CKZ17 v Minister for Immigration
[2019] FCCA 3101
•1 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKZ17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3101 |
| Catchwords: MIGRATION – Application for judicial review of decision of Immigration Assessment Authority – application for protection visa – principle of internal relocation – reasonableness of relocation – assessment of personal attributes of applicant – has IAA failed to exercise jurisdiction conferred upon it – is decision irrational, illogical or unreasonable – has IAA failed to consider central aspects of claim for protection – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 35A, 36, 46A, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 |
| Applicant: | CKZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 204 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 5 June 2019 |
| Date of Last Submission: | 5 June 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 1 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondents: | Ms Tattersall |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.”
The application filed 5 June 2017 be dismissed.
The applicant pay the First Respondent’s costs filed in the sum of five thousand dollars only ($5,000).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 204 of 2017
| CKZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority,[1] made on 1 May 2017, not to grant the applicant a Safe Haven Enterprise visa,[2] pursuant to the provisions of the Migration Act 1958.[3]
[1] Hereinafter referred to as the “IAA”.
[2] Hereinafter referred to as “the visa” or “SHEV”.
[3] Hereinafter referred to as “the Act”.
This decision confirmed an earlier decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[4] not to grant the relevant visa.
[4] Hereinafter referred to as the “Minister”. The Department has been previously known as the Department of Home Affairs and is currently known as the Department of Immigration, Citizenship, Migrant Services & Multicultural Affairs
The applicant is a citizen of Afghanistan. He is of Hazara ethnicity and a Shia Muslim. He was born in Tamazan, which is in the Gizab District of Uruzgan Province. Tamazan is an area in which there is a mix of Pashtuns and Hazaras. Uruzgan is to the south west of Kabul.
The applicant claims that Australia owes him protective obligations, pursuant to the Act, on the basis that he is fearful he will be harmed by insurgent groups in Afghanistan, including the Taliban, because of his ethnicity and religion, if returned to that country and also because he will be targeted as a result of seeking asylum in a western country.
In addition, of significance so far as the current application is concerned, he also claims that he will be subject to the risk of suffering a significant degree of harm, if he returns to the area of Afghanistan, where he originates, because of a dispute over land involving his family and local Pashtuns. This issue in turn raised considerations as to whether the applicant could reasonably relocate to another area of Afghanistan to secure his safety, other than Gizab.
The IAA accepted that the applicant had a well-founded fear of persecution because of his fears of harm ensuing to him, as a Shia Hazara, if returned to Gizab. However, on the basis of information available to it, pertaining to the current situation in Afghanistan, the IAA also concluded that it was open to the applicant to relocate to Mazar-e-Sharif, where the situation for Hazaras was reported to be safe and stable. Mazar-e-Sharif is a large city in the North of Afghanistan.
In general terms, the applicant claims the decision in question is vitiated by error on two grounds.
·Firstly, the IAA failed to exercise the jurisdiction conferred upon it by failing to consider properly whether the applicant could reasonably relocate to Mazar-e-Sharif.
·Secondly, the IAA failed to consider relevant integers of the applicant’s claim, relating to the practicalities and logistics of such a relocation, arising from the applicant’s subjective circumstances and therefore failed to exercise the jurisdiction conferred upon it, resulting in jurisdictional error.
The relevant legal background
The applicant departed Afghanistan in 2010. He arrived on Christmas Island, by boat, on 3 November 2012. Due to the manner of his arrival in Australia, he is classified as an unauthorised maritime arrival under the Act.
The effect of this classification is to prevent the applicant from being able to apply automatically for any form of visa, including a protection visa, under the Act, unless the Minister authorises it, on the basis that it is in the public interest to do so.[5] In this case, the Minister lifted the bar on 21 December 2015 and authorised the making of an application for a SHEV.
[5] See Migration Act at section 46A
A consequence of the Minister allowing the applicant to make a visa application in this way is that the applicant is characterised as a fast track applicant and, as such, the manner in which his application is to be determined and any review rights arising is mandated by Part 7AA of the Act.
Section 35A creates a category of visas, under the Act, known as protection visas. This category includes a class of temporary visas, known as safe haven enterprise visas (SHEV) or temporary protection visas (TPA).
On 31 January 2016, the applicant applied for a SHEV. In connection with his application, the applicant was interviewed by a delegate of the Minister on 9 August 2016. The delegate declined to grant the visa on 12 September 2016.
This refusal automatically engaged the review functions of the IAA, which resulted in the decision the subject of these judicial review proceedings. The case was referred to the IAA, for review, on 22 September 2016.
