BXF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 573
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BXF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 573
File number: MLG 902 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 18 July 2022 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority misconstrued or misapplied relevant statutory tests in ss 5H, 5J and 36 of the Migration Act 1958 (Cth) – whether Authority decision was illogical, irrational or unreasonable – reasonableness of relocation – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 5J, 46A, 473CA, 476 Cases cited: AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457; [2018] FCAFC 106
BJI17 v Minister for Home Affairs (2020) 276 FCR 258; [2020] FCAFC 58
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
CRI028 v Republic of Nauru (2018) 356 ALR 50; [2018] HCA 24
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairsv Rajalingam (1999) 93 FCR 220, [1999] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 28 March 2022 Place: Perth Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: AUM Lawyers Counsel for the First Respondent: Mr V Murano Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 902 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BXF17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
18 JULY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The application is dismissed.
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
JUDGE LADHAMS:
INTRODUCTION
Before the Court is an application for judicial review of a decision made by the Immigration Assessment Authority (Authority) on 30 March 2017. The Authority affirmed a decision made by a delegate of the Minister not to grant the applicant a protection visa. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on an amended application which contains three grounds. I have found that the grounds raised by the applicant do not establish jurisdictional error and I therefore dismiss the application to the Court.
BACKGROUND
The applicant is a citizen of Afghanistan. He entered Australia at Christmas Island in August 2012 without a visa and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 14 November 2015 the Minister’s Department sent to the applicant an invitation to apply for a protection visa. The letter advised the applicant that the Minister had exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1) which had, until that time, prevented him from applying for a protection visa.
On 2 December 2015 the applicant lodged a valid application for a Safe Haven Enterprise visa, which is a type of protection visa. He claimed that he would face harm if he returned to Afghanistan from the Taliban and other extremist groups on account of his Shia Muslim faith and his Hazara ethnicity. He also claimed that he would be harmed by a person named M, who had a history of disputes with the applicant’s family over family land, accused the applicant of sexually assaulting two girls in his village in 2009 and, although he is of Hazara ethnicity, is paid by the Taliban.
On 5 April 2016 the applicant attended an interview with an officer of the Department to discuss his claims for protection. The applicant’s lawyer provided a lengthy written post-interview submission to the Department on 21 April 2016.
On 21 September 2016 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
The applicant, through his representative, provided a submission to the Authority on
21 October 2016.
On 30 March 2017 the Authority affirmed the decision not to grant the applicant a protection visa.
AUTHORITY DECISION
The Authority accepted that the applicant is a national of Afghanistan of Hazara ethnicity and is a Shia Muslim who originates from the Jaghori District.
The Authority did not accept that the applicant had ever been accused of rape, that his family had a land dispute with M or that the applicant would face a real chance of harm from M, the Taliban or anyone else for any reason associated with a land dispute or rape allegations. This finding was based on the lack of detail in the applicant’s evidence about the land dispute between his father and M, inconsistencies in the applicant’s written claims and his evidence at the interview with the delegate, and the implausibility of the authorities in Jaghori tolerating the presence of M if he was a Hazara who is against Hazaras and collaborating with the Taliban.
The Authority was satisfied that the applicant would face a real chance of being abducted and killed if he attempted to return to his home area, as he would be required to travel overland and there was a high risk to Shia Hazaras travelling by road.
However, the Authority identified that pursuant to s 5J of the Migration Act, the real chance of persecution must relate to all areas of the receiving country, and was not satisfied that the applicant would face a real chance of serious harm in Kabul. The Authority’s reasons for this finding are summarised below.
(a)Having rejected the applicant’s claim to have ever been involved in a land dispute with, or to have been threatened by, M, the Authority did not accept that the applicant would face a real chance of harm from M, or any other actor, in Kabul or anywhere else.
(b)The Authority accepted, based on country information, that there may be occasional mass casualty attacks in Kabul, but was not satisfied that such attacks would give rise to the applicant facing a real chance of harm as a Shia Hazara in Kabul. In reaching this finding, the Authority took into account that:
(i)the applicant did not claim to have ever been politically active;
(ii)there was no evidence to suggest that upon return to Afghanistan he would have any interest in attending a public demonstration;
(iii)he did not regularly attend a mosque; and
(iv)Shia Hazaras accounted for 40 to 50 percent of Kabul’s population and this community and its places of worship are dispersed across many suburbs in western and south-western Kabul.
