Bza17 v Minister for Immigration
[2020] FCCA 375
•28 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZA17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 375 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of the Immigration Assessment Authority (Authority) affirming decision not to grant safe haven enterprise visa – whether the Authority considered a particular claim or item of evidence – whether the Authority made any jurisdictional error in the manner in which it purported to undertake a cumulative assessment of risk of harm – no jurisdictional error. |
| Legislation: Federal Circuit Rules 2001 (Cth), Schedule 1, Part 3 |
| Cases cited: Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 ETA067 v The Republic of Nauru [2018] HCA 46 |
| Applicant: | BZA17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1396 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 12 February 2020 |
| Date of Last Submission: | 12 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Ryburn Solicitors |
| Counsel for the First Respondent: | Mr B D Kaplan |
| Solicitors for the First Respondent: | Minter Ellison Lawyers |
ORDERS
The applicant have leave to file an amended application in the form of the draft amended application attached to the applicant’s outline of submissions filed on 4 February 2020 but with ground 1 struck out.
The applicant file and serve the amended application by 5 March 2020.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1396 of 2017
| BZA17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Afghanistan, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise Visa (SHEV).
Claims for protection
The applicant stated his claims for protection on a number of occasions. It would be convenient, however, to set out the claims the applicant made in a statement dated 9 May 2016 that accompanied his application for a SHEV (Statement);[1] and these may be summarised as follows:
a)The applicant was born in a village in Behsud District, Maidan Wardak Province (Village). He is of Hazara ethnicity and a Shia. The applicant’s father was a farmer, and his mother did house work.
b)The applicant’s family first fled the Village when the applicant was a baby because the Mujahideen were fighting against the Russians, and against each other. The applicant’s mother was sick at the time and could not obtain treatment in Afghanistan. The applicant’s father brought his family to Iran for safety and to secure medical treatment for the applicant’s mother.
c)When the applicant was about 16 or 17, he finished high school. He was in Kabul for a few months, but then returned to the Village. While at the Village, a nomadic group of Pashtuns known as “Kochi’s” attacked the whole Behsud District, targeting Hazaras. The government and army supported the Kochis. The army arrested the Kochis, but the government ordered they be released, and the government sent a delegation to the area to negotiate the release of the Kochis.
d)Because in previous attacks the Hazaras had been defeated, killed, and lost property, the Hazaras in the area were recruiting other Hazaras to fight and defend against the Kochis’ attacks. They were particularly interested in young educated men to lead the resistance. The applicant’s father told him he had been approached by people who wanted to recruit the applicant to help defend the community. The applicant’s father did not want the applicant to join the fighting because he feared the applicant would be injured or killed. The applicant’s father could not, however, refuse the recruiters’ request because he feared repercussions from other Hazaras. The father decided to return the applicant to Kabul, after which the applicant’s father brought the rest of the applicant’s family to Kabul.
e)The applicant’s father sold his land to a distant relative. The applicant later heard through his family’s distant relatives that “we were accused of abandoning the Hazaras” in the Village.
f)It is not safe in Afghanistan. Hazaras get reported to the Taliban, and they get killed. There are many instances of kidnapping, slaughter and killing. The applicant fears he will be harmed if he returns to Afghanistan. The Taliban will harm him because of his Hazara ethnicity and Shia religion.
g)The applicant also fears harm because he is a western returnee. Pashtuns and Tajiks will think the applicant is an infidel, and is associated with and supports western countries. They may also think the applicant is a spy and works for foreign countries.
h)The applicant also fears harm because there is a lot of corruption and poverty, and “they” will think the applicant is rich because he has returned from a western country.
[1] CB70-74
Relevant to one of the grounds on which the applicant relies is the statements the applicant made about “Taskeras”. A “Taskera” is an identity document used in Afghanistan. The applicant claimed he left that document with his family when he left Afghanistan. Just before the applicant left Afghanistan, however, the applicant’s family moved to Kabul; and they destroyed the applicant’s Taskera together with each family member’s Taskera because the Taliban had control of the roads, and they were searching everyone. The applicant cannot now obtain a new Taskera because he must be physically present at a government office in Afghanistan to obtain a duplicate. The applicant also claimed he needs to obtain his Taskera to study more or to get a decent job.
The applicant provided further details during his interview before the delegate (SHEV interview). The applicant said the Hazaras defending the village went door to door asking for people to join the team of those defending the village. Every household had to nominate a person, and they were particularly looking for educated people to be commanders and to instruct the soldiers. The applicant was chosen to be recruited because of his schooling, and because he would have a better understanding of the issues and the requirements of fighting.[2]
[2] CB138
Delegate’s findings
The delegate found the applicant was born on a particular date; that he is of Hazara ethnicity; and that during the spring months Kochi migrations have resulted in violent clashes in the Hazara-dominated Behsud districts. The delegate did not accept the defending Hazara group chose the applicant, or that the applicant would have returned to the Village, knowing it was a household expectation that a family member join in the fighting. The delegate also found there was no country information that indicated forced recruitment by Hazaras. For those reasons, the delegate did not accept Hazara groups threatened the applicant with forcible recruitment in the province in which the Village is located.[3]
[3] CB133-151
Authority’s reasons
The Authority accepted the following:
a)The applicant’s parents and siblings lived in the Village before and after moving to Iran, and that they moved to Kabul after the applicant returned to the Village in 2012; that the applicant’s uncle who lived in Kabul had returned “to the area” (by which I understand the Authority to refer to the area in which the Village is located); the applicant has extended family members in the Village; and the applicant considers the Village his home region.[4]
b)The annual migration of nomadic Kochi Pashtun tribes in Wardak Province in search of grazing pastures for their animals has given rise to recurring violence between Kochis and Hazaras, and that, as the applicant claimed, the Kochis attacked the Village, and this occurred regularly.[5]
c)Local pressure may have been applied to Hazara families to garner support for their defence against the Kochis; the applicant’s family were concerned the applicant would be expected to join the fight; the applicant’s father was concerned; and the applicant’s father arranged for the applicant to return to Kabul.[6]
[4] CB235, [16]
[5] CB235, [17]
[6] CB236, [18]
The Authority, however, did not accept the applicant or his father were approached about the applicant leading local Hazaras in the fight, or that he was at risk of forced recruitment by any local Hazara groups. The Authority relied on the absence of country information that indicated Hazaras have been forcibly recruited to fight against Kochis, and on its finding that it was implausible that the local Hazara leaders would seek to recruit the applicant who was a young man of around 17 years of age, who had no fighting experience, and who had never really lived in the Village.[7] The Authority concluded, therefore, it was not satisfied the applicant:[8]
a)would be of adverse interest to local Hazara leaders or groups if he were to return to the Village;
b)faces a real chance of being forcibly recruited to fight against the Kochis in the reasonably foreseeable future;
c)would face punishment or other harm or repercussions for not joining the fight in 2012, or for otherwise abandoning the Hazaras, or for failing to support them in their war against the Kochis; or
d)faces a real chance of being specifically targeted by local Hazara leaders or groups outside the applicant’s local area.