Section 473CB sets out the material, which the Secretary of the Department[6] must provide to the IAA. It includes the reasons of the delegate; any material provided by the applicant concerned to the original decision-maker; and any other material considered to be relevant.
[6] Hereinafter referred to as “the Secretary”
Section 473CC provides as follows:
“(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.”
The procedure of the IAA and how it is to conduct its fast track review function is delineated in section 473DA, particularly what application the rules of natural justice have to fast track matters, including any requirement to refer documents to an applicant for comment. The section reads as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB indicates that a fast track review is to be conducted only in respect of the material referred to the IAA by the Secretary without accepting or requesting any new information or interviewing the applicant concerned. In the jargon of administrative review, the review arising under Part 7AA is to be “on the papers” alone.
In this context, the IAA’s authority to access additional review material, to that provided to it by the Secretary, is limited and delineated exhaustively in Subdivision C of Part 7AA. Section 473DC grants the IAA a discretion to obtain new information not previously before the Minister at the time of its decision if it might be relevant.
However, the IAA is under no obligation or duty to obtain such information regardless of whether it is requested to do so by the applicant whose case has been referred to it or any other person [see section 473DC(2)].
The exercise of the discretion provided by section 473DC is subject to the satisfaction of two cumulative but overlapping considerations,[7] provided by section 473DD, namely:
·The IAA is satisfied that there are exceptional circumstances sufficient to justify it considering such material; and
·The applicant concerned satisfies the IAA the new information:
·either could not have been provided to the Minister at time of decision; or
·is credible personal information not previously known and had it been known, may have affected the consideration of the claims made.
[7] See BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 at [9] per White J
If the IAA is satisfied that such exceptional circumstances arise, it is required, pursuant to section 473DE, to give the information so obtained to any referred applicant whose fast track review is being considered by it.
On 27 October 2016, the applicant through his representative provided a written submission to the IAA containing new information. This included submissions regarding the security situation in Kabul, particularly so far as Hazaras were concerned.[8]
[8] See Case Book at 134–139
Further information was provided by the representative on 22 November 2016. This information further asserted that the security situation in Afghanistan and Kabul in particular had recently deteriorated markedly and was supported by contemporary country information.[9]
[9] Ibid at 140–154
On 6 April 2017, the IAA invited the applicant to comment on information available to it relating to the security situation in Afghanistan particularly so far as it pertained to Hazaras living in Mazar-e-Sharif and Kabul, and attacks against Hazaras by Islamic State, the Taliban and other anti-government elements in Afghanistan.[10]
[10] Ibid at 155–160
The applicant’s representative responded to this invitation on 20 April 2017.[11] The representative refuted the submissions regarding the improved security situation in Afghanistan. In addition, the representative provided details as to why the applicant could not reasonably relocate to Mazar-e-Sharif.
[11] Ibid at 162–185
The factors relied upon included the lack of relatives there; his likely inability to find appropriate employment there; his personal illiteracy and innumeracy; and the lack of traditional support mechanisms and social links in Mazar-e-Sharif.
In this context, the applicant was characterised as a farmer previously in Afghanistan. As such, it was likely he would experience difficulty in obtaining work in an urban centre. In addition, Mazar-e-Sharif was described as a location which was experiencing the return of many displaced Afghanis. In these circumstances, it was submitted that the applicant would not be able to access basic shelter and other essential services for himself.
The IAA found that the applicant did not face a well-founded fear of persecution in Mazar-e-Sharif. Although it accepted that he did not have family links in the city, it characterised the applicant as a resourceful and resilient person, who had demonstrated an aptitude to support himself whilst in Australia.
In these circumstances, the IAA found that it was reasonable for the applicant to relocate to Mazar-e-Sharif, where it was considered he would not suffer a real risk of suffering harm for any reason arising under the Act.[12] The applicant challenges this finding on the basis that the IAA did not consider each component of his claim in respect of it and further that its conclusion is legally unreasonable.
[12] Ibid at 204 [55]
The specific grounds of review
Before turning to specific legal principles and the actual findings of the IAA, it is necessary to set out, with some care, the specific grounds of review provided by the applicant.
Ground One
The applicant contends that the decision of the IAA is vitiated by jurisdictional error on the basis that the Authority erred in its assessment of the viability of relocation by failing properly to consider whether it was reasonable of the applicant to relocate to Mazar-e-Sharif. In this context, it is asserted that the IAA failed to make required findings in respect of the following issues:
·what kind of employment and in what industries was employment available to the applicant in Mazar-e-Sharif?
·what kind of employment was available to a Hazara Shia, who had no traditional ties or family in that location?
·what kind of employment could the applicant obtain in Mazar-e-Sharif?