(c)The Authority found that the applicant would arrive in Kabul as a single able-bodied man without vulnerabilities and with family connections in Kabul.
(d)Based on advice from the Department of Foreign Affairs and Trade (DFAT), the Authority found that the applicant faced a low risk of violence as a low profile Hazara who had spent time in a western country.
(e)After considering country information, the Authority was not satisfied that the applicant would face a real chance of harm as a result of generalised violence in Kabul.
(f)The Authority accepted that the applicant might face some discrimination in the employment market in Kabul but was not satisfied that he would, on this basis, face a real chance of being denied the capacity to subsist or otherwise suffering serious harm.
Accordingly, the Authority concluded that the applicant did not meet the definition of a refugee in s 5H(1) of the Migration Act and therefore did not meet the requirements of s 36(2)(a).
In considering the complementary protection criteria, the Authority relied on the same factual findings summarised above to find that:
(a)the applicant faced a real risk of significant harm on the roads if he attempted to return to his home area; and
(b)the applicant would not face a real risk of suffering significant harm in Kabul.
The Authority found that it would be reasonable for the applicant to relocate to Kabul, taking into account the applicant’s overall circumstances, and the livelihood and security situation (including in relation to generalised violence) in Kabul more broadly. The Authority’s consideration of the reasonableness of relocation to Kabul included the following observations and findings:
(a)while the applicant may suffer discrimination in the Kabul employment market by reason of being a Shia Hazara and or as a consequence of not being a member of a particular family or tribal group, this discrimination would not result in him facing a real risk of significant harm;
(b)country information indicated that new arrivals in Kabul without family support may find themselves in a situation where employment is irregular or often insecure, but infrastructure in Kabul is better than almost anywhere else in Afghanistan and it is possible for a single able-bodied man to relocate without the advantage of social connections;
(c)the applicant would be relocating to Kabul as a single able-bodied man without vulnerabilities, he has successfully found work in Iran while residing there unlawfully, and he has been employed as a tiler in Australia and as a welder in Afghanistan;
(d)the applicant has a cousin in Kabul who provided him with assistance in the past, and the Authority found that he could overcome the challenges of relocating without such assistance, given that he can read and write in Hazaragi and Dari, he successfully found accommodation and work while in Iran and in Australia, and he has experience working as a welder in Afghanistan; and
(e)the applicant has proven that he is willing and able to support his wife and three children by living and working apart from his family for extended periods of time, having done this from Iran and Australia.
The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Afghanistan, there was a real risk that the applicant would suffer significant harm. He therefore did not meet the criteria in s 36(2)(aa) of the Migration Act.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings in this Court by way of an application filed on 3 May 2017. On 10 March 2022 the applicant filed an amended application.
The amended application abandons ground 1 of the original application. The applicant now raises the following three grounds of review:
2. The Second Respondent (“the Authority”) misconstrued the meaning of s 5J(1)(c), 36(2)(aa) and 36(2B)(a) of the Migration Act 1958 (“the Act”) and thereby applied an incorrect test as to whether there was a real chance that the persecution feared by the Applicant “applied to all areas of [the] receiving country”, or an area of the country where there was not a real risk of significant harm, and thereby failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction, to review the decision of a delegate of the First Respondent,
Particulars
(a)Given the material and information before the Authority, it was not open to the Authority correctly interpreting and applying the term “real chance of persecution” in section 5J(1)(c) of the Act to find, as it did, that there was not a real chance of the Applicant suffering persecution in Kabul in the reasonably foreseeable future. (Court Book (“CB”) 333-343, [15]-[34]).
