BYG17 v Minister for Immigration
[2018] FCCA 2409
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYG17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2409 |
| Catchwords: MIGRATION – Protection visa application – judicial review of Immigration Assessment Authority decision – relocation within Afghanistan – whether the Authority erred in making findings that were not open to it – whether the Authority erred in finding that it was reasonable to relocate to Mazar-e-Sharif – whether the Authority erred in its assessment of real risk of serious harm – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 473CA Articles and other materials: |
| Cases cited: AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 CRI026 v The Republic of Nauru (2018) 355 ALR 216 CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14 |
| Applicant: | BYG17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 246 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 4 May 2018 |
| Date of Last Submission: | 14 June 2018 |
| Delivered at: | Sydney (Perth by video link) |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Draper, Granich Partners |
| Counsel for the Respondents: | Mr P J Hannan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 246 of 2017
| BYG17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 7 April 2017. The Authority affirmed a decision of a delegate of the Minister of Immigration to refuse to grant the applicant a protection visa.
Background
The applicant is a citizen of Afghanistan who comes from the Malistan district of Ghazni province. He arrived in Australia as an unauthorised maritime arrival on 23 September 2012.
On 25 January 2016, the applicant lodged an application for a protection visa after the Minister had exercised his power under s.46A of the Migration Act 1958 (Cth) to allow him to do so. That application was made on the basis of his claim to fear harm because he is a Hazara Shi’a Muslim who would be imputed with an anti-Taliban or pro-Western political opinion and would be returning as a young failed asylum seeker. He claimed in particular that his father, who was the leader of his village, had complained about the treatment of the village by Kuchis. The father, together with the applicant’s mother and sister were travelling by road to Ghazni city to lodge this complaint with provincial government authorities when they were stopped and killed. The driver, who was unharmed, was told that the family was targeted because of the complaint.
On 1 November 2016, a delegate of the Minister made a decision to refuse to grant the applicant a visa. The matter was then referred to the Authority pursuant to s.473CA of the Act. Subsequently, the applicant’s adviser provided a detailed outline of submissions to the Authority and, upon invitation by the Authority, made further submissions in relation to up-to-date country information and in particular, in respect of the question of the safety of certain areas of Afghanistan.
Authority’s decision
The Authority was not satisfied that the applicant faced a real chance of persecution within Malistan or other Hazara majority districts in the Ghazni province. However, it did accept that the applicant faced a real chance of serious harm on his return trip to his home district due to his Hazara ethnicity and/or Shi’a faith.
The Authority then noted that sub-s.5J(1)(c) of the Act required that the real chance of persecution faced by the applicant must relate to all areas of Afghanistan. In the next section of its reasons, the Authority addressed that issue by reference to the city of Mazar-e-Sharif. The applicant’s single ground of review focuses upon the Authority’s reasoning in connection with this question. In light of that, it will be necessary later in these reasons to analyse the Authority’s reasoning process in some detail.
For present purposes, it is sufficient to observe that the Authority found that the applicant did not face a real chance of being killed or otherwise suffering serious harm in Mazar-e-Sharif in the reasonably foreseeable future and that he could safely access it by air: [32]. In light of that conclusion, the Authority found that the applicant did not meet the definition of refugee in s.5H(1) of the Act and so did not satisfy sub-s.36(2)(a) of the Act.
The Authority next considered whether the applicant satisfied the criterion in sub-s.36(2)(aa) of the Act.
In this respect it was satisfied, for the reasons that it had given in connection with the criterion in sub-s.36(2)(a), that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Afghanistan, he would face a real risk of significant harm if he returned to, and lived, in his home area. The Authority noted however, that s.36(2B) of the Act provided that there is taken not to be a real risk that the applicant would suffer significant harm in Afghanistan if it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant would suffer significant harm. On the basis of its earlier findings concerning Mazar-e-Sharif, the Authority found that there was not a real risk of suffering significant harm in that city and then went on to consider whether it would be reasonable for the applicant to relocate to that place.
This aspect of the Authority’s reasoning is also the subject of one of the applicant’s arguments. For that reason, it will be necessary to consider the Authority’s reasoning in some detail later in these reasons and it suffices for present purposes to note that the Authority concluded, at [48], that, having considered the applicant’s personal circumstances it was satisfied that it was reasonable for him to relocate there. In light of that conclusion, the Authority found that the applicant did not meet the criterion in sub-s.36(2)(aa) and so affirmed the decision of the delegate.