·was it possible for the applicant to obtain similar employment to that which he had pursued in Australia?
·specifically, in what parts of Mazar-e-Sharif, would accommodation, employment and other services be available to the applicant?
·even if the applicant did have the life skills to re-establish himself in Mazar-e-Sharif, what were the risks inherent for him of such a relocation and was it reasonable for the applicant to be expected to assume such risk?
Ground Two
The applicant contends that the IAA did not consider relevant integers of his claim that he could not reasonably relocate to Mazar-e-Sharif and therefore did not complete the jurisdiction conferred upon it. The relevant component of the case being particularised as follows:
·he would not have support from international agencies in the location;
·his assertion that the only work which he had been able to obtain in Australia had been through contacts pertaining to his home region in Afghanistan, which contacts would not be available to him in Mazar-e-Sharif.
The legal definition of refugee
The criteria required to be satisfied, in respect of the grant of a SHEV, are set out in Schedule 2 to the Migration Regulations 1994 particularly subclass 785 and 790. In general terms, the applicant for such a visa is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“ - in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
This definition is consistent with the definition contained in the Refugees Convention to which Australia is a signatory.[13]
[13] Convention relating to the Status of Refugees done at Geneva on 28 July 1951. Hereinafter referred to as the Convention or the Refugees Convention
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·there is a real chance the applicant would be persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering significant harm if returned to a particular country.
Subsection (2A) defines significant harm. It includes the relevant applicant for protection suffering all or any of the following circumstances:
·being arbitrarily deprived of his or her life;
·being subject to the death penalty;
·being subject to torture;
·being subjected to cruel or inhumane treatment or punishment; or
·being subject to degrading treatment or punishment.
Section 36(2B) is germane to the grounds of review advanced in the case. It provides that it is taken not to be a real risk a person will suffer significant harm in a particular country if satisfaction is reached in respect of the following considerations:
·it would be reasonable for the applicant in question to relocate to another area of the country concerned, where there was no real risk of he or she suffering significant harm; or
·the applicant could obtain protection from relevant state authorities to avoid suffering such significant harm; or
·the real risk was one faced by the whole population of the country concerned not the particular applicant personally.
The provision encapsulates a principle which is commonly referred to by lawyers as the principle of internal relocation. The principle of internal relocation is predicated on the basis that it is not reasonable, for the nation signatories to the Refugees Convention, to be required to offer protection to the sufferers of persecution, as defined by the Convention, if safety is available to them, within their country of origin, through the agency of their own state.
In Randhawa v Minister for Immigration[14] Black CJ discussed the principle and indicated that the question, which a decision maker, in respect of refugee status, should ask, was whether the applicant’s “fear [of persecution] was well founded in relation to his country of nationality, not simply the region in which he lived.”
[14] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 442–443
However, given the humanitarian objects of the Refugee Convention, this question was not to be approached in a “narrow way”. Accordingly, a person’s fear of persecution would remain well founded in respect to the country as a whole, if, as a matter of practicality, the part of the country in which protection was available was not reasonably accessible to the person claiming asylum.
In this context, Black CJ expressed the consideration as follows:
“If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded.”[15]
[15] See Randhawa (supra) at 443
In Minister for Immigration & Multicultural Affairs v Khawar[16] the High Court indicated that the satisfaction of the definition of “refugee” provided by the Convention, depended upon the satisfaction of two conditions – firstly, the person seeking refugee status was outside the country of his/her nationality; secondly, this was as a consequence of a fear of persecution, which was well-founded.
[16] Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 at 21 per McHugh & Gummow JJ
In this second context, it was held that the use of the expression well founded engendered both a subjective and objective test. That is, the claimant must personally fear for his/her safety and his/her fear must be objectively reasonable.
In SZATV v Minister for Immigration & Citizenship[17] the High Court considered the second limb of this definition, in the context of the principle of internal relocation. In so doing, it considered what considerations had to be satisfied if it was deemed to be reasonable for a person who feared persecution, in one part of his/her country of origin, to move to another region within it, where it was probable he/she could be secured safety.
[17] SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18
The High Court considered that a decision maker, in respect of refugee status, must consider whether it was reasonable, in the sense of being practicable, for an asylum seeker to relocate to a region, where objectively there was no appreciable risk of the feared persecution occurring.
It was considered that such a formulation did not turn upon any hypothetical assumption regarding possible safe areas within the country concerned nor did it prevent “account being taken of the presence of a subjective fear of persecution …” on the part of the applicant seeking asylum status.[18]
[18] SZATV (supra) at 26
Accordingly, considerations germane to what is subjectively practicable for an applicant for refugee status to do, are relevant to whether it is reasonable, in overall terms, for that person to move to another region, within his country of origin, where in objective terms, there is no likelihood of persecution for the individual concerned in that region.
