CHW17 v Minister for Immigration - [2020] FCCA 1242

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHW17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1242

Catchwords:
MIGRATION – Whether the Immigration Assessment Authority (IAA) misapplied s.5J(3) of the Migration Act 1958 (Cth) (the Act) – whether the IAA failed to comply with s.473DE of the Act – whether the IAA failed to consider the review material provided to it as required by s.473DB(1) of the Act – whether the IAA failed to consider the totality of the applicant’s circumstances when considering the reasonableness of relocation – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 424A, 473CB, 473DB, 473DC,

473DD, 473DE, 473EA, 476, 477

Federal Circuit Court Rules 2001 (Cth), r.205

Cases cited:

BVD17 v Minister for Immigration and Border Protection & Anor

[2018] FCAFC 114; (2018) 261 FCR 35

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34;

(2019) 93 ALJR 1091; (2019) 373 ALR 196

SZTNL v Minister for Immigration and Border Protection [2015] FCA 463;

(2015) 231 FCR 204

VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous

Affairs [2004] FCAFC 82; (2004) 80 ALD 559

QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW

[2004] FCAFC 264; (2004) 140 FCR 572; 84 ALD 325

WAJW v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 330

SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3;

(2015) 229 FCR 90; (2015) 318 ALR 450; (2015) 144 ALD 525

NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No 2)

[2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous

Affairs [2003] FCAFC 184; (2003) 256 FCR 593; (2003) 75 ALR 630;

(2003) 75 ALD 630

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802;

(2001) 233 FCR 136; (2001) 194 ALR 244

Dranichnikov v Minister for Immigration and Multicultural Affairs

[2003] HCA 26; (2003) 214 CLR 496; (2003) 77 ALJR 1088;

(2003) 197 ALR 389; (2003) 73 ALD 321

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 10

SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15

Lee v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 464

Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123;

(2009) 113 ALR 46; (2009) 113 ALD 46

NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195;

(2006) 156 FCR 419; (2006) 93 ALD 333

SZANK v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1478

SZATV v Minister for immigration and Citizenship [2007] HCA 40;

(2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 237 ALR 634;

(2007) 97 ALD 1

CRI028 v The Republic of Naru [2018] HCA 24; (2018) 92 ALJR 568;

(2018) 356 ALR 50

BWB16 v Minister for Immigration and Border Protection [2018] FCAFC 158;

(2018) 267 FCR 503

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46;

(2009) 174 FCR 415

Applicant:

CHW17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1674 of 2017

Judgment of:

Judge Nicholls

Hearing date:

28 April 2020

Date of Last Submission:

28 April 2020

Delivered at:

Sydney

Delivered on:

20 May 2020

REPRESENTATION

Counsel for the Applicant:

Dr S. Tully

Solicitors for the Applicant:

Ryburn Solicitors

Counsel for the Respondents:

Mr G. Johnson

Solicitors for the Respondents:

HWL Ebsworth Lawyers

ORDERS

The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.”
The application made on 18 May 2017, and as amended, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1674 of 2017

CHW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 18 May 2017, and amended on 14 March 2018 seeking review of the decision of the Immigration Assessment Authority (“IAA”) made on 13 April 2017 which affirmed the decision of the Minister’s delegate (“the delegate”) made on 7 October 2016 to refuse to grant the applicant a Safe Haven Enterprise Visa (SHEV) (a protection visa) (“the visa”).
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (the Court Book – “CB” – “RE1”) and the affidavit of Anna Joyce Ryburn, solicitor, made on 27 April 2020, with annexure.

Background

The applicant is a citizen of Afghanistan (CB 32 item 18). He arrived in Australia on 16 August 2012 (CB 39 item 47). His visa application was received by the Minister’s department (“the department”) on 8 October 2015 (CB 17–CB 64).

The Applicant’s Claims

The application was accompanied by a Statutory Declaration (CB 60–CB 63). Amongst other things the applicant stated (CB 60):
“5. I left Afghanistan because of my imputed political opinion as a person who was imputed with political opinion by the Taliban dominated Pashtuns. In addition, I also fled Afghanistan because of my race as a Hazara and for my religion as a Shia Muslim.”
On 24 November 2015, and then on 10 February 2016 the applicant notified the Minister’s department that he had appointed registered migration agents to represent him (CB 65–CB 68 and CB 80–CB 83).
The applicant was invited to attend an interview with the delegate (CB 71–CB 73 see also CB 84). In anticipation of this on 8 March 2016 he provided another Statutory Declaration to the department (CB 88–CB 95). The applicant provided a further explanation as to why he left Afghanistan. The applicant claimed that he left Afghanistan because ([11] at CB 89):
“…as a Hazara Shia who was imputed with a political opinion against the Taliban dominated Pashtuns. The Taliban have historically committed atrocities against Hazara Shias who they consider to be “infidels” owing to our Shia Muslim religion. I am unable to hide my identity as my physical traits make clear my Hazara ethnicity and my Hazara ethnicity is inextricably linked to my Shia Muslim religion.”
At [13] (CB 89) the applicant stated that:
“…the road to other Hazara communities also remains extremely dangerous. The Pashtuns and the Taliban often block the road and force people to do things against their wishes…”
At [14] (CB 89–CB 90) the applicant discussed his employment in Afghanistan:
“…From about 2008 until about 2012, I worked as a taxi driver transporting passengers between [two locations in] Jaghori District, Ghazni Province...I only transported Hazara passengers. I was aware of the dangers of road travel as a Hazara; however I felt compelled to work to support myself and my family members. I took up this employment about one year after my marriage as I needed the income to assist in preparing for a family. Living in a rural area, my employment options were very limited. I have also only been educated to Grade 3, which further limited my employment options.”
The applicant claimed that in 2012, while he was driving his taxi to an area outside of his local area to visit a doctor he was stopped by the Taliban, who accused him of working for the Government or international forces, the Taliban “were close to executing” him, but one of his passengers could speak Pashtun, and he was released as a result of that passenger’s intervention ([19]–[20] at CB 90–CB 91).
In 2012, the applicant’s photograph and full name was published in a news article concerning his release from (immigration) detention and his having been issued a bridging visa ([25] at CB 92). As a result, the applicant was concerned that he would be more easily identified as a failed asylum seeker returning from a western country.
The applicant stated the following reasons as to why he could not relocate to another area in Afghanistan ([27] at CB 93 and also [35]–[36] at CB 94):
“27. I was unable to attempt to relocate my family elsewhere in Afghanistan because we do not have any social, familial or other ties in any other part of Afghanistan. It would be unduly harsh and difficult for us to relocate to an expensive city like Kabul, where I would also be limited in employment options, given we largely rely on sustaining ourselves off our family land in our home village and also off the developed network of taxi passengers I knew in [nearby towns]. It would be difficult for me to gain employment in Kabul and I am also fearful of again working as a Hazara taxi driver.
…
35. …I do not have any family connections on which I could rely in Kabul or anywhere else in Afghanistan…I would be unable to relocate my entire household…and I would be unable to secure employment that would cover the costs required for our basic survival in Kabul.
36. Additionally, I do not believe Kabul is a safe place for Hazaras to live. As a Hazara, my physical traits identify me wherever I travel throughout Afghanistan. The situation is deteriorating across the entire country.”

