BWT18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 222

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BWT18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 222

File number(s):	MLG 975 of 2018
Judgment of:	HER HONOUR JUDGE C.E. KIRTON KC
Date of judgment:	23 March 2023
Catchwords:	MIGRATION – Application for review of decision of Immigration Assessment Authority (“Authority”) – whether Authority failed to consider applicant’s claims to fear harm as a result of generalised violence in country of origin – where this claim was advanced in context of claims as a refugee – Authority cognisant that claims fell in consideration pursuant to complimentary protection regime – Authority making findings about risk of generalised violence – applicant also asserting findings made without evidence – Authority in fact making such findings – grounds of application not made out – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5J, 36
Cases cited:	Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227
Division:	Division 2 General Federal Law
Number of paragraphs:	49
Date of hearing:	15 March 2022
Place:	Melbourne (via video conference)
Counsel for the Applicant:	Mr M Guo
Solicitors for the Applicant:	Victoria Legal Aid
Counsel for the Respondents:	Mr J Barrington
Solicitor for the Respondents:	Sparke Helmore

ORDERS

MLG 975 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BWT18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:	23 MArch 2023

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The Amended Application filed on 23 February 2022 is dismissed, with costs.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

HER HONOUR JUDGE C.E. KIRTON KC:

INTRODUCTION

1. By an Amended Application filed on 23 February 2022, the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) dated 23 March 2018. The Authority affirmed a decision of a delegate of the First Respondent (Minister) to refuse the applicant a Safe Haven Enterprise Visa (SHEV).

   AGREED BACKGROUND

2. What follows is taken from the submissions of the Minister and from the Court Book (CB) and is not, as I understand it, controversial.

3. The Applicant is a male citizen of Afghanistan who arrived on Christmas Island as an unauthorised maritime arrival on 6 December 2012. On 29 November 2016 he lodged an application for the SHEV. He claimed: to fear harm from Anti-Government Elements (AGEs) on the basis of his religious and ethnic profile as a Hazara Shia; to fear harm based on imputed political opinion and profile as opposing the political aims of the AGEs, given his father was in a Hazara militia and family members had fought against the Taliban; to fear harm as a failed asylum seeker who has spent five years in Australia and would be perceived as westernised; and, more generally, if returned to Afghanistan he would be harmed on account of his ethnicity, religion, imputed support for the Afghan government and as a failed asylum seeker who had resided in Australia.

4. On 14 June 2017 the delegate of the Minister (Delegate) refused to grant the visa and the matter was referred to the Authority. On 23 March 2018 the Authority affirmed the Delegate’s decision. The Authority accepted that the Applicant’s father was involved in a local militia, likely a Hazara/Shia militia but was not satisfied that his father had ever been involved in fighting, no longer had an active role since at least 1990 and that the militia group was no longer in existence when his father returned to Afghanistan. In short, the Authority was not satisfied that the Applicant’s father had any continuing adverse profile with local Pashtun militias/groups of the Taliban. The Authority referred to the Applicant’s cousin having been a commander with the Afghan National Army (Army) but was not satisfied that the Applicant would be imputed with any such profile link to his cousin, given the fact that he had not been in Afghanistan in any material way for 20 years.

5. Having regard to country information and the Applicant’s profile, the Authority accepted that while there were security concerns in the province from where the Applicant comes originally, there was no real chance that the Applicant would face serious harm in his own home area for reasons of his religion or ethnicity or any other profile. The Authority noted that the Applicant would be returning first to Kabul, but would only be there briefly and rejected the Applicant’s claims based on his profile as a returned asylum seeker. The Authority found that the risk of harm as a result of generalised and insurgent violence in Afghanistan was remote so far as the Applicant was concerned and in any event would not be for proscribed reasons. The Authority likewise rejected the application put by the Applicant pursuant to the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).

6. The Amended Application before this Court contains three grounds, all of which are concise.  Since two of the grounds involve assertions that arise from a failure of the Authority to engage with the evidence in the case (or the lack thereof) it will be necessary to examine the materials before the Authority in some detail.

   GROUND 1 - THE [AUTHORITY] FAILED TO CONSIDER THE APPLICANT’S CLAIM CONCERNING THE RISK OF HARM DUE TO GENERALISED VIOLENCE IN URUZGAN.

7. To properly understand this application it is necessary, as so often when these sort of evidentiary issues arise, to look at what it was the Applicant actually said either himself or through representatives from time to time.