The High Court (Gummow, Hayne and Crennan JJ) said as follows:
“What is ‘reasonable’, in the sense of ‘practicable’, must depend on the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”[19]
[19] SZATV (supra) at 27
Kirby J, in a separate judgment, in the case, said as follows in respect of the sorts of considerations, which may be relevant to whether it was reasonable for an applicant to relocate within his country of origin:
“In some circumstances, having regard to the age of the applicant, the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable. In each case, the personal circumstances of the applicant; the viability of the propounded place of internal relocation; and the support mechanism available if an applicant has already been traumatised by actual or feared persecution, will need to be weighed in judging the realism of internal relocation.”[20]
[20] SZATV (supra) at 42
Accordingly, an essential component of the decision making process as to whether it is reasonable for an applicant for refugee status to relocate to another part of his/her country of origin is a consideration of his/her “particular circumstances”. A failure to do so will constitute a jurisdictional error and vitiate any resulting decision.[21]
[21] See Plaintiff M 13-2011 v Minister for Immigration & Citizenship [2011] HCA 23 per Hayne J at [22]
In MZANX v Minister for Immigration & Border Protection[22] Mortimer J warned of the danger of such an assessment becoming formulaic and removed from any real factual basis relevant to the individual concerned. In terms of what was involved in an applicant prospectively moving to a particular location in his/her country of origin, it was necessary for a decision maker to “attempt to assess what, in a real and practical sense, will happen to that individual and her or his family in those circumstances.”
[22] MZANX v Minister for Immigration & Border Protection [2017] FCA 307 at [56]
Mortimer J held that there must be a “sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location,”[23] and what the applicant’s anticipated life would be like in that location.[24]
[23] MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [51]
[24] MZANX (supra) at [65]
In this context, Her Honour considered that it was incumbent on the relevant decision maker to undertake a detailed consideration of the circumstances on the ground for the applicant concerned, particularly what were the practical and realistic abilities of an individual to re-start his or her life in a new place, without undue hardship.[25]
[25] MZANX (supra) at [55]
Essentially what the task involves is a hypothetical examination of what life will be like for the applicant concerned in the proposed location. This is likely to entail an assessment of the standard of health, housing, education, employment, liberty and freedom available to the applicant concerned, upon the commencement of such a new life.
The standards prevailing need not be those of an advanced nation, but must be more than of a subsistence nature. In this context, Mortimer J made reference to these comments of Lord Hope in Januzi v Secretary of State for the Home Department:[26]
“The words ‘unduly harsh’ set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there ‘judged by the standards that prevail in his country of nationality generally’ and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there.”
[26] Januzi v Secretary of State for the Home Department [2016] UKHL 49 at [47]
Incumbent in this task is an assessment of the grounds on which the particular applicant objected to the possible relocation. In this context, reliance was placed on what was said by Markovic J in SZVRA v Minister for Immigration & Border Protection:
“Whether a claimant can reasonably be expected to relocate depends upon the framework set by an applicant’s particular objection to relocation.” [27]
[27] SZVRA v Minister for Immigration & Border Protection [2017] FCA 121 at [18]
The obligations of the IAA to conduct a review
Section 473CC of the Act requires the IAA to review any decision referred to it. As such, it is an essential requirement of its review function that it consider all claims made by the applicant concerned, including each essential component or integer of such claims, otherwise it will not acquit the jurisdiction conferred upon it.[28]
[28] See Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136
In the context of refugee cases, which invariably involve individuals disadvantaged by language difficulties, who may have concomitant problems in articulating what are their claims for protection, difficulties may arise as to what are the actual claims being advanced and what are the components of such claims.
In NABE v Minister for Immigration & Multicultural & Indigenous Affairs[29] the Full Court indicated that a reviewing body, which in my view should be taken to include the IAA, is required to consider only claims which are either:
·The subject of substantial clearly articulated arguments relying on established facts; or
·Those that clearly emerge from the material.
[29] NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 144 FCR 1
Whether a claim clearly emerges:
·Is not a finding to be made lightly;
·Must be based on facts which are established on the material before the Tribunal concerned;
·It is not an issue which can be determined axiomatically by reference to clearly delineated concepts. However, greater latitude, in this regard, will be given to unrepresented persons;
·It is not an issue to be determined in vacuo. Rather consideration should be given to how an applicant has presented his/her claims over time.
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[30] the Full Court said as follows:
“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.”