[7] CB236, [19]
[8] CB236, [19], [20]
The Authority accepted that:[9]
a)violent clashes between Kochis and Hazaras occurred in 2014 and 2015 in the Behsud districts;
b)there is a real chance of further clashes with Kochis in the applicant’s home area in the reasonably foreseeable future;
c)the conflict is distinctly between Kochis and Hazara villagers over access to land with ethnic overtones; and
d)if the applicant did return to the Village he would face a small, but nevertheless real chance of being subject to physical ill-treatment or killed by Kochi militias because of his Hazara ethnicity.
[9] CB236-237, [21], [22]
The Authority noted, however, that when assessing whether the applicant was a “refugee” within the meaning of s.5H of the Act, s.5J(1)(c) requires that the real chance of persecution of which an applicant has a well-founded fear must relate to all areas of the receiving country.[10] The Authority found that the real chance of harm the applicant would face if he returned to the Village is a localised threat.[11] Even though the Authority referred to country information that showed there have been violent clashes between Kochis and Hazaras in urban centres, including in Hazara areas in Kabul, the Authority did not accept the applicant will face a real chance from Hazara groups or leaders or Kochis in Kabul or Mazar-e-Sharif. The Authority relied on country information which it found did not support that any such clashes had occurred recently to any scale that satisfied the Authority the applicant would face a real chance of harm at a place like Kabul or Mazar-e-Sharif.[12]
[10] CB237, [23]
[11] CB237, [25]
[12] CB237, [26]
Next, the Authority reviewed country information about the “security situation throughout in [sic] Afghanistan”, noting that it is fluid and complex, and that it was mindful the security situation deteriorated throughout 2015 and 2016.[13] After reviewing the country information, the Authority made the following findings:
a)The chance of the applicant being seriously harmed by Islamic State because of his race, religion, any imputed support for the Syrian regime, or for any other reason, is remote.[14]
b)The Authority was not satisfied the applicant faces a real chance of serious harm from “AGEs” (that is, anti-government elements) or others, including from Pashtuns and Tajiks in society because he is a Hazara and Shia in Kabul or in Mazar-e-Sharif.[15]
c)The Authority was not satisfied the applicant faces a real chance of being forcibly recruited by AGEs or pro-government groups in Kabul or in Mazar-e-Sharif in the reasonably foreseeable future.[16]
[13] CB237, [27]
[14] CB242, [41]
[15] CB243, [43]
[16] CB243, [45]
The Authority also made the following findings:
a)Although country information indicates AGEs systematically target civilians associated with the government or international community in Afghanistan, the applicant did not claim he had any actual connection with the government or international forces, and the applicant had no current connection with, or proximity to, any political groups, the international community, or the Afghan government; and the applicant did not indicate he would develop such association or connection, or engage in political behaviour, that would attract adverse attention from AGEs in Kabul or in Mazar-e-Sharif.[17]
b)The Authority was not satisfied the applicant would face a real chance of being targeted by insurgents or of facing discrimination amounting to serious harm in relation to his education or chosen future studies or profession in the reasonably foreseeable future on his return to Kabul or Mazar-e-Sharif.[18]
c)The Authority was not satisfied the applicant would face a real chance of harm in Kabul or in Mazar-e-Sharif because of criminality.[19]
d)The Authority was not satisfied the applicant would face serious harm because he left Afghanistan on a fraudulent passport.[20]
e)The applicant will face some societal discrimination at the communal level which still occurs against Hazaras; and that this risk may be increased because of the applicant’s return from a western country.[21] The Authority, however, was not satisfied that any discrimination against the applicant will manifest itself in such a way that would constitute serious harm within the meaning of s.5J of the Act; and, for that reason, the Authority was not satisfied the applicant faces a real chance of experiencing discrimination amounting to serious harm in Kabul or in Mazar-e-Sharif because he is a Hazara Shia, or because he is educated, or because he is a returnee from the west.[22]
f)The chance the applicant would be harmed through generalised violence is remote; that is, the Authority was not satisfied the applicant faces a real chance of suffering serious harm through generalised violence in Kabul or in Mazar-e-Sharif.[23]
g)The chance of the applicant being seriously harmed while in transit to Kabul or to Mazar-e-Sharif via Kabul is remote and, for that reason, the Authority was satisfied there is not a real chance the applicant would face serious harm before accessing Kabul or Mazar-e-Sharif.[24]
[17] CB244, [47]
[18] CB244, [48]
[19] CB245, [51]
[20] CB245, [52]
[21] CB245-246, [53], [54]
[22] CB246, [56]
[23] CB247, [58]
[24] CB247, [59]
There are two aspects of the Authority’s reasons that are particularly relevant to the grounds on which the applicant relies. One relates to the Authority’s treatment of what the Authority noted was the applicant’s “concern about needing a Taskera for work or study”. That may be taken to be a reference to what the applicant stated in the Statement about the Taskera to which I have already referred. The Authority said as follows:[25]
. . . . The applicant has expressed concern about needing a Taskera for work or study and I note he no longer has his and nor does his father or other family members since they destroyed them before travelling to Kabul. I note the issuance of Taskeras has not been regular since 1979 however the government continues to issue them and DFAT notes the documentation required is minimal. The applicant has lived in Kabul for 11 years and did all of his schooling there. I am satisfied the applicant will be eligible to attain a Taskera from authorities in Kabul through some official means.