The Delegate

The delegate refused to grant the visa on 7 October 2016 (CB 135–CB 158) because the delegate found that the applicant did not satisfy s.36(2)(a) or s.36(2)(a)(a) of the Act.

The IAA’s Decision

On 13 October 2016, the matter was referred to the IAA (CB 317–CB 328). The IAA affirmed the decision of the delegate not to grant the applicant a SHEV (CB 672–CB 692).
Under the heading “Information before the IAA”, the IAA outlined the information it had regard to in making its decision ([3]–[8] at CB 673–CB 674). The IAA found that there were exceptional circumstances for considering reports dated 13 October 2016 and country information concerning the security situation in Afghanistan, that was not before the delegate.
Additionally, on 21 March 2017 the applicant was invited by the IAA to comment on information concerning attacks on Shias and “to provide information relating to reasonableness of relocation within Afghanistan”. The applicant’s then representative provided a response on 30 March 2017. As this information was raised following the delegate’s decision, the IAA found that there were exceptional circumstances to consider it ([8] at CB 674).
However, the IAA found that there were not exceptional circumstances for having regard to reports provided by the applicant’s then representative that pre-dated the delegate’s decision ([6] at CB 673).
The applicant’s claims to fear harm were outlined by the IAA in the following terms (at [9] CB 674–CB 675):
“…
· The applicant is an Afghani citizen of Hazara ethnicity who was born in [a town] in Jaghori district, Ghazni province and practises Shia lslam.
· …The applicant’s wife, children and step mother continue to live in [his local area] without male support.
· Although [his local area] is a predominantly Hazara area and is under the administrative control of the Jaghori district authorities, it is geographically located in Arghandab district in the north of Zabul province adjoining Jaghori and is surrounded by Pashtuns on three sides. The road leading to the other Hazara communities is very dangerous with Pashtuns and the Taliban often blocking the road and many Hazaras who have travelled outside the village have not returned.
· …the applicant’s father in law was killed when he travelled from the village and his body was located approximately three weeks later in [another] province. The applicant’s brother in law was also killed approximately a year later whilst travelling when he was caught in crossfire between the Taliban and government troops.
· The applicant worked on the family land from the age of approximately 10 or 11 and continued farming until his departure from Afghanistan in 2012. He also worked as a labourer and did construction work as farming was not a full time occupation. The applicant’s inability to maintain a living from the family land was exacerbated by a land dispute with his uncle who took over a portion of the applicant’s land by force in 2008.
· In 2008 the applicant purchased a vehicle and began working as a taxi driver to supplement his income. Although he was aware of the dangers there were limited employment options and the applicant and other Hazaras had to travel outside the area for supplies, food and medical treatment.
· The applicant drove his taxi until his departure from Afghanistan. Sometimes he would be stopped by the Taliban who would search the vehicle and make threats or warnings or accuse him of transporting weapons. Sometimes the Taliban would take passengers’ money or mobiles.
· Around May 2012 the applicant travelled to [another town] to seek medical attention and transported Hazara passengers on the same trip. The applicant had been given a prescription by the doctor that was written in English and had it in his possession when the vehicle was stopped on the return journey to [his local area] by the Taliban. When the Taliban saw the prescription they accused him of being a spy, however one of the passengers who spoke Pashto explained that the document was a prescription for medication. The Taliban allowed the applicant and his passengers to resume their journey after a couple of hours but took their money and mobiles. Following this incident the applicant decided to leave Afghanistan. Despite being afraid he continued taxi driving until he sold the vehicle.
· Another contributing factor for the applicant’s departure from Afghanistan was an increase in the level of intimidation from the Taliban who spread pamphlets encouraging people to join them and fight against the government and international forces. Although it was not common for the Taliban to recruit Hazaras, he feared that if they came to his home and he refused to collaborate he would be killed.
· The applicant fears being forced to join the Taliban and being killed if he refuses to co-operate. He also fears harm from the Taliban and other extremist groups as a Shia Hazara taxi driver and as a western returnee/failed asylum seeker whose photograph and name appeared in the Australian media in 2012. He fears that he will be at risk of harm from conservative local mullahs who are opposed to the West due to the publishing of his details.”
The IAA accepted that the applicant’s uncle had taken a section of land belonging to the applicant. However, the IAA held that a “well-founded fear of harm” did not arise out of the dispute over the land ([14] at CB 676).
The IAA also accepted that due to the location of the applicant’s village the Taliban “may” have approached local elders for assistance ([16] at CB 676). Nevertheless, the IAA was not satisfied that the applicant would be “forcibly recruited” if he returned to his home village ([16] at CB 677).
The IAA accepted that a photograph of the applicant had been published along with his full name ([18] at CB 677). It found that the applicant did not face a “real chance of serious harm from the Taliban or local mullahs” due to the publication of the photograph and his name. This was because there was “no evidence of the applicant’s family experiencing any issues in his home village due to the article or even that they or other people in [the local area] are aware of it”.
The IAA accepted the applicant’s claims that he had been regularly stopped while driving, and found that the specific incident in 2012 involving the Taliban was “consistent with country information” (at [19] CB 677–CB 678). In relation to the 2012 incident the IAA noted, in agreement with the applicant’s account, that the “primary motive” for stopping the applicant was robbery (at [19] CB 678).
The IAA concluded that if the applicant returned to his local area he would face “a well-founded fear of persecution as a Shia Hazara on surrounding roads leading to [his local area]” (at [21] CB 678).
The IAA found it “remote” that either the applicant’s uncle or the Taliban would target him in Mazar-e-Sharif (at [24] CB 679).
The IAA did not accept that the applicant would undertake work that required him “to drive…in contested areas” (at [26] CB 679). Further, the IAA found that that the applicant could be able to find employment in Mazar-e-Sharif.
The IAA found that the applicant could avoid persecution by modifying his behaviour and not driving through “contested areas” surrounding Mazar-e-Sharif, and that such a change of behaviour is not prohibited under s.5J(3) of the Act (at [28] CB 680).
The IAA accepted that the applicant could experience discrimination in employment due to nepotism. However, the IAA held that such discrimination would not prevent the applicant from supporting himself, and that he would not suffer “serious harm” under s.5J of the Act (at [32] CB 681).
In considering whether the applicant would be targeted by “groups like the Taliban or Islamic state” the IAA accepted that Shias have been targeted in attacks in and surrounding Mazar-e-Sharif ([33] at CB 681). However, attacks on ethnic or religious groups had not occurred within Mazar-e-Sharif since 2011 ([34] at CB 682). The IAA concluded that the “isolated” attacks are not indicative of the applicant facing a “real chance” of persecution “in the reasonably foreseeable future.” ([35] at CB 682).
Taking into consideration various evidence, the IAA held that Mazar-e-Sharif was not reported as being a place where returned asylum seekers are targeted on account of “being perceived as Western” (at [37] CB 683).
Ultimately, the IAA found that the applicant could not be categorised as a refugee under s.5H(1) of the Act, nor did the applicant meet the requirements under s.36(2)(a) of the Act (at [42] CB 684).
As the IAA had previously found that the applicant “may be killed or physically harmed by the local Taliban on the road if he returns” to his local area, the IAA turned its mind, in the context of complementary protection, to whether the applicant would “suffer significant harm” in Afghanistan if he relocated to Mazar-e-Sharif.
Although, the IAA accepted that the applicant may be subject to societal discrimination/nepotism (as set out above), it held that such discrimination would not amount to significant harm (at [48]–[49] CB 684–CB 685).
The IAA took into consideration that the applicant would have the status of an individual who failed to seek asylum in a Western country, some of whose information was published in Australia, who is also in a land dispute with his uncle and fears recruitment by the Taliban. The IAA found that if the applicant returned to Mazar-e-Sharif there is not a “real risk” that he would suffer significant harm (at [50] CB 685).
The IAA stated that it had “…regard to the applicant’s circumstances and the UNHCR recommendations in considering the reasonableness of relocation” ([55] at CB 686). The IAA found that the applicant could gain employment in Mazar-e-Sharif (at [56] (CB 686–CB 687).
The IAA accepted that relocating to Mazar-e-Sharif where the applicant did not have any family could present challenges initially. The IAA was satisfied that the applicant possessed “…the skills, life experience and resilience to relocate and establish himself in an area of Mazar-e-Sharif where employment, accommodation and other services would be available to him”, and that he had previously “…demonstrated the ability and capability to establish himself in new locations despite a lack of family and other connections.” ([57] at CB 687).
The IAA also noted that although the applicant’s continued separation from his family “…may be difficult, the applicant has demonstrated capacity and resilience experience.” ([58] at CB 687).
The IAA concluded that the applicant did not satisfy s.36(2)(aa) of the Act, if returned to Mazar-e-Sharif it was not “foreseeable” that the applicant “will suffer significant harm”. ([59]–[60] at CB 687).