[30] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47]
The applicant’s claims
The applicant filed a statement in support of his claim for the visa in which he claimed as follows:
·His father was a farmer, who purchased land from the local Pashtuns and proceeded to cultivate it with wheat, almond and fruit trees. After the land increased in value, the Pashtuns sought to reclaim it;
·Following his father’s death, the Pashtuns asked for the land to be handed over and threatened the applicant’s family;
·In 2008, the Pashtuns shot and killed the applicant’s brother and sister while they were harvesting wheat;
·In particular, the applicant asserted that:
oA powerful wealthy local Pashtun was the individual primarily responsible for the murder of his siblings;
oThis individual was famous in Afghanistan for being a main supporter of the Taliban;
oThe individual is the head of a family of 11 who are well-known for their cruelty and killing of Shia Muslims;
·He is a Shia Muslim by religion and a Hazara by ethnicity;
·His mother died soon after the deaths of his siblings and his remaining brother left for Iran, leaving him as the sole owner of the land;
·He tried to escape to Iran twice in 2009 but was deported on both occasions. He then left for Pakistan in 2010 and made his way to Australia; and
·His family is blacklisted by the Pashtuns as they are Hazara and Shia Muslims, meaning he would be killed should he return to Afghanistan.[31]
[31] See Case Book at 46–48
The applicant also indicated at the time of his entry interview on 27 November 2012 that his family continued to reside at the same address in Tamazan. At his SHEV interview, the applicant stated that nothing had happened to his family since his departure from Afghanistan in 2010 and they had moved to a village called Nili in Daykundi in 2014.
The delegate’s decision
The delegate noted that there was a significant delay between the time of the death of the applicant’s siblings and his departure from Afghanistan. This delay caused the delegate to have significant doubts regarding the credibility of the applicant’s claims that he was at risk of suffering harm at the hands of the Pashtun land owner concerned.
In these circumstances, the delegate found that the applicant was not at risk of being targeted by Pashtuns, if he returned to the Gizab region. Thereafter the delegate considered the situation pertaining to Hazaras in the Daykundi region, to which members of the applicant’s family had relocated in 2014.
In this context, the delegate referred to country information which indicated some Hazara returnees had been targeted by the Taliban in Daykundi. On this basis, it was accepted that the applicant did face a real chance of harm if he was returned to Daykudi.
Thereafter, the delegate turned to the issue of further internal relocation, particularly of the applicant to Kabul. The applicant indicated that he did not believe he could move to Kabul because Shias were being targeted there by Daesh.
The delegate did not accept this submission on the basis that it was not considered that the applicant had a high personal profile and although, on the basis of country information, Kabul was subject to terror attacks, these were not directed specifically at either Hazaras or Shias.
In addition, the delegate considered that the applicant could obtain employment, in Kabul, as a consequence of his work experience both in Afghanistan and Australia. It was also considered that the applicant would be able to obtain the necessary identity papers to allow him to obtain accommodation and employment in Kabul.
The IAA decision
As previously indicated, the case was referred to the IAA for review. Pursuant to the provisions contained in Part 7AA, both the applicant and the IAA sought to access further information, particularly in regards to the central issue in the case, which centred on the practicality of the applicant living in a region of Afghanistan away from Gizab.
The grounds of review provided by the applicant, to this court, do not raise any issue regarding the legality of how this new information was obtained and ultimately dealt with by the IAA, particularly whether it was to be regarded as new information.
In this context, the IAA found that much of the information, regarding the security situation in Afghanistan, provided by the applicant’s newly appointed representative did not satisfy the provisions of section 473DC. This finding is not subject to challenge.
In respect of the new country information obtained by the IAA itself, pursuant to the provisions of section 473DE, the Authority was obliged to give particulars of it to the applicant for his comment. This was done on 6 April 2017. This information asserted that Islamic State were not capable of launching any concerted attacks in Afghanistan.
On this basis, the applicant was advised that this information supported the view that the applicant was not likely to be subject to a real chance of suffering harm, if he moved to a major urban centre within Afghanistan, such as Kabul or Mazar-e-Sharif. In this context, the applicant was asked to comment on the following raft of issues, which can be summarised as follows:
·Balkh Province – the capital of which is Mazar-e-Sharif – has been stable for a number of years and is a centre for all the major ethnic groups of Afghanistan, including Hazaras;
·Hazaras in fact constituted one of the majority ethnic groups in Mazar-e-Sharif;
·Mazar-e-Sharif was a major financial centre;
·It was serviced by an international airport;
·There was no evidence that Islamic State was targeting Hazara Shias in Mazar-e-Sharif.