8. The Applicant’s initial iteration of his claims is in the statement accompanying his SHEV application at CB 52 and following. At [2] he observed that what followed was only a summary of his claims for protection and not an exhaustive statement of reasons why he could not return to his country of origin. He asserted that he was a Hazara and his religion was Muslim Shia and that he was born in Uruzgan state (CB 52). At CB 53 he stated that his father had taken all of the family to Pakistan in 1998 following Taliban invasion and control of Afghanistan and was committing atrocities to Hazaras. He stated that his father had been arrested by the Taliban while travelling with the Applicant’s cousins and friends and that all of them were beaten, apart from his father. The Taliban told his father that they knew he had been a soldier for Fayaz (a Hazara militia) and that if he was seen again on the road or anywhere he would be killed. His father told the Taliban he no longer had any weapons. At [17] he did state that his father had decided it was not safe to relocate in Afghanistan, as a cousin related to his father by marriage, who had been a commander in the Army, had his brother killed by the Taliban in front of the house in [a named city]. He described the dangers of living in Pakistan, the difficulties of living there as they were not Pakistani citizens and difficulties with working in Iran. At CB 54 under the heading “What I fear may happen to me, by who and why, if I return to Afghanistan”, the Applicant stated:

   23.      I cannot return to Afghanistan as Hazaras are being targeted in Afghanistan.

   24.      I have nothing to go back to, I had land, we do know what not know what         happened to our land.

   25.      I do have a sister living in Afghanistan but she is married and is living in [a        named] province, she was married before we left Afghanistan.

9. Relevantly, the Applicant went on to say at [27] and [28]:

   27.      I could not relocate to anywhere in Afghanistan and even returning to the          country as I am Hazara, and I am easily recognised as being Hazara.

   28.      There is no place that is safe for Hazaras in Afghanistan.

10. Following an interview with the Delegate on 16 May 2017 by teleconference, the Applicant’s representatives Playfair Visa and Migration Service (Playfair) sent a written submission on 22 May 2017. The written submission commences at CB 79. At CB 80 the following was set out:

    We submit that, separately or cumulatively[1], the essential and significant reasons for [the Applicant’s] fear of persecution is because of his:

    [1] This submission will adopt the definition of ‘Anti-Government Elements’ in the UN Assistance Mission in

    •Ethnicity and Religion

    •Anti-Government Elements (AGEs), in particular the Taliban and ISIS, will persecute [the Applicant] because he is a Hazara Shia.

    •Imputed Political Opinion

    •As a Hazara Shia whose father fought in a rural militia group, and cousin fought for the National Army, [the Applicant] will be perceived as opposing the political aims of AGES.

    •Membership of a particular social group

    •As a failed asylum seeker returning from Australia, [the applicant] will be perceived as “westernised” and supportive of the international community and thereby imputed with a political opinion in opposition to AGEs.

11. The submission went on to assert that as a result of these matters the Applicant faced serious harm amounting to persecution at the hands of AGEs including Taliban and Isis.

12. Much of the submission was concerned with issues, no longer relevant, to do with whether the Applicant had provided a bogus document in support of his application and whether or not he was indeed a citizen of Afghanistan rather than Pakistan. At CB 85 and following the submission dealt with the security situation in Afghanistan as a whole. It noted Taliban activity, inter alia, in Uruzgan province and referred to sectarian assaults on Hazaras by AGEs.  At CB 91 this was summarised as follows:

    Based on the above information we submit that there is a real chance that [the Applicant] will be subject to significant physical harm, abduction and/or death at the hand’s hands of AGEs, including Taliban and ISIS and/or Afghan authorities because of his Hazara ethnicity and Shia faith if returned to Afghanistan.

13. Submissions went on to traverse risks to the Applicant as a result of his father’s activities in the Fayaz and his cousin’s work with the Army.

14. The submission went on at CB 93 and following to deal with the Applicant’s risks as a person who had spent almost five years in a Western country as part of a particular social group. At CB 95 the matter was summarised as:

    Taking into consideration the prevalence of Taliban parallel judicial structures operating in certain provinces and the historical treatment of Hazaras, we submit that assessing the elements of [the Applicant’s] profile cumulatively, as an Hazara Shia who has spent time in an enemy country, and whose family are known to support the Afghan government, there is a high chance that [the Applicant] will be targeted by AGEs and killed by any one of the barbaric methods described by UNAMA if he is forced to return to a Taliban controlled area of Afghanistan.