Application to the Court

The applicant’s amended application to the Court is in the following terms:
“1. The IAA misapplied s 5J(3) of the Migration Act 1958 (Cth) (the Act).
Particulars
a.   The applicant claimed to have a well-founded fear of persecution by reason of being a Hazara Shia and as a member of a particular social group of “Hazara Shia taxi drivers in Afghanistan”.
b.   The applicant claimed that he would be unable to hide his identity because his physical traits make clear his Hazara ethnicity and Shia Muslim religion wherever he travelled in Afghanistan.
c.    Information before the IAA indicated that Hazaras were identifiable as such.
d.   The IAA accepted that the applicant operated a private taxi business for over four years (eg at [56] of its reasons for decision)
e. I…n its reasons for decision (… at [28]), the IAA was satisfied that
i. not working as a taxi driver in contested areas outside of Mazar-e-Sharif would not conflict with a characteristic which was fundamental to the applicant’s identity or conscience; and
ii. requiring him to modify his behaviour by not travelling through contested areas outside Mazar-e-Sharif was not one which would conceal an innate or immutable characteristic or was not otherwise prescribed under s 5J(3)(c) of the Act.
f. The IAA failed to consider whether the modification of the applicant’s behaviour would:
i. conflict with a characteristic that was fundamental to his “identity” under s 5J(3)(a) of the Act,… as
a Hazara Shia taxi driver in Afghanistan; and/or
2. a Hazara Shia; and/or
ii. require the applicant to “conceal his…ethnicity” under s 5J(3)(c)(ii) of the Act.
…
2. The IAA failed to comply with the requirements of s 473DE of the Act.
Particulars
a. By letter dated 21 March 2017, the IAA invited comment from the applicant in relation to certain country information concerning Mazar-e-Sharif.
b. The IAA failed to comply with s 473DE of the Act with respect to certain country information relied upon by it at [26]-[27], [34], [51]-[52] and [56] of its reasons for decision, namely:
i. Department of Foreign Affairs and Trade (DFAT), “DFAT Thematic Report Hazaras in Afghanistan 2015-16 update” (8 February 2016, CIS38A8012186); and
ii. DFAT, “DFAT Thematic Report Hazaras in Afghanistan” (8 February 2016, CIS38A8012186).
c. Furthermore, the IAA relief on country information derived from certain reports, including at [35] and [52] of its decision, without first particularising all of the new information.
3. The IAA failed to … consider the review material provided to it when conducting its review as required by s 473DB(1) of the Act.
Particulars
a. The IAA:
i. accepted that the applicant had undertaken ad hoc construction and labouring work in Afghanistan, worked as a tiler in Australia and would be able to obtain employment as a construction worker upon return to Mazar-e-Sharif at [9], [13] and [56]-[57] of its reasons for decision), and
ii. found that the applicant did not have the same profile or association with those identified as targets of the Taliban or insurgents in Mazar-e-Sharif (at [52]).
b. In assessing whether the applicant had a well-founded fear of persecution in all of Afghanistan and the reasonableness of relocation, the IAA failed to consider information before it that construction workers are among those individuals having particular profiles and reported to have been killed, abducted and intimidated (United Nations High Commissioner for Refugees, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, HCR/EG/AFG/16/02 (19 April 2016) at p 38).
4. When considering the reasonableness of relocation, the IAA failed to consider the totality of the applicant’s circumstances as well as the impact of relocation on him.
Particulars
a. In its reasons for decision (at [57]), the IAA concluded that the applicant would be arriving in Mazar-e-Sharif without dependents as a single man of working age.
b. Information before the IAA indicated that:
i. The applicant’s step-mother is dependent on him;
ii. The applicant provides financial assistance to his wife, two children and step-mother who are entirely reliant on him.
c. The applicant claimed that, even if he relocated to Mazar-e-Sharif alone, it would be too dangerous for him to leave the city and travel to Ghazni province and see his family on a regular basis.
d. The IAA had accepted that the applicant faced a well-founded fear of persecution as a Hazara Shia on surrounding roads leading to [his local area] – where his family and step-mother are located – if he were to attempt to return there (at [21] of its reasons for decision).”
[Underlining Removed.]

