) that “these risks are faced by the population of the country generally and not faced by the Applicant personally” and therefore the requirements of s.36(2B)(c) were not relevantly satisfied.
Legislative Provisions
The following sections of the Migration Act 1958 (“the Act”) are relevant to the determination of the current Application before the Court: ss.5H, 5J, 36.
Section 5H provides as follows:
5H Meaning of refugee
1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well‑founded fear of persecution, see section 5J.
2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
b) the person committed a serious non‑political crime before entering Australia; or
c)the person has been guilty of acts contrary to the purposes and principles of the United Nations.
5J Meaning of well-founded fear of persecution
1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well founded fear of persecution if:
a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
c)the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
2)A person does not have a well founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
3)A person does not have a well founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or
b)conceal an innate or immutable characteristic of the person; or
c)without limiting paragraph (a) or (b), require the person to do any of the following:
i.alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
ii.conceal his or her true race, ethnicity, nationality or country of origin;
iii.alter his or her political beliefs or conceal his or her true political beliefs;
iv.conceal a physical, psychological or intellectual disability;
v.enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
vi.alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
b) the persecution must involve serious harm to the person; and
c) the persecution must involve systematic and discriminatory conduct.
5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
a) a threat to the person’s life or liberty;
b) significant physical harassment of the person;
c) significant physical ill treatment of the person;
d) significant economic hardship that threatens the person’s capacity to subsist;
e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
6)In determining whether the person has a well founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
Section 5J provides as follows:
5J Meaning of well-founded fear of persecution
1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well founded fear of persecution if:
a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
c)the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
2)A person does not have a well founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
3)A person does not have a well founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or
b)conceal an innate or immutable characteristic of the person; or
c)without limiting paragraph (a) or (b), require the person to do any of the following:
i.alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
ii.conceal his or her true race, ethnicity, nationality or country of origin;
iii.alter his or her political beliefs or conceal his or her true political beliefs;
iv.conceal a physical, psychological or intellectual disability;
v.enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
vi.alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
a)that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
b) the persecution must involve serious harm to the person; and
c) the persecution must involve systematic and discriminatory conduct.
5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
a) a threat to the person’s life or liberty;
b) significant physical harassment of the person;
c) significant physical ill treatment of the person;
d) significant economic hardship that threatens the person’s capacity to subsist;
e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
6)In determining whether the person has a well founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
Section 36 provides as follows:
36 Protection visas—criteria provided for by this Act
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non citizen in Australian respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or
…
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
The Applicant’s Submissions
The Applicant’s submissions, filed 20th September 2018, were as follows. The summary of the Grounds of Review has been omitted because it is set out earlier in these reasons.
1) The applicant is seeking review of the decision of the Second Respondent (Immigration Assessment Authority), dated 5 January 2018 affirming a decision of a delegate of the First Respondent (Minister) not to grant the applicant a Protection visa.
…
Submissions
Ground 1
3) It is submitted that the Immigration Assessment Authority fell into jurisdictional error by applying a relative, rather than an objective, approach in assessing whether the applicant could safely relocate to his home region of Surkh-e Parsa in Parwan. The applicant claims that there is a real chance and a real risk that he will suffer serious or significant harm if he were to be returned to his home region in Afghanistan.
4) The IAA accepted that “Surkh-e Parsa neighbours with Pashtun districts like Ghorband and Jairez and is in proximate distance to the Ghorband valley, areas which have seen a deterioration in their security” (at [44]). The IAA also accepted at [44] that there were “credible security concerns in parts of Parwan and other areas”. However the IAA then found that Surkh-e Parsa “remains relatively secure with very few security incidents in the past few years and there is no sign that the insurgent and criminal activities which have taken place in the other districts will spread to Surkh-e Parsa within the foreseeable future, or to the roads linking Surkh-e Parsa to in this region is more than remote [sic]” [at 44].
5) The IAA’s finding involved a misapplication of the ‘real chance’ test. The ‘real chance’ test is objective, not relative, and is not determinative whether the risk in one place is less severe than the risk in another place. It is clear that the IAA was comparing the security of Surkh-e Parsa with Ghorband, Jairez and the Ghorband valley and found that Surkh-e Parsa was "relatively secure" with "very few security incidents".
6) The test of a real chance or real risk is whether the chance or risk actually faced by the applicant is not remote, insubstantial or far-fetched, and this chance or risk may be statistically as low as 10% (please see Chan Yee Kin v Minister for Immigration [1989] HCA 62; (1989) 169 CLR 379). This is not a relative test to be measured against other parts of the country. Having conceded that there were security incidents in Surkh-e Parsa, the question was then not whether there were "very few security incidents", but rather whether the presence of any security incidents in Surkh-e Parsa created a real chance or risk that the applicant will suffer serious or significant harm if he were to be returned; a risk that is not remote, insubstantial or far-fetched, even if it was statistically as little as 10% (please see McHugh J in Chan). To reach a conclusion that there is only a remote chance of harm based on a comparison of different areas in Afghanistan and in failing to assess the risk despite accepting that there were "security incidents" even if they were few in number, is to apply a test that is not supported by the High Court in Chan or the Full Federal Court in SZQRB, or by any other authority.
7) This current matter is similar in many ways to CID15 v Minister for Immigration and Border Protection [2017] FCA 780, which involved the review of a Tribunal decision which had found that Shia Muslims were in general risk of being targeted for terrorist attacks in Pakistan by Sunni groups including the Taliban, but found that Shias are “relatively safe” in cities such as Islamabad or Rawalpindi as opposed to the Kurram Agency. Moshinsky J’s comments at [35-37] are relevant here. His Honour stated:
“35. The ‘real chance’ test is an objective one, whereby the decision-maker considers whether there is more than a remote or far-fetched chance of the applicant being harmed in a place. It is not a relative test whereby the decision-maker compares the chance of the applicant being harmed in one place relative to another place. I note that in SZVJE & Ors v Minister for Immigration & Anor [2016] FCCA 594, Judge Driver said: “The test of whether there is a real chance or a real risk of harm is not a relative one. It is not determinative whether the risk in one place is ‘less severe’ than the risk in another place. What matters is the actual level of risk in any particular place” (at [20]). I respectfully agree with this statement of principle.
36. There does not appear to be any dispute between the parties as to the principles set out in the preceding paragraph. In the Minister’s written submissions, the Minister submits that: it is true that a finding that a person faces a lower risk of harm in one place compared with another place is not the same as a finding that the person does not face a real chance of serious harm in the first-mentioned place; the risk of harm in one place may be lower than the risk in another place, and yet a person may still face a real chance of serious harm in the first-mentioned place; and a Tribunal that fails to consider whether there is, in fact, a real chance of harm will fall into jurisdictional error.
37. While the above mentioned statements of principle relate to the criteria for a protection visa on Convention grounds under s 36(2)(a) of the Act, similar principles also apply to the ‘complementary protection’ grounds in s 36(2)(aa). It has been held that the ‘real risk’ test in s 36(2)(aa) imposes the same standard as the ‘real chance’ test in s 36(2)(a): Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [246] per Gordon and Lander JJ (Besanko and Jagot JJ agreeing at [297], Flick J agreeing at [342]). In the context of ‘complementary protection’, the internal relocation principle is expressly prescribed by s 36(2B)(a) of the Act. Pursuant to that provision, an applicant is not eligible for a protection visa under s 36(2)(aa) in circumstances where “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”.
8) In CID15, the Tribunal had noted (on the basis of DFAT information) that Islamabad (and Lahore) were “relatively free from politically-motivated, terrorist and sectarian violence” and reportedly experienced “lower levels of violence relative to other parts of Pakistan” (at [43]). The Minister had submitted that the phrase "relatively" should be constructed as meaning "relatively safe" rather than "absolutely safe" [at 40], however the Honourable Court found this was not the correct Construction of Tribunal's reasons.