[25] CB246, [55]
The second aspect of the Authority’s reasons that are particularly relevant to the grounds on which the applicant relies is the following passage from the Authority’s reasons:[26]
On the evidence before me, I am not satisfied that the applicant faces a real chance of being killed, forcibly recruited or otherwise suffering serious harm in Kabul or Mazar-e-Sharif from Kuchis or Hazara groups from Wardak in relation to any Kuchi-Hazara disputes, nor for any other reason. I also found he was not at risk of being killed, forcibly recruited or otherwise suffering serious harm from AGEs (or pro-government forces) in Kabul or Mazar-e-Sharif on the basis of his profile as a young Hazara male, on account of having left Afghanistan illegally, lived outside Afghanistan for several years including in Iran and in a western country such as Australia where he also sought asylum, because he would be returning westernised or with an imputed rich, infidel or spy profile, nor for any actual or imputed connection with or support for the Afghan government, western or international community or the Syrian regime. I have considered all of these factors carefully, as well as the fact that he has limited employment experience and has expressed concern about his psychological state. While the applicant has family in Kabul, I have also had regard to the fact that he may return to Mazar-e-Sharif, a place he has never resided and has no identifiable links and would need to travel there from Kabul. I considered the risks posed by AGEs including taking into account the emergent threat from Islamic State. I have analysed the risk of sectarianism presenting a risk to the applicant, and of the risk to the applicant from targeted and generalised violence. However I am not satisfied that these various factors would, individually or cumulatively, lead to a well-founded fear of persecution in Kabul or in Mazar-e-Sharif, or in accessing those cities, in the reasonably foreseeable future.
[26] CB247-248, [60]
On the basis of the findings it made, the Authority found the applicant does not meet the requirements of the definition of “refugee” given in s.5H(1) of the Act.
When assessing the applicant’s claims against the complementary protection criterion provided for by s.36(2)(aa) of the Act, the Authority repeated many of the findings it had already made when assessing the applicant’s claims against the refugee criterion provided for by s.36(2)(a) of the Act. The Authority also considered whether it would be reasonable for the applicant to relocate to Kabul or to Mazar-e-Sharif, and it was satisfied it would be reasonable. On the basis of these findings, the Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
Grounds of application
The application, as currently filed, contains three grounds. Counsel for the applicant informed me at the hearing that the applicant abandons ground 1. The applicant, however, seeks leave to file an amended application that includes a new ground, being ground 4 stated in the draft amended application that is annexed to the applicant’s written submissions. Counsel for the Minister opposes the Court granting leave for reasons that include the submission that the proposed ground lacks merit. I indicated to counsel that I proposed to deal with the question of leave by reference to whether the ground has sufficient merit to warrant the granting of leave, and, assuming I am so satisfied, consider the merits of the proposed ground.
In light of my consideration of the proposed ground 4 later in these reasons, I am satisfied it has sufficient merit for me to grant the applicant leave to rely on it. I will make an order granting the applicant leave to file an amended application in the form of the draft amended application attached to the applicant’s written submissions, but with ground 1 struck out. I will identify each of the grounds by the number given to them in the draft amended application.
Ground 2
Ground 2 is as follows:
The IAA failed to consider a claim expressly made by the applicant relevant to its assessment of the reasonableness of relocation.
Particulars
a.The applicant had claimed and the IAA had accepted that:
i.there was a real chance of harm to the applicant in his home area (at [22] and [64] of its reasons for decision), and
ii.taskeras held by family members had been destroyed (at [55]).
b.The IAA was satisfied that the applicant was eligible to obtain a taskera from authorities in Kabul through official means (at [55]).
c.The country information before the IAA included information to the effect that a copy of the father’s taskera was a supporting document required in order to obtain a taskera (Department of Foreign Affairs and Trade Country Information Report, Afghanistan (18 September 2015) at [5.28]). [DFAT Report]
d.The IAA failed to consider the applicant’s claim that he would need to return to his home area in order to obtain a taskera.
In his written submissions the applicant reproduced paragraph 5.28 of the DFAT Report, which is as follows (Information in Question):[27]
Official Taskeras are issued by the Population Registration Department of the Ministry of Interior in provinces and districts throughout Afghanistan. Generally, the required supporting information for the issuance of a Taskera will be a copy of the father’s Taskera.