Before the Court

The IAA’s decision was made on 13 April 2017. Section 477(1) of the Act requires applications for review of such decisions to be made within 35 days of the date of the IAA’s decision.
The applicant’s originating application was filed on 18 May 2017, at 11:49pm. As the application was filed after 4:30pm, pursuant to Rule 2.05(3)(a) and Rule 2.05(3)(b) of the Federal Circuit Court Rules 2001 (Cth), the application was accepted for filing the next day (19 May 2017). That meant that the application was one day out of time.
Section 477(2) of the Act provides that the time for the making of a competent application may be extended by the Court if it is in the interests of the administration of justice to do so.
On 1 November 2017, both parties appeared before me for directions. The Minister consented to the extension of time. I was satisfied in the circumstances that it was in the interests of the administration of justice to do so. I made an order extending time up to and including 19 May 2017.
On 11 December 2017, the matter was set down for hearing on 30 July 2019. In the meantime, the High Court had granted special leave in the matter of BVD17 v Minister for Immigration and Border Protection & Anor [2018] FCAFC 114. As the current matter may have been affected by the High Court’s subsequent judgment the matter was adjourned until that case had been decided.
On 6 March 2020, the Court wrote to the parties, informing them that BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 had been delivered, and that the matter was set down for hearing on 28 April 2020.

Consideration

Ground one asserts that the IAA misapplied s.5J(3) of the Act. That subsection at the relevant time was in the following terms:
“(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person's identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.”
The applicant’s ground, the particulars to it, and his submissions before the Court, directed attention to [28]–[29] of the IAA’s decision (CB 680):
“28. I have considered whether it is reasonable for the applicant to modify his behaviour under s.5J(3) of the Act to avoid a real chance of persecution. I find that the applicant could avoid a real chance of persecution by not travelling through these contested areas outside Mazar e Sharif and that this behaviour modification is not prohibited under s.5J(3). The applicant worked as a taxi driver in Jaghori for approximately four years before his departure from Afghanistan but also undertook other unrelated employment. I am satisfied that not working as a taxi driver in contested areas outside of Mazar-e-Sharif would not conflict with a characteristic which is fundamental to the applicant’s identity or conscience. I also find that requiring him to modify his behaviour by not travelling through contested areas outside Mazar-e-Sharif is not one which would conceal an innate or immutable characteristic of the applicant or is not otherwise proscribed under s.5J(3)(c).
29. Although country information indicates that there has been an economic slowdown in Afghanistan, Mazar-e-Sharif is still one of the biggest commercial and financial centres in Afghanistan¹⁴ and offers greater opportunities for employment¹⁵ than rural areas such as Jaghori where the applicant originates. Given the size of the city I consider that the applicant would be able to make a living as a taxi driver within Mazar-e-Sharif without recourse to travel in contested areas. Although there is evidence of insecurity on roads in contested areas there is no evidence of taxi drivers being targeted in Mazar-e-Sharif which is a government controlled area. I also note the applicant has other skills and experience which he can rely upon to secure and supplement his income, and although there is an economic downturn, I am not persuaded that he could not find work as a taxi driver in Mazar-e-Sharif, or that he would be prevented from obtaining other employment to enable him to subsist in Mazar-e-Sharif. I consider that he could take reasonable steps to modify his behaviour by restricting his travel as a taxi driver to avoid a real chance of persecution on the roads outside of Mazar-e-Sharif. Moreover given the applicant has no family in other parts of Afghanistan other than Jaghori and the employment and services he requires are available in Mazar-e-Sharif, I consider that he would not be required to travel outside Mazar-e-Sharif in contested areas, and that it could reasonably be expected that he remain in Mazar-e-Sharif area and not travel outside it, where he would be able to safely access employment relevant to his skills. As s.5J(3) applies I am satisfied the applicant does not have a well-founded fear of persecution as a taxi driver.”
[Footnotes Omitted.]
The argument in explanation of the ground can be understood as follows. The applicant claimed to have worked in Afghanistan in his local area and its surrounds as a taxi driver from about 2008 until he came to Australia ([14] at CB 89). He transported passengers through areas controlled by the Taliban from whom he feared harm because of his Hazara ethnicity and his Shia practice of Islam. (See generally, for example ([11]–[20] at CB 89–CB 91).
There was no dispute before the IAA that the applicant was an Hazara Shia. The IAA proceeded on the basis that he had been working as a taxi driver in his local area and in the surrounding area until just before he departed for Australia in 2012 ([19] at CB 677–CB 678).
The IAA accepted (contrary to the delegate’s finding) that the applicant had been stopped on at least one occasion by the Taliban while he had been working as a taxi driver ([19] at CB 677–CB 678), and been treated with suspicion. It also accepted he had been stopped on other occasions.
The IAA also accepted that ([19] at CB 678):
“…I also accept that he continued to drive a taxi despite being anxious about being stopped again, as his fear was outweighed by the need to financially support his family and access services including medical treatment and supplies in [a nearby area]. I am satisfied that the applicant was stopped by the Taliban on the road between [a nearby area] and [his local area] and although he was treated with suspicion as he had a prescription written in English, the primary motive as he claimed was robbery.”
The IAA found ([21] at CB 678):
“21. Although Hazara areas of Ghazni are considered safe, I accept that in order for the applicant to return to [his local area], Ghazni province he would be required to travel by road between Kabul and the Hazarajat which DFAT has described as being of greater risk for Hazaras. Given the country information, I am satisfied that the applicant faces a well-founded fear of persecution as a Shia Hazara on surrounding roads leading to [his local area] if he were to attempt to return there.”
Having made that finding the IAA properly understood that s.5J(1)(c) of the Act required that the real chance of persecution must relate to all areas of Afghanistan ([22] at CB 678).
The IAA therefore considered whether the applicant could relocate to Mazar-e-Sharif, a major city in the north of Afghanistan. It found that it was not satisfied that the applicant faced a well-founded fear of persecution in Mazar-e-Sharif ([23] at CB 679).
In its relevant analysis the IAA, amongst other matters, considered whether the applicant could reasonably modify his behaviour under s.5J(3) of the Act to avoid a real chance of persecution. It found that he could modify his behaviour by not travelling through contested areas outside of Mazar-e-Sharif ([28] at CB 680).
The IAA found that such modification could not be considered as concealing an innate or immutable characteristic of the applicant or was not otherwise proscribed under s.5J(3)(c) of the Act.
In all, the applicant’s assertion of legal error on the part of the IAA was that the applicant had claimed to fear harm as an Hazara Shia taxi driver. Yet the IAA restricted its relevant consideration as to whether the applicant could modify his behaviour as a taxi driver as such rather than considering whether he could do so as an Hazara Shia taxi driver. In short, “taxi driver” and “Hazara Shia”, in the circumstances presented by the applicant, were not divisible.
As being a Hazara was a characteristic fundamental to the applicant’s identity and the applicant would be unable to conceal this immutable characteristic, the IAA failed to properly apply s.5J of the Act and failed to comply with s.473DE of the Act.
The Minister’s response is as follows. The applicant’s work as a taxi driver was not in, and of itself, connected to any ethnicity or religion. It was the applicant’s evidence that he chose to engage in taxi driving to supplement his income.
There is no breach of s.5J(3)(a), (b) or (c) of the Act in these circumstances. Engaging in driving taxis was not of itself an expression of a characteristic, or an innate or immutable characteristic relating to any matter set out at s.5J of the Act.
It was therefore open to the IAA to assess the applicant’s risk of serious harm in this light if he were to relocate to Mazar-e-Sharif.
The IAA found that as an Hazara Shia and as a taxi driver he could safely relocate to Mazar-e-Sharif. The current dispute centres on the relevant work function. The Minister emphasised that the modification found by the IAA was not that the applicant should cease driving a taxi, but rather that he could continue to safely drive a taxi in Mazar-e-Sharif, but that he could modify the behaviour by not travelling in the contested areas outside of Mazar-e-Sharif.
The Minister also emphasised that the IAA then went on to fully consider the question of whether it was reasonable and safe for the applicant, as an Hazara Shia, to relocate to Mazar-e-Sharif ([33]–[35] at CB 681– CB 682).
I agree with the applicant that as an abstract argument the applicant’s ethnicity and religion was not divisible from his conduct when engaging in taxi driving. The applicant did not cease being an Hazara Shia while driving a taxi. Being an Hazara Shia was, and is, an immutable and innate characteristic of the applicant whatever employment or behaviour he sought to undertake.
However, the applicant’s argument obscures the actual reasoning adopted by the IAA. The IAA did not require the applicant to modify his being an Hazara. Nor did it contemplate his ceasing his religious practice as a Shia and, say, adopting the Sunni practice of Islam to avoid harm.
The IAA’s relevant reasoning and findings in relation to the question of relocation to Mazar-e-Sharif, contemplated, and was based on, the fact that the applicant would at all times remain an Hazara Shia. These were the innate and immutable characteristics.
The only modification required of the applicant was that he not travel through contested areas outside of Mazar-e-Sharif.
The applicant did not claim that travelling in contested areas of Afghanistan was an immutable or innate characteristic of his being an Hazara or a Shia Muslim. Nor was being a taxi driver an immutable or innate characteristic of an Hazara or a Shia.
In that light, the elective conduct of driving a taxi, and indeed driving a taxi through contested areas, is divisible from the innate and immutable characteristics of being an Hazara and a Shia.
The IAA was entitled to require the applicant to take reasonable steps to modify this behaviour to avoid persecution by relocating to Mazar-e-Sharif where the IAA found he could reasonably relocate. There is no breach of s.5J(3) of the Act in the IAA’s reasoning and findings in this regard. Ground one is not made out.