15. The submission went on to deal with the question of relocation which is not presently relevant.

16. As earlier indicated, the Delegate refused the application for the SHEV on 14 June 2017 (CB 108 and following). Although a number of aspects of the decision have been overtaken by events, the kernel of the decision was that the Applicant could relocate to Kabul.

17. Playfair provided a further written submission to the Authority which is at CB 164 and following. At CB 166 the written submission relevantly asserted:

    The delegate has accepted [the Applicant] faces a real chance of harm if he returns to ... district due to his father having fought and protected the lands from Pashtun people. The delegate has accepted that in the Pashtun culture, feuds can last months, years and even span generations.[2]

    We refute the delegates assessment that our client does not face a real chance of persecution in Kabul. As discussed with the Post interview submission, our client has a number of factors which would lead him to be imputed with a pro western and Afghani government political opinion, and opposed to the territorial expansion of AGE militia groups as they attempt to create an Islamic Caliphate. We submit that [the Applicant] will be conspicuousness amongst the general population due to his inexperience of adult life in Kabul and having spent many years out of the country, picking up different mannerisms, and alterations to his accent, will also place him at further risk from AGE’s.

    Given the Taliban’s ability, through their network of spies and informants be able to gain information about [the Applicant’s] past, including that his father was involved with fighting for Fayuz, his previous encounter with the Taliban, links to ANA, and imputed political opinion will serve to heighten the risk of harm. We note that the delegate has stated that ‘the Taliban do not have the capacity to retain and distribute information about the applicant beyond a local network except by specific request.[3]’ As such we submit that given [the Applicant’s] profile and the suspicions he would draw on return, it could not be considered remote that a ‘specific request’ would be made into him.

    (Errors in original)

    [2] PVDR page 9.

    [3] PVDR page 13.

18. The submission went on to provide further information about relocation and at CB 169 articulated a claim made pursuant to the complementary protection provision in s 36(2)(aa) of the Migration Act. The submission stated relevantly:

    We submit that there are substantial grounds for believing that, as a necessary and foreseeable consequence of our client being removed from Australia to country, there is a real risk that they will suffer significant harm. The risk of significant harm is faced by our client personally due to his lack of experience of adult life in Afghanistan and that he would be considered as a ‘outsider’ who has no social of familial links within Kabul, and only a sister who remains within Afghanistan.

19. Under the heading “Conclusion”, relevantly it was asserted at CB 169:

    The mistreatment our client fears would reach the threshold of serious and significant harm and involve systematic and discriminatory conduct and would be by reason of the combined factors of his ethnicity and religion, imputed political opinion for holding ‘Pro West’ ideologies, and of his status as a failed asylum seeker return from a Western country. These would be the essential and significant reasons for the harm. Further we submit that the real chance of serious harm relates to all areas of Afghanistan including Kabul and effective protection measures are not available to the applicant.

20. It is of course the case, as the Applicant’s written submissions assert at [3], that the Applicant cited the generalised violence as a risk at CB 86-87 as part of his claims to fear harm throughout the whole of Afghanistan. As earlier indicated, this included Uruzgan province.

21. At [16] and following, the Applicant’s written submissions continue relevantly:

    A claim to generalised violence obviously does not engage the statutory refugee provisions, because it does not exhibit any nexus to the attributes of ‘race, religion, nationality, membership of a particular social group or political opinion’.[4] Instead, such claims falls to be considered within the complementary protection provisions of the Act (s 36 (2)(aa)).

    However, the [Authority] did not do this.

    Paragraphs 28 to 34 (CB 185 to 187) of the [Authority’s] reasons touch on Uruzgan but do not address the generalised violence claim, because those paragraphs are devoted to assessing the statutory refugee claims part of the visa application.  Paragraphs 35 to 40 (CB 187 to 188) concern travel on the roads and whether there was a real chance of harm in Kabul, with which this proceeding is not concerned.  Paragraph 41 contains the [Authority’s] synthesis of the preceding paragraphs and is where the [Authority] expressly anchors its conclusion as to chance of harm because of the security situation in Uruzgan directly the to “reasons of (the applicant’s) religion, ethnicity or any other profile”. Since the generalised violence claim was articulated as distinctly separate from any claim about religion, ethnicity or profile, it cannot be said that those paragraphs were where the [Authority] might have considered claim.