[27] Outline of Submissions for Applicant, [24]. A copy of the DFAT Report is annexed to the affidavit of Ms Saunders made on 10 February 2020
The applicant submits, on the basis of this passage, that there was before the Authority a claim that, if required to return to Afghanistan, the applicant would not be able to obtain a Taskera unless his father obtained a Taskera.[28] That, the applicant submits, required a consideration of whether the applicant’s father could obtain a Taskera in Kabul or, alternatively, whether his father would need to return to his home district to obtain a Taskera; and, if the applicant’s father would need to return to his home district, whether the applicant’s father would be exposed to a risk of serious harm, which in turn may give rise to a risk of harm to the applicant, such as the risk of the death of his father.[29] The applicant submits the Authority did not consider these matters,[30] and, for that reason, the Authority made a jurisdictional error for any one or more of three reasons: the Authority failed to consider an integer of the applicant’s claims;[31] the Authority overlooked significant information;[32] or the Authority failed to give proper and genuine consideration to the evidence before it.[33]
[28] Outline of Submissions for Applicant, [25]
[29] Outline of Submissions for Applicant, [25]
[30] Outline of Submissions for Applicant, [26]
[31] Outline of Submissions for Applicant, [26]
[32] Outline of Submissions for Applicant, [27]
[33] Outline of Submissions for Applicant, [28]
The premise on which the applicant’s submissions rests is that the Authority either overlooked the Information in Question or failed to give it proper and genuine consideration. This is recognised by the Minister in his submissions: he submits the Authority did not overlook the Information in Question or otherwise fail to give it proper and genuine consideration. In paragraph (d) of the particulars, however, the applicant also claims the Authority did not consider the applicant’s claim that he would need to return to his home area to obtain a Taskera. Three questions, therefore, arise:
a)Did the Authority consider the applicant’s claim that he would need to return to his home area to obtain a Taskera?
b)However (a) is answered, did the Authority fail to consider the Information in Question?
c)Assuming (b) is answered in the negative, did the Authority nevertheless fail to properly and genuinely consider the Information in Question?
Did the Authority consider claim?
I am satisfied the Authority did consider the applicant’s claim that he would need to return to his home area to obtain a Taskera. The Authority referred to the applicant’s having “expressed concern about needing a Taskera for work or study”, and also noted that his family had destroyed his and other family members’ Taskeras.[34] That is a reference to what the applicant said in the Statement, namely, that the applicant’s family had destroyed his and each family members’ Taskeras;[35] that he cannot get access to a new Taskera because he must be physically present at a government office in Afghanistan to obtain a duplicate;[36] and that the applicant needs to obtain his Taskera to study or get a decent job, which will require the applicant to return to his district to obtain a duplicate.[37] The Authority considered that claim and found the applicant will be eligible to obtain a Taskera in Kabul.
[34] CB246, [55]
[35] CB71, [12]
[36] CB71, [15]
[37] CB73, [32]
Did the Authority consider the Information in Question?
It is not in dispute that the Authority did not in its reasons repeat the effect of paragraph 5.28 of the DFAT Report, namely, that, generally, the required supporting information for the issue of a Taskera will be a copy of the father’s Taskera. What is also not in dispute, however, is the principle that a failure by an administrative decision maker not to refer to information that was before it does not necessarily mean the decision-maker overlooked the information. That principle has been stated in a number of authorities. Thus, in ETA067 v The Republic of Nauru the High Court said (emphasis in original):[38]
The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any "material questions of fact" and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.
[38] ETA067 v The Republic of Nauru [2018] HCA 46, at [13] (references omitted)
The High Court referred to two cases, one of which is the Full Federal Court’s judgment in Minister for Immigration and Border Protection v SZSRS, where the Full Court said:[39]
The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
[39] Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, at [34]
Whether or not a decision-maker failed to consider information, therefore, is a question of fact to be determined by reference to all the circumstances of the case. One set of circumstances is the apparent relevance of the information to the finding the decision maker made (whether positive or negative), or to an issue in relation to which the decision maker ought to have made but did not make a finding. Thus, for example, all other things remaining equal, the greater the relevance of the information to the finding or issue, the greater will be the probability that the explanation for the decision-maker not referring to the information is that he or she did not consider it. Another set of relevant circumstances is the importance to the decision of the finding or issue to which the information is apparently relevant. All other things being equal, the greater the importance to the decision is the finding or the issue to which the information is relevant, the greater will be the probability that the explanation for the decision-maker not referring to the information is that he or she did not consider it. And yet another set of circumstances is whether the information has a tendency to undermine a finding the decision maker made. Thus, all other things being equal, the greater the tendency of information to undermine a finding a decision maker has made, the greater will be the probability that the explanation for the decision-maker not referring to the information is that he or she did not consider it.
I then turn to the question whether, in finding the applicant will be eligible to obtain a Taskera in Kabul, the Authority did not consider the Information in Question. The answer to that question largely turns on what material it can reasonably be inferred the Authority considered from what the Authority said in paragraph 55 of its reasons. It is apparent from what the Authority said in that paragraph that:
a)the Authority’s reference to the government’s issuance of Taskeras has not been regular since “1979” was based on paragraph 5.27 of the DFAT Report, which states there “has been no regular, national issue of Taskeras since 1976”;
b)the Authority’s reference to the government continuing “to issue them” appears to have been based on paragraph 5.27 of the DFAT Report which states that “[w]hile different governments have continued to issue Taskeras that remain valid, people only apply for the documents when needed for other administrative purposes such as attending school or applying for a passport”;
c)the Authority’s reference to the applicant’s having lived in Kabul for 11 years, and doing all his schooling there, appears to have been prompted by the statement from the DFAT Report I have reproduced in (b) which refers to persons applying for Taskeras for purposes that include attending school;
d)the Authority’s finding that the applicant will be eligible to obtain a Taskera “from authorities in Kabul” appears to be based on the statement contained in paragraph 5.28 of the DFAT Report that official Taskeras “are issued by the Population Registration Department of the Ministry of the Interior in provinces and districts throughout Afghanistan” (emphasis added); and
e)the Authority’s reference to “DFAT notes the documentation required is minimal’” is a reference to paragraph 5.36 of the DFAT Report, where it is said that “the documentation required to obtain a Taskera is minimal and unsophisticated”.
I find that in paragraph 55 of its reasons the Authority made findings based on information contained in the DFAT Report and, in particular, information contained in paragraphs 5.27, 5.28, and 5.36 of that report. Given the Information in Question is contained in paragraph 5.28 of the DFAT Report, I am not satisfied the Authority did not read that paragraph, or was otherwise not aware of the Information in Question. On the contrary, I am satisfied the Authority at the very least read paragraph 5.28 of the DFAT Report, and acquainted itself with the Information in Question, including the statement that “[g]enerally, the required supporting information for the issuance of a Taskera will be a copy of the father’s Taskera”.
