CDC15 v Minister for Immigration and Border Protection
[2017] FCA 18
•25 January 2017
FEDERAL COURT OF AUSTRALIA
CDC15 v Minister for Immigration and Border Protection [2017] FCA 18
Appeal from: CDC15 v Minister for Immigration and Border Protection [2016] FCCA 1314 File number: SAD 165 of 2016 Judge: CHARLESWORTH J Date of judgment: 25 January 2017 Catchwords: MIGRATION – protection visa – whether Tribunal failed to consider and determine an “essential integer” of claim – whether failure to exercise review jurisdiction – requirement to consider claim raised on material before Tribunal Legislation: Migration Act 1958 (Cth), ss 5, 36, 36(2A), 65, 474, 476 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Craig v South Australia (1995) 184 CLR 163
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 259 ALR 429
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Date of hearing: 17 August 2016 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 48 Counsel for the Appellant: Ms A Wells (pro bono) Counsel for the Respondents: Mr P d’Assumpcao Solicitor for the Respondents: Australian Government Solicitor
Table of Corrections 3 March 2017 Order 2, $1,756.00 replaced with $6,439.00 ORDERS
SAD 165 of 2016 BETWEEN: CDC15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
25 JANUARY 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs fixed in the amount of $6,439.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
This is an appeal from a judgment of the Federal Circuit Court of Australia (FCC). The learned primary judge dismissed an application for judicial review of a decision of the second respondent (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection visa.
The appellant is a citizen of Afghanistan. He is a Shi’a Muslim of Hazara ethnicity. He alleges that the Tribunal failed to consider and determine an “essential integer” of his claim for protection and that the FCC erred by failing to identify the Tribunal’s error.
For the reasons that follow, the appeal should be dismissed.
VISA CRITERIA
A visa may only be granted under the Migration Act 1958 (Cth) (the Act) if the Minister is satisfied that the prescribed criteria for the grant of the visa are met: s 65 of the Act.
A primary applicant for a protection visa must satisfy either the criterion in s 36(2)(a) or the criterion in s 36(2)(aa) of the Act.
Section 36(2)(a) relevantly provides:
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …
The Refugees Convention there referred to is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (Convention): see s 5(1) of the Act. For the purposes of s 36(2)(a), Australia has protection obligations under the Convention to persons described in Article 1A(2) of the Convention, namely:
A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
The requirement that there be a well-founded fear of persecution contains both subjective and objective elements. As Dawson J said in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 396:
There must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.
As to the objective component, a fear will be well-founded if there is a “real chance” that the visa applicant will be persecuted for a Convention reason if returned to his or her country of nationality: Chan at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J) and 429 (McHugh J).
In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, the Full Court (Kenny, Griffiths and Mortimer JJ) explained at [33] that the assessment of a claimed fear of persecution on return of the applicant to his or her country of nationality involves “a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past”. In relation to the predictive exercise as to the risks an applicant may face if returned to his or her country of nationality, the Full Court said:
33.The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.
34.Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
35.The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there. …
The task of the Minister (and hence the Tribunal) was described in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [74] — [75] (Gummow and Hayne JJ):
74.Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
75.Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.
Section 36(2)(aa) of the Act, together with ss 36(2A), 36(2B) and 36(2C) were inserted by the Migration Amendment (Complementary Protection) Act 2011 (Cth). Together, these provisions form what is commonly known as the “complementary protection regime”. Section 36(2)(aa) provides:
36 Protection visas—criteria provided for by this Act
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
As can be seen, the task of the Minister (and, on review, the Tribunal) in applying that criterion will involve a like speculative and predictive exercise to that required under s 36(2)(a), so as to assess whether there is a “real risk” of significant harm as a “foreseeable consequence” of the visa applicant being removed from Australia to a receiving country.
BACKGROUND
In support of his application for the visa, the appellant claimed to fear persecution if returned to Afghanistan by reason of:
(a)his race, being Hazara;
(b)his religion, being Shi’a Muslim;
(c)his actual or imputed political opinion, being pro-government or supportive of the Multinational Forces present in Afghanistan or, conversely, as being against the Taliban; and/or
(d)his membership of a social group, being “Western returnee or a Failed Asylum Seeker” or “Spies or informants for the Afghan government and International security forces”.
