CMH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2020] FCCA 349

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMH17 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR

[2020] FCCA 349

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority failed to consider the accumulation of dangers that the Applicant may face in relocation – whether the Immigration Assessment Authority considered only if the Applicant was at risk of serious or significant harm in considering relocation – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5J, 31, 36, 65, 473BA, 473BC, 473CA,

473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 474, 476

Treaties:

Convention relating to the Status of Refugees, opened for signature 28 July

1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A.

Protocol Relating to the Status of Refugees, opened for signature 31 January

1967 (entered into force 4 October 1967).

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Htun v Minister for Immigration (2001) 233 FCR 136

Minister for Immigration v MZYTS (2013) 230 FCR 431

DFW18 v Minister for Home Affairs [2019] FCA 599

Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188

MZACX v Minister for Immigration [2016] FCA 1212

MZYQU v Minister or Immigration and Citizenship (2012) 206 FCR 191

MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394

Minister for Immigration v DZU16 (2018) 253 FCR 526

Applicant:

CMH17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1786 of 2017

Judgment of:

Judge Emmett

Hearing date:

20 February 2020

Date of Last Submission:

20 February 2020

Delivered at:

Sydney

Delivered on:

9 March 2020

REPRESENTATION

Counsel for the Applicant:

Leonard Karp

Solicitors for the Applicant:

D’Ambra Murphy Lawyers

Counsel for the Respondents:

Jonathan Hoyle

Solicitors for the Respondents:

Minter Ellison

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1786 of 2017

CMH17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 11 May 2017 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 15 September 2016 refusing the applicant a Temporary Protection (Class XD) (Subclass 785) visa (“Protection Visa”).
The applicant is a citizen of Afghanistan and a Shia Muslim of Hazara ethnicity, who fears harm from the Taliban and other insurgent groups in Afghanistan.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a Protection Visa, a summary of the decision of the Delegate and a summary of the Authority’s review and decision.

Background

On 24 February 2016, the applicant lodged an application for a Protection Visa with the Department of Immigration and Border Protection (“the Department”).
On 15 September 2016, the Delegate refused the applicant’s application for a Protection Visa.
On 21 September 2016, the Delegate’s decision refusing the applicant a Protection Visa was referred to the Authority.
On 11 May 2017, the Authority handed down its decision affirming the decision of the Delegate not to grant a Protection Visa.
On 8 June 2017, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.

Legislative framework

Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 5J of the Act defines the meaning of well-founded fear of persecution.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Section 36(2A) and s.5 of the Act define “significant harm.”
Part 7AA of the Act provides for a limited form of review of certain decisions, known as fast track decisions. Under Part 7AA, s.473BA of the Act provides as follows:
“Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”
Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.
Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:
“Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.
The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides 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(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.
Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:
“Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
Section 473DD of the Act provides as follows:
“Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

The applicant’s application for a Protection Visa

The applicant’s claims for protection were accurately summarised in the submissions of counsel for the applicant, as follows:
“2. In a statement submitted with that application (CB 123-126) he claimed that he came from a small village called Malistan in Ghazni Province. He and his brother owned a shop in Jaghori selling construction materials to government officials and NGOs. He and his brother would take turns travelling to Ghazni City (the provincial capital) to obtain supplies.
3. It was claimed that on separate occasions both he and his brother were stopped at Taliban road blocks. They were each interrogated and told to stop selling supplies to government officials and NGOs. In the applicant’s case he was threatened with death.
4. The brothers decided to be careful, but after two months and running low on supplies the applicant decided to again travel to Ghazni city. He was stopped on the way back by a different Taliban band who were not aware of his previous encounter. He was held from about nine in the morning to evening and threatened with death if he did not stop supplying building materials to the government and NGOs. His photograph was also taken.
5. The applicant was understandably intimidated by this and so he and his brother hired somebody else to travel to Ghazni City to obtain supplies for them. The applicant learned from taxi drivers that the Taliban found out about this. The brothers sold their shop to a person who turned it into a grocery store after selling the last of the remaining building material. The continued sale of building supplies was, it was claimed, observed by the Taliban (who may not have known about the change in ownership) and the applicant received information through taxi drivers that the Taliban were looking for them. He went to Kabul and paid a smuggler to take him to a place that was safe.
6. The application was accompanied by a range of information on the security situation in Kabul, and in particular the danger to Hazaras there and elsewhere in Afghanistan (CB 196-211).”