    [4] Migration Act 1958 (Cth), s 5J(1).

22. The Applicant’s written submissions went on to assert (at [20] to [21]) that nothing in the part of the Authority’s decision properly considered the generalised violence claim either under the refugee claim or the complementary protection claim.

23. The written submissions of the Minister relevantly assert at [25]:

    This ground cannot be sustained. The Authority considered the generalised violence claim at [51] and [52] of its reasons, then took those factual findings into account when assessing the complementary protection criterion at [57] and [59].

24. Put shortly, the submission was made that the claim had been considered in detail and that in regard to country information the Applicant was not anything other than at remote risk.

25. The written submissions of the Minister also assert that there is nothing surprising in the fact that the general generalised violence claim was considered under consideration of the refugee criterion as a result of the context in which that violence claim had been put forward.

26. What the Authority actually said at [51] to [52] was as follows:

    In relation to generalised and insurgent violence, I acknowledge the concerns of the representative that the situation in Afghanistan is serious and there has been a deterioration in the security situation in many parts of the country.[5]  I accept that Khas Uruzgan is not immune from insurgent attacks and civilian casualties, and the security and overall situation in Uruzgan is serious. I accept there are risks to civilians in the country, and his home area, but when having regard to the applicant’s lack of any profile or proximity to those with a risk profile, the lack of advice to suggest that a person with the applicant’s profile would be at a real chance or real risk of harm, even in a cumulative sense, and giving weight to the specific security assessment in the applicant’s home area (which principally relates to the insurgency),[6] I find the chance or risk of the applicant being seriously harmed in generalised or insurgent violence, is remote.

    On a separate and independent basis, in terms of generalised and insurgent violence, I accept that ordinary civilians have been victims in attacks, and that the number of security incidents and casualties in Uruzgan is not insignificant. However, on the basis of the information before me, I am satisfied that any remote chance of harm the applicant may face in relation to generalised or insurgent violence would also not be for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion, but rather a consequence of the ongoing insurgency as it impacts the country overall. Accordingly, in terms of the remote chance of the applicant being harmed in generalised violence, I find that s.5J(1)(a) and 5J(4)(a) would also not be satisfied.

    [5] UNAMA, "Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2016", 6 February 2017,

    [6] UNAMA, "Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2016", 6 February 2017,

1. In the following paragraph under the heading “Refugee: conclusion”, the Authority said:

   Looking to all the circumstances, I find there is no real chance of the applicant being harmed on the basis of his ethnicity, religion, his father’s past profile in Uruzgan, his cousin’s profile with the ANA, his time in the west (Australia) or Pakistan, or protection claims, any related actual or imputed political opinion or profile, or in generalised violence.

   The applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a).

2. The Authority went on to consider the complementary protection assessment. At [57] and [59] the Authority found:

   I have found there is no real chance of the applicant being harmed on the basis of his ethnicity, religion, his father’s past profile in Uruzgan, his cousin’s profile with the ANA, his time in the west (Australia) or Pakistan, protection claims, any related actual or imputed political opinion or profile, or in generalised violence. For the same reasons, and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, I am also satisfied there are not substantial grounds for believing that the applicant will face a real risk of significant harm for these reasons if he returns to and/or lives in his home area in Khas Uruzgan.

   ...

   While not necessary to conclude upon given my other findings, in terms of generalised and insurgent violence in the country, and having regard to his lack of any other adverse profile, I am satisfied these risks are faced by all citizens of Afghanistan. Thus, I am satisfied these risks are faced by the population of the country generally and are not faced by the applicant personally, and as such under s.36(2B)(c) there would also be taken not to be a real risk that the applicant will suffer significant harm in Afghanistan for these reasons.

3. Grounds of application such as the one under consideration here ultimately involve the Court looking at the relevant materials before the Authority and deciding whether or not the Authority has indeed fallen into the error asserted by the Applicant. It is axiomatic that the Authority’s reasons must be read fairly and as a whole.

4. In my view, the claim as to generalised violence was at least to a considerable extent wrapped up in all the other complaints that the Applicant made to ground his fears in the event that he would be sent back to live in Afghanistan. I accept the submission of the Minister that there is nothing surprising or untoward with the Authority dealing with the claim of generalised violence in the refugee section of the decision, given the way in which it had been put forward by the Applicant. As the Minister correctly submits, it is clear that the Authority was cognisant of the fact that this claim could only operate under the complementary protection provision.