(b)Further or in the alternative to Particular (a), it was not open to the Authority correctly interpreting and applying the term “real risk” of significant harm in section 36(2)(aa) and 36(2B)(a) of the Act to find, as it did, 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”, namely Kabul. (CB 343-346, [40]-[46])
3. The Second Respondent misconstrued the definition of “refugee” set out in s 5H and 5J(1)(b) of the Migration Act 1958 , and the definition of “real risk of significant harm” in sections 36(2)(aa) and 36(2B)(a) of the Act and thereby failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction, to review the decision of a delegate of the First Respondent, by failing to consider the Applicant’s claims by reference to the “real chance” or “what if l am wrong?” test.
Particulars
(a)The Applicant refers to and repeats the matters set out in the particulars to Ground 2.
4. The decision of the Second Respondent to affirm the decision of a delegate of the First Respondent was legally unreasonable.
Particulars
(a)The Authority did not have a logically probative basis to reject the Applicant’s claim that there was a land dispute between his father and another Hazara man which resulted in the Applicant being falsely accused of rape, and attacked, and which caused him to have a well-founded fear of persecution or a real risk of significant harm. (CB 331-333, [9]-[12], [15])
(b)It was unreasonable for the Authority to find that it was reasonable for the Applicant, a married man with children, to settle permanently in Kabul alone and without his family, and without seeking to live again with his family. (CB 345-346, [44]-[46])
(c)The Applicant refers to and repeats the matters set out in the particulars to Ground 2.
CONSIDERATION
Both parties have addressed ground 3 first, followed by ground 2 and then ground 4. I will likewise consider the grounds in that order.
Ground 3
By ground 3, the applicant asserts that the Authority misconstrued the meaning of ‘refugee’ in ss 5H and 5J(1)(b) of the Migration Act, and the meaning of ‘real risk of significant harm’ in ss 36(2)(aa) and 36(2B)(a), and therefore failed to properly exercise its jurisdiction, by failing to consider the applicant’s claims with reference to the ‘real chance’ or ‘what if I’m wrong?’ tests.
In support of his ground, the applicant referred to the description of the ‘real chance’ test in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 (Chan) and submitted that there can be a ‘real chance’ of serious harm even if that chance is ‘small’. In Chan, the High Court said at [12]:
… If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
The crux of the applicant’s submission in relation to this ground is set out at [29] of his written submissions, where he said:
It is submitted that, given the material before the Authority, including the material which it noted of recent attacks in Kabul, including attacks on Shias at a religious celebration, and many deaths as a result, it could not reasonably come to the conclusion that it did by applying the “real chance” test required by section 36(2)(a) and 36(2)(aa).
In oral submissions, counsel for the applicant took the Court to various submissions and extracts of country information that the applicant had submitted to the Department and the Authority, and it was this information that was said to make it unreasonable for the Authority to find that the applicant would not face a real chance of serious harm or a real risk of significant harm in Kabul. The applicant by this ground appears to focus primarily on the Authority’s findings in relation to the security situation in Kabul, and in particular the chance of harm that the applicant would face as a Shia Hazara.
The applicant cannot establish that the Authority reached a conclusion that was unreasonable, or otherwise misunderstood or misapplied the statutory tests, simply by identifying some information before the Authority that favoured his case. I have carefully considered the country information that counsel for the applicant referred me to at the hearing and the reasons given by the Authority to justify its finding that the applicant would not face a real chance of serious harm or a real risk of significant harm in Kabul. Having done this, I accept the Minister’s submission that the findings of the Authority were open to it based on probative evidence and did not involve the illogicality or irrationality necessary for a decision to be affected by jurisdictional error: see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [60]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [131].
The Authority considered the country information provided by the applicant at length and then provided reasons as to why, in spite of this country information, the Authority still formed the view that the risk of harm that the applicant may face would not reach the requisite standard of a real chance of serious harm. The Authority relied on the same consideration of country information and findings for the purposes of finding that the applicant would not face a real risk of significant harm in Kabul.