The Delegate’s decision

The Delegate’s decision is summarised in the submissions of counsel for the applicant, as follows:
“7. At interview with a Departmental officer the applicant clarified and elaborated on certain aspects of his claims, such as that he sold material to contractors rather than government officials directly. He also described in some detail the construction projects for which the materials that he sold were required (CB 245-6).
8. The application was rejected on 15 September 2016 (CB 238-259). The delegate accepted the majority of the applicant’s factual claims and also accepted that he could not return to his home area, but found that it would be sufficiently safe and reasonable for the applicant to relocate to Kabul (CB 250-258). The matter was referred to the second respondent (the IAA) by operation of s. 473CA of the Migration Act.”

The Authority’s review

The Authority’s review is summarised in the submissions of counsel for the applicant, as follows:
“9. The IAA, consistently with the discretion permitted to it by s. 473CB(3) Migration Act, invited information from the applicant as to whether he could relocate to other parts of Afghanistan, in particular Mazar-e-Sharif in Baikh Province in the north of Afghanistan (CB 308-311). The applicant’s migration agent replied on 4 May 2017 (CB 314-319). The submissions about relocation made the following points (CB 318-319);
(a) Shias and Hazaras suffer systematic discrimination in all parts of Afghanistan. Grassroots discrimination is rife amongst Sunni Moslems who do not employ Shias Hazaras for fear of retribution by the Taliban.
(b) The Tajik governor, Atar Mohammed Noor, was the person behind the massacre of Hazaras when he was a Mujahideen commander in the 1980 and 1990s.
(c) The applicant has no familial links in Kabul or Mazar-e-Sharif and being personally targeted by the Taliban would inhibit his ability to find employment.
(d) High crime rates and high employment in particular affect Hazara Shias and the applicant would be destitute if forced to return to Afghanistan.
10. Also submitted to the IAA was a report from Professor William Maley on the return of Hazaras to Afghanistan (CB 321-324). One of Professor Maley’s points was that the security situation in Afghanistan is particularly fluid.”