The appellant claimed that he had fled Afghanistan after suffering a number of incidents in which he had been harassed or threatened by members of the Taliban. Is not necessary to recite the details of those claims to determine the issues arising on this appeal, except to say that it formed a necessary part of the appellant’s occupation to travel the roads between the centres of Kabul or Ghanzi and his home province of Daikundi.
The appellant relied on comprehensive written submissions before the Tribunal. The submissions were fairly summarised by Counsel for the appellant in written submissions on this appeal in the following terms:
7.The following submissions were made to the AAT in relation to the appellant’s claim that he feared persecution in the reasonably foreseeable future by reason of, inter alia, the withdrawal of international troops from Afghanistan from 2014:
(a)‘Recent sources’ continued to predict a grave future for the humanitarian situation in Afghanistan in the lead up to the withdrawal of the international forces scheduled for 2014 and that available information suggested that the security situation in Afghanistan continued to deteriorate and the Taliban continued to increase its power and control in Afghanistan;
(b)Available information supports the fact that the security situation in Afghanistan continues to deteriorate and the Taliban continues to increase its power and control and that analysts continue to predict a return to power of the Taliban in the foreseeable future following the upcoming full exit of international troops from Afghanistan scheduled from 2014. The increasing presence and operation of the Taliban throughout Afghanistan, including in Kabul, poses particular risks to ethnic minorities like Hazaras;
(c)That the appellant would face a real risk of serious harm while travelling along the roads in and out of Kabul that remain infiltrated by the Taliban and criminal elements. As a Hazara and a western returnee, the appellant would remain at a heightened risk of being targeted by such groups while travelling in and out of relevant areas and/or would face a greater severity of harm should he be stopped by such groups. In the alternative, it was submitted that should the appellant’s risk of harm while travelling in and out of the Daikundi province be considered as not being Convention related, it would still meet the complementary protection criteria;
(d)The strong risk referred to in country information referred to by member Chris Keher in the RRT decision 1213165 [2012] RRTA 1005 (6 November 2012) with respect to the risk faced by Hazara returnees;
8.Relevantly, it was also submitted that ‘at the core of the Applicant’s claim is his fear that he would be a target of serious harm on return to his area ... either by Taliban militants known to be operating in the province or neighboring [sic] Pashtuns seek to benefit from the lack of protection being afforded to Hazaras within this area’.
(footnotes omitted)
In support of those submissions, the appellant relied on three sources of country information published in 2012 and 2013 predicting the likely effect of international troop withdrawal from Afghanistan in 2014.
In addition, the appellant relied on a statutory declaration dated 1 November 2012 in which he claimed that the Government of Afghanistan could not give him protection. He declared:
The government does not have a presence in my area. We do not have Police or security forces in my Village. The closest is in [another village] which is one and a half to two hours away. My life will be at risk.
For reasons I will soon discuss, the Tribunal rejected the appellant’s submissions. It affirmed the decision of the delegate to refuse to grant the appellant a protection visa.
THE FEDERAL CIRCUIT COURT PROCEEDINGS
Section 476(1) of the Act confers on the FCC original jurisdiction to review a decision of the Tribunal. The FCC’s jurisdiction is equivalent to that conferred on the High Court under s 75(v) of the Constitution. The remedies that may be granted by the High Court on an application for judicial review under s 75(v) are only available where jurisdictional error can be demonstrated: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 259 ALR 429 at 433 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); see also s 474 of the Act.
In Craig v South Australia (1995) 184 CLR 163 (Craig) (at 179), the High Court said that an administrative tribunal will make a jurisdictional error if it:
… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ said of the list of errors in Craig (at [82]):
… Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. …
On his application for judicial review before the FCC, the appellant alleged that the Tribunal failed to address and make a finding as to whether the withdrawal of international forces from Afghanistan would have any bearing either on the appellant’s risk of persecution in the reasonably foreseeable future, or on the question of whether there was a real risk of significant harm as a result of the appellant being removed from Australia to Afghanistan. It was submitted that the appellant’s fear of persecution in the reasonably foreseeable future by reason of the withdrawal of international troops from Afghanistan was an “essential integer” of his claim that the Tribunal had failed to consider. The Tribunal had, it was submitted, constructively failed to exercise its review jurisdiction in the sense described by the Full Court in Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun). The learned primary judge rejected those submissions (at [18]). His Honour said:
… I do not accept the submission that the applicant advanced a claim that he feared persecution in the reasonably foreseeable future by reason of the withdrawal of international troops from Afghanistan. I do not accept that any such claim fairly arose on the material that was before the Tribunal.