“40. As noted above, the basis upon which the primary judge concluded that the Tribunal had not made a jurisdictional error was that the Tribunal was not, when using phrasing including “relatively”, comparing the safety of urban centres with Kurram Agency or other areas, but was expressing a view about the urban areas being relatively safe as opposed to being absolutely safe. In my respectful opinion, this is not a correct construction of the Tribunal’s reasons. . .”
9) Moshinsky J went on to state:
“48. In light of the above matters, I do not accept that the Tribunal was using phrasing such as “relatively” in the sense of ‘relatively safe’ as opposed to ‘absolutely safe’ (as concluded by the primary judge) or as meaning ‘mostly, albeit not absolutely’ (as submitted by the Minister). To the contrary, the matters set out above demonstrate that the Tribunal used words such as “relatively” in [42], [48], [49] and [52] to signify a comparative assessment of the level of violence, the level of safety or the degree of state protection in one place as compared with another.
49. For these reasons, I consider that the primary judge erred in her construction of the Tribunal’s reasons.
50. I also consider, for essentially the same reasons, that the Tribunal’s approach amounted to a jurisdictional error. Considering the Tribunal’s reasons as a whole, the Tribunal adopted a relative, rather than an objective, approach in applying the ‘real chance’ test in the context of the internal relocation issue. This is demonstrated by the aspects of [42], [48], [49] and [52] of the Tribunal’s reasons discussed above. It is true that the Tribunal correctly stated the ‘real chance’ test at the beginning of its consideration of the relocation issue (at [38]) and expressed its conclusion (at [51]) in terms of the ‘real chance’ test. But this does not overcome the difficulty that its findings on the issue (at [48]–[49]) were merely relative findings rather than findings that would sustain the conclusion at [51]. As explained above, the conclusions in [50] depend on the findings in [48] and [49]. In these circumstances, and notwithstanding that the Tribunal correctly applied the ‘real chance’ test elsewhere in its reasons, I consider that it misapplied the ‘real chance’ test in the context of the relocation issue. This amounted to a jurisdictional error.”
Ground 2
10) The second ground also involves the IAA falling into jurisdictional error by misapplying the real chance test. The applicant claims that there is a real chance and a real risk that he will suffer serious or significant harm if he were to be returned to Afghanistan, however the IAA seems to have interpreted the real chance test as depending on the applicant’s level of interest to the Taliban. At paragraphs [21], [32] and [39] of the decision record, the IAA referred to the applicant as being of “low level interest” to the Taliban. At paragraph [21] the IAA stated ". . . I do not accept he was of anything more than low-level interest to the Taliban at the time he departed Afghanistan." Then at paragraph [32]. the IAA stated as follows:
"Having regard to the threats the applicant received on account of working for the government by servicing vehicles, I have not accepted the applicant was of anything more than low-level interest to the Taliban at the time that he departed Afghanistan. Given this and that there has now been a five year passage of time since he departed and there is no indication that the Taliban have shown any interest in the applicant during this time, I am not satisfied that the applicant is still of any interest to the Taliban in relation to his previous work, nor for any other reason. . ." (emphasis added)
11) Finally at [39], the IAA found that ". . . I am satisfied that any interest the Taliban previously held in the applicant was low-level and that they do not currently and would not upon return have any adverse interest in the applicant such that they would be looking for him personally."
12) At paragraph [49], the IAA found that the there was not a real chance of the applicant being harmed and concluded "I have considered the applicant's claim individually and cumulatively and I am not satisfied the applicant's fear of persecution is well-founded."
13) It is clear that the IAA accepted that the applicant was of interest to the Taliban, however the IAA seems to have interpreted the real chance test as depending on the applicant’s level of interest to the Taliban. This was a misapplication of the ‘real chance’ test. Even if the applicant was considered to be of low-level interest (and it is the applicant's position that the IAA's reasoning in this regard was unreasonable in any case, as discussed under Ground 5), it is still possible for someone who is of "low-level interest" to face a risk of harm that is not remote, insubstantial or far-fetched, even if it was statistically as little as 10%. In fact the IAA’s acceptance that the applicant was of any adverse interest to the Taliban would as a matter of course mandate the conclusion that the risk of harm is not far-fetched or remote. As such, the IAA misapplied the real chance test and failed to perform its statutory task.
Ground 3 and 4
14) The third ground is that the IAA fell into jurisdictional error by asking itself the wrong question, or alternatively taking into account an irrelevant consideration, namely whether the Taliban’s threat to the applicant came through a friend. It is clear that the IAA accepted that the Taliban had threatened the applicant through a friend. At paragraph [15] the IAA stated as follows:
"Having regard to the threats the applicant received, I accept his Pashtun friend told him on a number of separate occasions that he was wanted by the Taliban who intended to kill him. I accept the applicant was first warned by his friend around four months before he left the area. I accept the applicant believes the Taliban had been informed upon by local Pashtuns and that he believes the Taliban intended to kill him because in fixing government cars they equated him with working for the government. . ."
15) The means of this threat being passed on seems to have been a consideration that the IAA relied upon to make an adverse finding in regards to the applicant. At paragraph [17], the IAA stated as follows:
"There are also other indicators that the applicant's profile was low-level. He confirmed at the interview that all the threat messages came through his friend and he did not receive any direct threats from the Taliban or anyone else. The evidence also does not suggest that any member of the Taliban ever approached the applicant, or that he had any form of personal or direct interaction with the Taliban. I note the applicant continued performing the same work over the next few months and made no moves to move his family out of their home area and on the evidence, he nor any members of his family faced any harm. I am satisfied on the evidence that the situation did not escalate beyond messages from his friend."
16) The IAA also stated in paragraph [18] that ". . . I find the indirect approach to be indicative of the Taliban not having a significant adverse interest in him."
17) In considering whether the threat came through a friend, the IAA asked itself the wrong questions, or alternatively took into account an irrelevant consideration. FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1 is authority that asking the wrong question or taking into account matters which are irrelevant are errors that requires the impugned decision to be set aside. (Please also see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30). By asking itself the wrong question and/or taking into account an irrelevant consideration, the IAA failed to perform its statutory task.
18) The fourth ground is that the IAA fell into jurisdictional error by asking itself the wrong question, or alternatively taking into account an irrelevant consideration, namely whether the application’s motivation to fix government vehicles was financial.
19) At paragraph [16] the IAA considered that his profile as a supporter of the government was low-level due to his motivation for fixing government vehicles being financial. At paragraph [16] the Tribunal stated that ". . . I am satisfied the applicant worked on government vehicles but his reasons of doing so were financial, as a matter of business, and not political. Given this, and that on the evidence the applicant did not have any other interaction with government, security or international community, I consider his imputed profile as a supporter of the government was low-level." (emphasis added).
20) In considering the applicant’s motivation for fixing government vehicles, the IAA asked itself the wrong questions, or alternatively took into account an irrelevant consideration. Instead of asking itself what the motivation of the applicant was, the IAA should have asked itself whether the applicant’s actions of fixing government vehicles resulted in their being a “real chance” that the Taliban would harm him. By asking itself the wrong question and/or taking into account an irrelevant consideration, the IAA failed to perform its statutory task.
Ground 5
21) It is submitted that the IAA committed a jurisdictional error in that its decision lacked evident and intelligible justification and as such, exhibited Li unreasonableness (please see Minister of Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332). Li unreasonableness is based on the principle that unreasonableness is related to rationality and logicality. In the case of Li, the High Court held that “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
22) The test for legal unreasonableness is whether the Tribunal’s state of satisfaction is one “which no rational or logical decision maker could arrive on the same evidence” (Minister for Immigration v SZMDS (2010) 240 CLR 611 at [124] and [130] per Crennan and Bell JJ; SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [10], [59]) or that the decision was “arbitrary, capricious or clearly unjust” and lacks “evident and intelligible justification” (Li at [76] per Hayne, Kiefel and Bell JJ).
23) In Li, that Honourable Court also stated, in the joint judgment of Hayne, Kiefel and Bell JJ that “… the legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognize that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified” (at [68]). The Court should be “slow, although not unwilling, to interfere in an appropriate case”.