In relation to the chance of harm that the applicant may face as a Shia Hazara, the Authority’s reasons are set out in detail at [17] to [20] of its reasons (footnotes omitted):
17.While members of local Taliban networks have been accused of abducting or otherwise attacking Shia Hazaras travelling roads through insecure rural areas, credible sources do not suspect the Taliban of having perpetrated attacks against the Shia Hazara community in major cities like Kabul in recent years. Afghanistan’s major cities have, however, seen occasional mass casualty attacks perpetrated against Shia Muslim and/or Hazara gatherings by other groups. Prior to 2016, the most significant attack of this kind was the December 2011 bomb attack upon Kabul’s Abu Fazl Mosque during Shia Muslim Ashura commemorations perpetrated by the Pakistani militant group Lashkar-e-Jhangvi (LeJ). In February 2014 there was an attack on an Ismaili (Shia) cultural centre in Kabul which killed one security guard. In March 2015 gunmen entered a Sufi mosque in the Kabul suburb of Company and killed 11 worshippers. In the preceding year there had been reports of men distributing Islamic State propaganda in the same locality. In October 2015, in the lead up to Ashura, one person was killed and several wounded at a Shia place of worship in Chandawal. On 23 July 2016 two explosions occurred in central Kabul targeting a peaceful demonstration of Hazaras, killing at least 85 people and wounding over 400 others. The attack was the single most deadly incident in Kabul since the fall of the Taliban in 2001, and the largest single attack on Hazaras since the Ashura Day attack in 2011. The Taliban was quick to deny any involvement and to condemn the attack. The Islamic State in the Khorasan Province (ISKP) claimed responsibility, identifying the intended targets as “Shia” (of which most Hazara are adherents) and stating that it would continue to target Shia groups. Some two months later, on 11 October 2016 on the eve of the Shia holy day of Ashura, a gunman killed some 18 Shia Muslims and wounded over 50 at the Kabul’s Kart-e Sakhi Shia shrine. A month later, on 21 November 2016 on the Shia holy day of Arbaeen, a bomb attack on a Shia Mosque in the west Kabul suburb of Char Qala, in the in the Darulaman area, killed some 30 worshippers and wounded more than 80. Islamic State again claimed responsibility while the Taliban condemned the attacks.
18.Following the major attack of 23 July 2016, DFAT observed that it was too early to say if this was an isolated incident, or if it represented a change in the modus operandi of insurgents by introducing a sectarian dimension to attacks; or if it heralded the beginning of a targeted and sustained campaign in Afghanistan by groups pledging allegiance to Islamic State. On 24 July 2016 Professor William Maley wrote, in support of the asylum claims of Afghan Shia Hazaras in Australia, that given the fluidity of the situation in Afghanistan it is a serious mistake to conclude that Afghanistan is safe for Hazaras, and that the disposition of extremists to strike at them has not disappeared, and that the simplistic and superficial conclusion that Kabul offers a safe or meaningful relocation option for Hazaras should be avoided. As has been noted above, two further attacks of this kind subsequently did occur in Kabul on the eve of Ashura on 11 October 2016 and on Arbaeen on 21 November 2016. In the aftermath of the 11 October 2016 attack, Human Rights Watch (HRW) expressed the view that these targeted attacks on Shia Hazaras have yet to reach the frequency and severity of those faced by the community in Pakistan, but do underscore their increasing vulnerability, even in big cities under firm government control. The Afghan Analysts Group observed that the attacks perpetrated in 2015 and 2016 indicated that Islamic State had gained the capability of carrying out fatal attacks against Shias on an occasional basis in the capita1. In February 2017 the UN Assistance Mission in Afghanistan (UNAMA) reported that it was extremely concerned by the 2016 expansion in Afghanistan of groups pledging allegiance to Islamic State (or Daesh), notably the Islamic State Khorasan Province (ISKP), and the increased ability of Daesh/ISKP to conduct large, deadly attacks against civilian targets in Kabul city, a trend that emerged in July 2016, prior to which all Daesh/ISKP civilian casualties had occurred in Nangarhar province.