5. The Authority made express findings about generalised violence at [51]:

   I find the chance of or risk of the applicant being seriously harmed in generalised or insurgent violence, is remote.

6. At [57] the Authority relevantly found:

   I have found that there is no real chance of the applicant being harmed on the basis (other matters omitted) ... or in generalised violence.

7. In the face of these findings, I do not think it can be fairly said that the Authority failed to address the Applicant’s claims insofar as they were based on risks of generalised violence in Uruzgan or indeed throughout the rest of Afghanistan in its entirety. This ground fails.

   GROUND 2 - THE [AUTHORITY’S] REASONING THAT THE APPLICANT LIVED IN AN “AFGHAN SHIA HAZARA COMMUNITY” WHILST IN PAKISTAN WAS WITHOUT EVIDENTIARY FOUNDATION

8. In the Applicant’s written submissions at [23] the starting point for consideration of this ground of application was described as:

   It will be recalled that in the submissions to the IAA, the point was made that the applicant would be conspicuous amongst the general population and to AGEs because the Applicant had not ever lived in Kabul and not lived in Afghanistan more generally (he last lived there in 1998).

9. In the submission sent to the delegate by Playfair the matter was touched on only briefly under the heading “Risk of harm to those perceived as Western” at CB 93:

   We submit that [the Applicant], faces an additional risk of harm due to his membership of a particular social group of people returning to Afghanistan after spending almost five years in a Western Country.

10. In the submissions sent to the Authority by Playfair, as earlier noted, at CB 166 the written submission asserted relevantly:

    We submit that [the Applicant] will be conspicuousness amongst the general population due to his inexperience of adult life in Kabul and having spent many years out of the country, picking up different mannerisms, and alterations to his accent, will also place him at further risk from AGEs.

    (As written)

11. At [46] to [49] (CB 189) the Authority relevantly found:

    As submitted, the UNHCR references reports of the potential risks and vulnerabilities of young persons with western connections or mannerisms returning to Afghanistan from the west. The representative suggests in the submission to the IAA that the applicant would be singled out because of his accent or mannerisms. The applicant did not detail any western or other culture, accent, connections or mannerisms he considered would put him at risk on return to Afghanistan. The applicant is in his mid-30s, having spent around sixteen years of his life living in Afghanistan, prior to moving to Pakistan. Even during his time in Pakistan, I find the applicant lived in an Afghan Shia Hazara community. He spoke with no difficulty through the interpreter at the interview. For those reasons, I am not satisfied he has any obvious accent or mannerisms that would put him at risk.

    Given his age when he left Pakistan and arrived in Australia, I am not satisfied he would have developed any significant traits or behaviours during his time in Australia that would link him to the west or indicate that he has lived outside of the country, or that he shares the same vulnerabilities of those identified by the UNHCR and the reports referenced by the representative. Those reports highlight the risks for those who return to Afghanistan from the west for the first time as adults and are inexperienced in the ways of living in the country, and are vulnerable to being targetted, or are isolated and unable to integrate.[7]  On the contrary, the applicant has some experience and familiarity in living Afghanistan, and living in Afghan Shia Hazara communities in Pakistan. Through those experiences, I consider he has demonstrated that he is able to live, work, connect and communicate effectively and safely in Afghanistan, and that he would not present with the vulnerabilities identified in the reports cited. I do not accept he would be seen as an outsider, or outside of the social norm. I also find the factors that link him to the west are likely to be limited and superficial. I consider there a few factors that would indicate the applicant has spent time in the west, or that would potentially impute him with a profile of having links to the government or international community, or any other related political opinion or profile. The applicant would be returning to an area where he has familial and tribal links, and I consider there would be less concern about his identity or suggestion he would be viewed with suspicion (or seen as a spy). In that context, I consider his time in the west (or Pakistan) would also be seen as unremarkable, particularly given the high numbers of Afghans that travel to Pakistan, Iran and the west for work and security reasons.[8]

    Weighing everything before me, when having regard to the risk profile identified by DFAT and discussed in the other reports before me, and in consideration of the applicant’s limited ties to the west, his familiarity with Afghan culture, and the limited reports before me which indicate that Afghans have been recently targetted for serious harm on the basis of their time in the west (Australia), having sought protection, or in relation to any actual or imputed profile or political opinion, I acknowledge there are risks, but I find there is no real chance of the applicant being seriously harmed for these reasons, or any related profile.