Did the Authority not give proper and genuine consideration?
The next question is whether, having read the Information in Question, the Authority did not, as the applicant submits, give it proper and genuine consideration because it did not refer to it in arriving at its finding that the applicant will be eligible to obtain a Taskera in Kabul. In determining that question, there are three matters to note.
a)First, there is the content of the Information in Question itself. The applicant’s submissions tend to assign an unconditional quality to the statement that “[g]enerally, the required supporting information for the issuance of a Taskera will be a copy of the father’s Taskera”. As counsel for the Minister submitted, however, the requirement is not unconditional; it is qualified by the word “generally”, which suggests there are circumstances in which a copy of a person’s father’s Taskera will not be required to obtain a Taskera.
b)Second, and perhaps more significantly, there is the other information contained in the DFAT Report that was relevant to whether the applicant would be eligible to obtain a Taskera in Kabul. One is information to which the Authority referred, namely, that “the documentation required to obtain a Taskera is minimal and unsophisticated”. The word “documentation” without reference to any particular class of documents, such as a father’s Taskera, suggests that documents other than a father’s Taskera may suffice; and that such other documents as may be required are “minimal and unsophisticated”. That suggests unexacting conditions for obtaining a Taskera. It also suggests that it may not be necessary to produce a father’s Taskera, if such Taskera is otherwise not available.
c)Third, the applicant did not claim he would have to apply to obtain a Taskera, or that he required his father’s Taskera to obtain one. The applicant claimed he had to return to his province to obtain “a duplicate”.[40] That implies that government authorities hold a duplicate or duplicates of Taskeras that had been issued to people, including to the applicant; that government authorities provide, or are in a position to provide, duplicates of the Taskeras that had already been issued to persons like the applicant who had lost their Taskeras; and the applicant claimed he had to return to his home province to obtain a duplicate of the Taskera that had previously been issued to him. That is the claim the Authority considered. The Authority referred to and relied on the DFAT Report to find that the applicant will be eligible to obtain a Taskera in Kabul, rather than only in his home area, as the applicant claimed. The Authority, however, also referred to the DFAT Report’s reference to a person’s being required to have a Taskera “for other administrative purposes such as attending school or applying for a passport”, the applicant’s having lived in Kabul for 11 years, and his having done all his schooling there. It is open to infer that this may have suggested to the Authority that authorities in Kabul may already hold a duplicate of the Taskera relating to the applicant, and that the applicant may be able to obtain a duplicate of his Taskera in Kabul, rather than by returning to his home area.
[40] CB73, [32]
In light of any one or more of these matters, is the more probable explanation for the Authority’s not referring to the Information in Question in the course of finding the applicant will be eligible to obtain a Taskera in Kabul that for which the applicant contends, namely, the Authority did not actively or properly and genuinely consider that information? I am not satisfied it is. The more probable explanation is that the Authority considered the Information in Question, but it found the information to be irrelevant. That is, given any one or more of the following matters, namely:
a)the DFAT Report stated that “the documentation required to obtain a Taskera is minimal and unsophisticated”;
b)the applicant had spent 11 years in Kabul during which time he went to school, and going to school is an activity for which the DFAT Report stated required a Taskera; and
c)the applicant’s claim was that he had to return to his home area to obtain a duplicate of a Taskera that had been issued to him, not that he required his father’s Taskera or any particular documents to obtain a Taskera he never had,
the more probable explanation for the Authority’s not referring to the Information in Question is that it considered the Information in Question was irrelevant to assessing the applicant’s ability to obtain a Taskera in Kabul.
For these reasons, ground 2 fails.
Ground 3
Ground 3 is as follows:
The IAA misconstrued or misapplied the real chance test for persecution.
Particulars
a.The IAA considered:
i.A particular country situation (at [40] of its reasons for decision)
ii.A specific claim made by the applicant (at [51]), and
iii.Particular risks faced by the applicant upon his return to Afghanistan posed by his mental health condition (at [57])
to be “too speculative”.
b.The IAA was required but failed to consider, in relation to country conditions, claims and/or risks, whether the applicant had a well-founded fear of persecution.
Counsel for the applicant made no oral submissions in support of this ground. Counsel said he relied on the applicant’s written submissions. Counsel for the Minister responded in kind. He too made no oral submissions, but said he was content to rely on the Minister’s written submissions.
In his written submissions, the applicant identifies three passages of the Authority’s reasons in which the Authority uses the expression “too speculative” to conclude the applicant did not face a real risk of serious harm, and submits that the use of “too speculative” did not address the correct question of whether the applicant faces a real chance of serious harm.[41] In his written submissions,[42] on the other hand, the Minister submits the word “speculative”, when applied to a claim, means “so conjectural as to be properly discounted”,[43] or, when applied to material, means “the probative force [or lack thereof] of the material”.[44] The Minister submits the Authority used the words “too speculative” to characterise the claims or information to which the Authority applied the expression as so conjectural as to be properly discounted, or lacking in probative force.
[41] Outline of Submissions for Applicant, [30]-[34]
[42] Outline of Submissions of the First Respondent, [14]
[43] The words are taken from the judgment of the plurality in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at page 294.
[44] The words (other than those in square brackets) are taken from the judgment of the plurality in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at page 277
I accept the Minister’s submissions. It is apparent from the Authority’s reasons as a whole that the Authority was aware of the correct test it was required to apply, namely, a “real chance of harm”. The Authority used this phrase in its reasons.[45] It is also clear, as my summary of its reasons itself shows, that the Authority understood the expression “too speculative” to have a different meaning from “real chance of harm”.
[45] See, for example, at CB237[26] and CB245[51]
Ground 3, therefore, also fails.