24) In addition to SZMDS and Li, there is also detailed discussion of legal unreasonableness in the more recent Full Court decisions of Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 and Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475. At [67] of CRY16, the Full Court stated:
“in our opinion, that the outcome is unfair “in an ordinary sense”, as accepted by Senior Counsel for the Minister, is not irrelevant to whether or not there has been legal unreasonableness in the exercise or non-exercise of statutory powers.”
25) It is submitted that a number of parts of the IAA’s decision is unfair in the ordinary sense. In particular, the following reasoning by IAA was unreasonable:
a) That the applicant’s profile as a supporter of the government was low-level due to his motivation for fixing government vehicles being financial (at [16]);
b) That the Taliban could have harmed the applicant if they wanted to, and the fact that he hadn’t as yet been harmed him shows that he was of little interest to the Taliban (at [18] and [19]);
c) That the applicant doesn’t face a real risk of harm despite accepting that ”country information does indicate that in certain circumstances, persons with connections to, or who are perceived as supporting the Afghan government are targeted by Anti-Government Elements (AGEs) including the Taliban” (at [15]);
d) That the chance of the applicant being harmed through a targeted attack or generalised violence in Kabul before travelling to his home area is remote and not real” despite finding that “Hazaras resident in Kabul may face risk of harm through targeted insurgent attacks” (at [45])
That the applicant’s profile as a supporter of the government was low-level due to his motivation for fixing government vehicles being financial
26) At paragraph [16] the IAA considered that his profile as a supporter of the government was low-level due to his motivation for fixing government vehicles being financial. At paragraph [16] the Tribunal stated that ". . . I am satisfied the applicant worked on government vehicles but his reasons of doing so were financial, as a matter of business, and not political. Given this, and that on the evidence the applicant did not have any other interaction with government, security or international community, I consider his imputed profile as a supporter of the government was low-level." (emphasis added)
27) This finding was legally unreasonable. The applicant’s motivation for fixing government vehicles had no bearing on whether or not there was a real chance and a real risk that the applicant will suffer serious or significant harm if he were to be returned to his home region in Afghanistan. It was unreasonable to expect the Taliban to be aware of what the applicants motivation was, let alone be persuaded to not harm him because they were persuaded that the applicants motivation was financial rather than political (or to even draw that conclusion). There was no evidence before the IAA to suggest that the Taliban is inclined to weigh up the motivation of those that they consider to be a threat to them before deciding whether or not to harm them, and it was unreasonable for the IAA to make this finding.
That the Taliban could have harmed the applicant if they wanted to, and the fact that he hadn’t as yet been harmed him shows that he was of little interest to the Taliban
28) There are two aspects of this reasoning that is unreasonable. Firstly, it was unreasonable for the Tribunal to disregard the threats that he received from the Taliban, simply because they came through a friend, particularly in circumstances where the IAA accepted that these threats had genuinely come from the Taliban, and that the friend was warning the applicant.
29) At paragraph [18] and [19], the IAA stated as follows:
“I note that Surkh-e Parsa has had little insurgency activity in recent years and I have therefore considered that the indirect threats from the Taliban may have resulted from their having had little physical presence in the area at the time. However, even taking this into account, I am satisfied that had the Taliban wanted to harm the applicant, or to have had the applicant harmed, they could and would have done so, either in his residential or employment localities, elsewhere in the local community or in the period that he lived in Kabul in late 2012. While I accept the applicant faced a frightening experience and was fearful that the Taliban would eventually harm him, I find the indirect approach to be indicative of the Taliban not having a significant adverse interest in him.
19. I note the applicant eventually did close the shop and stop working on government vehicles and I have considered that this may have been the aim of the threats and therefore quelled the Taliban’s desire to harm him. However even taking this into account, I consider that had their threats been serious and noting that the applicant continued to defy them, that they would have followed-through on the threats or taken steps to harm him had they intended to do so.”
30) It was “unfair ‘in an ordinary sense’” for the IAA to dismiss the Tribunal’s interest in the applicant as “low level” simply because it came through a friend. The “indirect approach” taken by the Taliban does not establish that the Taliban had no intention to kill or otherwise harm the applicant. While the Taliban may have taken the indirect approach because it was more convenient for them at that time, it was both unreasonable and unfair to conclude that the Taliban’s threats were not “serious” because they had not as yet “followed-through on the threats or taken steps to harm him”.
31) Furthermore it was also unreasonable for the IAA to find that if the Taliban wanted to harm the applicant, or to have had the applicant harmed, they could and would have done so, either in his residential or employment localities, elsewhere in the local community or in the period that he lived in Kabul in late 2012. To say that the fact that someone wasn’t harmed showed that they didn’t face a real chance or risk of being harmed sets an unreasonably high bar. Indeed if the applicant had been killed by the Taliban at this point, then it would have been too late for him to now seek protection in Australia. Were this line of reasoning followed in all protection visa matters, it would create the absurd Catch-22 situation where those who have not as yet been harmed are deemed to not be of sufficient interest to be at risk of harm, while it may be too late for those that have been harmed or killed to seek protection in Australia! The real risk or real chance test does not require someone to have already been harmed, and to use the fact that someone has not as yet been harmed as evidence that they are not at risk of being harmed is unreasonable and unfair.
That the applicant doesn’t face a real risk of harm despite accepting that “country information does indicate that in certain circumstances, persons with connections to, or who are perceived as supporting the Afghan government are targeted by Anti-Government Elements (AGEs) including the Taliban”
32) At paragraph [15] the IAA stated as follows:
". . . I accept the applicant believes the Taliban had been informed upon by local Pashtuns and that he believes the Taliban intended to kill him because in fixing government cars they equated him with working for the government. Government information does indicate that in certain circumstances, persons with connections to, or who are perceived as supporting the Afghan government are targeted by Anti-Government Elements (AGEs) including the Taliban. However for the reasons that follow, I am not satisfied that the applicant’s circumstances are such that he will be targeted in Afghanistan in relation to this matter upon return” (emphasis added).
33) As submitted above, the “reasons that follow” that are referred to in this paragraph are unreasonable. Given the unreasonableness of these reasons, as well as the fact that the IAA accepted that “in certain circumstances, persons with connections to, or who are perceived as supporting the Afghan government are targeted by Anti-Government Elements (AGEs) including the Taliban”, the IAA’s finding that the applicant does not face a real risk of harm is legally unreasonable.
That the chance of the applicant being harmed through a targeted attack or generalised violence in Kabul before travelling to his home area is “remote and not real” despite finding that “in certain circumstances Hazaras resident in Kabul may face risk of harm through targeted insurgent attacks” (at [45])
34) At [45] the IAA found that the chance of the applicant being harmed through a targeted attack or generalised violence in Kabul before travelling to his home area is “remote and not real” despite finding that “in certain circumstances, Hazaras resident in Kabul may face risk of harm through targeted insurgent attacks” (at [45]). This conclusions does not logically and reasonably follow the IAA’s acceptance of the risk of harm to residents in Kabul, nor is there any explanation what these “certain circumstances” are.
Conclusion
35) The application should be allowed with costs.
The Applicant’s Additional Submissions
The Applicant filed further written submissions on 12th November 2018, at the request/invitation of the Court, which were in relation to a recent decision of the Federal Court of Australia. Those submissions were as follows:
Further Submissions for the Applicant
1) On 22 October 2018 this Honourable Court wrote to the parties advising them of the Full Court decision in DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177, which was handed down following the conclusion of Submissions in this matter. This Hounourable Court requested that the parties file written submissions of no more than 2 pages on the relevant issues canvassed by this judgment.