The Authority’s decision

The Authority’s decision is summarised in the submissions of counsel for the applicant, as follows:
“11. The IAA accepted the applicant’s claims, with the exception of the claims that the Taliban had told taxi drivers of the new owner’s actions in selling of remaining construction materials, and that this would lead to consequences for the applicant and his brother. Nor was it satisfied that the Taliban would retain interest in him over the period since he left Afghanistan (CB 365-6 [16]-[21]). It was not satisfied that the applicant faces a real chance of being harmed in either Jaghori, where the shop was located, or in his village of Malistan (CB 366 [21]-[22]).
12. Having so found it went on to consider the danger to the applicant traveling back to his home area, and found, at CB 366-7 [23]-[25], that there was a small but real chance of the applicant being seriously harmed by insurgents in returning to his home area.
13. It then embarked on an investigation of whether the applicant faced harm in all parts of Afghanistan – s. 5J(1)(c) of the Migration Act. It recognised, as Professor Maley had written, that the security situation in Afghanistan is fluid and complex, and the IAA was mindful that it had deteriorated in 2015-6 (CB 367 [27]). It considered the situation of Mazar-e-Sharif in Baikh Province and found that it was relatively secure under its ethnic Tajik governor, Atar Mohammed Noor, who, it may be recalled, was the man the applicant accused of being behind the massacre of Hazaras in Mazar-e-Sharif in 1998 (CB 368 [28] refer CB 318). It mentioned multiple militant attacks in Mazar-e-Sharif in 2014, 2015 and 2016, and whilst accepting that civilians had been harmed in several of these incidents, it found that the incidents had been infrequent and primarily aimed at government and international community targets (CB 368 [29]).
14. The IAA then found that the applicant would not face a real chance of harm in Mazar-e-Sharif resulting from his previous history with the Taliban, or his possible future employment in the construction industry (CB 369-70 [30]-[32]). Nor was it satisfied that he faced a real chance of harm because of his race or religion. It found that the Taliban’s ideology had shifted and that it had condemned recent attacks against Shias and spoken out against sectarianism (CB 373 [45])…
15. The IAA also found that there was societal discrimination against Hazaras and returnees from the west but that did not rise to the level of persecution (CB 376-7 [55]-[56]);
16. After further discussion, the IAA found that the applicant did not meet the requirements of s. 36(2)(a) of the Migration Act (CB 379 [64]). In making this finding it referred to a cumulative assessment of the following factors (at [63]);
(a) His previous adverse profile with the Taliban.
(b) His Hazara race or Shiite religion.
(c) His returning from the west and having possibly become westernised.
(d) Possible imputed political opinion with or in support of the Afghan government.
(e) Generalised violence and criminality.
17. It did not, at paragraph [63] refer to terrorist attacks which it had previously found did occur (CB 368 [29]).
18. The IAA then turned to s. 36(20(aa) – Complementary Protection – and in doing so to the reasonableness of relocation – s. 36(2B) of the Migration Act.
19. It then reiterated its findings that the applicant did not face a real chance of suffering persecution, or significant harm, in Mazar-e-Sharif (CB 369-70 [67]-[71], before embarking on a consideration of his personal circumstances. These included that he is a young man with business experience, and in connection therewith it referred to UNHCR information to the effect that “such persons may, in certain circumstances, be able to subsist in urban and semi urban areas that have necessary infrastructure and livelihood opportunities to meet the basic necessities of life …”. (at [74]). It accepted that there is still unemployment and underemployment in Mazar-e-Sharif and that many people live in “informal settlements”... However, it thought that the applicant could overcome these problems and those associated with living without family support in a place where he had never previously lived. It concluded, at [79];
“I note the concerns about Mazar-e-Sharif offering durable safety. I note that insecurity has affected Mazar-e-Sharif, however, I found that such incidents were infrequent and that the applicant would not face a real chance or real risk of serious harm on the basis of targeted harm or generalised violence or criminality either within the city or accessing it upon returning. I do not accept that the insecurity affecting Mazar-e-Sharif makes relocation unreasonable in this circumstance. I have considered the applicant’s personal circumstances and I am satisfied that it is reasonable for the applicant to remain in Mazare-e-Sharif, a place where he will be able to secure shelter, employment, and services upon return even in the absence of an initial familial, or other familiar support network.””

The proceeding before this Court

The applicant was represented before this Court by Mr Leonard Karp, of counsel.
By consent, leave was granted to applicant to rely on the grounds of a Further Amended Application, filed on 20 February 2020, in the following terms:
“The grounds originally pleaded are entirely replaced by the following;
1. Despite its assertion to the contrary, the IAA erred in failing to lawfully consider the accumulation of the dangers that the applicant mav face in Mazar-e-Sharif in deciding whether he had a well founded fear of persecution in that place.
2. The IAA erred in failing to lawfully consider the reasonableness of the applicant's proposed relocation to Mazar-e-Sharif contrary to s. 36(2B) of the Migration Act.
Particulars
(a) Despite its assertion that it did so, the IAA failed to consider the dangers that the applicant may face in Mazar-e-Sharif cumulatively with other factors personal to the applicant, for the purposes deciding whether it was reasonable for the applicant to relocate there.”