Ground Two

Ground two asserts that the IAA failed to comply with the requirements of s.473DE of the Act. That section was at the relevant time in the following terms:
“(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2) The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non-disclosable information; or
(c) is prescribed by regulation for the purposes of this paragraph.”
The applicant submitted before the Court that the IAA’s error was that it did not “properly” put to the applicant for comment, pursuant to s.473DE of the Act, certain information.
The applicant referred to the IAA’s letter of 21 March 2017 where it invited comment on certain information (CB 644–CB 648). The applicant’s argument was that the letter and the IAA’s subsequent findings, met the various elements set out at s.473DE(1) of the Act, and the IAA therefore purported to comply with that section.
In that light, the argument was that the IAA accepted (at [8] of its decision record) that the information was “new information”, and that therefore s.473DE(1)(a) of the Act was satisfied. The IAA stated in the letter that the information was relevant to the applicant’s case (CB 647) and therefore s.473DE(1)(b) of the Act was satisfied. Further, that the IAA invited the applicant to comment on the information and this satisfied s.473DE(1)(c) of the Act.
The applicant explained the IAA’s failure to comply with s.473DE of the Act with reference to various aspects of this information, which was otherwise said to be country information derived from the DFAT report dated 8 February 2016: “DFAT Thematic Report Hazaras in Afghanistan 2015 – 16 update” – CIS38A8012186.

One, the report made reference to greater opportunities for employment in Mazar-e-Sharif. The IAA had regard to this information in its decision (see at [29] – footnote 15). However, it did not put this information to the applicant for comment. The letter made no specific reference to it.
Two, the IAA relied on information concerning greater employment opportunities in Mazar-e-Sharif notwithstanding an economic downturn, and information concerning generalised violence ([51]–[52] at footnotes 36 and 37). I understood the complaint to be that the IAA’s letter however made no reference to this.
Three, in its decision record the IAA said that it relied on this report (see [56] at CB 686).
Four, at [34] (footnote 23) the IAA cited the report to find there was “…no evidence that ethnic or religious groups had been deliberately targeted in Mazar-e-Sharif since 2011.” That information had not been put to the applicant in the IAA’s letter, or otherwise.
Five, the IAA also relied on other reports (see at [35] and [52] at CB 682 and CB 685–CB 686) without particularising “all of the new information”.
Ultimately, I understood there to be the following elements to the applicant’s argument in relation to ground two.
First, the applicant submitted that the IAA wrote to the applicant inviting his comments on some parts of the country information. The IAA’s letter “triggered” the discretion found in s.473DC(3) of the Act. The IAA’s invitation to comment in its letter, was an exercise of discretion in the applicant’s favour. The IAA therefore was required to fully comply with the terms of s.473DE of the Act. It did not do so in the ways claimed and as set out above at [74]–[78] of this judgment.
The applicant’s argument lacked any satisfactory explanation of the claimed link between s.473DC and s.473DE of the Act, and it must be said ignored the different statutory objectives of the two sections.
Section 473DC(3) of the Act certainly provides a discretion to the IAA to invite the applicant to give new information. But that cannot be said to be what the IAA’s letter of 21 March 2017 purported to do. As is clear from its terms the letter was an invitation to comment on information that the IAA already had (“You are invited to comment on the following information…” (CB 644.4), “You are invited to give comments on the above information in writing.” (CB 648.2)).
Section 473DE(1) however contains no discretion. In fact it compels the IAA to give the applicant particulars of new information (subject to some exceptions) that “…would be the reason, or a part of the reason, for affirming the fast track reviewable decision”.
In the current case, the applicant has not satisfactorily explained how the “discretional element” found in s.473DC(3) applies to the mandatory element in s.473DE(1).
Second, the applicant’s argument was that, in effect, having sent the letter to the applicant, was an indication that the IAA understood the information to be subject to s.473DE of the Act, and therefore the sending of the letter was sufficient to trigger the provisions of that section.
While there are obvious differences between s.473DE of the Act and s.424A of the Act (concerned with the Administrative Appeals Tribunal obligations to give to an applicant certain information), the wording in s.473DE(1)(a)(ii) of the Act, which contains the description of the information that enlivens the obligation, is similar to what is set out at s.424A(1)(a) of the Act.
In that regard the Court in SZTNL v Minister for Immigration and Border Protection [2015] FCA 463 at [49] (“SZTNL”) found that the similar obligation in s.424A of the Act is not engaged simply by the AAT writing to an applicant purportedly pursuant to s.424A of the Act.
Rather, the AAT’s interpretation of its obligation was not determinative. This was even in circumstances where s.424A of the Act contained the words: “…the Tribunal considers”, which are not found with reference to the IAA, in s.473DE of the Act.
Whether the obligation in s.473DE of the Act was engaged in the current case is for the Court to determine having regard to the circumstances of the case, not simply whether the IAA elected to write to the applicant.
Third, in this light the exceptions set out in s.473DE(3) of the Act are relevant as to whether the obligation in s.473DE(1) is engaged. (For the relevant terms of s.473DE(3) see [69] above). For the reasons set out below, the country information relied on by the IAA is caught by the exceptions in s.473DE(3) of the Act.
One, all of the information to which the applicant now refers in his submissions to the Court was not about the applicant and was about a class of persons of which the applicant was a member.
The applicant relied on what the IAA stated at [8] of its decision record to argue that the particular country information at issue concerned matters “particular” to the applicant. That is, the IAA itself found that the “…information relates to issues that have been raised consequently to the delegates decision…”, and “…that there are exceptional circumstances to justify considering it.”
It is clear that the language used by the IAA here sought to invoke s.473DD of the Act, and not s.473DC of the Act or, relevantly, s.473DE of the Act. In any event, simply because the information related to the applicant’s circumstances as a member of a class of persons does not mean that it was information specifically, personally, about the applicant (VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [14], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [20]–[26], Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 at [67]–[71], WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [44]).
As the IAA made clear at [8] of its decision record the information to which it gave the applicant the opportunity to comment was about attacks on Shias. The applicant claimed to be a member of that class of persons.
Two, the applicant also argued that as the information concerned his relocation to Mazar-e-Sharif, this meant that it was information specifically about him.
The difficulty with this argument for the applicant is that it confuses the use to which the IAA said the information may be put (whether relocation was reasonable) with the question as to whether the information was “specifically about the… applicant”.
The IAA’s letter, and its decision record, certainly referred to all of the country information (in various ways) as referred to by the applicant before the Court now.
However, its relevance to the disposition of the applicant’s claim to fear harm before the IAA, does not immediately mean that the information was specifically about the applicant. The information makes no mention of the applicant himself. The critical question is whether the information was specifically about the applicant. It was not. Further, it was about a class of persons, Hazara Shias, of which the applicant was a member. The information therefore falls within the exception in s.473DE(3)(a) of the Act.
Three, in this light it is not necessary to consider further the use to which the IAA put, or did not put, the information, or the omissions as alleged by the applicant before the Court. Section 473DE of the Act was not engaged, and even if there was, for example some lack of particularity as pleaded (see particular c), (not otherwise made out) then no breach of s.473DE of the Act can be made out in circumstances where the obligation in s.473DE of the Act is not enlivened.
For the sake of completeness, I note that notwithstanding that the IAA’s obligation in s.473DE of the Act was not enlivened, no jurisdictional error is revealed by its having written to the applicant seeking his comments on the country information (SZTNL at [49] and SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [53]). In all ground two is not made out.