2) While noting the similarity of background between DFE16 and BTP18, namely that both were Shia Muslim of Hazara ethnicity from Afghanistan, the applicant notes that DFE16 is a relocation case, while in BTP18 the IAA found that the applicant could be returned to his home region. In this regard, the IAA’s finding differed from the delegate's initial finding, which was that BTP18 "would face a real chance of serious harm while attempting to access this home area", but that BTP18 would not face "a real chance of persecution or a real risk of significant harm for any reason in Kabul and found that the applicant's relocation to Kabul would be reasonable in the circumstances" (please see paragraph [2] of the decision record, CB p. 359).
3) It is also significant that in DFE16, the applicant conceded that Mazar -e - Sharif "seems relatively safe" (at paragraph [39] of that decision), while there is no such concession by BTP18 in regards to Surkh-e Parsa (and in any case we find the word "relatively" is extremely problematic for the reasons the applicant has outlined in his submissions).
4) While security issues were "not presented at the forefront of the submissions concerning relocation" in DFE16 (please see paragraph [42]), security concerns have always been a central part of BTP18’s submissions (please see the summary of the applicant’s claims at paragraph [9] of the decision record, CB pp. 360-361). In the applicant’s submissions, the applicant also claimed that the Taliban “will never forget anyone whom they had targeted in the past even if it has been more that 20 years (CB, p 89), “they can exert as much danger anywhere in the country”) (CB, p. 90), “the Taliban are very cruel and will target him personally in Kabul” and “the Taliban are everywhere in the country, particularly in Kabul” (CB, page 91). The applicant’s representative then said “we strongly argue that the current plight of Hazaras and Shia everywhere in Afghanistan particularly Kabul” (CB, page 94). Then at paragraph 15 of his Statutory Declaration, dated 7 March 2017, the applicant stated that “there was no place in Afghanistan safe for me because the Taliban have a wide network of spies and informants, meaning that they would eventually locate me wherever I am in Afghanistan” (CB, p. 104).
5) While in DFE16, the Agent conceded that Mazer was relatively safe and did not raise the issue of safety or security as the reason why he could not relocate, there was clearly no such concession by BTP18. In fact BTP18 was adamant that he would not be safe anywhere in Afghanistan.
6) Furthermore, even if DFE16 is authority that in relocation cases where an applicant has a "strong personal association or connection with another place in Afghanistan" a "comparison" may be "made as part of process of evaluating whether it was reasonable to relocate", this is not relevant to the IAA’s assessment of whether BTP18 could return to his home region of Surk-e Parsa. The statutory task not only does not require, but also does not allow a comparison with another location in Afghanistan for the reasons outlined in paragraphs [3]-[9] of the Applicant’s submissions.
7) The other issue canvassed in the judgment of DFE16 is the extent to which a Tribunal or Authority needs to deal with claims that are not expressly articulated but clearly arise from the material. DFE16 is authority that such claims need to be considered by the Tribunal or Authority if they “would or could be dispositive of the review” (please see paragraph 19 of that judgement).
Submissions on behalf of the Respondent
The First Respondent’s submissions, filed 28th September 2018, were as follows:
Introduction
1) By application filed on 1 February 2018, as amended on 31 August 2018, the applicant, BTP18, seeks judicial review of a decision of the second respondent, the Immigration Assessment Authority (Authority), to affirm a decision of a delegate of the first respondent, the Minister for Home Affairs (Minister), to refuse to grant to him a Safe Haven Enterprise (Class XE) visa (SHEV).
2) For the reasons that follow, the application should be dismissed.
Background
3) The applicant is a citizen of Afghanistan. He was born in Surkh-e Parsa, a district in Parwan Province: Court Book (CB) 3. He entered Australia as an “unauthorised maritime arrival” (as defined in s 5AA of the Migration Act 1958 (Cth) (Act)).
4) On 24 February 2016, the Minister’s department (Department) wrote to the applicant to advise him that the Minister had exercised his power, under s 46A of the Act, to permit him to make an application for, relevantly, a SHEV, and to invite him to do so: CB 18-23.
5) On 8 March 2017, the applicant made an application for a SHEV: CB 45-83.
6) On 16 March 2017, the applicant’s then representative sent to the Department a copy of a statutory declaration made by the applicant on 7 March 2017: CB 101. In his statutory declaration, the applicant made the following claims:
a) He is a Hazara and a Shia Muslim: CB 102 [2].
b) He fears that, if he is returned to Afghanistan, he will be seriously harmed by the Taliban by reason of his Hazara ethnicity and Shia Muslim religion, an anti-Taliban political opinion, and his membership of the particular social group comprising returnees from western countries: CB 102 [4].
c) In Afghanistan, he worked as a heavy vehicle mechanic and had his own business in Parwan Province: CB 103 [7]. He was ordered by the Taliban to close his business “because most of the vehicles [he] fixed belonged to the government”: CB 103 [7]. The Taliban threatened to kill him for fixing government-owned vehicles and for working with the government: CB 103 [6], [8].
d) He did not experience harm in Afghanistan but believed that he would have been killed by the Taliban if he did not leave that country: CB 103-104 [13].
e) He cannot relocate within Afghanistan as “the Taliban have a wide network of spies and informants” and it is “very dangerous for Shia Hazaras to travel on roads”: CB 104 [15]-[16].
7) On 27 March 2017, a delegate of the Minister made a decision to refuse to grant a SHEV to the applicant: CB 146-158.
Merits review
8) On 30 March 2017, the Authority sent a letter to the applicant to notify him that the Minister had referred the delegate’s decision, being a “fast track reviewable decision” (as defined in s 473BB of the Act), to the Authority for review under Part 7AA of the Act: CB 168-182.
9) On 20 April, 7 June and 2 August 2017, the applicant’s then representative sent to the Authority some submissions and country information: CB 266-280, 281-354 and 355-357.
10) On 5 January 2018, the Authority made a decision, pursuant to s 473CC(2)(a) of the Act, to affirm the decision under review: CB 358-376. Those of the Authority’s findings and reasons that are relevant to the present proceedings will be discussed below when responding to the applicant’s grounds of review.
Judicial review
11) The amended application raises five grounds of review.
Ground 1
12) In ground 1, the applicant contends that the Authority made a jurisdictional error “by applying a relative, rather than an objective, approach in assessing whether the applicant could safely relocate to his home region of Surkh-e Parsa in Parwan”. In the particulars to this ground, the applicant criticises the Authority’s statement, at CB 369 [44], that:
… on the evidence, Surkh-e Parsa … remains relatively secure with very few security incidents in the past few years and there is no sign that the insurgent and criminal activities which have taken place in the other districts will spread to Surkh-e Parsa within the foreseeable future, or to the roads linking Surkh-e Parsa to in this region is more than remote.
13) This ground should be rejected for the following reasons.
14) Paragraph 44 of the Authority’s reasons is located in that part of the decision, CB 368-370 [39]-[45], that concerns the applicant’s ability to return safely to his home region from Kabul – to which he would be returned from Australia. In those paragraphs, the Authority made the following relevant findings:
a) Most returnees from Australia are returned to Kabul airport: CB 368 [39].
b) Surkh-e Parsa is accessible from Bamyan Province: CB 368 [41].
c) The applicant has not claimed and there is no evidence before the Authority indicating that the applicant would not be able to finance a single airfare to Bamyan Province: CB 368 [41].
d) From Bamyan Province, the applicant could travel, by road, to Surkh-e Parsa through various districts which are either predominantly or significantly populated by Hazaras: CB 368-369 [42].
e) In 2016 and 2017, there were no attacks on returnees in areas through which the applicant would need to travel to reach Surkh-e Parsa: CB 369 [43].
f) The possibility of the applicant being harmed in relation to his being Hazara, Shia and/or any type of returnee on his single trip to Surkh-e Parsa is remote: CB 369 [43].
g) Surkh-e Parsa neighbours areas that have deteriorated in terms of their security situation: CB 369 [44].
h) While there are credible security concerns in parts of Parwan Province and other areas, “on the evidence” “Surkh-e Parsa remains relatively secure with very few security incidents in the past few years”: CB 369 [44].
i) The Authority was not satisfied that the risk of the applicant’s being harmed in generalised violence is more than remote: CB 369 [44].
j) The “chance” of the applicant being harmed in a targeted attack or through generalised violence in Kabul before travelling to his home area is remote: CB 370 [45].