Consideration
There are 2 grounds in the application. The applicant abandoned the second ground. The first ground is that “[t]he Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution.”
That ground, as particularised in the application, is plainly addressed to the way in which the Authority addressed the criterion in sub-s.36(2)(a) of the Act. However, the applicant’s submissions went beyond that ground and addressed 2 further issues. Both concerned the way in which the Authority dealt with the issue of whether the applicant could reasonably relocate to Mazar-e-Sharif.
The applicant argued, first, that the Authority had unreasonably concluded that it was reasonable and practicable for the applicant to relocate to Mazar-e-Sharif; and secondly, in submissions that addressed the decision of the High Court in CRI026 v The Republic of Nauru (2018) 355 ALR 216, that the Authority erred by relying on information that was not reliable. Although there was no application to amend the application to include those arguments, I consider that there is no unfairness to the Minister arising from them and I will deal with them as though they were formally before the Court.
Before doing so, it is necessary to briefly examine why the Authority was concerned with what might happen to the applicant if he were to go to Mazar-e-Sharif, a place to which it accepted the applicant had never been before.
There are two reasons for the Authority’s focus on that city. First, in order to satisfy the criterion in sub-s.36(2)(a), the applicant had to have a well-founded fear of persecution that related to all parts of Afghanistan: sub-s.5J(1)(c). Secondly, in order to satisfy the criterion in sub-s.36(2)(aa), there had to be a real risk that he would suffer significant harm in Afghanistan. However, s.36(2B) relevantly provides that there is no such risk if:
...
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
...
The question of reasonableness of relocation arises under sub-s.36(2)(aa), but not under sub-s.36(2)(a): DFE16 v Minister for Immigration & Border Protection (2017) 317 FLR 215 at [26].
In light of those provisions, the Authority’s conclusions that there was no real risk of harm to the applicant in Mazar-e-Sharif and that it would be reasonable for him to relocate there, were both critical to the Authority’s decision. If they were not arrived at reasonably, or on a proper understanding of the law, then the Authority’s decision would be affected by jurisdictional error.
The real risk of serious harm in Mazar-e-Sharif
Essentially, what the applicant must establish in order to succeed in his first argument is that the particular findings that are impugned were not open on the material before the Authority. In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, Justices Crennan and Bell explained at [131] that it was insufficient that different minds might reach different conclusions on the jurisdictional fact and that the test for illogicality or irrationality:
… must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109, the Court said, after referring to SZMDS:
[47]Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”. Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error.
(References to authorities omitted)
In his first argument the applicant focuses on the manner in which the Authority relied upon country information in reaching conclusions regarding the circumstances that might affect the applicant upon return to Afghanistan. While the Authority’s consideration of such information is, like its consideration of any other material, governed by the same principles of logic and reason as discussed immediately above, the identification of relevant information and the weight to be attributed to it is entirely a matter for the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [81] and SZUEP v Minister for Immigration & Border Protection [2017] FCAFC 94 at [27].
With those principles in mind, it is necessary to consider the relevant findings made by the Authority.
After finding that the applicant faced a real chance of serious harm in travelling to and on his return to his home area, the Authority noted that sub-s.5J(1)(c) of the Act required that the real chance of persecution faced by the applicant must relate to all areas of Afghanistan. The Authority also noted that it had invited the applicant to comment on information relating to relocation to Mazar-e-Sharif, the capital of the Balkh province and that the applicant had replied, saying amongst other things, that he would be harmed anywhere he went in Afghanistan.