    On a separate basis, In terms of aspects of his profile that link him to his time in the west or Australia (for example any western clothing, work or travel history, the details of his protection claims, and/or related documentation), I am satisfied he could take reasonable steps to modify his conduct to avoid any future chance or risk of harm. I find he could do this through not openly discussing his time in Australia, by taking steps to protect or conceal any documentation or history that may link him to Australia, and by dressing and acting in a way that is consistent with other Afghans living in the country. I am satisfied there is nothing in his evidence to suggest he would be unable to, or could not or would not want to take such steps. I consider that any factors that link him to Australia are limited and in many respects superficial. In terms of his past work and travel to the west, I am satisfied these were opportunities undertaken by the applicant for economic and security reasons, and are not related to any political opinion or other motivation. I find that taking such steps would be reasonable and relatively minor challenges for the applicant on return to the country.

    [7] UNHCR, "Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan", 19 April 2016, CIS38A8012660.

    [8] UNHCR, "Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan", 19 April 2016, CIS38A8012660; DFAT, "DFAT Country Information Report - Afghanistan", 18 September 2015, CISEC96CF13366.

12. The Authority went on to note at [50]:

    [...] I am satisfied he could take reasonable steps to modify his behaviour to avoid what I consider to be an already remote chance of persecution for reasons of his time in the west (Australia), his claims for protection, or on the basis of any related imputed profile or political opinion.

13. The Applicant suggests that there was simply no evidence to support the finding the Authority made that the Applicant lived in an Afghan Shia Hazara community and assert at [26] of the Applicant’s written submissions:

    It cannot be said that this error is immaterial, in the sense had it not been made, the IAA would still have arrived at the same decision.

14. Submissions for the Minister at [33] assert that for a no evidence submission to succeed there must be absolutely no evidence capable of supporting the finding and that the finding was either a precondition to jurisdiction or a critical step.

15. The Minister’s written submissions at [37] assert:

    First, there was evidence supporting a finding that the Applicant had lived in an Afghan Shia Hazara community in Pakistan. The Applicant’s representative submitted that the Applicant spoke a “Pakistani dialect of Hazaragi” (CB 169), and it is open to infer from this that the Applicant spoke Hazaragi within his community in Pakistan (and therefore, that he was within a Hazara community in Pakistan). Further, at the interview with the delegate, the Applicant explained, after being shown a photograph of his brother, that his brother was wearing a uniform supplied by a group or community of Hazaras in Pakistan.[9]  He clarified that the people in this community were Afghan refugees.

    [9] Affidavit of Rachel Mason affirmed on 22 February 2022, page 32.

16. The Authority primarily relied upon by the Minister in support of the proposition that even a skerrick of evidence is enough is Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [31] where Tracy J said:

    The “no evidence” ground is available where legislation imposes a precondition to the exercise of jurisdiction and it is alleged that there was no evidence before the decision-maker which justified a finding that the precondition existed. The necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the condition existed (authority omitted). The ground will not be made out unless it is established that there was “ no evidence, or other material, to justify the findings of fact made”: see Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587 (per Weinberg J). The point is put more bluntly in Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (4^th ed, Thomson Reuters, 2009) p259 where the learned authors say that the “no evidence” ground ”cuts out when even a skerrick of evidence appears.”

17. The Minister is correct to submit that at CB 169 the Applicant’s advisers, Playfair, asserted (albeit in the context of a larger group) that the Applicant speaks a Pakistani dialect of Hazaragi. The Minister is also correct to refer to the photograph provided by the Applicant at interview and explained by him which confirms that his brother was in a group of Hazaras in Pakistan who were not related to the Pakistani government. This photograph appears at CB 106.

18. Put shortly, in these circumstances it cannot be said that there was not a skerrick of evidence at the very least to suggest to the Authority, permissibly, that the Applicant had lived in a Shia Hazara community in Pakistan. I accept the criticism advanced by the Applicant that the mere fact he was able to talk fluently to the interpreter at interview does not of itself necessarily ground logically the finding that he was living in Shia Hazara community in Pakistan. People may well understand the same language despite having different accents, as indeed is plainly the case in English. Nonetheless the Minister is correct to submit that there is evidence that would ground the finding.