15) When CB 369 [44] is, as it should be, read in its entirety, it is clear that the Authority turned its mind to the objective risk of generalised violence in the applicant’s hometown. This construction of the Authority’s reasons is fortified by its findings at CB 365 [27]-[28], 365-366 [30]-[34], and 367 [36], where the Authority considered the risk of the applicant being harmed in Surkh-e Parsa for the various reasons he identified. Accordingly, the words “relatively secure” and “very few security incidents” convey no more than that the applicant’s hometown of Surkh-e Parsa was relatively – in the sense that it was, moderately and not absolutely – safe, and not merely safer than other parts of Afghanistan. On this basis, the present case is distinguishable from CID15 v Minister for Immigration and Border Protection [2017] FCA 780. In that case, the Administrative Appeals Tribunal (Tribunal) had found that the applicant, a citizen of Pakistan, could relocate to Islamabad or Rawalpindi because they “experienced lower levels of violence relative to other parts of Pakistan” (at [20(d)], referring to [42] of the Tribunal’s reasons; see also [20(f)], [41]-[42]) [emphasis added]. Unlike CID15, the Authority did not reason in a similar manner.
16) Moreover, the impugned sentence in CB 369 [44] relevantly opens with the words, “on the evidence”. What follows is a summary by the Authority of the effect of the country information on the general security situation in Surkh-e Parsa. That country information is discussed at CB 365 [27], where the Authority considered the number of attacks in Parwan Province (in which Surkh-e Parsa is located) and concluded that Surkh-e Parsa “remains under Afghan government control” (and, as a corollary, is safe), that it is “not devoid of security incidents” but that “there have been few security incidents in recent years and there is limited insurgent activity”. The country information to which the Authority referred at CB 365 [27] is, it can comfortably be inferred, the “evidence” described by the Authority at CB 369 [44]. The fact that the Authority was merely summarising the effect of the country information in the impugned sentence at CB 369 [44] is yet another reason why the present case is distinguishable from CID15.
17) Still further, the Authority’s finding, at CB 369 [44], that “there is no sign that the insurgent and criminal activities which have taken place in the other districts will spread to Surkh-e Parsa …, or to the roads linking Surkh-e Parsa to … this region is more than remote” reveals that it applied the correct test under s 5J(1)(b) of the Act by turning its mind to the chance of Surkh-e Parsa experiencing violence of the kind seen elsewhere in Afghanistan and concluding that that chance was remote.
Ground 2
18) In this ground, the applicant argues that the Authority made a jurisdictional error by “misapplying the real chance test”. The particular complaint made is that the Authority “seems to have interpreted the real chance test as depending on the applicant’s level of interest to the Taliban” (particular (d)).
19) The Authority was under an obligation to consider the applicant’s claims for protection, whether they were expressly made or arose clearly or squarely on the material before it. One of the claims advanced by the applicant was that he feared harm at the hands of the Taliban because he had previously been accused of working with, and threatened because he had fixed cars belonging to, the government. In determining that claim, the Authority made factual findings at CB 361-363 [15]-[21] as to whether the applicant’s circumstances were such that he will be targeted in Afghanistan because he had fixed government cars while working as a mechanic or will be perceived as supporting the Afghan government. In the process of doing so, the Authority had regard to country information which indicated that, “in certain circumstances, persons with connection to, or who are perceived as supporting the Afghan government are targeted by Anti-Government Elements … including the Taliban”: CB 361 [15]. Thus, it fell for determination whether the applicant was a person who had such a profile. At CB 363 [21], the Authority found that the applicant did not hold “a profile with the Taliban such that they were intending to harm him”, as he was not of “anything more than low-level interest to the Taliban at the time he departed Afghanistan” and because five years had elapsed since his having left Afghanistan and there was “no indication that the Taliban have shown any interest in the applicant during this time”. That the Taliban’s interest in the applicant was nothing more than “low-level” was repeated at CB 366 [32]-[33] and 368 [39].
20) Having made these factual findings, the Authority properly turned its mind to the requirements of ss 5H and 5J of the Act as they applied to the applicant’s claim for protection by reason of his having worked as a mechanic in Afghanistan: CB 363-364 [22]-[24] and 366 [32]-[33]. Relevantly, the Authority considered whether there was a real chance that the applicant would be persecuted for this reason at the hands of the Taliban or other insurgents if he were to resume work as a mechanic in Surkh-e Parsa. In the light of its earlier findings, and the country information which “indicat[ed] [that] insurgent activity in the applicant’s home area [was] limited” (a matter to which the applicant has not referred at [10] of his submissions), the Authority was not satisfied that he faced a real chance of harm: CB 366 [32]-[33].
Grounds 3 and 4
21) By grounds 3 and 4, the applicant contends that the Authority made a jurisdictional error by asking itself the wrong question, or by taking into account an irrelevant – that is to say a forbidden – consideration, namely, “whether the Taliban’s threat to the applicant came through friend [sic]” or “whether the application’s [sic] motivation to fix government vehicles was financial”.
22) It is difficult to see how either ground gives rise to a jurisdictional error in the Authority’s decision.
23) As to the former complaint, the fact that the applicant was never threatened directly was a matter which fed into the Authority’s assessment of the applicant’s risk profile as a supporter of the government. It can hardly be characterised as a “wrong question” in the sense described by the High Court in Craig v South Australia (1995) 184 CLR 163 at 179. This was one of the matters to which the Authority had regard at CB 363 [17]. It also, correctly, referred to the fact that the evidence did not establish that “any member of the Taliban ever approached the applicant, or that he had any form of personal or direct interaction with the Taliban”, that he “continued performing the same work over the next few months and made no moves to move his family out of their home area” and that neither he nor his family faced any harm.
24) Contrary to what appears to be asserted at [16]-[17] of the applicant’s submissions, the Authority considered “the indirect approach to be indicative of the Taliban not having a significant adverse interest in [the applicant]” because it was “satisfied that had the Taliban wanted to harm the applicant, or to have had the applicant harmed, they could and would have done so, either in his residential or employment localities, elsewhere in the local community or in the period that he lived in Kabul in late 2012”: CB 363 [18]. That was a finding which the Authority was entitled to make.
25) The same may be said in respect of ground 4. The Authority’s consideration of the motivation for the applicant’s having fixed government vehicles was relevant to the question of whether he was a person in connection to, or who was perceived as supporting, the Afghan government, as the country information suggested that it was only those persons who were targeted by groups such as the Taliban: CB 362 [15]. It was for this reason that the Authority inquired, at CB 362 [16], whether the evidence revealed that the applicant “performed the work as an expression of his political opinion or conscience” or whether “his reasons for doing so were financial, as a matter of business, and not political”. Contrary to [20] of the applicant’s submissions, the Authority turned its mind to the question whether the applicant’s work as a mechanic gave rise to a real chance of harm at CB 366 [32]-[33].
26) As to the latter complaint, the applicant has failed to identify anything in the subject matter, scope or purpose of the Act that would make such fact-specific matters which feed into the Authority’s assessment of the applicant’s risk profile mandatorily irrelevant. The onus is upon him to identify why the inference should be drawn that the Act forbids consideration of the matters described at [21] above. He has not done so and that is fatal to his argument.
Ground 5
27) In ground 5, the applicant asserts that the Authority’s decision was “legally unreasonable” because it “lacked evident [sic] and intelligible justification”. In the particulars to this ground, the applicant takes issue with the following findings and observations:
a) The applicant’s profile as a supporter of the government was low-level due to his motivation for fixing government vehicles being financial: CB 362 [16].
b) The Taliban could have harmed the applicant if they wanted to, and the fact that he had not as yet been harmed showed that he was of limited interest to the Taliban: CB 363 [18]-[19].
c) The applicant does not face a real risk of harm despite the Authority accepting that “country information does indicate that in certain circumstances, persons with connections to, or who are perceived as supporting the Afghan government are targeted by Anti-Government Elements (AGEs) including the Taliban”: CB 362 [15].
d) The chance of the applicant being harmed through a targeted attack or generalised violence in Kabul before travelling to his home area is remote and not real despite finding that “Hazaras resident in Kabul may face risk of harm through targeted insurgent attacks”: CB 370 [45].