The Authority then considered the country information before it relevant to the risk that the applicant may be harmed in Mazar-e-Sharif: [22] – [31]. It concluded that that risk was remote. In summary, its reasons were as follows:
a)the particular conflict experienced by the applicant in Malistan would not apply in Mazar-e-Sharif because it was seasonal and specific to rural areas in the central highlands of Afghanistan: [22];
b)Mazar-e-Sharif is one of the safest cities in Afghanistan and, although there was an increase in armed attacks there in 2015 and 2016, those attacks were almost exclusively directed against the national security forces with sporadic bombings extending to civilian targets; however, the applicant is not directly associated with any of the groups which have been targeted: [23], [26];
c)there are significant populations of Hazara Shi’as in cities including Mazar-e-Sharif, there is no evidence of a policy of discrimination against them although there is evidence of societal discrimination at a community level. That discrimination, however, was generally in the form of nepotism and, given that Hazara Shi’as form a significant minority in Mazar-e-Sharif, that nepotism would not deny the applicant the capacity to earn a living or lead to other serious harm: [24], [29];
d)there is no evidence to suggest that Hazaras are being targeted in Mazar-e-Sharif and the isolated incidents of sectarian violence in or near Mazar-e-Sharif in 2011 and 2016 do not indicate that the applicant faces a real chance of persecution as a Shia Hazara in Mazar-e-Sharif in the reasonably foreseeable future: [27];
e)there was no evidence that Hazara Shi’as are being forcibly recruited in Mazar-e-Sharif and, in any event, nothing much had been heard about the group which had been forcibly recruiting young men since its formation in early 2015: [28];
f)the evidence did not establish that returnees like the applicant, who had lived in Pakistan and in a western country like Australia, are targeted in Mazar-e-Sharif by insurgents and the applicant does not have any affiliations with international organisations or the Afghan government that would raise his profile so that he might be specifically targeted for a pro-western political opinion [31];
The applicant makes a number of attacks on the Authority’s reasoning on this issue.
First, he attacks the Authority’s reliance on evidence, at [23], concerning the size of Mazar-e-Sharif, the fact that it is one of the biggest commercial and financial centres and safest cities in Afghanistan, as well as having the lowest number of civilian victims of insurgent attacks almost exclusively directed at national security forces.
The applicant says that this ignores evidence that the security situation had deteriorated significantly over the last 12-18 months[1], that there was a withdrawal of the international community, and a fluid and unpredictable security situation that had deteriorated in 2015 and 2016. It was submitted that, in light of that evidence, as well as the submissions that insurgent groups were expanding, it was unreasonable for the Authority to conclude that the government was, and would necessarily remain stable in the future.
[1] DFAT Country Information Report Afghanistan, 18 September 2015, p.8 [2.33] (part of Exhibit B).
This argument is no more than an attack on the merits of the Authority’s decision and, in any event, based on a misunderstanding of the Authority’s reasons. The Authority did not find that the government in Afghanistan would necessarily remain stable in the future. It did not need to. It was assessing the possibility of future harm on the basis of the information before it. It did not, however, determine what would necessarily happen, or what would happen other than so far as could reasonably be predicted. The Authority’s assessment was based on country information that was before it, including the report referred to in the applicant’s submissions but also a report from DFAT[2] that post-dated that report[3]. The applicant does not contend that the material relied on by the Authority did not support the Authority’s conclusions. Rather, his submission went only so far as to say that there was other material inconsistent with those conclusions.
[2] Department of Foreign Affairs and Trade.
[3] DFAT, “DFAT Thematic Report – Hazaras in Afghanistan”, 8 February 2016 (also part of Exhibit B).
The Authority examined the circumstances concerning the security situation in Mazar-e-Sharif in some detail. In doing so, it acknowledged that there were attacks by insurgent groups (see [23], [25] – [27]) but examined the nature of those attacks including the perpetrators of the attacks, their targets and the frequency of the attacks. It was a combination of that analysis, together with the more general information about Mazar-e-Sharif as one of the largest and safest cities in Afghanistan that led the Authority to its conclusion about the risk of harm there. The applicant’s argument must be rejected.
Secondly, the applicant attacks the Authority’s finding, at [26], that the applicant did not have a profile which would likely bring him to adverse attention. He argues that there are two reasons for which this finding discloses unreasonableness. First, he argues that his profile was irrelevant to the assessment of harm. The applicant relies on a DFAT report that suggests that, even though attacks are targeted, they can result in civilian casualties. He also asserts that all civilians are at equal risk of harm. That assertion can be left to one side. It is no more than an assertion of fact and so cannot establish jurisdictional error in any form.