Ground 1

Counsel for the applicant contended that the Authority had failed to consider the accumulative risk of harm to the applicant.
Counsel for the applicant submitted that the Authority was required to consider the dangers in Mazar-e-Sharif accumulatively and was required to do so by actively engaging with the issue (see Htun v Minister for Immigration (2001) 233 FCR 136; 194 ALR 242 at [7], [49]; Minister for Immigration v MZYTS (2013) 230 FCR 431 at [37]-[38]). Counsel submitted that whether the Authority has engaged in lawful consideration is a question of substance, not form (see DFW18 v Minister for Home Affairs [2019] FCA 599 at [46]).
The paragraph in the Authority’s decision at [63], relied upon by the applicant in support of its contention, is as follows:
“63. On the evidence before me, I am not satisfied that the applicant faces a real chance of being killed or otherwise suffering serious harm in Mazar-e-Sharif in relation to his previous adverse profile with the Taliban in Ghazni, for his Hazara Shi'a race and religion, because he has lived outside Afghanistan for several years including in a western, predominantly Christian country such as Australia where he also unsuccessfully sought asylum and may have become westernised, nor for any other actual or imputed connection with or support for the Afghan government, western or international community (or any contrary imputed opinion of being anti-Taliban/Islamic State/AGE) even taking into account that he may work in the construction industry upon return. Nor am I satisfied he would be targeted for having an infidel profile. I have had regard to the applicant's age, the fact that Mazar-e-Sharif is a place he has never resided and has no identifiable links, and would need to travel there from Kabul. I have also considered the risks from generalised violence and criminality. However I am not satisfied that these various factors, nor any other circumstances of the applicant would individually or cumulatively, lead to a well-founded fear of persecution in Mazar-e-Sharif, or in accessing that city in the reasonably foreseeable future upon return.”
Counsel for the applicant framed his submission in support of Ground 1 as follows:
“22. In the present case the IAA found that the security situation in Afghanistan remained fluid, that terrorist attacks have occurred in Mazar-e-Sharif, that there are high levels of serious crime, that there is discrimination against returnees from the west, and something that was only mentioned in passing by the IAA, that the governor of the province was Atar Mohammed Noor whom the applicant submitted, was the person behind the massacres of Hazaras in 1998 in Mazar-e-Sharif. A lawful consideration of cumulative factors that may affect the chances of a person being the victim of persecution or significant harm would, in my submission, need to assess the interaction of the various factors to determine if the accumulation of those factors points to a real chance of relevant harm. Simply saying, as the IAA did at CB 379 [63], that it considered the various factors individually and cumulatively does not suffice.”
Essentially, counsel for the applicant was submitting that simply saying that the Authority had considered the various factors individually and cumulatively is not sufficient to demonstrate an active intellectual engagement with those issues.
However, a fair reading of the Authority’s decision record makes clear that the Authority identified in detail each claim made by the applicant, considered it, assessed it and reached a finding that was open to it on the evidence and material before it and for the reasons it gave. Many of the applicant’s claims were accepted by the Authority, but not all. For example, the Authority found the applicant had embellished his claim that a Taliban member had witnessed the new owner selling off his stock and relayed this to other Taliban members or that the applicant heard through taxi drivers that the Taliban was still after him.
The Authority did accept that the applicant had experienced some terrifying, prolonged interactions with the Taliban when they intercepted him and held him for several hours. The Authority accepted that the applicant is genuinely afraid that the Taliban would seek him out and find him if he was returned to Afghanistan.
However, for the detailed reasons provided by the Authority, it was not satisfied that the applicant’s previous encounters and threats from the Taliban had led them to have an ongoing adverse interest in the applicant.
The Authority gave detailed consideration to country information which it identified with specificity. Ultimately, based on that information, it accepted that the applicant’s appearance identified him as a Hazara and that his return from a western country may be apparent after a short enquiry, if stopped, and therefore he was at greater risk when travelling to and around his area. The Authority accepted that Hazara Shias were at risk of harm, particularly those imputed with the Government or international community association. The Authority found that the applicant faced a small but real chance of serious harm through being kidnapped and/or killed or subjected to physical ill-treatment by insurgents in accessing his home regions for those reasons.
The Authority then noted that s.5J(1)(c) of the Act required that the real chance of persecution must relate to all areas of the receiving country. The Authority then identified Mazar-e-Sharif as a place in Afghanistan with a substantial Hazara population where the Authority was satisfied the applicant could reside without a real chance of persecution.
The Authority did acknowledge that the security situation was fluid and complex and that the situation haddeteriorated throughout 2015 and 2016.
Based on country information before it, the Authority was satisfied that Mazar-e-Sharif had maintained relative security for several years attributable to a monopoly on power and that Mazar-e-Sharif, together with Herat, were cities with the lowest civilian victims. The Authority accepted that militant attacks do occur in Mazar-e-Sharif, however, found these incidents to be infrequent and primarily aimed at government or international community targets. The Authority found that the applicant would not be such a target.
In particular, the Authority referred to United Nations High Commissioner for Refugees information that advised that on the basis of being perceived as affiliated with or supportive of the Government and the international community/military forces, construction workers (particularly those on international development projects) may be in need of international protection. The Authority noted, however, that this was dependent on the circumstances of the individual case. The Authority was not satisfied that the applicant would specifically seek out government/foreign aid/security related projects upon return.
The Authority found the country information did not support that ordinary Afghans, such as the applicant, who may supply or work on construction projects within a major urban centre such as Mazar-e-Sharif and who would not have any greater association with government/military or international community, were generally targeted. The Authority stated that, “In consideration of the applicant's personal circumstances and the country information before me I am not satisfied that the applicant faces a real chance of persecution in Mazar-e-Sharif on the basis of his previous work, nor if he returns and works in the construction industry in that city, even taking into account that he may supply to, or work on construction project sourced and overseen by the government or international community.”