Ground Three

Ground three asserts that the IAA failed to consider certain material referred to it (as review material) as required by s.473DB(1) of the Act.
The affidavit of Ms Ryburn annexes a document: “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum–Seekers from Afghanistan”, dated 19 April 2016 (“the UNHCR report”).
Before the Court, the applicant drew attention to certain parts of the UNHCR report. One, at page 34 of the report:
“Among the primary targets of such attacks are national and local political leaders, government officials, teachers and other civil servants, off-duty police officers, tribal elders, religious leaders, women in the public sphere, civilians accused of spying for pro-government forces, human rights activists, humanitarian and development workers, and construction workers.²⁰⁷”
[Footnote Omitted.]
Two, at page 38 of the report:
“AGEs are reported to target civilians who are employees of international or Afghan humanitarian organizations,²³³including Afghan nationals working for UN organizations; ²³⁴ employees of international development agencies; ²³⁵ employees of national and international non-governmental organizations (NGOs);²³⁶and truck drivers, construction workers and individuals involved in mining projects and other developmental projects.²³⁷Individuals with these profiles are reported to have been killed, abducted, and intimidated.”
[Footnotes Omitted.]
The applicant submitted that the UNHCR report set out that “construction” workers were a separate category of persons targeted by insurgents because they are perceived to support the Afghan government or the international community.
The applicant’s assertion of legal error is that the UNHCR report was part of the referred material, and the IAA failed to include a reference to the UNHCR report in its decision record, as it related to construction workers.
This was particularly relevant to [56] (at CB 686–CB687) of the IAA’s decision record where the IAA considered that the applicant had worked in the construction industry and that he could be able to obtain employment in Mazar-e-Sharif on relocation, as a construction worker, amongst other things. The assertion of legal error is that the IAA did not consider, in light of the UNHCR report (the parts on which he now relies), the risk of harm to the applicant in Mazar-e-Sharif if he were to work as a construction worker.
This was said to be in contrast to other parts of its reasoning where the IAA made “explicit” reference to the UNHCR report. (See for example at [55] (CB 686) in relation to support mechanisms available to the applicant).
In this context, the applicant drew attention to two aspects of his claims to fear harm as they were said to be before the IAA.
One, the applicant claimed to fear harm from insurgents on the basis of an imputation that as an Hazara Shia he was supportive of, or connected to, the Afghan government. This imputation would be heightened if he were to be employed in the construction industry where the UNHCR report identified workers in this industry as attracting the adverse attention of insurgents because of the perception that construction workers were also supportive of the government.
At [52] of its decision record the IAA “limited” its consideration to the general security situation in Mazar-e-Sharif, it did not consider the applicant’s position as a construction worker and in light of what was relevantly said in the UNHCR report.
Two, the applicant claimed, and the IAA accepted, that he had engaged in construction work in the past (see [9], [13] and [25] of the IAA’s decision record). At [56] the IAA accepted that the applicant could engage in that work in the future.
The applicant’s submission therefore was that in finding that the applicant could be employed as a construction worker, the IAA failed to consider, in light of the UNHCR report, whether employment in that occupation would have given rise to a real risk of harm.
Paragraph 52 of the IAA’s reasons is as follows (CB 685–CB 686):
“52. Given the current security situation in Afghanistan, I have given consideration to whether there is a real risk of significant harm due to generalised violence in Mazar-e-Sharif.³⁷ Mazar-e-Sharif has been relatively isolated from the conflict in the last decade, is one of the biggest commercial and financial centres in Afghanistan and is regarded as one of the safest cities in Afghanistan, with the relative security of the province being attributed to a monopoly on power, even in the province’s most remote regions, held by ethnic-Tajik governor and former warlord Atta Mohammed Noor.³⁸ While armed attacks occur in Balkh province, attacks are relatively rare in the city although sporadic attacks still occur and the Afghan government remains in control.³⁹ In Balkh province, the decline in insurgent activity was attributed to Afghan National Security Forces (ANSF) effectiveness and specifically to the new district police chief.⁴⁰ I note that the applicant claims that in recent years the northern parts of Afghanistan have become less secure and more vulnerable to attacks and the applicant’s representative submits that the Taliban continues to attack the Shia community, Hazaras and those perceived as having connections to the government which includes Hazaras, and the attacks on Shias including near Mazar-e-Sharif in October 2016 are indicative of the targeting of Shias. I accept that there have been some attacks in Mazar-e-Sharif however the applicant does not have a profile or association with those identified as targets of the Taliban or IMU in Mazar-e-Sharif and there is no evidence of an IS presence in Mazar-e-Sharif itself. I am not satisfied that there is a real risk of significant harm. Although there is evidence of targeted sporadic attacks as indicated by EASO, EASO also indicates that Mazar-e-Sharif counted the lowest number of civilian victims⁴¹ and generalised violence in Mazar-e-Sharif itself is not common. On this basis I am not satisfied that there is a real risk of the applicant facing significant harm on the basis of the general security situation in Mazar-e-Sharif for any reason.”
[Footnotes Omitted.]
In essence, the applicant’s argument in ground three is that the UNHCR report listed construction workers, amongst others, as an “at-risk group”. The applicant had worked as a construction worker in the past. When considering the reasonableness of relocation to Mazar-e-Sharif the IAA failed to expressly consider, that is, specifically engage with, those parts of the UNHCR report that include references to construction workers being an at-risk group.
The Minister agreed that the reference to the UNHCR report in the delegate’s decision record (see at CB 304, footnote 17), and the subsequent referral of that decision to the IAA, was sufficient to say that the UNHCR report was part of the material referred to the IAA pursuant to s.473DB of the Act.
For the following reasons the applicant’s ground is not made out.