The difficulty with the balance of the argument is that there is no inconsistency between the fact that civilians can be harmed in attacks that are focused on government or international targets and the conclusion that, in all of the circumstances considered by the Authority, there was no real risk that the applicant would be harmed in such an attack. Simply put, the fact that a civilian can be harmed in targeted attacks does not require the conclusion that there is a real chance that the applicant will be harmed in such an attack.
The applicant’s second argument in respect of the reasoning in [26] of the Authority’s decision is that it does no more than reduce the chances of anyone facing a real chance of harm to a “numbers game”. While it may be accepted that an assessment of the risk of future harm is not entirely a “numbers game” (the focus on specific targets is often a very important consideration), it is not necessarily irrelevant, or unreasonable, to take into account the mathematical probability of an event’s occurrence. This will be affected by the nature, actions and intentions of the perpetrators but also potentially by the number of potential victims. This is particularly the case where, as here, a number of attacks had been on civilian targets. The fact that such attacks take place in a large city with a large population necessarily affects the likelihood of any one of the residents being harmed in such an attack.
Finally, the applicant attacks the Authority’s reasoning, at [29], that, because Hazara Shi’as form a significant minority group in Mazar-e-Sharif the applicant would not suffer adverse consequences of discrimination threatening his capacity to exist. He complains that the Authority gives no explanation or reasoning connecting the existence of a significant minority to the absence of a real chance of serious harm as a result of societal discrimination. I accept that the Authority’s reasoning is somewhat obscure in this respect; however, on reading the whole of [29], the logical connection between the number of Hazara Shi’as and the lack of real chance of serious harm becomes apparent.
The gist of the Authority’s reasoning arises from its analysis of the nature of the discrimination that exists in Afghanistan and, so, in Mazar-e-Sharif. It finds that the discrimination is based on ethnicity and religion and is a form of nepotism where ethnicity and religion will be more important than merit. Once that is understood, the Authority’s reasoning is quite plain. The applicant has two characteristics that form the basis of this nepotism: his ethnicity is Hazara and his religion is Shi’a. The fact, then, that there is a significant minority of people with those characteristics supports the view that there are people who will engage in nepotism in the applicant’s favour, that is, by having regard to his ethnicity and religion in preference to the merit of other applicants in determining who to employ. That may not be a line of reasoning that other decision-makers would adopt on the same facts, but that is not the question that must be answered in determining whether the Authority fell into jurisdictional error.
For those reasons, the applicant’s attacks on the Authority’s findings about the risk of serious harm in Mazar-e-Sharif must be rejected.
Reasonableness of relocation to Mazar-e-Sharif
The analysis of whether it is reasonable for an applicant to relocate within his or her country of nationality is a fact intensive one which must focus on the applicant’s specific circumstances and those of the place of relocation: CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14 at [48]. In AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 the Full Court explained:
[27]It is well accepted that how an administrative decision-maker (including the Tribunal) approaches the question of whether it is reasonable to expect a protection visa applicant to return to a particular part of her or his country of nationality will depend to some extent on the framework set by the claims made by the visa applicant about why it is not safe, and/or not reasonable for her or him to return to a particular location or locations: see SZMCD at 438 [123]; Randhawa at 443 (Black CJ); SZATV at [24] (Gummow, Hayne, Crennan JJ), at [81] (Kirby J); SZSCA at [27], [31]-[33] (French CJ, Hayne, Kiefel, Keane JJ); CSO15 at [26]-[27], [47]-[48] and MZYPW at [9] (Flick and Jagot JJ). However as Mortimer J noted in MZANX at [58]:
There is no doubt that the “framework” set by an applicant may be an important factor. Indeed, the appellant submits the reviewer did not pay sufficient attention to the framework set by his adviser’s submissions on the two questions of “insecurity, political instability and social problems” and “unemployment such as to impact his ability to meet his basic needs”. However, it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.
The applicant placed particular reliance upon the decision of Mortimer J in MZANX v Minister for Immigration & Border Protection [2017] FCA 307 in which her Honour said:
[51]In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.