Proposed ground 4
Ground 4 of the draft amended application is as follows:
The IAA found at [26], [41], [51], [53] and [58] that the applicant faced small risks of harm from at least five sources. The IAA was required to consider the risks cumulatively: see for example Minister v DDK16 [2017] FCAFC 188 at [32]-[33]. Although the IAA purported or attempted to consider the risks of harm cumulatively at [60], it erred in undertaking this task. Among other reasons, it did not in fact consider some risks of harm it accepted the applicant would face, and it mis-stated [sic] the scope or degree of other risks of harm it accepted the applicant would face. This is a jurisdictional error.
There are three elements to this ground: the Authority found the applicant faced small risks of harm from various sources; the Authority was required to consider these risks cumulatively; and the Authority purported to assess these risks cumulatively, but made various errors in doing so.
The findings of risk the applicant submits the Authority made are said to be found in the following passages from its reasons:
a)Paragraph 26, where the Authority considered whether the applicant will face a risk of harm from Hazara groups or leaders or Kochis in Kabul or Mazar-e-Sharif because of communal clashes in urban centres, including in Hazara areas in Kabul. The Authority there found that the information to which the Authority referred “does not support that this has recently occurred to any scale and / or frequency that satisfies me that the applicant would face a real chance of harm in a place like Kabul or Mazar-e-Sharif”. The applicant submits that the effect of this passage is a finding that “the applicant would face a chance of harm from these communal clashes, but the chance was less than a real chance”.[46]
b)Paragraphs 35, 38, and 41, where the Authority considered the risk posed by Islamic State. The applicant particularly relies on the Authority’s findings at paragraph 41 of its reasons where it accepted Islamic State is attempting to inject a sectarian element into the conflict; that it was not satisfied such sectarianism will increase such that violence against Shias in Kabul or Mazar-e-Sharif will extend beyond sporadic attacks; and that, notwithstanding the seriousness and gravity of recent attacks, it found that the chance of the applicant being seriously harmed by Islamic State “is remote”. The applicant submits that, in effect, the Authority found the applicant would face a chance of harm from Islamic State, but the chance of harm is less than a real chance.[47]
c)Paragraph 51, where the Authority accepted that Kabul and Mazar-e-Sharif would be affected by a high level of serious crime; noted that DFAT does not report that violent crime levels are such a problem in Kabul or other urban centres such as Mazar-e-Sharif so as to be a significant risk for returning Afghan nationals; and the Authority’s finding it was not satisfied the applicant would face a real chance of harm in Kabul or Mazar-e-Sharif as a consequence of criminality. The applicant submits the effect of this part of the Authority’s reasons is a finding that the applicant would face a chance of harm from criminality, but the chance is less than a real chance.[48]
d)Paragraphs 53, 54, and 56, where the Authority accepted that the applicant will face some societal discrimination that still occurs against the Hazaras; the risk of discrimination may be significantly higher for returnees from western countries; the applicant may face societal discrimination, and that that risk may be increased as a result of his return from a western country; but the discrimination the applicant would experience would not constitute serious harm. The applicant submits the effect of these findings is that the applicant would experience societal discrimination, but that would not be serious harm.[49]
e)Paragraph 58 of its reasons, where the Authority found the chance the applicant would be harmed through generalised violence in Kabul or Mazar-e-Sharif is remote and, for that reason, the Authority was not satisfied the applicant faces a real chance of suffering serious harm through generalised violence in Kabul or Mazar-e-Sharif. The applicant submits the effect of these findings is that the Authority found the applicant would face a chance of harm from generalised harm, but the chance is less than a real chance.[50]
[46] Outline of Submissions for Applicant, [36], [37]
[47] Outline of Submissions for Applicant, [38], [39]
[48] Outline of Submissions for Applicant, [41]
[49] Outline of Submissions for Applicant, [42]-[44]
[50] Outline of Submissions for Applicant, [46]
The applicant relies on the Full Federal Court judgment in Minister for Immigration and Border Protection v DDK16 for submitting the Authority was required to assess cumulatively the risks the applicant submits the Authority found constituted less than a real chance of serious or significant harm.[51] I will return to the passages on which the applicant relies when I consider this aspect of proposed ground 4.
[51] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
The applicant submits the Authority made the following errors (asserted errors) when assessing cumulatively the risks the applicant submits the Authority found constituted less than a real chance of serious or significant harm.
a)In relation to the risk of harm in Kabul or Mazar-e-Sharif from Kochis, the Authority mischaracterised its own finding by referring to the risk of harm posed by Kochis “from Wardak” rather than assessing the risk from Kochis in Kabul or Mazar-e-Sharif.[52]
b)In relation to the risk of harm from Islamic State, the Authority mischaracterised what the applicant submits was a finding of some risk as a finding of no risk.[53]
c)The Authority did not incorporate into its assessment of cumulative risk what the applicant submits the Authority found was a risk of harm from serious crime or criminality;[54] the risk of societal discrimination,[55] and the risk of targeted and generalised violence.[56]
[52] Outline of Submissions for Applicant, [49(a)]
[53] Outline of Submissions for Applicant, [49(b)]
[54] Outline of Submissions for Applicant, [49(c)]
[55] Outline of Submissions for Applicant, [49(d)]
[56] Outline of Submissions for Applicant, [49(e)]
The Minister, on the other hand, submits that, with the exception of its findings concerning discrimination, the Authority did not make any findings that the applicant faced a risk of harm that was less than a real chance of facing such harm; in any event, the Authority was not required to make a cumulative assessment of any risk of harm it found or assumed the applicant would face that was less than a real chance of harm; and, to the extent the Authority did assess cumulatively any findings of risk of harm that was less than a real chance of harm, it made no error, or no error that went to jurisdiction.
The first question to consider is the asserted legal premise of proposed ground 4, namely, the Authority “was required to consider the risks cumulatively”. The ground relies on the Full Federal Court’s judgment in DDK16.