The learned judge held that it was not necessary for the Tribunal to make a finding of fact as to the consequences of the withdrawal of troops from Afghanistan. In that regard, the learned judge said (at [20]):
… It is not necessary for the Tribunal to make findings of fact on every issue before it, nor does the Tribunal have to go through, line-by-line, rejecting or making findings on all the evidence.
The proposition that there was a claim that the appellant feared persecution by reason of the withdrawal of international troops from Afghanistan was, according to the learned primary judge, “not an issue that the Tribunal had to make findings upon” (at [21]). His Honour determined (at [19]) that it was open to the Tribunal, on the material before it, to reject the appellant’s claim to fear persecution if returned to Afghanistan now, or in the foreseeable future. The learned primary judge said (at [19]):
The reference to the withdrawal of international troops was a fact advanced in relation to the applicant’s claim of fear, by reason of being a Hazara in Afghanistan. The Tribunal did make findings in relation to the applicant’s fears. The adverse findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. The proposition that the Tribunal failed to address an essential integer of the applicant’s claims is without substance.
It is those findings that are now challenged on this appeal.
ISSUES ARISING ON THE APPEAL
The two grounds of appeal are expressed as follows:
1.The Honourable Judge Street erred in holding that it was not any part of the appellant’s claim that the appellant feared persecution or harm by reason of the withdrawal of international troops from the appellant’s area in Afghanistan ([18] – [19] of Reasons for Judgment). His Honour should have held that the appellant’s fear of persecution was partly grounded in his claim that there were no security forces or police able to provide protection in his area, which fear was compounded by the withdrawal of international troops from Afghanistan also an integer of the Applicant’s claim, with such evidence and submissions being before the tribunal; and
2.The Honourable Judge Street erred by adopting an error made by the Administrative Appeals Tribunal, namely, the tribunal’s failure to address and provide reasons about the effect of the international troop withdrawal on the appellant’s fear of persecution in the reasonably foreseeable future ([20] of Reasons for Judgment). The tribunal was duty-bound to make specific findings on that aspect of the claim as any findings about that aspect could not be subsumed into findings of greater generality about the appellant’s fear of persecution.
PRINCIPLES
In Htun, the Full Court held that the then-named Refugee Review Tribunal failed to consider a claim made by a protection visa applicant that he feared persecution in Burma by reason of his claimed friendships with members of the Karen National Liberation Army (as distinct from his own political activities in Burma). Allsop J (as his Honour then was) said at [42] (Spender and Merkel JJ agreeing):
The ‘participation in the Karen community and the political groups’ could be said to have been dealt with by the Tribunal dealing with the appellant’s activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a ‘relevant’ fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Migration Act 1958 (Cth) (the Act) requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. …
The failure by the Tribunal, Allsop J said, was “not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error”. It was, his Honour said, “a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion” (at [42]).
Similar principles were applied by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, although the phrase “essential integer” was not used. In that case, the Full Court (Black CJ, French and Selway JJ) said that there will be a constructive failure by the Tribunal to exercise jurisdiction if it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” (at [55]).
The identification of such a failure involves a practical and common sense approach to the Tribunal’s reasons. The Court said (at [60]):
In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 that ‘[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made’ (at [16]). Selway J however went on to observe in SGBB (at [17]):
But this does not mean the application is to be treated as an exercise in 19th Century pleading.
His Honour noted that the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] had said:
The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention ‘label’ to describe his or her plight, but the Tribunal can only deal with the claims actually made.
His Honour, in our view, correctly stated the position when he said (at [18]):
The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
Nor is the Tribunal obliged to refer to every piece of evidence and every contention made by a review applicant in its written reasons. As explained by the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] — [47] (French, Sackville and Hely JJ):
46.It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323… at [87]-[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47.The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Relatedly, in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (Pozzolanic) the Full Court (Neaves, French and Cooper JJ) said (at 287), of the reasons of administrative decision-makers generally:
…The court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts: Lennell v Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J).