…
[55]In the context of relocation, detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship (see [60] to [61] below). Likewise, the circumstances of that individual – her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope. …
After the hearing of this matter, the High Court handed down its decision in CRI026. That decision was made on appeal from the Supreme Court of Nauru concerning the issue of internal relocation in the context of the Refugees Convention Act 2012 (Republic of Nauru). The appellant contended that the question of reasonableness did not apply in determining whether there was an obligation of complementary protection under that Act because, if it did, it would be incumbent upon an applicant for complementary protection to undertake the practically impossible task of establishing that there is no place in his or her country of nationality to which he or she could reasonably relocate.
The Court rejected that contention:
[39]That contention should also be rejected. Implicitly, it proceeds from the false premise that a claim for complementary protection is in the nature of an adversarial proceeding in which the burden of proof is on the applicant and, therefore, that, in the event of the applicant failing to discharge the burden of proof, the claim for complementary protection must fail. To the contrary, however, as appears from BL v Australia, before a decision maker may properly reject a claim for complementary protection on the basis of the availability of reasonable internal relocation, the decision maker needs reliable information as to the safety and suitability of the place of relocation. Moreover, as Gummow, Hayne and Crennan JJ observed in SZATV v Minister for Immigration and Citizenship in relation to a claim for refugee protection:
What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant's personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable
that the claim for complementary protection may be rejected on that basis.
(Citations omitted)
As will be seen, the applicant relies on one aspect of this passage in support of his third argument. For present purposes it is necessary to note that, subject to that argument, the decision in CRI026 is consistent with the authorities considered above.
Here, the applicant argues that the Authority failed to consider matters that affected the practical and realistic ability of the applicant to relocate to Mazar-e-Sharif. He points to the facts that the applicant had never worked there and had no extended family network in the city, he has no formal education, there is high underemployment and unemployment and he would be subjected to societal discrimination. The applicant says that the information before the Authority did not allow it to conclude that there were employment opportunities in Mazar-e-Sharif and, further, that the information from DFAT about the “poor economic opportunities” in Afghanistan meant that the Authority’s reliance on the size of the city was unfounded and unreasonable. He suggests also that, in light of those matters, it was unreasonable for the Authority to conclude that he could reasonably relocate to Mazar-e-Sharif.
Each of the applicant’s complaints about the Authority’s reasoning about the reasonableness of relocation falls away when those reasons are understood in their proper context. That context is, first, the submissions made by the applicant about relocation to Mazar-e-Sharif and secondly, the actual process of reasoning adopted by the Authority.
As I have observed, the Authority wrote to the applicant inviting him to comment on, amongst other things, the possibility that certain information may lead it to find that Mazar-e-Sharif was a safe alternative for the applicant to relocate to. The applicant’s advisers responded with an 80 page submission and several hundred pages of country information. The part of the submission that dealt with Mazar-e-Sharif was 18 pages in length. It dealt almost exclusively with the security situation in and around that city. That is not surprising, given that the information referred to in the Authority’s invitation mostly concerned the security situation in Mazar-e-Sharif. However, the submission left the Authority with little other guidance from the applicant as to what difficulties the applicant might personally face if he were to relocate to Mazar-e-Sharif.
The focus of the Authority’s consideration of the issue were the “applicant’s circumstances and the UNHCR[4] recommendations in considering the reasonableness of relocation”: [44]. In respect of the former, the Authority took into account that the applicant was a “single able bodied male with no identified vulnerabilities who despite having no formal education worked on the family farm for 5 years” and “whilst in Pakistan worked as a labourer in the construction industry for 3 years”: [45]. It also noted that the applicant had no immediate family in Afghanistan other than uncles and aunts in Malistan and so may be separated from his family in the reasonably foreseeable future: [46]-[47].
[4] United Nations High Commissioner for Refugees.
The information from UNHCR relied on by the Authority concerned the ability of single able bodied men and married couples without identified specific vulnerabilities, to “subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life” and are under effective government control: [44]. It was this information that led the Authority to take account of the size of Mazar-e-Sharif and the relative economic strength of that city, two matters complained of by the applicant. Those factors were made relevant by information considered by the Authority to be reliable and which it accepted.
The Authority also accepted the information from DFAT concerning the economic circumstances in Afghanistan but differentiated Mazar-e-Sharif on the basis of other information particular to that city. It noted that Mazar-e-Sharif was “one of the biggest commercial and financial centres of Afghanistan” and that agriculture, wholesale and retail trade, manufacturing and construction were the main sectors of employment there: [45].