First, it is important to note that the applicant did not submit that the IAA had no regard to, or overlooked, the UNHCR report as such. To the contrary his submissions specifically pointed to those parts of its decision record where the IAA made express references to the UNHCR report and certain information it contained.
The applicant’s argument is focused on two specific parts of the UNHCR report with the submission that the IAA failed to make express reference to the information contained in those two parts of the report. What remains therefore is that, while the IAA’s decision record makes no specific reference to these two parts of the UNHCR report, a report which was at least, 86 pages in length (see footnote 42 at CB 686), it cannot be said that the IAA failed to have regard to the report as such.
Second, the applicant did not satisfactorily explain how in these circumstances the IAA breached s.473DB(1) of the Act which is the legal error actually asserted in the ground as pleaded.
Section 473DB(1) was at the relevant time in the following terms:
“(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.”
The obligation on the IAA was, relevantly, and with certain stated restrictions (at (a) and (b)) to consider the review material provided to it under s.473CB of the Act. In considering that review material there is nothing in s.473DB(1) that requires or obliges the IAA to set out in its decision record, in express detail, every part of every document of the material referred to it.
In his argument in relation to this ground the applicant relied solely on the IAA’s decision record to argue that the IAA failed to consider two specific parts of the UNHCR report. However, s.473EA of the Act which compels the IAA to make a written statement when it makes its decision requires only that, relevantly, the IAA set out its reasons for decision. This says nothing about cataloguing every, and each, item of information before it.
In circumstances where the IAA made reference to the report and relied on parts of it, then the absence of any express reference to the two items referred to by the applicant now in the decision record does not of itself reveal a failure to consider, as opposed to refer to, that particular material referred to it pursuant to s.473DB(1) of the Act. The applicant has not been able to establish that the IAA did not consider the two pieces of information in the circumstances presented by relying only on the decision record which, statutorily, represents the reasons for the decision, and not a reference to information it considered but did not see as relevant to the disposition of the assessment before it.
Third, it is of note that the applicant did not frame this ground as an assertion of a failure to consider a claim expressly made or clearly arising in the circumstances evoking such authorities as NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802. Nor, was the ground framed as an argument that the IAA failed to consider a “substantial, clearly articulated argument relying upon established facts” (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24]).
In the circumstances this can be explained, because those parts of the UNHCR report relied on now by the applicant do not appear to be a part of any claim to fear harm advanced by the applicant before the delegate or the IAA. Before the Court, the applicant made no satisfactory attempt to argue that it was.
At its highest, the applicant’s submission pointed to the fact that he had said he had worked as a construction worker in the past. He did not take the Court to any part of his claims to fear harm that indicated he feared harm, as a construction worker per se in the past, or feared harm for this reason on return. Nor does the evidence before the Court support any such proposition.
Fourth, the particulars to the ground focus on the question of the reasonableness of relocation to Mazar-e-Sharif and assert that the IAA should have considered the two items of information from the UNHCR report in this consideration. This is because, it is now asserted, that this information is to the effect that construction workers have a particular profile in Afghanistan and there are reports of their suffering harm for reason of being construction workers.
It is, as the Minister correctly submitted, not for this Court to consider the contents of the UNHCR report, including the two items relied on now by the applicant, and substitute its own findings of fact for those of the IAA as to the likelihood of harm.

The two extracts from the UNHCR report relied on now by the applicant are to the effect that construction workers are amongst the groups of people who are the targets of attacks by insurgents.
In relation to relocation to Mazar-e-Sharif, the IAA found, amongst other matters, that Mazar-e-Sharif “…has been relatively isolated from the conflict in the last decade…” and:
“…is regarded as one of the safest cities in Afghanistan, with the relative security of the province being attributed to a monopoly on power, even in the province’s most remote regions, held by ethnic-Tajik governor and former warlord Atta Mohammed Noor.³⁸” ([52] at CB 685).
[Footnote Omitted.]
In short, the IAA’s analysis was that, on the evidence before it, that while there were “sporadic attacks” in Mazar-e-Sharif by insurgents, violence was “not common”. The IAA found ([52] at CB 686):
“…On this basis I am not satisfied that there is a real risk of the applicant facing significant harm on the basis of the general security situation in Mazar-e-Sharif for any reason.”
Given this analysis and its findings, the applicant has not now satisfactorily explained why the IAA was then required to also consider, even if the applicant was to engage in construction work in Mazar-e-Sharif, the relevance of the UNHCR’s references to construction workers.
Plainly the references in the UNHCR report to, amongst other groups, construction workers, was in the context of Taliban (and other insurgent groups) targeting certain groups of persons. The IAA’s analysis specifically addressed that situation, and at [52] found that the risk of such targeting (for whatever group may be said to be targeted) was remote in Mazar-e-Sharif. This was reasonably open to the IAA on what was before it. For the Court now to take a different view, as in essence, the applicant invites it to do, is to engage in impermissible merits review.
Fifth, as the Minister correctly submits, the question as to the choice of, and weight to be assigned to country information, the evaluation as to its meaning and relevance to the circumstances presented, is for the IAA (as the relevant decision maker in this case) acting reasonably, to determine, and not this Court (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] and see also SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15 at [62], Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27], Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 at [45], NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [81] per Young J, SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 at [16].
In all ground three is not made out.