19.I consider that the emergence in Afghanistan of groups pledging support to Islamic State and conducting occasional mass casualty attacks against the Shia Hazaras in Kabul and elsewhere has raised the overall level of risk faced by Shia Hazaras in Afghanistan. Within the foreseeable future there may be further occasional mass casualty attacks in Kabul like those which occurred on 11 October and 21 November 2016 at Kabul Shia mosques, and at the Kabul Shia Hazara demonstration of 23 July 2016. However, I am not satisfied that the overall increased level of risk will mean that the applicant will face a real chance of harm within the foreseeable future for reason of his being a Shia Hazara. The applicant does not claim to have ever been politically active and there is no evidence before me to indicate that upon return to Afghanistan he would, in the future, have any interest in attending a public demonstration like that which was attacked in central Kabul on 23 July 2016. I accept that the applicant is a Shia Muslim, and although the applicant indicated at his SHEV interview that he does not regularly attend mosque he did state that he attends Muharram (which includes the commemoration of Ashura). I accept that where attacks have been staged against the Shia Hazara population in Kabul they have most often been staged during Muharram. Nevertheless, given the current and foreseeable extent of the attacks perpetrated against Shia Muslims and Shia Hazaras in Kabul, given the size of Kabul’s Shia Hazara population (estimates of the Hazara population in Kabul vary between around 1.6 million to two million, or 40-50 per cent of Kabul’s population), and the dispersal of this community and its places of worship across many suburbs in western and south-western Kabul, and given that I do not accept that the applicant is currently of specific interest to Islamic State or any other insurgent group as an individual, I am not satisfied on the evidence that, for the foreseeable future, the prospect of the applicant suffering harm in Kabul from an insurgent group, like Islamic State or the Taliban, for reason of his being a Shia Hazara, reaches that of a real chance.
20.Nor does the evidence indicate that the applicant would face a real chance of suffering serious harm from any other actor in Kabul for reason of his being a Shia Muslim and/or a Hazara. Notwithstanding the attacks noted above, Shia Hazaras in Kabul are able to freely practise their Shia faith and to go about their daily lives alongside significant numbers of Tajiks, Pashtuns and minority ethnic groups. Instances of inter-ethnic or sectarian violence between Kabul’s various communities have proven to be rare in recent years. A rare outbreak of such violence did occur in November 2012 when a group of Sunni students at Kabul University attempted to prevent (predominantly Hazara) Shia students from observing Ashura. The confrontation led to violence, leaving at least one student dead and at least eight more wounded. Another occurred in August 2010 in the Hazara dominated suburb of Dasht-e Barchi (District 13) when clashes between Hazara and Kuchi groups were triggered after a Hazara politician attempted to allow more Hazara families access to land in an area which was already inhabited by a Kuchi community, and who attempted to stop the plan through a violent confrontation resulting in several deaths. Nevertheless, DFAT has commented that, although ethnicity may also be a factor in tension over land issues in Kabul, ethnic-based violence in Kabul is rare, and recent years have not seen a repeat of such communal clashes. I am not satisfied that there is a real chance that the applicant would suffer harm as a consequence of such communal violence in Kabul for reason of his being a Shia and/or a Hazara.
It can be seen from this extract that the Authority carefully detailed the mass casualty attacks in the years before its decision at [17] and commentary on the consequences of such attacks at [18]. At [19] the Authority found that there was an increase in the overall level of risk faced by Shia Hazaras in Afghanistan, and acknowledged that there may be further occasional mass casualty attacks in Kabul in the foreseeable future. The Authority then went on to explain why this increased risk was still not enough to amount to a real chance of serious harm for the applicant. The reasons given by the Authority at [19] consider the specific circumstances of the applicant and provide a plausible justification for why the prospect of the applicant suffering harm from an insurgent group for reason of being a Shia Hazara did not reach that of a real chance. At [20] the Authority concluded based on country information that the risk of harm to the applicant from communal violence did not amount to a real chance of serious harm. These paragraphs disclose no unreasonableness, illogicality or irrationality and do not establish that the Authority misunderstood the relevant statutory tests.
The Authority’s consideration of the risk of harm to the applicant from generalised violence is set out at [30] to [32] of its reasons. The Authority carefully considered country information regarding the decline in security conditions across Afghanistan in 2015 and 2016, including in Kabul. Based on country information, although the Authority accepted that Kabul was one of the most dangerous cities in the world, it found that most attacks take place in central areas of the city where Afghan and international government and security personnel work, reside and frequent, rather than the areas of Kabul that are heavily populated by Shia Hazaras. The Authority also considered country information about the level of crime in Afghanistan and the likely ability of the applicant to be able to avail himself of the assistance of family members in Kabul in concluding that the applicant would not face a real chance of serious harm from generalised violence. Again, the Authority’s reasons disclose a plausible and intelligible rationale for its findings. The Authority’s findings in relation to the risk of harm from generalised violence are not unreasonable, illogical or irrational and do not establish that the Authority misunderstood or misapplied the relevant statutory tests.