Pozzolanic was approved by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 in the specific context of an administrative decision made on an application for a protection visa under the Act. Their Honours said (at 272):
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
(footnote omitted)
CONSIDERATION
I am satisfied that the appellant expressly advanced a contention before the Tribunal that he feared persecution for a Convention reason, and serious harm if returned to Afghanistan, by virtue of, among other things, the predicted withdrawal of international forces from the country in 2014. The written submissions before the Tribunal clearly articulated that the appellant claimed to have a fear that was well-founded by reference to the circumstances predicted to exist in the reasonably foreseeable future in the country to which he might be returned. More specifically, his submissions before the Tribunal made it clear that he subjectively feared persecution for a Convention reason by reason of the increase in power of the Taliban that was predicted to follow the withdrawal of international troops. It is not necessary to attach the language of an “essential integer” to that aspect of the appellant’s claims. The nomenclature is unimportant. The question is one of substance: was the likely effect of the predicted or actual withdrawal of international troops from Afghanistan a material issue arising on the material before the Tribunal, such that it could not properly exercise its jurisdiction to determine the appellant’s claims without considering and determining that issue?
Clearly the issue was material. Both the question of whether the appellant subjectively feared persecution and the objective assessment of whether any such fear was well-founded turned upon it. The predictive and speculative function of the Tribunal could not be properly discharged without assessing and dealing with the appellant’s assertions that the troops would withdraw as predicted, that the Taliban would assume increased control as predicted, and that the chance of him being persecuted, or the risk that he would suffer serious harm, would be elevated as a result.
The learned primary judge categorised the issue of the withdrawal of international troops as a “fact advanced in relation to the applicant’s claim of fear, by reason of being a Hazara in Afghanistan”. That statement is an oversimplification of the appellant’s claims, and rather misses the point. The appellant claimed to have a well-founded fear of persecution by the Taliban in Afghanistan for Convention reasons because the Taliban was predicted to increase its control over the country in the foreseeable future. Even if the claim involved merely an assertion of fact, it was, nonetheless, an assertion forming an important aspect of the appellant’s claims, made with sufficient clarity and force in the appellant’s submissions that the Tribunal was required to consider it and decide upon it. The determination of the learned primary judge that “the proposition that there was a claim that the [appellant] feared persecution, by reason of the withdrawal of international troops, was not an issue that the Tribunal had to make findings upon” is plainly wrong.
However, that does not conclude the appeal.
A fair reading of the Tribunal’s reasons discloses that it did properly understand the appellant’s claims, and that it determined the claims against the assumption that international forces withdrew from Afghanistan by a graduated process, as predicted, commencing in early 2014.
The following paragraphs of the Tribunal’s reasons (as originally numbered) support that conclusion:
28.[CDC15’s] representatives submitted that the ‘recent sources’ continued to predict a grave future for the humanitarian situation in Afghanistan in the lead up to the withdrawal of the international forces scheduled for 2014 but the sources to which they referred dated from January 2012, September 2012 and January 2013 respectively. They submitted that [CDC15] feared harm either from the Taliban or from neighbouring communities who he feared would view him and his family with suspicion as potential spies or supporters of the West. …
29.Under a heading ‘Risks faced by Hazaras within the Dai Kundi Province’, [CDC15’s] representatives submitted that he feared Taliban militants known to be operating in the province or neighbouring Pashtuns ‘seeking to benefit from the lack of protection being afforded to Hazaras within this area’. They proceeded to refer, however, to information relating to Hazaras in Afghanistan generally without relating this information to the situation in Daikundi Province. They quoted a lengthy passage from a decision of the Tribunal (differently constituted), 1303849 [2013] RRTA 469 (18 July 2013), relating to safety on the roads, which refers to information dating from 2012 relating to instances of criminality on the roads in Daikundi and attacks on travellers (including on Hazaras) on the road to Daikundi which passes through Maidan Shahr in Wardak Province.
