Cai18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 773

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 773

File number(s):

SYG 1127 of 2018

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

28 April 2021

Catchwords:

MIGRATION – Immigration Assessment Authority– safe haven enterprise (protection) visa – whether the decision of the Authority was infected by irrationality, illogicality or legal unreasonableness – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss 5J, 36(2)(aa), 36(2A), 36(2B)

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593

ARG 15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Minister for Immigration and Citizenship v Li 297 ALR 225

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs. (1994) 52 FCR 437

Singh v Minister for Home Affairs [2019] FCAFC 3

Number of paragraphs:

53

Date of last submission/s:

13 April 2021

Date of hearing:

13 April 2021

Place:

Parramatta

Counsel for the Applicant:

Mr Young

Counsel for the Respondents:

Mr Bevan

ORDERS

SYG 1127 of 2018

BETWEEN:

CAI18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	28 APRIL 2021

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.

2.The application is dismissed.

3.The Applicant to pay the First Respondent’s costs fixed in the amount of $7467.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a citizen of Afghanistan of Pashtun ethnicity from Logar province. On 6 July 2016, the applicant lodged an application for a Safe Haven Enterprise (Protection) visa. On 30 May 2017, a delegate of the then Minister for Home Affairs (“the delegate”) refused to grant the applicant his protection visa.

2. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 28 March 2018, the Authority affirmed the decision not to grant the applicant a protection visa.

3. The applicant now seeks judicial review of the Authority’s decision.

   THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

4. After setting out the history of the matter, the Authority, at paragraphs 4 through to 8 of its decision, deals with new information before it. The Authority determined that exceptional circumstances existed to justify the Authority considering an updated letter/proclamation issued by the Taliban about the applicant as well as updated country information.

5. At paragraph 9 of its decision, the Authority details the applicant’s claims:

   •The applicant is an Afghani national of Pashtun ethnicity who was born in XXX village, Pul-e-Alam district in Logar province and is a Sunni Muslim. He completed his higher school education up to year 2012 in Kabul in 2005, worked on the family farm for one year and as a mechanic in Pul-e-Alam city from 2007 until October 2012. His parents, wife and daughter, brother and sisters are residing in Kabul city while his elder brother is deceased.

   •The applicant began a friendship with a local girl in his village when he was a teenager which grew into a romantic relationship. When he found out his parents wanted him to marry, he asked his parents if he could marry her but his father refused and indicated that the applicant should marry someone in the family. After the applicant’s marriage in 2011, the girl came to the family home and told his mother that she was not returning home and wanted to be the applicant’s wife. The applicant’s father spoke with the girl’s father who was the local imam and her father took the girl home.

   •The applicant continued to live in the village but he found out from his friend the imam who was involved with the Taliban, was telling the village people and the Taliban that the applicant was reporting the Taliban’s activities to the government. The applicant received a threatening phone call from the Taliban and his friend also overheard the imam speaking to the Taliban in a neighbouring village about the applicant.

   •In approximately November 2016 the applicant was walking home from his employment in Pul-e-Alam city with his elder brother, when they were fired upon and his brother was killed. The applicant managed to take cover in a dry stream bed and made his way home. After observing the three day mourning period the applicant left his village as he was told that the Taliban were still after him. He initially went to Pakistan where he stayed for a month with a relative but returned to Kabul where he stayed with relatives and friends for a month while he made travel arrangements.

   •The applicant fears being killed by the Taliban as he is perceived to be a government spy/informant. He also fears harm as a failed asylum seeker and because he witnessed his brother’s death.

6. Paragraphs 11 to 15 of the Authority’s decision deal with the applicant’s claims about his relationship with the Imam’s daughter. The applicant claimed that his parent’s did not like the family of the Imam and were unaware of his relationship with the Imam’s daughter. The Authority noted that country information indicated that most marriages are arranged. However, the Authority was concerned that the applicant claimed to have had a 4 year relationship with the Imam’s daughter in a country that is strictly separated, with very few or no arenas where young men and women can meet and develop intimate relationships. At paragraphs 13 of its decision, the Authority noted that women/girls who have entered puberty and/or are, of marriageable age, are zealously protected from males not belonging to their family.