The applicant, through his representative, challenged the accuracy of much of the country information provided in respect of the security situation in Mazar-e-Sharif. More significantly, the applicant challenged the reasonableness of him being expected to relocate there given his personal circumstances. In this context, it was asserted that:
·He had no male relatives in Afghanistan;
·His closest male relative, his brother, was in Iran;
·His parents were dead;
·Two of his brothers had been killed;
·He had no personal support mechanisms in Afghanistan generally and Mazar-e-Sharif, in particular;
·His wife and daughter remained living in his home province, where they were internally displaced;
·As a consequence, if he lived in Mazar-e-Sharif, his family was likely to be destitute, particularly if he was unable to find employment;
·His only work experience, in Afghanistan, had been as a farmer. Any potential access to land, available to him for farming, was in his home province;
·He did not have any familial or other connections in Mazar-e-Sharif;
·He is illiterate and innumerate;
·He would have limited employment prospects in Mazar-e-Sharif due to societal discrimination against Hazaras;
·Hazaras were to be considered a minority ethnic group in Mazar-e-Sharif;
·Although he had been able to work in Australia this had only been as a consequence of connections derived from his home province, which would not be available to him in Mazar-e-Sharif;
·There had been an economic downturn in Mazar-e-Sharif, which had resulted in many villagers leaving building sites in the city to return to the hinterland; and
·He would not be able to access accommodation or basic infrastructure in Mazar-e-Sharif due to constraints on services available to returnees to Afghanistan.
On review, the IAA accepted that the applicant faced a well-founded fear of persecution, if he returned to Gizab, on the basis that he is a Hazara Shia, liable to be targeted by local Taliban. In these circumstances, the focus of decision making turned to the prospect of the applicant moving internally within Afghanistan.
On the basis of country information available to it, the IAA characterised Mazar-e-Sharif as a multicultural and tolerant city, in which Hazaras constituted a significant minority. It accepted that Hazaras were likely to experience some discrimination as a consequence of nepotism. Such nepotism would likely extend to the applicant. However, the IAA did not consider that this type of prejudice fell within the definition of significant harm contained in section 36(2A).[32]
[32] See Case Book at 201 [45]
The IAA also characterised Mazar-e-Sharif as one of the safest cities in Afghanistan, being rarely subject to attack. It characterised security services in Balkh province as being effective in nature. It doubted that the applicant would have any form of profile, with insurgents, due to his activities in Gizab some years earlier.[33]
[33] Ibid at 202 [47]
In terms of the relevance of the complementary protection considerations to the applicant’s situation, particularly whether it was reasonable for him to relocate to Mazar-e-Sharif, the IAA summarised his case in the following terms:
“The applicant’s representative submits that it would not be reasonable for the applicant to relocate as he has no male relatives in Mazar-e-Sharif, two of his siblings and his parents are deceased and his remaining brother is in Iran while his wife and children remain displaced in his home province. He is illiterate and innumerate and has limited work experience as a farmer. Although he has been able to find work in Australia, he has done so through links with others from his home province and if he is unable to obtain work in Mazar-e-Sharif where he has no such links his family will become destitute. His difficulty in obtaining employment will be exacerbated by the economic downturn which has also impacted on Mazar-e-Sharif resulting in high unemployment. The representative also indicates that as the applicant does not have support mechanisms he will be unable to access shelter or basic services necessary for subsistence and given the scale of Afghan returnees recently forcibly returned from Pakistan the applicant would not be able to access any long term assistance from IOM to assist in his relocation.”[34]
[34] Ibid at 202 [49]
In my view, this represents an accurate and fair summary of each aspect of the applicant’s case regarding why it should be considered unreasonable to expect him to relocate within Afghanistan.
In its analysis, the IAA accepted that the reasonableness of internal relocation, within the context of Afghanistan, was largely dependent upon the existence, for the individual concerned, of support mechanisms, in the form of extended family and/or ethnic groups.
However, the IAA excluded from this categorisation single able bodied men, whom it considered would be able to subsist :
“…without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective Government control.”
It cited a report from DFAT in support of this contention.[35]
[35] Ibid at 202 [50]
The IAA further accepted that traditional extended family and tribal community structures were the major support mechanisms for Afghanis generally and, in practical terms, lack of financial resources and employment opportunities were the greatest restraints to any successful internal relocation. However, it also opined that single men of working age were generally more successful in relocation, notwithstanding such constraints.
Following these generalisations, the IAA then turned to consider the circumstances of the applicant specifically and make findings in respect of the actual situation in Mazar-e-Sharif. In terms of the latter, it categorised it as being under the effective control of the Afghan government and as one of the biggest commercial and financial centres of the country, which was home to a mix of religious and ethnic communities.