19. Not only that, but this finding was merely one finding made amidst a tranche of other findings to which I have referred above. Even if it were made without evidence it was not in my view material in the sense of sufficiently dispositive of the Applicant’s overall claim to justify the criticisms made by the Applicant. This ground is also not made out.

    GROUND 3 - THE [AUTHORITY’S] REASONING THAT THE APPLICANT “SPOKE WITH NO DIFFICULTY THROUGH THE INTERPRETER AT THE INTERVIEW” WAS ILLOGICAL IN THAT IT HAD NO LOGICAL BEARING ON THE CLAIM THAT THE APPLICANT FEARED HARM BECAUSE HE WOULD BE CONSPICUOUS IN KABUL TO THE TALIBAN AND/OR AGES BY REASON OF HIS NON-LOCAL ACCENT AND ABSORBED WESTERN MANNERISMS

20. The criticisms advanced in the Applicant’s written submissions at [28] to [29] suggest that it was not open to the Authority to conclude that the Applicant “spoke with no difficulty through the interpreter at interview”. At [29] the written submissions continue:

    Further, and more fundamentally, whether or not the Applicant spoke with any ‘difficulty through the interpreter at the interview’ has no logical bearing on the Foreigner Claim. The point that was made in the submissions to the IAA concerning the claim was that the Applicant would be conspicuous in Kabul by reason of having a non-local accent and absorbed western mannerisms, amongst other things. The Applicant’s ability or inability to communicate through the interpreter had no bearing on whether the Applicant would be conspicuous in Kabul by reason of having non-local accent and absorbed western mannerisms.

21. I have already referred above to the fact that I do not think that the mere fact that the Applicant had conversed readily with the interpreter would necessarily support the finding that he had lived in a Shia Hazara community in Pakistan. Nonetheless if one looks at the transcript to which reference has been made, annexed to the affidavit of Rachel Mason, sworn 22 February 2022, it is apparent from that transcript that the Applicant was having no difficulty in his inter-communication with the interpreter. In my view, so much is plain from the transcript of the interview itself. The Applicant was asked at page 5 of the transcript, “Do you understand the interpreter?” and responded, “Yes”. He had no objection to using this interpreter as the interpreter for the interview (transcript, page 6) and had already been told by the reviewer at page 5 of the transcript, “If you do not understand the interpreter or you think they do not understand you, please let me know by raising your hand”. There is no indication in the remaining pages of the transcript, which run up to page 50 of the affidavit, that there are any difficulties with the interpretation. The finding that the Applicant spoke readily enough with the interpreter seems to me to have been well open to the Authority.

22. Furthermore, as the Minister’s submissions correctly observe at [44], the finding as to interactions with the interpreter was in no way the only basis upon which the Authority concluded that the applicant would not be conspicuous in Kabul. I have already set out above the detailed findings that the Authority made in this regard. Even if the finding is open to the criticism advanced by the Applicant, which as I indicate I do not accept, it would not be a material, in the sense of sufficiently dispositive, finding to vitiate the Authority’s decision as a whole.

    CONCLUSION

23. As none of the grounds of application are made out the application will be dismissed with costs.  There is no reason why costs should not be assessed on scale apparent to me. If either party seeks to agitate any other result they should forward written submissions to my Chambers within 14 days limited to no more than three pages.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC

Associate:

Dated: 23 March 2023           

Afghanistan (UNAMA), Afghanistan: Annual Report 2015, Protection of Civilians in Armed Conflict, February
2016, available at: [accessed 18 April 2017]: “‘Anti-Government Elements’ encompass all individuals and armed groups involved in armed conflict with or armed opposition against the Government of Afghanistan and/or international military forces. They include those who identify as ‘Taliban’ as well as individuals and non-State organised armed groups taking a direct part in hostilities and assuming a variety of labels including the Haqqani Network, Hezb-e-Islami, Islamic Movement of Uzbekistan, Islamic Jihad Union, Lashkari Tayyiba, Jaysh Muhammed, groups identifying themselves as ‘Daesh’ and other militia and armed groups pursuing political, ideological or economic objectives including armed criminal groups directly engaged in hostile acts on behalf a party to the conflict”.

CISEDB50AD201; UNSC, "The situation in Afghanistan and its implications for international peace and security", 15 September 2017, CISEDB50AD5770.

CISEDB50AD201; EASO, "EASO Country of Origin Information Report Afghanistan Security Situation November 2016", 1 November 2016, CIS38A80122597.