7. At paragraph 14 its decision, the Authority noted that the applicant initially stated at interview that he developed a relationship with the girl in 2001 and continued until 2004. The applicant later stated that he conducted the relationship for three or four years before he was married in 2011. The Authority did not accept the applicant, who was only 13 at the time, would have commenced a relationship in 2001, nor is it plausible that he would have pursued the relationship until 2004, given he was living in Kabul during 2003 and 2004.

8. The Authority found that the applicant’s second account was more plausible in terms of the timeframe and accords more closely with his account provided in the visa application. The Authority, however, found that it was implausible that the applicant would be able to have a secret relationship in a small village, over a 3 to 4 year period, or the relationship progressed to a close emotional relationship where they secretly met in the local orchard after sending messages over the phone. The Authority did not accept that a girl, who was the Imam’s daughter, or the applicant, who was living in the same village, would compromise their own or their family’s reputations and have a liaison over an extended period in the village where both were known and easily recognised.

9. The Authority did not accept that the Imam’s daughter came to the applicant’s house after his marriage and stated that she wanted to marry the applicant. The alleged behaviour was extremely irregular, given that the applicant was already married. The Authority found that it was implausible that the girl, given her greater vulnerability and the damage to her reputation, would take these actions. Accordingly, the Authority was not satisfied that the girl visited the house as claimed and asked to marry the applicant.

10. Paragraphs 16 through to 23 of the Authority’s decision deal with the claims in relation to the applicant’s fears of the Taliban. The applicant claims that his friend told him that he saw the Imam at another village talking to the Taliban about the applicant and giving them information, including where the applicant lived.

11. The Authority accepted that the Taliban target those suspected of supporting or spying for the Afghan government. The Authority also accepted that the Taliban are prevalent in large portions of Logar province, including the applicant’s local area. The applicant claims to have received a phone call from the Taliban approximately two months before his brother’s death. The Authority noted that the applicant’s account of what his friend heard and saw escalated from the visa application, where he stated his friend heard the Imam was spreading gossip in the village about the applicant, to his friend overhearing a confidential conversation with the Taliban about the applicant. The Authority was not satisfied that the applicant received a phone call, nor that his friend overheard a conversation between the local Imam and the Taliban in a neighbouring village.

12. The applicant stated at the end of his protection visa interview, after prompting by his migration agent, that the Taliban may have considered him to be a spy because he sometimes did mechanical repairs on police and army vehicles in his work at a workshop. The Authority accepted that the applicant may have occasionally worked on government vehicles, however, he was not the owner of the business which was just one of a number of similar workshops in the same area frequented by a range of customers. The applicant stated that he undertook this work for about five years. The Authority considered it implausible that the applicant was of any interest to the Taliban due to his work, as a spy or for any other reason. The Authority noted that, if the applicant was of interest, he would have come to the Taliban’s attention earlier through the Imam, or other informants.

13. The Authority noted that, although the applicant claimed the Taliban knew all about him when they made a threatening phone call, he had no further contact with them until his brother was killed two months later as they were walking back to their village. The applicant, during this time, continued to work and walk on a daily basis from his village to his employment despite the claimed threat to his life. The Authority found that it did not accept that, if the applicant was regarded as a government spy, the Taliban would have waited over two months to target the applicant. Country information indicated that someone accused of spying by the Taliban is normally subject to summary trial and execution.

14. At paragraph 21 of its decision, the Authority noted that the applicant had provided a copy of a letter from village elders which states that the applicant’s brother was killed by the Taliban and that the applicant escaped. The document is undated and the author’s account is not based on first-hand knowledge. The Authority was prepared to accept that the applicant’s brother was killed while he and the applicant were walking home to their village, but there was no other evidence indicating that the Taliban were the perpetrators, or what their motives were. The Authority concluded that it was not satisfied that the applicant was targeted by the Taliban on this occasion.