28) There are at least two difficulties with this ground.
29) First, legal reasonableness is concerned with the exercise of discretionary powers, not the making of factual findings. In so far as the applicant takes issue with the Authority’s fact-finding process at [27]-[28], [30]-[31] and [33]-[34] of his submissions, his argument is misconceived.
30) Secondly, and in any event, it was reasonably open to the Authority to make each of the impugned findings.
31) The first impugned finding was made in the light of the country information referred to at [25] above. In circumstances where the applicant did not claim to have had any other engagement with the government other than by fixing vehicles, accepted this work in the same way that he would from other local customers, there was no evidence to suggest that he prioritised government vehicles above local customers or performed the work as an expression of his political opinion or conscience (CB 362 [16]), it was reasonably open to the Authority to find, on the evidence, that the applicant worked on government vehicles for financial, not political, reasons.
32) The second impugned finding was justified not least on the basis that the applicant himself had contended that the Taliban had “an extensive network of spies and informants” and that he “will be located anywhere in Afghanistan”: CB 361 [9] (penultimate dot point). Further, the evidence revealed that the applicant continued to perform the same work, and lived in the same area, after he had allegedly been threatened by the Taliban: CB 363 [17]. In these circumstances, it cannot be said that there was no evidence upon which the Authority could not make the impugned finding.
33) The applicant’s attack on the third impugned finding overlooks the Authority’s extensive findings at CB 362-363 [15]-[21] and 366 [32]-[33], discussed elsewhere in these submissions, about the applicant’s not being of any relevant interest to the Taliban. In any event, the Authority concluded, at CB 363 [21], that the applicant is not “still of any interest to the Taliban in relation to his previous work, [o]r for any other reason” on a separate and independent basis, namely, that the Taliban had nothing more than a low-level interest in him at the time that he departed Afghanistan and, since that time, five years have elapsed and there is no indication that the Taliban have shown any interest in him during that time. For example, as the Authority found at CB 363 [20], the applicant’s wife and children have continued to reside in his home area and they have not received threats, faced harm, or been questioned by the Taliban.
34) The fourth impugned finding was reasonably open to the Authority to make given the fact that there was a strong military presence in Kabul, the government and security forces maintained effective control over the city and airport and that that would not change in the reasonably foreseeable future, and the amount of time that the applicant would be required to spend in or around Kabul was brief: CB 370 [45].
Conclusion
35) The amended application should be dismissed, with costs
First Respondent’s Additional Submissions
The First Respondent’s additional submissions in relation to the Federal Court decision in DFE16 v Minister for Immigration and Border Protection,[3] filed 12th November 2018, were as follows:
SUPPLEMENTARY SUBMISSIONS OF THE FIRST RESPONDENT
1) These supplementary submissions are made pursuant to the leave granted by Judge Neville on 22 October 2018. They address the judgment of Reeves, Rangiah and Colvin JJ in DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177.
2) In DFE16, the Full Court held that the primary judge did not make an appealable error in concluding that the Administrative Appeals Tribunal (Tribunal) did not fall into jurisdictional error in its application of the relocation test in s 36(2B)(a) of the Migration Act 1958 (Cth) (Act). That section provides that 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 “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”.
3) A question arose in DFE16 as to whether the Tribunal failed to have regard to “the appellant’s personal circumstances in combination with the fact that there was still a risk of harm … when considering whether it was reasonable for [him] to relocate” within his home country (at [48]). The Full Court answered that question in the negative (at [49]-[50]). Earlier in its reasons for judgment, the Full Court emphasised the distinction between the two limbs of the relocation test in s 36(2B)(a) of the Act (at [7] and [24]-[33]). Their Honours also noted, at [17], the judgment in Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 in which it was held that the Act incorporates a threshold of materiality in the event of non-compliance before an error of law can be characterised as jurisdictional.
4) Subject to one qualification, the issues that arose in DFE16 do not arise in the present case. Here, no question of the reasonableness of relocation arose in respect of ground 1 in the application. That ground, it will be recalled, took issue with the Authority’s application of the ‘real chance’ test in s 5J(1)(b) of the Act. Further, no finding was made by the Authority in the present case that the applicant had a well-founded fear of persecution if he were returned to his home region (in which case the Authority would have had to turn its mind to whether that fear extended to all parts of Afghanistan: cf s 5J(1)(c)). Nor was there any finding made in relation to the applicant’s claims for complementary protection that there was a real risk of significant harm if he were returned to his home region.
5) The Full Court’s reference to Hossain, however, is relevant to the present case. In his oral submissions at the hearing, the Minister advanced three responses to ground 1. The third response, it will be recalled, was that, even if the Authority made an error of law as argued by the applicant, such error was not jurisdictional because CB 369 [44] of the Authority’s reasons dealt solely with the question of generalised violence, which itself is insufficient to come within s 5J(1) of the Act. Hossain supports that submission. Here, any error made by the Authority (which the Minister does not concede but assumes for the purpose of this argument) was not jurisdictional because it could not possibly have deprived the applicant of a successful outcome on review (see at 788 [30] per Kiefel CJ, Gageler and Keane JJ, 795 [72] per Edelman J).
[3] DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177.
Consideration & disposition
Earlier in these reasons I set out each of the Grounds of Review, and the “particulars” in support of them. Here I need only to summarise each Ground of Review before setting out my reasons for the determination of the Court regarding them.
Ground 1 of the Amended Application complained that in its assessment and determination, adverse to the Applicant, and contrary to its statutory task, the IAA had applied a “relative” rather than an “objective” approach in assessing whether the Applicant could safely relocate to his home region of Surkh-e Parsa.
The Applicant relied heavily upon the decision of Moshinsky J in CID15 v Minister for Immigration and Border Protection (“CID15”).[4]
[4] CID15 v Minister for immigration and Border Protection [2017] FCA 780.
For the reasons given by the Full Court (Murphy, Mortimer and O’Callaghan JJ) in CGA15 v Minister for Home Affairs (“CGA15”), Ground 1 must be rejected.[5] In that case, at [23], their Honours approved of the approach of Moshinsky J in CID15 and made some additional comments, which I set out below.
[5] CGA15 v Minister for Home Affairs [2019] FCAFC 46.
At [22] – [28], the Full Court said (emphasis added):
[22] To satisfy the refugee
[23] The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk in one place is less severe than another place. It is plain that the mere fact that a person might be safer in place B than place A does not entail that the person does not face a real chance of persecution in place B. For example, if place A is very unsafe and place B is relatively safer it might still be the case that a person faces a real chance of serious harm in place B. What matters is the actual level of risk in any particular place: see CID15 at [35]. We respectfully agree with the approach taken by Moshinsky J.
[24] The focus of Ground 1 is the Tribunal’s reasoning behind its conclusion that the appellant can safely relocate to Islamabad or Rawalpindi. His argument is not directed to challenging whether it was open to the Tribunal to reach the conclusion that he could safely relocate to Islamabad or Rawalpindi; rather it focuses on whether the Tribunal applied the correct test. He seeks to draw a parallel between the Tribunal’s reasoning in the present case with the reasoning found to be flawed in CID15.
[25] The question as to whether the Tribunal's reasons disclose a misunderstanding or misapplication of the “real chance” test depends on the particular facts of the case and on a fair reading of the reasons, read as a whole and without an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). The Court’s focus must be whether having regard to the Tribunal’s reasons in this case it is more probable than not that the Tribunal misunderstood or misapplied the test. The appellant has the onus to show jurisdictional error: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [4] and [41] (SZMTA) (Bell, Gageler and Keane JJ).