The ground as pleaded by the applicant also refers to the Authority failing to consider the ‘what if I am wrong?’ test. The applicant does not appear to have advanced any submissions in support of this aspect of the ground. For completeness, I accept the Minister’s submission that this part of the pleading appears to be a reference to the principle in Minister for Immigration and Multicultural Affairsv Rajalingam (1999) 93 FCR 220, [1999] FCA 719 at [63]-[67], which does not arise in the current matter because the Authority did not express any real doubt as to whether its findings as to the past events were correct.
Ground 3 is not established.
Ground 2
Ground 2 as pleaded asserts that the Authority misapplied ss 5J(1)(c), 36(2)(aa) and 36(2B)(a) of the Migration Act in considering whether the applicant’s fear persecution extends to all areas of Afghanistan, or whether there was an area of Afghanistan where there was not a real risk of significant harm. Particular (a) suggests that in the light of the material and information before the Authority, it was not open to the Authority to find that there was not a real chance of the applicant suffering persecution in Kabul. Particular (b) relates to the Authority’s consideration of the complementary protection criteria and asserts that it was not open to the Authority to find that it would be reasonable for the applicant to relocate to Kabul.
There is no dispute between the parties that for the purposes of the refugee criteria in s 36(2)(a), the Authority was required to consider whether the real chance of persecution relates to all areas of the receiving country, and did not need to consider whether it would be reasonable for the applicant to relocate to an area where he did not have a well-founded fear of persecution. For the purposes of the complementary protection criteria in s 36(2)(aa), the Authority was required to consider whether it was reasonable for the applicant to relocate to Kabul: see s 36(2B)(a); BJI17 v Minister for Home Affairs (2020) 276 FCR 258; [2020] FCAFC 58 at [10]-[11].
To the extent that the ground asserts that the material before the Authority was such that the Authority could not reasonably conclude that the level of harm faced by the applicant in Kabul did not amount to a real chance of serious harm or a real risk of significant harm, it is not established. The Authority’s reasons, summarised above, provided a plausible justification for its findings and do not demonstrate any unreasonableness, illogicality or irrationality. Insofar as the materials before the Authority that were said to make the Authority’s findings unreasonable relate to country information, this has been addressed at length in relation to ground 3 above. To the extent that the Authority rejected some of the factual assertions made by the applicant about past incidents, in particular about the family land dispute and the risk of harm from M, the reasons given by the Authority for rejecting these claims clearly set out a logical rationale for the findings.
The main submission advanced by the applicant as to why it was not open to the Authority to conclude that the applicant could reasonably relocate to Kabul was that he would be permanently relocating to Kabul without his wife and children. In advancing this submission, the applicant relied on CRI028 v Republic of Nauru (2018) 356 ALR 50; [2018] HCA 24 (CRI028) at [49]-[62], in which the High Court found that the decision-maker erred by not considering at all in its assessment of relocation that the applicant had a wife and child, and that the wife had raised particular reasons as to why she did not wish to relocate to a particular area. I accept the Minister’s submission that the present case is distinguishable from CRI028.
The Authority in the present matter was clearly mindful that the applicant’s immediate family had resided in Pakistan since mid-2009. The Authority considered the position of the applicant’s family at [24] of its reasons and, while it accepted that the applicant genuinely wished to see his family, the Authority noted that the applicant’s family remained in Pakistan while the applicant worked in Iran and sought asylum in Australia. The Authority considered that if the applicant were to return to Afghanistan, his family would remain in Pakistan.