15. At paragraph 23 of its decision, the Authority considered a copy of a proclamation or decree issued by the Taliban military commission in Logar as evidence that the applicant had been targeted by the Taliban. The applicant claims that the document was left for him at the local Mosque by the Taliban and that his father collected the document when he returned to the village in 2017. The document is undated. From the applicant’s account, it appears to have been issued sometime after his family travelled to Kabul in late 2015/2016. If the applicant was previously accused of spying, the Authority did not accept that the Taliban would issue a decree over four years after his departure from Afghanistan and leave it at the local Mosque for the applicant. The Authority considered that if the applicant was of any interest to the Taliban, they would have also been aware of his absence from the village.

16. Paragraphs 28 through to 30 of the Authority’s decision deal with the risks to the applicant if he returned to his village. The Authority was satisfied that knowledge that the applicant has lived in a Western country may be already known or will become known to the local community, and subsequently, the applicant would receive adverse attention of the local Taliban through their networks. The Authority concluded that there was more than a remote chance he would be imputed with a pro-Western political opinion and targeted for serious harm by the local Taliban if he returned to his village. The Authority was satisfied that an imputed political opinion would be an essential and significant reason for that harm.

17. At paragraph 31 of its decision, the Authority notes that pursuant to s 5J(1)(c) of the Migration Act 1958 (Cth) (“the Act”), the real chance of persecution must relate to all areas of the receiving country. The Authority concluded that it was not satisfied that the applicant would face a well-founded fear of persecution in Kabul which can be accessed by the applicant by air travel.

18. The Authority goes on to consider, in significant detail, the risk that the applicant would face if he were to return to Kabul. At paragraph 34 of its decision, the Authority noted that the applicant did not hold any identifiable affiliations with international organisations or the Afghan government which would raise his profile in Kabul and lead him to be targeted by insurgents for an imputed pro-Western political opinion. The Authority found that it was not satisfied that the applicant would face any real chance of harm in Kabul as a Western returnee, or due to any imputed profile in his local area. At paragraph 36 of its decision, the Authority noted that the applicant would be returning to an area he previously lived in for three years while studying and that he has immediate family there, along with friends and other family members who are well-established.

19. At paragraph 37 of its decision, the Authority noted that there had been attacks against high profile international institutions, both military and civil in Kabul. The Authority found that the applicant did not face a real chance of harm in the foreseeable future from the Taliban and/or other insurgent groups due to the general security situation in Kabul.

20. Paragraph 40 onwards of the Authority’s decision deals with complimentary protection considerations. At paragraph 45 of its decision, the Authority noted that the “real risk test” imposes the same standard as the “real chance test”. The Authority was not satisfied that there was a real risk that the applicant would suffer significant harm upon his return to Kabul for the reasons it found above. The Authority was satisfied, at paragraph 48 of its decision, that the applicant had the skills, life experience and resilience to relocate and establish himself in an area of Kabul where employment, accommodation and other services would be available to him. The applicant would be arriving in Kabul as a married man. The applicant would not be required to find accommodation in Kabul. There was no evidence to suggest he would not have access to his family and tribal links within the Pashtun community in Kabul. The applicant has no other significant vulnerabilities including health or other vulnerabilities. Accordingly, the Authority concluded that it was not satisfied that the applicant met the criteria for complimentary protection under s 36(2)(aa) of the Act.

    GROUNDS OF JUDICIAL REVIEW

21. The applicant’s grounds of judicial review are contained in an Initiating Application filed with the Court on 20 April 2018. They are as follows as relied upon at the hearing:

    Ground one

    Not pressed at hearing.

    Ground two

    The Second Respondent made jurisdictional error by making a decision about a claimed relationship the Applicant had with the local imam’s daughter which was based upon the placing of immutable and inflexible stereotyping of Afghan girls and women.

    Ground three

    The Second Respondent made jurisdictional error by making irrational, unreasonable capricious findings:

    •The Applicant’s brother was killed by the Taliban.