[26] The mere fact that a decision-maker expresses his or her ultimate conclusions in terms which reflect the visa criterion (as the Tribunal did in this case) does not definitively show that it applied the correct test. In many cases the substantive part of the decision-maker’s reasons, rather than recitations in the introduction or conclusions, will be a more reliable guide as to whether the Tribunal applied the correct test. It is the reality not the appearance which matters: SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723; [2003] FCA 1387 at [30] (Mansfield J); see also Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 595 (Kirby J).
[27] For the reasons we now explain, we are not satisfied on the balance of probabilities that the Tribunal fell into error as alleged and we can see no appealable error in the primary judge’s rejection of Ground 1. Fundamentally this is because when the Tribunal’s reasons are read fairly and as a whole we are not persuaded that the Tribunal assessed the risk of harm that the appellant will face on a relative rather than an objective basis.
[28] It is central to our view that although the Tribunal expressed some findings as to the risk of harm the appellant would face in relative terms, it made other significant findings as to that risk in plainly objective terms…
Further, at [32], the Full Court in CGA15 concluded:
[32] On a fair reading we do not consider the Tribunal’s use of relative language at some points of its decision supersedes the objective findings it made, in particular its finding (at [40]) that outside of areas such as the appellant’s home region the risk of generalised and sectarian violence for Shias is objectively low. Unlike the decision in CID15 the Tribunal did more than merely recite the proper test in its conclusion; it made substantive findings and engaged in reasoning such that we are not persuaded that it misunderstood or misapplied the test.
As the submissions of the First Respondent, set out earlier in these reasons, make plain, and as noted in the summary of the IAA’s decision also, the IAA made a series of specific findings “on the evidence” in the current matter. In my view, the conclusion reached by the Full Court in CGA15 at [32] (set out above) applies equally here. Read in their entirety, which must be my approach, the IAA made “a series of findings” on the evidence, which, in my view, were plainly open to it. It is the series of findings which points clearly to the IAA making an objective assessment of the evidence, rather than (as alleged by the Applicant) the IAA having taken a “relative” approach.
In particular, as noted in the First Respondent’s submissions, the IAA’s relevant findings, which I accept, were as follows:
a) Most returnees from Australia are returned to Kabul airport: CB 368 [39].
b) Surkh-e Parsa is accessible from Bamyan Province: CB 368 [41].
c) The applicant has not claimed and there is no evidence before the Authority indicating that the applicant would not be able to finance a single airfare to Bamyan Province: CB 368 [41].
d) From Bamyan Province, the applicant could travel, by road, to Surkh-e Parsa through various districts which are either predominantly or significantly populated by Hazaras: CB 368-369 [42].
e) In 2016 and 2017, there were no attacks on returnees in areas through which the applicant would need to travel to reach Surkh-e Parsa: CB 369 [43].
f) The possibility of the applicant being harmed in relation to his being Hazara, Shia and/or any type of returnee on his single trip to Surkh-e Parsa is remote: CB 369 [43].
g) Surkh-e Parsa neighbours areas that have deteriorated in terms of their security situation: CB 369 [44].
h) While there are credible security concerns in parts of Parwan Province and other areas, “on the evidence” “Surkh-e Parsa remains relatively secure with very few security incidents in the past few years”: CB 369 [44].
i) The Authority was not satisfied that the risk of the applicant’s being harmed in generalised violence is more than remote: CB 369 [44].
j) The “chance” of the applicant being harmed in a targeted attack or through generalised violence in Kabul before travelling to his home area is remote: CB 370 [45].
Accordingly, Ground 1 in the Amended Application is not made out and must be rejected.
Ground 2 in the Amended Application avers that the IAA misapplied the “real chance test.”
Other than occasional passing reference, no submissions contain any outline of principle regarding either (or both) the “real chance test” or its application. Accordingly, I note the following.
In S395/2002 v Minister for Immigration and Multicultural Affairs, at [72] – [75], Gummow and Hayne JJ said (internal citations omitted; emphasis added):[6]
[72] It is well established that the Convention definition of "refugee" has subjective and objective elements. Does the applicant fear persecution for a Convention reason (the subjective element)? Is that fear well founded (the objective element)? The fear will be well founded if there is a real chance that the applicant would face persecution for a Convention reason if the applicant returned to the country of nationality.
[73] The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the "reasons of race, religion, nationality, membership of a particular social group or political opinion" that are engaged.
[74] Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
[75] Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant's country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.
[6] S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
More recently, in both CGA15 v Minister for Home Affairs and AKH16 v Minister for Immigration and Border Protection, differently constituted Full Courts have discussed the “real chance test” and its application.[7] For current purposes, it is sufficient to refer primarily to the comments of the Full Court in AHK16.
[7] CGA15 v Minister for Home Affairs [2019] FCAFC 46 and AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47.
At [46] – [50] in AHK16, the Full Court (Besanko, Middleton and Mortimer JJ) said:
[46] Reaching too readily for the label “remote” as a descriptor of risk may lead to error. Whilst we conclude on this appeal that the Tribunal’s findings were open to it in this particular case, it would not be correct to use “remoteness” as suggesting that to be well-founded, the harm feared by a person must be of an immediate or direct nature. Nor should a decision-maker go straight to the question of whether there is only a “remote chance” that the harm feared by an applicant will eventuate. That may lead a decision-maker inadvertently into a reasoning process relying on probabilities. It may subvert the Convention’s focus on the positive question as to whether there is a sufficient basis in the evidence to describe a person’s fear of persecution as “well-founded”.
[47] In addition, a decision-maker should not ignore the type of fear and the subjective fears of an applicant in the objective evaluation of whether the particular fear was well-founded. An applicant’s expression of her or his fear, and the circumstances in which it is claimed to arise, may inform the assessment of whether it is well-founded.
[48] However, the assessment of whether a person fears persecution on return to her or his country of nationality, must involve speculation about the future, and an assessment of the period of time to look into the future: see eg Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (‘Wu Shan Liang’) at 279 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[49] As Mortimer J stated in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60]:
The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.
[50] As we have said, there was no dispute as to these legal principles. The only questions to determine are how the Tribunal went about its task, and whether it fell into jurisdictional error. In considering whether objectively there is a well-founded fear, the decision-maker should not look to statistics or projections divorced from the fear as articulated by the applicant for a protection visa. At all times the decision-maker must look to the individual applicant’s circumstances to determine whether that applicant, in the circumstances to which she or he will return to her or his country of nationality, has a well-founded fear of persecution. Further, in considering whether the fear is well-founded, the Court must consider the totality of the circumstances. We do not think these matters are controversial in light of the authorities referred to above.
The comments by the Full Court in CGA15 quoted earlier in these reasons, in my view, apply equally here to Ground 2. In particular, the Full Court’s emphasis, at [22] – [32], on the importance on a “fair reading” of the whole of the reasons of the IAA should likewise be undertaken here. In my view, when this is done, at pars.15 – 21 of its reasons, and further at pars.32 – 33, the IAA assessed and made findings regarding the real and genuine risk faced by the Applicant. It did so by having proper regard to all the evidence put before it. Having thus performed its statutory task, in my view (a) the findings were relevantly open to it, and (b) for this Court to take this Ground of Review further would risk embarking upon the impermissible course of merits review.
Accordingly, Ground 2 is not made out.
Grounds 3 and 4 contend that the IAA asked itself the wrong question and or that it took into account an irrelevant consideration. These Grounds of Review are predicated upon [general] factual findings that (a) the threat to the Applicant came through a “friend”, and (b) the Applicant fixed vehicles (including government vehicles) solely for money, rather than for any political or other purpose.