Was the Authority required to undertake a “cumulative assessment”?
In DDK16 the primary judge found the Authority made no jurisdictional error in the manner in which it considered and did not accept the claims made by the applicant in that case that he faced a real chance of serious or significant harm for any of the five reasons on which the applicant relied as giving rise to the real chance of harm. The primary judge nevertheless found the Authority made a jurisdictional error because it did not assess cumulatively the matters the Authority considered individually to determine whether the applicant would face a real chance of harm. The primary judge’s reasoning included the following:[57]
The cumulative assessment of the claims needed to address the possibility of the interaction of the applicant’s condition, activities and circumstances leading him to the adverse attention of the Iranian authorities. To put it another way, the assertion of a cumulative assessment, in a complex case such as this, requires a demonstration of an active intellectual engagement with the issues when considered cumulatively. There is no doubt that there was active intellectual engagement with the issues considered individually. It is not apparent, however, that there was any active intellectual engagement in the cumulative assessment.
[57] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188, at [28]
On appeal the Full Federal Court referred to the respondent’s counsel’s “quite properly” not disputing the Minister’s submission that a decision maker is not obliged to make a “cumulative assessment” where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country.[58] The Full Federal Court also noted, however, the respondent accepted as correct the following submissions made on behalf of the Minister:[59]
Broadly speaking, it can be accepted that there is an obligation to consider the parts of a Visa applicant’s claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act] [citing MZZUG v Minister for Immigration and Citizenship [2015] FCA 1151 at [47]].
The obligation to give cumulative consideration to a visa applicant’s claims arises as part of the decision-maker’s obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant’s claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker’s duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]].
[58] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188, at [32]
[59] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188, at [33]
The submissions made on behalf of the Minister in DDK16, as reproduced by the Full Federal Court, appear to be inconsistent or, at least, appear not to sit comfortably together. On the one hand it was submitted that a decision maker is not obliged to make a “cumulative assessment” where individual claims have been rejected; but, on the other, it was submitted that, broadly speaking, it could be expected “that there is an obligation to consider the parts of a Visa applicant’s claim for protection cumulatively”. The Full Federal Court did not say there was any inconsistency in the submissions made on behalf of the Minister; it only offered the following observations after having reproduced the Minister’s submissions:[60]
In our view, however, such considerations have no application in a case such as this and are of no assistance to the respondent. It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result. It follows, in our respectful view, that the primary judge was wrong to hold otherwise.
[60] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188, at [34]
With respect, it is not “inexorable logic” that renders the cumulative consideration of rejected claims incapable of producing a different result. If a decision maker finds an applicant will be exposed to a number of risks of seriously or significantly harmful events, each of which has a less than a real chance of occurring, but the probability of the occurrence of each harmful event is mutually exclusive of the probability of the occurrence of each of the other events, it is conceivable that the probability of any one of those harmful events occurring could rise to the level of a real chance. That is a consequence of the rule for assessing the probability of one of two or more mutually exclusive events occurring.[61]
[61] This is the often called the “addition rule”, one formulation of which is: “The probability of any one of a number of mutually exclusive events is equal to the sum of their individual probabilities.” (M.O. Finkelstein, Basic Concepts of Probability and Statistics in the Law, Springer Science + Business Media, LLC 2009, page 41)
It is not, therefore, any principle of logic that prevents the cumulative assessment of claims that have been rejected; the limiting consideration is the statutory task the decision-maker is required to undertake when assessing a claim or claims for protection. In the case of a person who claims to be a “refugee” within the meaning of s.5H of the Act, the decision maker’s statutory task is to identify the serious harm of which the applicant claims there is a real chance he or she will suffer, and to determine whether there is a real chance the applicant will suffer such harm. The statutory task is for the decision maker either to be satisfied or not satisfied the applicant faces such a real risk.[62] It forms no part of the decision-maker’s statutory task to consider any other assessment of risk. The same applies when a decision maker is considering whether an applicant satisfies the complementary protection criterion provided for by s.36(2)(aa) of the Act. The statutory task is to identify the significant harm the applicant claims there is a real chance he will suffer, and to determine whether there is a real chance the applicant will suffer such harm. Again, it forms no part of the decision-maker’s statutory task to consider any other assessment of risk.
[62] See s.65 of the Act
That the limit to the cumulative assessment of discrete claims of risk of harm, each falling short of a real chance of harm, is not a logical one, but a reflection of the statutory tasks the decision maker is required to carry out, means that it is possible in any given case for there to be before a decision maker a claim that the applicant will be exposed to a number of risks of harm, each of which falls short of a real chance of harm, but which, when considered cumulatively, any one or more of the risks amounts to a real chance of harm. Whether a decision maker is confronted with any such claim will depend on the circumstances of the case.
If this analysis is correct, the relevant question in the case before me is whether the applicant claimed he was exposed to a number of risks of harm, each of which falls short of a real chance of harm but which, when considered cumulatively, one or more of the risks amounts to a real chance of harm. The applicant does not submit there was any such express claim before the Authority, and I am not satisfied the applicant advanced any such claim. The Authority, however, undertook or purported to undertake a cumulative assessment. That suggests the Authority considered there was before it some sort of cumulative risk claim. But what sort of cumulative risk claim can the Authority be taken to have understood was before it?
Nature of cumulative assessment undertaken by the Authority
The nature of the cumulative risk claim the Authority may be taken to have understood was before it is that which the Authority identified in paragraph 60 of its reasons. It is apparent, however, that the cumulative risk claim the Authority considered was before it was not a claim that the applicant faced a real chance of harm because he faced a number of distinct risks of serious harm, none of which by themselves reached the level of a real chance of harm, but which, when considered cumulatively, any one or more amounted to a real chance of harm. That the Authority did not consider any such claim is apparent from two considerations.