    •But there was not a real chance that the Applicant himself was of interest to the Taliban and when his brother was killed.

    Ground four

    The Second Respondent made jurisdictional error by failing to adopt the real chance test to the claim the Applicant was considered by the Taliban as an informant or spy.

    Ground five

    The Second Respondent made jurisdictional error by failing to adopt a real chance test to the fear of harm which the Applicant would have if forced to live in Kabul.

    Ground six

    Not pressed at hearing.

    Ground seven

    The second Respondent made jurisdictional error at [41] to [50] by making error of law as to the requirements of section 36(2B) of the Act.

    Particulars

    Section 36(2B) (a) requires the Minister to be satisfied that it would be reasonable for the Applicant to relocate to a place where there would not be a real risk that the person will suffer significant harm.

    Ground eight

    The Second Respondent made jurisdictional error at [44] by adopting the wrong test of satisfaction. The Second Respondent wrongly assumed that it had to be satisfied that harm would be significant harm whereas it had to be satisfied that there was not a real risk that the Applicant would suffer significant harm.

    Ground nine

    Not pressed at hearing.

    THE APPLICANT’S SUBMISSIONS

22. Ground one was not pressed at the hearing.

23. In relation to ground two, it is submitted that the Authority could not conclude, in the manner that it did, based on country information, that the relationship claimed by the applicant with the local Imam’s daughter did not occur. While it is reasonable to test a claim by reference to religious and societal norms, it is quite another to reject the claimed relationship merely because it is contrary to those religious or societal norms. The rejection amounts to legal unreasonableness.

24. In relation to ground three, issue is taken with the Authority’s conclusion that the applicant himself would not be of interest to the Taliban because he witnessed his brother’s death. It is alleged that the reasoning is given in a single sentence of “the brother died five years ago and the applicant has been absent from the area for a similar period”. It is submitted by the applicant that to simply assume that a five-year period is sufficient for the danger from the Taliban to have disappeared is both capricious and unreasonable. It was submitted that there is no reasoning process, other than the selection of five years, as being a relevant period to make one safe from the Taliban. There was no reasoning as to why the applicant would not be pursued as a witness to his brother’s murder in Kabul.

25. In relation to ground four, this is linked to the applicant’s claim that he was likely to be considered a government informant or spy and was connected to the accepted claim that the applicant’s brother had been killed by the Taliban.

26. The Authority found that the applicant was not of interest to the Taliban either at the time of his departure from his village in November 2012, or after the death of his brother. It is submitted this ignores, entirely, the effect on the applicant of being a witness to the death of his brother. It was after the death of the applicant’s brother that the applicant claims that threats from the Taliban escalated. The Authority places no significance on the applicant’s brother being killed. It was submitted by the applicant that it was unreasonable of the Authority to draw that conclusion because it allows no significance to him being a witness to his brother’s murder.

1. In relation to ground five, it is noted that the Authority found, to its satisfaction, that the applicant could suffer significant harm if he were to return to his home area in Afghanistan. Having made that finding, the relevant question for the Authority was whether it was reasonable for the applicant to relocate to an area other than his home village. The applicant claimed that it would not be reasonable for him to relocate to Kabul as he had limited skills as a mechanic and would not be able to support his family. The Authority found that employment “would be available to him”. It was submitted by the applicant that this is not enough to establish that it would be reasonable for him to relocate to Kabul. The applicant submits, rather, that the appropriate question is, could he reasonably obtain employment to provide income sufficient for him and his family.