In my view, having regard to the whole of the evidence, both findings were reasonably open to the IAA. It is difficult to comprehend why, or how, either finding was either improperly made or otherwise how it could amount to a claim that it constituted jurisdictional error. The fact that the Applicant was never threatened directly indicated a certain low level of interest in the Applicant, as the IAA found. It was but one factor, among a number of other considerations. Moreover, to ignore this fact – of a threat being communicated via a friend – would more likely amount to an error than having proper regard to it. The same comment applies to the IAA’s consideration of the prominence and circumstances of the Applicant fixing vehicles – including government vehicles: it was proper to consider this fact, among other matters. Not to have considered it would more likely have led to error.
Otherwise, I accept the Minister’s submissions. Accordingly, Grounds 3 and 4 have not been made out.
Ground 5 contends that the IAA’s decision was legally unreasonable because it “lacked evident and intelligible justification.”
While both parties rely or refer to the High Court’s well-known comments in Minister for Immigration and Citizenship v SZMDS, for current purposes, it is sufficient to note the detailed comments by Allsop CJ in Stretton regarding the jurisprudence in relation to legal unreasonableness.[8]
[8] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [121] - [129] and [135] – [136] (Crennan and Bell JJ); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1.
In Stretton, at [4] – [12], Allsop CJ said (Griffiths and Wigney JJ agreeing):
[4] In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, the High Court made clear that legal reasonableness or an absence of legal unreasonableness was an essential element in the lawfulness of decision-making; Parliament is taken to intend that statutory power will be exercised reasonably: see Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J).
[5] These statements of general principle in the three judgments (French CJ, and Hayne, Kiefel and Bell JJ, and Gageler J) variously drew upon and drew together a number of well-known expressions and bodies of principle including, and without repeating all citations: the Constitutional necessity for legal control of discretion (power): Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at 629-630; the necessary confinement, explicit or implicit, of any statutory discretion or power by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505; the implied legislative intention to condition statutory discretionary power by a requirement that it be exercised reasonably: Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1 at 36; Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510 at 554 [116]; Shrimpton at 620; South Australian Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Limited [1977] HCA 38; 139 CLR 449 at 466; and Minister for Aboriginal Affairs v PekoWallsend Limited [1986] HCA 40; 162 CLR 24 at 41-42; the necessity that a discretion be exercised according to the rules of reason and justice, not private opinion, according to law, and not humour, and within the limits that an honest and competent person would confine herself that is “legal and regular, not arbitrary, vague and fanciful”: Sharp v Wakefield [1891] AC 173 at 179; Shrimpton at 620; R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; 113 CLR 177 at 189; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 62 [9]; the illegitimacy of the exercise of a discretion in reaching a conclusion that no reasonable person could ever come to: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229, or where no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 at 1064; the requirement that the satisfaction or opinion of a decision-maker about the existence of a matter, in particular a jurisdictional fact, be reasonably formed: Council of the Municipality of Bankstown v Fripp [1919] HCA 41; 26 CLR 385 at 403; R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118119, (though not referred to in Li, Starke J in Boucaut Bay Company Limited (in liq) v The Commonwealth [1927] HCA 59; 40 CLR 98 at 101, approved by Windeyer J in Commissioner of Taxation of the Commonwealth of Australia v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; 128 CLR 28 at 57, said that reasonableness here meant not dishonestly, capriciously or arbitrarily and upon a rational ground for the belief); the settled principles of appellate review of judicial discretion in House v The King [1936] HCA 40; 55 CLR 499, and the guidance found therein in the analogy with judicial review of administrative action: Minister for Aboriginal Affairs v Peko-Wallsend Limited 162 CLR at 42; the principle that it is open to infer legal error if the result of the decision appears unreasonable assuming the correct question was addressed and the law was followed in the making of the decision: Avon Downs Proprietary Limited v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360; the principle concerned with unreasonableness in the exercise of delegated lawmaking power – if such laws were partial and unequal or manifestly unjust, or by operation they involved oppressive or gratuitous interference with rights that could not be reasonably justified: Kruse v Johnson [1898] 2 QB 91 at 99-100; and the fact that the conditioning of a power to be exercised reasonably has an analogy with the conditioning of the power with the obligation to afford procedural fairness: Gageler J in Li at [92].
[6] Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness. As was discussed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, the judgments in Li identified two different contexts in which the concept of legal unreasonableness was employed: a conclusion after the identification of jurisdictional error for a recognised species of error, and an “outcomefocused” conclusion without any specific jurisdictional error being identified: Singh at [44].
[7] It is in relation to the second context, the “outcomefocused” application of the concept, that precise definition, beyond explanation of the operative notion and of the legal technique by which to make the assessment, becomes productive of complexity and confusion. There is “an area of decisional freedom” of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. The boundaries can be expressed by the descriptions and explanatory phrases of the kind set out in [5] above.
[8] The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].
[9] The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
[10] This concept of legal unreasonableness is not amenable to minute and rigidly defined categorisation or a precise textual formulary. For instance, in argument, the submission was put that [76] of Li in the judgment of Hayne, Kiefel and Bell JJ contained two (different) “tests”: (1) if upon the facts the result is unreasonable or plainly unjust and (2) if the decision lacks an evident and intelligible justification. The submission reflected the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power, and of unnecessary and inappropriate categorisation. The plurality’s discussion of unreasonableness at [63][76] in Li should be read as a whole – as a discussion of the sources and lineage of the concept: [64][65], of the limits of the concept of reasonableness given the supervisory role of the courts: [66], of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits: [67], of the various ways the concept has been described: [68][71], of the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning: [72], of the place of proportionality or disproportion in the evaluation: [73]-[74] (as to which see also French CJ at [30] and see also McCloy v New South Wales [2015] HCA 34; 325 ALR 15 at [3] (French CJ, Kiefel, Bell and Keane JJ)), of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion: [75]-[76].
[11] The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
[12] Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
Then at [21], his Honour said (emphasis added):
… It is not a correct approach for the Court on judicial review to assess the lawfulness of the decision under s 501 by asking whether the exercise of discretion was necessary for the purpose. That an assessment whether the decision-maker’s conclusion was legally unreasonable may involve some consideration of disproportionality does not authorise the Court to decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable. The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion…
Having regard to Allsop CJ’s instruction in Stretton, especially at [21], for the following reasons, in my view, the IAA’s decision and the reasons it gave were reasonably open to it. This was particularly so in relation to the assertions made by the Applicant in relation to Ground 5.[9]
[9] See too the comments of the Full Court in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at [12], [15], [85] and [113] to the effect that “illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision.”
First, the impugned finding (also challenged in earlier Grounds of Review) regarding the Applicant’s “low profile”, based only on his fixing of government vehicles, was but one factor, among others, in the IAA’s assessment. And as already remarked, not to have made some assessment of his profile would, of itself, likely to have led the IAA into jurisdictional error. It was required to make proper assessment of the Applicant in the light of all the evidence. It did so. There was no relevant evidence that the Applicant worked on government vehicles for political motives or purposes. He was a mechanic. This was his means of living.
Secondly, at pars.16 – 21 and 32 – 33, the IAA found expressly, that (a) no direct threat or harm had been visited on the Applicant, (b) he had worked in the area without major difficulty for some time, (c) his family continue to live in the area, and (d) 5 years has now elapsed with no indication that the Taliban has shown any interest in the Applicant. In my view, read fairly and as a whole, these findings were more than open to the IAA. Both individually and collectively, in my view, these findings did not, and cannot, fall foul of the relevant tests for legal unreasonableness.
Thirdly, regarding the claim that the Applicant could face a targeted attack or generalised violence in Kabul before travelling to his home area, in my view, was also open to the IAA on the evidence. The IAA found that there was a strong military presence in Kabul, and that the government and security forces maintain effective control over the city and airport. Further, the time the Applicant would spend effectively in transit would be brief. Each and all of these considerations were, on the evidence, reasonably open to the IAA.
The Applicant’s complaint in Ground 5, in my view, amounts to impermissible review. In these circumstances, Ground 5 is not made out.
For the reasons given, the Amended Application, filed 31st August 2018, must be dismissed with costs payable to the First Respondent Minister in accordance with Schedule 1 Part 3 of this Court’s Rules.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 20 September 2019
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