The first is the Authority included in its cumulative assessment what it considered was a finding that the applicant “was not at risk” of being killed or otherwise harmed for a number of reasons. That is a finding to the effect that the applicant is exposed to no risk. Whatever sort of cumulative claim the Authority considered it was assessing, therefore, it was not one which included the cumulative effect of its assessment of probabilities of harm that were less than a real chance because, if the Authority were considering such a claim, it would not be assessing the cumulative impact of a zero chance of risk of harm.
The second consideration is that, contrary to the submissions of the applicant, and as submitted by the Minister, the Authority did not purport to make any findings about the risk of serious harm to which the applicant will be exposed, other than that the applicant did not face a real chance of serious or significant harm. In particular:
a)The Authority did not, as the applicant submits,[63] find expressly or impliedly, that the applicant will face a risk of harm from Hazara groups or leaders or Kochis in Kabul or Mazar-e-Sharif because of the communal clashes. The Authority found, and only found, it was not satisfied the applicant would face a real chance of harm from Hazara groups or leaders, or from Kochis, in Kabul or Mazar-e-Sharif.[64]
b)The Authority did not, as the applicant submits,[65] find, expressly or impliedly, that the applicant would face a chance of harm from Islamic State, but the chance was less than a real chance. Earlier in its reasons the Authority found the applicant’s risk of being harmed by Islamic State was “remote”.[66] The Authority used the word “remote” to mean that which does not constitute a real chance. In other words, the only finding the Authority made is it was not satisfied the applicant faced a real chance of serious or significant harm. That is consistent with the use of the word “remote” in the judgment in Chan, where “remote” was used to denote that which does not constitute a real chance of serious harm.[67]
c)The Authority did not, as the applicant submits,[68] find, expressly or impliedly, that the applicant would face a chance of harm in Kabul or Mazar-e-Sharif as a consequence of criminality, but the chance was less than a real chance. The Authority found, and only found, it was not satisfied the applicant would face a real chance of harm as a consequence of criminality.[69]
d)The Authority did not, as the applicant submits,[70] find, expressly or impliedly, that the applicant would face a chance of harm of generalised violence, but the chance was less than a real chance. The Authority found that the chance the applicant would be harmed through generalised violence “is remote”, which the Authority considered to be equivalent to finding it was not satisfied the applicant faces a real risk of facing serious harm through generalised violence.[71]
e)The Authority accepted the applicant faced a real chance of harm through discrimination, but it was not satisfied the discrimination would amount to serious harm.[72]
[63] Outline of Submissions for Applicant, [49(a)]
[64] CB237, [26]
[65] Outline of Submissions for Applicant, [49(b)]
[66] CB242, [41]
[67] Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379: “I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia” (Mason CJ, at [12]); “A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.” (Dawson J, at [19]); “The test . . . “a real chance” . . . does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.” (Toohey J, at [26])
[68] Outline of Submissions for Applicant, [49(c)]
[69] CB245, [51]
[70] Outline of Submissions for Applicant, [49(e)]
[71] CB247, [58]
[72] CB246, [56]
My conclusion that the cumulative risk claim the Authority considered was before it was not a claim that the applicant faced a real chance of harm because he faced a number of distinct risks of serious harm, none of which by themselves reached the level of a real chance of harm, but which, when considered cumulatively, one or more of the risks amounts to a real chance of harm, leaves undetermined the nature of the cumulative risk claim the Authority did consider was before it. It is unnecessary, however, to answer that question because, for the reasons I set out in the next few paragraphs, I am not satisfied the Authority made any of the errors the applicant claims it made.
Did the Authority make the errors alleged by applicant?
The first of the errors the applicant submits the Authority made - the Authority mischaracterised its own finding by referring to the risk of harm posed by Kochis “from Wardak” rather than assessing the risk from Kochis in Kabul or Mazar-e-Sharif - relies on a narrow reading of this part of the Authority’s reasons. It is true that the Authority in this part of its reasons referred to the risk of harm in Kabul or Mazar-e-Sharif from Kochis “from Wardak”. Earlier in its reasons, however, the Authority considered the risk of harm in Kabul or Mazar-e-Sharif from Kochis in Kabul or Mazar-e-Sharif.[73] I find the Authority intended its reference in paragraph 60 of its reasons to the risk of harm posed by Kochis “from Wardak” to be a reference to the risk of harm from Kochis in Kabul or Mazar-e-Sharif.
[73] CB237, [25]
I am not satisfied the Authority made the second of the asserted errors, namely, that it proceeded on the basis that the applicant faced no risk of harm from Islamic State in circumstances where it is submitted the Authority had found the applicant would face a risk, although not a real risk, of harm from Islamic State. For reasons I have already given, I do not accept the Authority found the applicant was exposed to a risk of harm that was less than a real chance of harm.
I do not accept the Authority made any error by not incorporating into its cumulative assessment anything it said when assessing whether the applicant would face a real chance of harm in Kabul or Mazar-e-Sharif as a consequence of criminality, or because of generalised violence. As I have already found, the Authority made no finding other than that the applicant did not face a real chance of significant harm. Nor do I accept the Authority made any error by not incorporating into its cumulative assessment its finding that the Authority was not satisfied that the harm the applicant would suffer from discrimination was not serious or significant harm. That finding could not reasonably have had any rational bearing on the assessment of the probability of the applicant’s suffering the other serious or significant harms to which the applicant claimed he would be exposed if he were returned to Afghanistan.
For these reasons, although I am satisfied proposed ground 4 has sufficient merit to warrant my granting the applicant leave to file an amended application containing that ground, the ground does not succeed.
Disposition
I propose to grant the applicant leave to file an amended application that includes proposed ground 4, but strikes out ground 1, and order that the application be dismissed. Counsel agreed that costs should follow the event, and that the costs should be set in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) at the relevant time, namely, 6 May 2017, being the day on which the application was filed. That amount is $7,206.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 28 February 2020
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