2. Ground six was not pressed at the hearing.

3. In relation to ground seven and eight, the Authority stated that it was not satisfied that nepotism “would result” in the applicant being “arbitrarily deprived of his life” or that it “amounts to cruel or inhuman treatment or punishment or degrading treatment or punishment”. The applicant submits that this is plainly the application of the wrong test. The test under s 36(2A) of the Act is whether there was a real risk that the noncitizen will suffer significant harm. The Authority stated that it found there was not a real chance the applicant would suffer serious harm in Kabul. It is submitted by the applicant that the Authority did not, in fact, make this finding. At paragraph 37 of its decision, the Authority stated that it was not satisfied that the applicant faced a real chance of harm in Kabul, but this is not the same as being satisfied that he would not be at a real risk of harm in Kabul. It is submitted that the Authority failed to note the difference in satisfaction between s 5J(1)(c) and s 36(2B)(a) of the Act.

4. Ground 9 was not pressed at the hearing.

   THE FIRST RESPONDENT’S SUBMISSIONS

5. In relation to ground two, it was submitted that the allegation is one of legal unreasonableness. The Authority first set out the applicant’s claims and his evidence in the application and interview. The Authority then turned to country information, insofar as that affected the assessment of the applicant’s claims. After setting out the background, the Authority stated that it “did not accept that the girl who was the Imam’s daughter, or the applicant, who was living in the same village, would compromise their or the family’s reputations and have a liaison over an extended period in the village where they were both known and easily recognised.”

6. The first respondent submitted that the Authority’s reasoning does not disclose the placement of “immutable and inflexible stereotyping of Afghan girls and women”, nor does it reveal a rejection of the claim based solely on the inconsistency with prevailing sociocultural and religious norms. It was submitted that it shows the Authority assessed the credibility of the applicant’s claim to have formed and maintained a relationship with the local Imam’s daughter over four-year period in the light of country information. And, in circumstances of the applicant’s village and his own vague account, it was submitted that the Authority’s reasoning was free from any material legal error.

7. Ground three alleges that the Authority made “irrational, unreasonable capricious findings” that the applicant’s brother was killed by the Taliban, but that there was not a real chance that the applicant was of interest to the Taliban. It was submitted by the first respondent that the finding at paragraph 27 of the Authority’s decision was that the applicant’s brother “was killed whilst walking home with the applicant… to their home village”. The Authority stated that, paragraph 21 of its decision, that there was “no evidence indicating that the Taliban were the perpetrators or what their motives were” and, accordingly, was not satisfied that the applicant was targeted by the Taliban on this occasion. Whilst the Authority accepted the death of the applicant’s brother, it did not accept the claimed connection to the Taliban. Nonetheless, the Authority properly considered the question whether the fact of witnessing his brother’s death would give rise to a real chance of harm. This was answered by the Authority in the negative, having regard to the effluxion of time, the applicant’s absence from the village and his family’s residence in Kabul for three years.

8. For jurisdictional error to be established on the ground that a decision was irrational, it must be a decision to which no rational or logical decision-maker could have arrived at on the same evidence. The ground of irrationality cannot be made out if different minds might reach different conclusions: see Singh v Minister for Home Affairs [2019] FCAFC 3 at [61]. It is submitted that the Authority’s reasons, at paragraph 27 of its decision, when read with the other relevant findings elsewhere, in no way approach the test for illogicality, irrationality or being capricious.

9. The fourth ground, as pleaded, is that the Authority erred “by failing to adopt the real chance test” to the applicant’s claim that he was “considered by the Taliban and as an informant or spy”. The argument in the applicant’s submissions, however, is framed by reference to unreasonableness. The first respondent submits that the Authority gave careful consideration to the applicant’s claim as to the perception of him by the Taliban, and rejected it. The Authority did not accept that the applicant was targeted by the Taliban on the occasion which led to his brother’s death. The applicant’s argument contains an underlying assumption that does not accurately reflect the factual conclusion by the Authority at paragraph 21 of its decision. The complaint appears to be directed towards impermissible merits review. The assertions of illogicality or irrationality are merely emphatic ways of expressing disagreement with the Authority’s reasons: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40].