It accepted that unemployment was high across Afghanistan, including in Mazar-e-Sharif. However, it also found that there were likely to be more employment opportunities in a large centre such as Mazar-e-Sharif than in the country generally. Having made these findings, it made the following characterisations in respect of the applicant personally:
“…the applicant despite having no formal education has undertaken an English course in Australia, has considerable experience in farming from which he and his family obtained a comfortable income and he is currently working in Australia as a plasterer in the construction industry. Although he claims to have obtained work through contacts in Australia, he indicated in his visa application and at the entry interview that he had no personal contacts in Australia and at SHEV interview he indicated that he has established social links since his arrival in Australia. He has demonstrated resilience and resourcefulness and I am satisfied that the applicant will be able to obtain employment to enable him to subsist in Mazar-e-Sharif.”[36]
[36] Ibid at 203 [51]
The IAA noted that the applicant would be arriving in Mazar-e-Sharif as a single person, who was of working age. It accepted that the lack of family support would initially present challenges for him. However, it further characterised him as not having any particular vulnerabilities and as having demonstrated the ability and capability to establish himself in new locations including the ability to create links within the Hazara community despite a lack of family and other connections.
The evidence to support this contention – the ability attributed to the applicant to establish himself in new locations lacking familial support – is the undoubted fact that the applicant has lived independently of his family since leaving Afghanistan in 2010 and whilst in transit to Australia has been able to survive in both Indonesia and Pakistan. In this context, the IAA found as follows:
“I accept that the applicant since his departure from Afghanistan in 2010 for Australia has lived apart from his family. I also accept that the applicant’s relocation to Mazar-e-Sharif would require him to be separated from his family for 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.”[37]
[37] Ibid at 203 [53]
In summary, the IAA accepted that lack of familial support and access to tribal affiliations represented significant hurdles to internal relocation in Afghanistan. However, these impediments were less significant for single men of working age – into which category the applicant fitted.
Given his life experience, since leaving Afghanistan in 2010, the IAA characterised the applicant as being both resilient and resourceful. It reached this conclusion on the basis that he had lived independently, of his family, in a variety of settings, including in Australia, for a lengthy period of time.
In the Australian setting, the evidence indicated the applicant had been able to learn English and obtain employment in the construction industry. As such, he had demonstrated an ability to establish social links. By necessary inference, the IAA categorised the applicant as being a person who was less likely to be subject to the impediments of lack of family support in relocating, which confronted other Afghani returnees.
Discussion
The classic description of an error, which goes to the jurisdiction of an administrative body, was described in the following terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[38]
“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.”
[38] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
In the context of the current matter, the issue for the court, in conducting its jurisdictional oversight of the IAA, is whether the IAA gave realistic and practical considerations to the applicant’s prospective relocation to Mazar-e-Sharif, within parameters that are not considered to be unduly harsh.
To fall within jurisdiction, all administrative decisions require an evident and intelligible justification. All statutory powers are to be exercised reasonably.[39] One yardstick, frequently used to gauge whether an administrative decision is to be regarded as legally reasonable, is to ask whether the decision is one which no reasonable person could have made.
[39] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [26]
In Minister for Immigration & Border Protection v SZVFW[40] Kiefel CJ said as follows of this test:
“…it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”
[40] Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 at [11]
In my view, although I appreciate the statement may be regarded as being somewhat glib in nature, I also must bear in mind that the court should not subject the IAA’s reasoning to a degree of heightened or overly zealous criticism or over-analysis, as this may have the unintended consequence of transforming a process of judicial review into one involving a re-hearing on the merits.
In this context, the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang must be borne in mind.[41]In the case, the High Court indicated that a court, conducting judicial review “should not be concerned with unhappy phrasing” or “looseness in the language” in respect of the decision being subject to review.
[41] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Whether it is reasonable for a person seeking refugee status to relocate to another part of his/her country of origin is essentially a question of fact to be determined by the primary decision maker. This court is not entitled to substitute its own judgment, in respect of such things as the applicant’s level of individual resourcefulness and resilience, for that of the IAA.
Rather, the court is required to consider whether the IAA conducted a sufficient level of inquiry to reach a rational and reasonable conclusion in respect of the issue. Necessarily, this must be an idiosyncratic inquiry, so far as the applicant before it is concerned and cannot be concerned with generalities.