Ground Four

Ground four asserts that when it considered the reasonableness of relocation the IAA failed to consider the totality of the applicant’s circumstances.
The context for this assertion is said to be as follows. The applicant’s stepmother was dependent on him. He provided financial assistance to his wife, two children and his stepmother, who were reliant on him. He claimed that if he were to relocate to Mazar-e-Sharif it would be too dangerous for him to leave that city and travel to Ghazni province where his family resided to see them on a regular basis. The IAA had otherwise accepted that the applicant faced a real risk of serious harm if he were to travel on the roads leading to the location where his family lived.
The evidence before the Court, reveals as follows. The applicant did claim that his stepmother, wife and two daughters were dependent on him in a Statutory Declaration ([6]–[7] at CB 88).
In its letter of 21 March 2017 (CB 644–CB 648) the IAA invited the applicant to comment on, amongst other things, information relevant to, specifically the question of relocation (CB 646.6–CB 648).
The applicant responded. Submissions were made by his then representative (CB 652–CB 656). The applicant provided a Statutory Declaration responding to the invitation. In effect the Statutory Declaration contained the applicant’s reasons as to why he could not reasonably or safely relocate to Mazar-e-Sharif. In effect these were his objections, to or arguments against, such relocation.
Included in this was the following ([3]–[4] at CB 657):
“3. In relocating to Mazar– Sharif, I also don’t know what kind of work or employment opportunities would be available to me in a city where I have no connections. I have a low level of education, and I wouldn’t be able to relocate my whole family there, find employment and support myself and my family.
4. Even if I relocated to Mazar-e Sharif alone, it would be too dangerous for me to leave the city and travel to Ghazni province and see my family on a regular basis.”
[Error in the original.]
What emerges is that when specifically asked to comment on the question of relocation to Mazar-e-Sharif the applicant made reference to supporting his family, and the inability to obtain employment in Mazar-e-Sharif to support, in context financially, himself and his family. Therefore the claim of his family’s financial dependence was part of the applicant’s circumstances relating to his family and the question of his relocation.
There was no dispute between the parties that the relevant principles applicable to the IAA’s consideration of the reasonableness of relocation (in the context of the consideration relating to complementary protection) are those set out in SZATVv Minister for immigration and Citizenship [2007] HCA 40 (“SZTAV”) and CRI028 v The Republic of Naru [2018] HCA 24 (“CRI028”), particularly at [26].
In his submissions, the Minister also referred to BWB16 v Minister for Immigration and Border Protection [2018] FCAFC 158 (“BWB16”). This case also involved an Hazara Shia Muslim from Jaghori, Ghazni province in Afghanistan whose claims for protection were referred to the Immigration Assessment Authority. This case also involved the Authority’s consideration as to whether the applicant in that case could reasonably and practically relocate to Mazar-e-Sharif. The matter of the applicant living apart from his family was also considered by the Authority in that case.
In his submissions before the Court, the applicant sought to distinguish the facts of the current case from those in BWB16. Indeed there are some differences in the respective factual scenarios.
However, I understood the Minister’s reference to this case not to be for the purpose of relying on there being some identical factual scenario, but to the approach taken by the Full Court in that case in considering whether the primary judge erred in the consideration of whether the IAA’s decision was affected by jurisdictional error.
The following respectfully emerges. The central question, also relevant to the current case, is first, whether the IAA asked itself the correct question in considering the matter of relocation, and second whether the IAA considered all of the applicant’s circumstances, that is relevantly his claims and arguments as to why he could not relocate (see [28]–[34] of BWB16).
As the Full Court said at [28]:
“28. Resolution of the appeal requires an examination of the Authority’s reasons in order to determine whether it assessed the reasonableness of relocation taking into account the appellant’s claims in relation to his circumstances.”
In relation to the relevant test and the taking into account of the applicant’s circumstances I note also what was said by the Full Court in SZMCDv Minister for Immigration and Citizenship [2009] FCAFC 46 (“SZMCD”) at [124]:
“124. The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR 437 at 442–443, especially at 443C–D.”
In the current case, as set out above, the applicant (with the assistance of a registered migration agent) provided submissions and reasons as to why he could not relocate to Mazar-e-Sharif. In essence, and relevant to the assertion in ground four, this was that his family (stepmother, wife and children) who were all dependent upon him, including financially, all resided in Ghazni. If he were to relocate it would be too dangerous for him to travel to Ghazni, he would not be able to leave Mazar-e-Sharif, and he would therefore not be able to see his family.
In these circumstances, therefore, the relevant question for the IAA (in applying the principles set out in SZATV and CRI028, and taking into account what was said in BWB16) was whether it was reasonable for the applicant to return to Afghanistan and go to Mazar-e-Sharif where, at least in the reasonably foreseeable future, he would not be able to leave that city, and travel to regularly see his family.
On any plain, let alone a fair, reading of the decision record that is precisely the question, and in the context also of the wider concerns presented by the applicant’s circumstances, that the IAA considered at [54]–[58], and in particular for current purposes [57]–[58].
In relation to his seeing his family the IAA stated ([57]–[58] at CB 687):
“57. I accept that the applicant’s family are residing in Jaghori, and the applicant does not have any family members in Mazar-e-Sharif to assist him on return. He would therefore be arriving in Mazar-e-Sharif without dependants as a single man of working age. Although the applicant indicated that he needs to support his family, his family continue to live in Jaghori where his wife continues to farm the family land, and he would not be required to find accommodation or meet other needs for his family in Mazar-e-Sharif. Whilst the lack of familial support may initially present challenges in the applicant establishing himself in Mazar-e-Sharif, he does not present with any vulnerabilities and although I accept that nepotism exists, on the evidence, I am satisfied that he has demonstrated the ability and capability to establish himself in new locations despite a lack of family and other connections. I am satisfied that the applicant has the skills, life experience and resilience to relocate and establish himself in an area of Mazar-e-Sharif where employment, accommodation and other services would be available to him.
58. I accept that the applicant since his departure from Afghanistan in 2012 has lived apart from his family, who remain in Jaghori. I also accept that the applicant’s relocation to Mazar-e-Sharif may mean he continues to be separated from his family in the reasonably foreseeable future. However the applicant has demonstrated a capacity and willingness to live apart from his family for an extended period whilst in Australia and indicated at interview that he had previously obtained a passport with the intention of travelling to Iran in 2007 for work purposes. Although I accept that the continued separation from his family may be difficult, the applicant has demonstrated capacity and resilience experience.”
In relation to the applicant’s capacity to provide financial support to his family the IAA considered employment opportunities for the applicant in Mazar-e-Sharif (see [55]–[56] at CB 686–CB 687).
The IAA’s analysis engaged with all of the applicant’s circumstances, including his relationship with his family, and took into account his arguments, and submissions made by him and his representative, as to why he could not relocate. The IAA’s analysis was consistent with the principles as explained in relevant authorities. Its findings were all reasonably open on what was before it, and for which it gave cogent reasons. In all ground four is not made out.

Conclusion

None of the applicant’s grounds reveal jurisdictional error in the IAA’s decision. It is appropriate therefore to dismiss the application to the Court. I will make the appropriate order.

I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 20 May 2020