10. Ground five simply pleads a failure to adopt a real chance test by reference to the fear of harm which the applicant would have if forced to live in Kabul. The argument however, in the applicant’s submissions, shows that the complaint concerns the Authority’s findings based on the reasonableness of relocation to Kabul. It is submitted that the Authority did not sidestep the applicant’s claim by mere assertion as to the availability of employment. The Authority referred to country information concerning the circumstances relevant to employment in Kabul concluding that “despite there being relatively more employment opportunities in Kabul, there is unemployment and underemployment”. The Authority then went on to consider the applicant’s personal circumstances and concluded that he “has the skills, life experience and resilience to relocate and establish himself in an area of Kabul where employment, accommodation and other services would be available to him”. The Authority clearly considered whether or not it was practicable for the applicant to relocate to Kabul and concluded that he would be able to obtain employment with regard to his “skills, life experience and resilience”. The first respondent submits that the applicant would not be denied the necessities of life. No jurisdictional error occurs.

11. Grounds seven and eight alleged errors by the Authority in its application of the law with respect to the complimentary protection criterion. As to the first challenge, the first respondent submits that the Authority did not misapply the law. The Authority’s conclusion concerning the effects of nepotism were not directed to the assessment of the risk of harm within the meaning of s 36(2)(aa) of the Act. Rather, they were directed to the consequences of the assessment of harm under s 36(2A) of the Act which provides the definition of significant harm, where a person will be subjected to the types of harm then set out. The Authority did not accept that such treatment, being the effects of nepotism, would constitute significant harm as defined in s 36(2A) of the Act. This is a correct application of the law.

12. The second challenge relates to the consideration of whether the applicant would face a real chance of harm in Kabul. The Authority found that it was not so satisfied. The question for the Authority, then, was whether it was practicable for the applicant to relocate to Kabul, which it then turned to. It found that it, was practicable. No error is apparent.

    CONSIDERATION

13. It is perhaps appropriate to initially state a number of general principles in relation to protection claims. The Authority is not required to accept, uncritically, any and all claims made by an applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs. (1994) 52 FCR 437 at [451]. Jurisdictional error will not exist if the Authority’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings: see ARG 15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83].

14. It is well settled that the country information to which the Authority has regard to and the weight it gives to that information is a matter for the Authority: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. The Authority’s reasons are not to be scrutinised with “an eye too finely attuned to error”: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [46].

15. The test for unreasonableness is stringent and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters of the evaluative judgements made by the decision-maker: see Minister for Immigration and Citizenship v Li 297 ALR 225 at [30], [113]. For a claim of irrationality or illogicality to succeed on judicial review, the irrationality of illogicality must be extreme.

16. Ground two concerns the conclusions of the Authority in relation to the likelihood of there being a relationship between the applicant and the daughter of the Imam. The Authority relied upon country information which indicated that there was a strict gender segregation within Afghan society and there are very few, or no arenas where young men and women can meet and develop intimate relationships. The Authority also took account of the fact that it was claimed that the relationship developed in a small village, where it would have been even more difficult for the applicant and the young woman to keep their relationship secret. The Court does not accept that the reasoning places an immutable and inflexible stereotyping of Afghan girls and women. This was an assessment that was within legitimate decisional freedom of the Authority based on relevant country information and after an assessment of the totality of the applicant’s claims. The Authority noted that the applicant’s marriage was consistent with country information, in that, most marriages are arranged.

17. The Authority undertook a detailed examination of the claim at paragraph 14 of its decision record. This included when the relationship was claimed to have taken place and the circumstances in which it was claimed the relationship occurred. Counsel for the applicant submitted that just because the circumstances of the relationship are inconsistent with country information is not proof that the relationship did not occur as claimed.

18. The Court is satisfied that the conclusion is consistent with relevant country information. The conclusion was open to the Authority on the evidence before it. The conclusion is neither legally unreasonable, nor is it such that it reaches the required level of extreme irrationality or illogicality such as to ground jurisdictional error. Accordingly, ground two has no merit.

19. Ground three asserts that it was unreasonable, irrational or capricious to find that the applicant’s brother was killed by the Taliban but that there was no real chance that the applicant himself was of interest to the Taliban when his brother was killed.