The Authority noted the applicant’s fears of being targeted by insurgents due to his Hazara race and Shia religion which the Authority accepted were inextricably linked. The Authority found that, on the evidence before it, there have been no attacks in Mazar-e-Sharif targeted at Hazara or Shia since the 2011 Lashkar-e-Jangv attack.
The Authority also considered whether Islamic State was likely to inject sectarianism into the conflict in Afghanistan and was not satisfied that it was likely to take hold in Afghanistan in the reasonably foreseeable future. The Authority referred in detail to the country information upon which it relied in reaching that finding. The Authority did accept that the Islamic State was likely to continue to launch attacks, albeit infrequently.
The Authority went on to further consider in detail country information in relation to the threat to stability across Afghanistan by the Taliban.
However, in the course of its considerations, the Authority was not satisfied that Mazar-e-Sharif would fall to the control of the Taliban, Islamic State or other insurgents in the reasonably foreseeable future.
The Authority did not accept that the applicant would face a real chance of harm from anti-government entities in Mazar-e-Sharif by reason of his race or religion or as a failed asylum seeker from the West, whose links with the West may lead others to adversely perceive him as a supporter of the Afghan Government or international community or as anti-Taliban, and considered whether this would contribute to a risk of harm. The Authority referred to country information identifying that there were occasional reports of returnees from Western countries, including from Australia, allegedly being targeted for spending time in a Western country. However, there have been no such reports since 2017.
The Authority found that the applicant was not of specific interest to anti-government entities, such that he would be personally targeted in Mazar-e-Sharif, despite past threats from the Taliban. The Authority was not satisfied that the applicant otherwise faced serious harm from any person or group for any actual or imputed association or connection with government, international community or the West.
The Authority noted the applicant’s concerns about moving to Mazar-e-Sharif and accepted that the applicant would face some societal discrimination. However, the Authority was not satisfied that such societal discrimination would amount to persecution.
The Authority then considered in some detail the particular matters that may concern the applicant in moving to Mazar-e-Sharif, as follows:
“56. The applicant has never lived in Mazar-e-Sharif, or anywhere in Afghanistan apart from in Malistan. I accept that upon meeting him, the applicant would be identifiable as an outsider there. I accept he may face societal discrimination and that this risk may be increased as a result of his return from a western country. I also accept there is high unemployment and that the applicant faces a difficult situation upon return. However, country information does not support that single adult males, or other persons with the applicant's profile are denied basic services or a capacity to earn a livelihood. Mazar-e-Sharif is a major urban centre with a diverse population. It is also one of the biggest commercial centres and I consider the diversity and more stable security and greater economic opportunities° will be conducive to the applicant's ability to find shelter, employment and the basic necessities. He has experience in co-running a business and in a tiling company in Australia. Information indicates that even with the withdrawal of international presence, manufacturing and construction are among the top five sectors of employment in Afghanistan? The applicant has industry relevant skills, he is able-bodied and of working age. Country information does not support that Hazara Shi'as are unable to obtain employment or access services. Nor does it support this is the case for single adult males, returnees from the west or failed asylum seekers, although I accept that some prioritisation in the provision of services may occur. However even noting this and the pressures on Afghanistan from IDPs or returnees from other countries and the nepotism discussed above I am not satisfied that the applicant's capacity to subsist will be threatened. I am not satisfied that the applicant will face discrimination which will make him destitute, or will otherwise threaten his capacity to subsist, nor that it will manifest in any other way that would constitute serious harm.”
The Authority found that country information did not suggest that persons with the applicant’s profile factors or his cumulative profile, were targeted in Mazar-e-Sharif, including at the airport or in transit from the airport to the city.
The Authority accepted that Mazar-e-Sharif, like all of Afghanistan, would be affected by a high level of serious crime. However, the Authority found that protection would not be withheld from the applicant and that, based on Department of Foreign Affairs and Trade (“DFAT”) information, violent crime levels are not such a problem as to amount to a significant risk for returning Afghan nationals. Based on that information, the Authority found that the applicant would not face a real chance of harm in Mazar-e-Sharif based on criminality.
The Authority found the chance of the applicant being harmed while in transit to Mazar-e-Sharif to be remote. Accordingly, the Authority was satisfied that there was not a real chance of the applicant facing real harm in accessing Mazar-e-Sharif.
It was those findings that led to the conclusion in the paragraph of the Authority’s decision record, cited above at paragraph 34 of these Reasons (IAA decision [63]).
Fairly read, the Authority’s finding that individually or cumulatively the applicant’s fear of persecution in Mazar-e-Sharif was not well founded, was open to it and, read as a whole, does not suggest that there was not a cumulative assessment by the Authority.
I do not accept the applicant’s submission that the Authority was required to assess “the interaction” of the various factors to which it had referred to determine if the accumulation of those factors pointed to a real chance of relevant harm. A fair reading of Authority’s decision record demonstrates that the Authority did consider the applicant’s claims individually and cumulatively, as it was required to do, and there was no reason to import into its findings that it had not considered the risk to the applicant as a result of the accumulation of his claims.
Further, in circumstances where the Authority has dealt with all the individual claims made by the applicant and dismissed each of them, no amount of accumulation is capable of producing a different result (see Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188).
Accordingly, Ground 1 is not made out.