…
32.Finally [CDC15’s] representatives quoted from another decision of the Tribunal (differently constituted), 1213165 [2012] RRTA 1005 (6 November 2012), in which the Tribunal made sweeping statements with regard to the dangers to returnees without identifying the evidence upon which those statements were based. [CDC15’s] representatives submitted that available information which they did not identify suggested that the security situation in Afghanistan continued to deteriorate and that the Taliban continued to increase its power and control in Afghanistan. …
…
36.I also consider it relevant that, as I put to [CDC15], there do not appear to be any reports of attacks on schools, school officials, teachers or students in Daikundi Province. As I put to [CDC15], the Australian Department of Foreign Affairs and Trade reported in March 2014 that there were more than 350 schools operating in Bamiyan and Daikundi Provinces, attended by 160,000 students. It said that Daikundi was approximately 75 per cent Hazara and a district development plan prepared for the Afghan Government in 2007 indicated that [CDC15’s] district Shahristan, was 100 per cent Hazara. As I put to [CDC15], the Australian Department of Foreign Affairs and Trade assesses that there is a low threat of insurgent or criminal violence in Hazara-majority districts in Daikundi Province. The European Asylum Support Office in its report on the security situation in Afghanistan published in January 2015 said that the mountainous landscape of Daikundi made it difficult to access, making it relatively safe. It said that Daikundi was among the more peaceful provinces in Afghanistan and that there had only been four violent incidents recorded in Shahristan district between January and October 2014.
37.As referred to above, in their submission dated 29 July 2014 forwarded to the Tribunal under cover of an email message dated 1 April 2015 [CDC15’s] representatives submitted that ‘recent sources’ continued to predict a grave future for the humanitarian situation in Afghanistan in the lead up to the withdrawal of the international forces scheduled for 2014 but the sources to which they referred dated from January 2012, September 2012 and January 2013 respectively. They submitted that [CDC15] feared Taliban militants known to be operating in the province or neighbouring Pashtuns ‘seeking to benefit for the lack of protection being afforded to Hazaras within this area’. They submitted that available information which they did not identify suggested that the security situation in Afghanistan continued to deteriorate and that the Taliban continued to increase its power and control in Afghanistan. However I prefer the more recent information referred to in the previous paragraph regarding the situation in Daikundi Province and specifically in the Shahristan district.
…
40.As I indicated to [CDC15], I accept that there were sectarian attacks in Kabul and other cities in December 2011 but, as I put to [CDC15], the Australian Department of Foreign Affairs and Trade assesses that the Shia-Sunni sectarian violence is infrequent in Afghanistan. I consider it relevant in this context once again that, as referred to in paragraph 36 above, Shahristan district is 100 per cent Hazara and Daikundi Province is reported to be relatively peaceful. I do not accept on the evidence before me that there is a real chance that [CDC15] will become a victim of sectarian violence or that [CDC15] will be prevented from practising his religion if [CDC15] returns to home in Shahristan district of Daikundi Province now or in the reasonably foreseeable future.
The report of The European Asylum Support Office referred to at [37] of the Tribunal’s reasons is titled “European Asylum Support Office, EASO Country of Origin Information Report: Afghanistan Security Situation, January 2015, CISE96CF1191” (EASO report).
Counsel for the appellant drew the Court’s attention to this passage from the EASO report:
1.3 Recent security trends and armed confrontations
According to Ruttig and Műnch, the withdrawal of foreign troops has had an impact on the areas that they used to secure. In those areas, which are now left to the ANSF, insurgents increasingly take control of territory, and attach administrative centres and security installations. The International Crisis Group (ICG) described how the transition initiated a new phase in the war, characterised by fighting between the ANSF and insurgent groups. The latter have failed to capture major towns and cities and some areas are even more secure due to the withdrawal of IMF. However, the overall trend is one of decreasing government control outside the larger towns and cities, escalating violence and more insurgent attacks.
Ruttig and Műnch reported that since 2013, insurgents have made increasing territorial gains and cut off major highways, especially in the north. They sometimes symbolically capture abandoned ISAF bases, such as Kejran, Daykundi in October 2013 and ANSF bases, such as Omna district, Paktika, in late May 2014 and Ghaziabad, Kunar, in February 2014. The insurgents launch major assaults around the country on administrative centres and security checkpoints. The aim is to capture territory and hold it, such as at Yamgan, Badakhshan, and Qaisar and Ghormach districts of Faryab. They operate in fronts of several hundred fighters. So far, the ANSF has repelled most attacks and regained control over district administrative centres and security installations, but the UN Secretary General reported that ANSF have not been able to curtail insurgents’ presence and freedom of movement, especially in remote districts. However, the expansion of the ALP and local uprisings have pushed them back from other areas, for example in Ghazni province.