20. As pointed out by Counsel for the first respondent, the Authority did not make a finding that the applicant’s brother was killed by the Taliban. At paragraph 21 of its decision, the Authority found that there “was no evidence indicating that the Taliban were the perpetrators or what their motives were”. As a result, the Authority was not satisfied that the applicant was targeted by the Taliban. The Authority accepted the applicant’s brother’s death but in those circumstances, it was entitled to find that the applicant himself was not of interest to the Taliban. Further, the Authority found that with the effluxion of time, and the applicant’s absence from the village, and his family’s residence for a number of years before departing from Kabul to Australia, that the applicant would not be of interest to the Taliban should he return.

21. It is also important to note that the Authority found that the applicant would not be returning to his home village, but rather Kabul, which was a centre of much greater size and population. It is reasonable to assume that in circumstances where the applicant was not returning to his home village, the likelihood of any threat from the Taliban, or the killers of his brother, if they were not the Taliban, would be significantly decreased. The Authority clearly considered the risk to the applicant as a witness to his brother’s death, but found that it did not reach the required threshold for protection if he returned to, and lived, in Kabul. The Court does not consider that the finding by the Authority reaches the stringent level of legal unreasonableness or extreme irrationality or illogicality such as to justify jurisdictional error.

22. In relation to ground four, the Court notes the submission by the first respondent that the applicant’s complaint is more in the nature of impermissible merits review. The Court is satisfied that the Authority considered the applicant’s views that he was a target of the Taliban, and rejected them. The Authority did not find that the applicant was targeted by the Taliban on the occasion which led to his brother’s death. Again, it is to be noted that the finding was made in the context that the applicant would be returning to Kabul as compared to his local village. The Court also notes that if the applicant was considered to be a spy, the Authority found, at paragraph 19 of its decision that he would have come to the attention of the Taliban earlier, if he was under suspicion due to the nature of his work. Accordingly, ground four reveals no jurisdictional error.

23. Ground five revolves around an allegation that the Authority failed to apply the correct test as to the chance of harm, should the applicant be forced to live in Kabul. The Court is not satisfied that the Authority “sidestepped the issue” in relation to what employment would be available to the applicant. The Authority made specific findings that, due to the applicant’s age, experience and resilience, he would be able to establish himself in an area in Kabul were employment, accommodation other services would be available to him. The Authority did not find that the applicant would find it easy to return to Kabul rather, he would be going back to an area where his family resided and he would have an established network, together with family support. The suggestion by Counsel for the applicant that the Authority was required to consider what type of employment he might find and whether it would provide sufficient remuneration for his family cannot be sustained. The Authority was satisfied that the applicant would be able to access the necessities of life. In these circumstances, it cannot be said that the Authority misapplied the test, and that it was somehow unreasonable for the applicant not to relocate to Kabul.

24. Grounds seven and eight alleged errors by the Authority’s application of the law with respect to the complimentary protection criterion. At paragraph 41 of its decision, the Authority set out the definition of significant harm under s 36(2A) of the Act. At paragraph 43 of its decision, the Authority noted that significant risk is subject to the issue of relocation. Under s 36(2B) of the Act, a person is not taken to be at real risk of significant harm if it would be reasonable for that person to relocate to an area the country where there would not be a real risk that the person would suffer significant harm.

25. The Authority then went on to consider the applicant’s claims that he would face difficulties if he were to relocate to Kabul as it was not safe. The Authority noted that the real risk test imposes the same standard as the real chance test. The Court is not satisfied that the Authority misapplied the law in this, or any other statement.

26. The Authority clearly accepted that the applicant would not suffer significant harm from the effects of nepotism. It was clearly satisfied that the applicant would not suffer a real chance of serious harm or significant harm if he were returned to Kabul for the reasons set out above. The complaint in these grounds seeks to read the Authority’s reasons with an eye too finely attuned to error. Accordingly, ground seven and eight reveal no jurisdictional error.

    CONCLUSION

27. The application is dismissed.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       28 April 2021