In considering whether it would be reasonable for the applicant to relocate to Kabul, the Authority took into account at [44] of its reasons that the applicant’s family lived in Pakistan and the applicant would arrive in Kabul as a single able-bodied man without vulnerabilities. At [45] the Authority considered a submission advanced by the applicant that he has to support his wife and three children. The Authority said:
It has also been submitted that the applicant has a large family which he needs to support. I note, however, that the applicant has previously proven willing and able to support his wife and three children by living and working apart from his family and that he has done this from Iran and from Australia. Given the applicant’s demonstrated ability to find accommodation and employment in places like Iran where he worked unlawfully, and to nonetheless provide the necessary support to his family in Pakistan, I consider that the applicant will similarly prove able to provide support of this kind to his family from Kabul and that it would be reasonable for him to do so. In his SHEV application the applicant has stated that he finds it difficult to speak with his family by telephone as they are upset by the time he has been living apart from them. At the SHEV interview he said they are always asking him when he will come back and he has told them that it is in the hands of the Australian authorities and that when the Australian authorities accept him or whenever they give him some documents he will return. Even so, by travelling to Australia alone and then by applying for temporary protection in Australia, the applicant has demonstrated that he is willing and able to continue to live apart from his family for extended periods of time. This is also something he has done in the past by travelling to Iran and remaining there from January 2009 to December 2011, before returning to Pakistan in December 2011, when he also departed for Kabul before travelling onwards (spending some eight months in Indonesia), arriving in Australia in September 2012.
The applicant has not established that these findings of the Authority are unreasonable, illogical or irrational. The applicant’s submission is that the Authority’s assessment of the reasonableness of relocation needs to be assessed against the background of the applicant having a wife and children. The Authority did this, but found that they would not relocate with him and that he would be able to support them from afar as he has done in the past.
I otherwise accept the Minister’s submission that the Authority’s reasons, summarised above, provide a cogent assessment of the reasonableness of relocation in the performance of its statutory task to assess the safety and reasonableness or practicality of the applicant returning to a particular part of Afghanistan by reference to the relocation framework informed by the reasons why the applicant said he could not relocate: AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457; [2018] FCAFC 106 at [27].
Ground 2 does not establish jurisdictional error.
Ground 4
Ground 4 asserts that certain findings of the Authority were made unreasonably. Significant parts of the ground overlap with the other grounds that have already been considered above.
By particular (a) the applicant asserts that the Authority did not have a logically probative basis to reject the applicant’s claim that there was a land dispute between his father and another Hazara man which resulted in the applicant been falsely accused of rape, and attacked.
The Authority at [9] of its reasons rejected the applicant’s claim that there had been a dispute with M over land owned by his father. The Authority found the applicant’s evidence about this to be unconvincing. The Authority said:
… While the applicant may have been young when the matter commenced, the applicant was certainly an adult at the time when he claims this matter was of central importance to his own security. Given that the lack of detail in the applicant’s evidence concerning the specifics of how the dispute began, or even of the particulars of the land in question, I have not found the applicant’s evidence in this regard to be convincing.
The applicant submitted that the Authority’s conclusion is premised on an assumption that the applicant would know the details of his father’s land dispute with M, and this was an unreasonable assumption given the age of the applicant.
The Authority expressly acknowledged that the applicant was young at the time the land dispute began, but clearly expected that the applicant would have some knowledge of the land dispute given its central importance to his claims for protection. The finding of the Authority was open to it, notwithstanding that other decision-makers acting reasonably might have reached a different conclusion: SZMDS at [131].
Particular (b) asserts that it was legally unreasonable for the Authority to find that it was reasonable for the applicant to relocate to Kabul without seeking to live again with his family. This overlaps with ground 2 addressed above and for the same reasons I find that the Authority’s conclusions about the reasonableness of relocation were open to it.
Particular (c) asserts that it was legally unreasonable for the Authority to find that the applicant did not face a real chance of persecution or a real risk of significant harm in Kabul in the reasonably foreseeable future for the same reasons that were advanced in relation to ground 2. For the same reasons set out above in relation to ground 2, I find that the findings of the Authority were not unreasonable, illogical or irrational.
Ground 4 is not established.
CONCLUSION
The applicant has not established jurisdictional error in the authority decision. It follows that the application for judicial review must be dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 18 July 2022
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