As Mortimer J observed in MZANX:
“What is reasonable and practicable for one Hazara person in terms of relocation to Kabul may not be for another. It may depend on whether she or he is accompanied by family members or has dependent children, on her or his level of education, her or his resourcefulness, psychological resilience, physical health, and knowledge of the Hazara community in Kabul. These are the kinds of inquiries necessary to reach a rational and reasonable conclusion on whether, as a matter of practical reality, an applicant can safely relocate.”[42]
[42] See MZANX (supra) at [69]
In my view, the reasons of the IAA indicate that it was aware of the types of questions, which it was required to pose for itself, in discharging its jurisdictional obligations. The central question, in terms of resolving review ground one, is whether the IAA, in its determination as to whether it was reasonable and practicable for the applicant to relocate to Mazar-e-Sharif conducted a sufficient level of inquiry into the various practical matters raised by the applicant.
The reasons of the IAA, in my view, do focus on the idiosyncratic circumstances of the applicant. It characterised the applicant as a single person. This was important in the context of the judgment exercised by the IAA on the prospect of the applicant being able to adjust to living within a centre, in Afghanistan, with which he was unfamiliar and which provided him with no family ties.
The IAA considered a range of factors, pertaining to the applicant, which both militated for and against the reasonableness of him relocating to Mazar-e-Sharif. In favour were the following:
·Mazar-e-Sharif was under the effective control of the Afghan government and was secure;
·It was a large centre of commerce and population and, on the basis of country information – a 2015 DFAT report – provided relatively greater opportunity for employment and access to services;
·The applicant was resilient and resourceful;
·He had obtained some employment skills, whilst in Australia;
·He did not present with any vulnerabilities; and
·He was of working age and had no dependents.
Militating against were the following factors:
·Unemployment did still exist in Mazar-e-Sharif;
·The applicant had no formal education; and
·He had no familial or tribal connections in Mazar-e-Sharif.
On the basis of country information, the IAA concluded that it was more feasible for a single person, without dependents, to overcome these challenges than a person with dependents. However, that was not an end to the analysis provided by the IAA. It made an assessment of how it considered the applicant personally was likely to respond to these challenges, including in respect of supporting himself financially.
In this context, it characterised him as being resilient and resourceful. I concede this is a value judgment. However, in my view, it was not one which lacked an evidentiary base. The conclusion was reached on the basis that the applicant had been self-supporting, for a significant period of time, in what the IAA regarded as challenging circumstances, in Indonesia, Pakistan but particularly Australia.
In my view, the reasons indicate that the IAA did conduct a sufficiently intense inquiry into the practicalities and reasonableness of the prospective relocation, which involved weighing up both its pros and cons. It weighed up what it regarded as the applicant’s psychological resilience and good health; his independence; against his lack of personal connections in Mazar-e-Sharif. It also considered both the positive and negative aspects of the location on the ground.
It concluded that, notwithstanding the applicant’s lack of formal education, his skills obtained in Australia could be utilised in Mazar-e-Sharif. In addition, it found that the applicant had been able to forge community ties, with other Hazaras, whilst in Australia.
It may well be the case that a different decision maker would have balanced these various factors differently and reached a different conclusion regarding issues of practicality, including whether the applicant could subsist in Mazar-e-Sharif. However, that alone does not indicate jurisdictional error.
The IAA considered that the applicant would be able to obtain some form of employment in Mazar-e-Sharif through his own endeavours and so subsist there. Given this finding, in my view, it was not necessary for it to consider issues relating to the availability of support from international agencies.
In addition, the IAA specifically rejected the applicant’s contention that he had only been able to obtain work in Australia through connections from his home province. It found rather that he had forged such connections in Australia. In this context, the IAA was satisfied that there was a relatively large Hazara population in Mazar-e-Sharif and, by necessary implication, the applicant had sufficient personal attributes to forge similar links with Hazaras in that city.
In these circumstances, I am satisfied that the IAA did consider each component of the applicant’s case in respect of the issue of internal relocation within Afghanistan.
In considering the issue of relocation, the IAA was called upon to complete a hypothetical task – how can any given individual reasonably subsist in a locale with which he or she is unfamiliar, most usually when such a person has no great incentive to wish to move there. In such circumstances, it must be considered impossible for such a decision maker to predict exactly or with certainty where any applicant concerned is to live and how he is to earn his living.
Rather what the IAA is required to do is to gauge, within the evidentiary parameters available to it, whether the applicant concerned could live a relatively normal life, in the locale proposed for relocation, judged by the yardstick of the circumstances prevailing in the relevant country generally.
I am satisfied that the IAA did undertake such a task and although it accepted the prospective relocation would not be without its challenges, given how it characterised conditions in Mazar-e-Sharif when coupled with its assessment of the applicant’s personal attributes, it did not do so unduly harshly.
For these reasons, I have come to the conclusion that the application for review should be dismissed. The first respondent seeks costs, which I will fix in an amount of $5,000.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 1 November 2019
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