UNAMA confirmed that the closure of ISAF bases and transfer of responsibilities to the ANSF caused changing dynamics in the conflict. In the second half of 2013 and the first half of 2014, AGEs challenged the ANSF by conducting attacks in larger groups of fighters and more civilians were caught in crossfire and ground engagements. However, in some areas, ANSF succeeded in holding the territory after the closure of an ISAF base, which resulted in fewer civilian casualties in those respective areas.
Between 1 March and 15 August 2014, the UN recorded a total of 11,320 security incidents relevant to the work, mobility and safety of civilians in Afghanistan. This was an increase compared to 2012 and 2013, but the number was still lower than in 2011.
It was submitted that the Tribunal’s failure to make any reference to that passage in its reasons evidenced a failure on the part of the Tribunal to understand and deal with the appellant’s claims. The Tribunal, it was submitted, either ignored the above passage or considered the passage to be immaterial to the task before it and thus did not make any finding on a material question of fact: the likely effect of the withdrawal of international forces. On either analysis, the appellant contended, the Tribunal could not have assessed whether there was a real risk of serious harm or a real chance of persecution for a Convention reason by reference to circumstances in Afghanistan in the reasonably foreseeable future.
I do not agree. The submission, in my opinion, ignores too readily the Tribunal’s accurate restatement of the appellant’s claimed fears by virtue of what was, on the appellant’s case before it, a “predicted” withdrawal of international troops in 2014. The Tribunal noted that the appellant feared the circumstances persisting in Afghanistan as predicted in country information dated 2012 and 2013. It is against that background that the Tribunal’s stated preference for the more recent EASO report is to be understood. By expressing its preference for the more recent country information in the EASO report the Tribunal has, on a fair reading of its reasons, proceeded on the assumption that the report was prepared on information persisting throughout 2014 and that it had assumed that international forces had in fact withdrawn at the times specified in the earlier parts of that report. It was not, in my opinion, necessary for the Tribunal to set out all of those assumptions in the course of its written reasons. They are implicit in the Tribunal’s stated preference to rely upon the EASO report rather than the predictions stated in the earlier reports of 2012 and 2013 upon which the appellant relied.
In addition, it was open to the Tribunal to assess the risks to the appellant in the reasonably foreseeable future by reference to statistics of security incidents occurring throughout 2014. Moreover, it was open to the Tribunal to have, as its focus, the particular security situation in the region of Afghanistan to which the appellant would be returned if refused a protection visa and to conclude, as it did, that the situation in that region was safe, relative to other areas of the country. Whereas the appellant urged the Tribunal to act upon country information pertaining to the country as a whole, the Tribunal preferred, as it was entitled to do, information pertaining specifically to the appellant’s region of residence. In that respect at least, the case is not one in which findings specific to the appellant were subsumed in findings of greater generality.
I am not satisfied that the failure of the Tribunal to refer to specific passages of the EASO report supports an inference that the Tribunal misunderstood the appellant’s claims or otherwise failed to make the predictive and speculative evaluation required by the provisions of the Act to which I have referred. The Tribunal expressly referred to the issue that had been raised by the appellant. To infer that the Tribunal did not go on to consider and determine the issue would, in my opinion, be to read the reasons with an eye too keenly attuned to error. To the extent that the Tribunal focussed primarily on the then-present situation in Afghanistan, it did so as a step toward its ultimate conclusion that the appellant’s fear of future harm was not well-founded.
The appellant further submitted that the Tribunal could not and should not have concluded, as it did, that the situation pertaining in Daikundi in 2014 was relatively safe. That submission appears to me to re-agitate a second ground of review advanced before the FCC to the effect that the Tribunal’s decision was affected by legal unreasonableness in the sense described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. There was, however, no appeal against the determination of the FCC that the Tribunal’s decision was unaffected by legal unreasonableness. The grounds of appeal before this Court asserted only that the Court had erred in failing to determine that the Tribunal had not addressed an essential integer or otherwise failed to consider a relevant consideration advanced by the appellant. As I have said, it matters not which description for the alleged error is used. The substance of the appellant’s contention is not made out.
The appeal should be dismissed with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 25 January 2017
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