Contrary to the applicant’s argument, this (or any other) information did not require the Authority to make a meaningful comparison between economic opportunities in Mazar-e-Sharif and in other cities in Afghanistan or to compare unemployment rates. The critical link between the size and economic status of Mazar-e-Sharif and the reasonableness of relocation came from an application of the UNHCR recommendation to the applicant’s own circumstances. Thus, against the background of the UNHCR report, the Authority noted the strength of the construction industry in Mazar-e-Sharif and the fact that the applicant had experience in that industry. This factor, together with all of the other factors considered by the Authority led it to its other conclusions. It was not, as appears to be suggested by the applicant’s submissions, a matter of the Authority relying simply on one piece of information about the size of Mazar-e-Sharif which led it to its conclusion.
I am not satisfied that the Authority misunderstood what was required by sub-s.36(2B)(a) of the Act, or that it was not open for it to be satisfied that relocation to Mazar-e-Sharif was reasonable for the applicant. In other words, the Authority’s conclusion to that effect was not unreasonable in the sense required to give rise to jurisdictional error.
The applicant also argued that, in light of CRI026, the Authority could only be satisfied that it was reasonable for the applicant to relocate on the basis of reliable information about the relevant circumstances in Mazar-e-Sharif.
The passage in CRI026 relied on by the applicant is set out at [38] above. He argues that this passage means that the Court must undertake an evaluation as to the accuracy and reliability of the country information considered by the Authority. His argument was that where, as here, there was information that was contradictory and inconsistent with the information relied on by the Authority, the latter information was, for that reason, unreliable and so the Authority’s reliance on it was unreasonable.
There are many difficulties with that submission. Leaving to one side the different statutory context in which CRI026 was decided, there are two particular issues. First, what was meant in CRI026 by the word “reliable”; and secondly, whether the information here was “reliable”.
The applicant contends that information is reliable if it is “suitable or fit to be relied on” and “of proven consistency in producing satisfactory results.” The error in this approach is that the words of the High Court in CRI026 are not to be examined as though they were part of the Act. The Court adopted this word from a communication of the United Nations Human Rights Committee[5] concerning whether Australia would breach its obligations under the International Covenant on Civil and Political Rights[6] if it were to return a citizen of Senegal to Senegal. In a concurring opinion, one of the members of the committee said[7]:
... The duty of ascertaining the location where adequate and effective protection is available in Senegal does not rest upon the authorities of [Australia]. Their duty is limited to obtaining reliable information that Senegal is a secular State where there is religious tolerance.
[5] United Nations Human Rights Committee, Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014).
[6] International Covenant on Civil and Political Rights opened for signature 16 December 1966 (entered into force 23 March 1976).
[7] Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014) at Appendix II per Dheerujlall B Seetulsingh.
There is nothing in either CRI026 or the communication from the United Nations Human Rights Committee to suggest that information had to be consistent with all other information before it could support the view that relocation would be reasonable. It may be accepted for present purposes, and without the benefit of any argument from the Minister on the point, that any administrative decision must be based on “reliable” information in the sense that the information must provide a logical basis for the decision-maker to be satisfied of the likelihood of the existence of a fact in issue. Even if “reliable” required more, as suggested by the applicant, it was not, and could not have been, submitted that there was no such information here.
The Authority relied on information from sources including DFAT and the UNHCR. It would be surprising if the views of the Australian government or the international agency with responsibility for the Refugees Convention[8] could not be a sufficient basis for determining the question of reasonableness of relocation: see, albeit in a different context, Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 428 (McHugh J).
[8] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2).
The fact that there may have been information inconsistent with the information relied on by the Authority did not mean that either information was unreliable. Contrary to the applicant’s argument, the High Court in CRI026 did not overrule the well-established principle that it is a matter for the Authority, and not the Court, to decide what information it accepts: NAHI at [11]. The High Court did not specifically refer to that proposition because it was not relevant to any of the issues before the Court. It is not only a principle stated in a decision binding on me but is also consistent with a long line of authority about the limits of the Court’s role in the judicial review of administrative action: see, for example, Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J).
Conclusion
The applicant has not established that the Authority’s decision is affected by jurisdictional error. The application must be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 7 September 2018
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