Ground 2

Ground 2 asserts that the Authority erred in its consideration of the reasonableness of relocation of the applicant to Mazar-e-Sharif, contrary to s.36(2B) of the Act, in that it failed to consider the dangers the applicant may face in Mazar-e-Sharif cumulatively with other factors personal to the applicant.
The mischief on which the applicant relies is said to be found in paragraph [79] of the Authority’s reasons in considering whether it is reasonable in the sense of practicable for the applicant to relocate to Mazar-e-Sharif:
“79. I note the concerns about Mazar-e-Sharif offering durable safety. I note that insecurity has affected Mazar-e-Sharif, however, I found that such incidents were infrequent and that the applicant would not face a real chance or real risk of serious or significant harm on the basis of targeted harm or generalised violence or criminality either within the city or while accessing it upon returning. I do not accept that the insecurity affecting Mazar-e-Sharif makes relocation unreasonable in this circumstance. I have considered the applicant's personal circumstances and I am satisfied it is reasonable for the applicant to remain in Mazar-e-Sharif, a place where he will be able to secure shelter, employment and services upon return even in the absence of an initial familial or otherwise familiar support network.”
Counsel for the applicant submitted that, in considering the reasonableness of relocation, the decision maker may need to consider risks of harm that do not rise to the level of a real risk of significant harm (see MZACX v Minister for Immigration [2016] FCA 1212 (12 October 2016) at [35]; MZYQU v Minister or Immigration and Citizenship (2012) 206 FCR 191 at [61]-[62]; MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 at [21]; Minister for Immigration v DZU16 (2018) 253 FCR 526 (“DZU16”) at [110]).
In DZU16, the Full Court of the Federal Court Australia stated as follows:
“… the question of reasonableness is one that required a factual inquiry to be undertaken and an evaluative judgment to be made. While the practical realities facing an applicant will be relevant, s 36(2B)(a) did not specify any mandatory relevant considerations. As Allsop J observed in SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 at [22], a decision-maker is not required in addressing relocation “to elaborate on every aspect of its practical application.” Insofar as MZYQU, MZZJY and MZACX, if considered to apply equally to the relocation test under s 36(2B)(a), may suggest that consideration must always be given to the risk of generalised violence when assessing the reasonableness of relocation, they were, with respect, wrong as they descended to a greater level of particularity than was called for by the Migration Act, and should not be followed.”
Counsel for the applicant submitted that in the case before this Court, the Authority had identified dangers faced by the applicant in Mazar-e-Sharif, including crime and generalised violence. However, the Authority had failed to consider whether there may have been a risk of harm to the applicant lower than that of a real risk of significant harm; such as, his status as a single man and being new to the city with no familial or other support. Counsel for the applicant submitted that the Authority should have considered whether that made the applicant more vulnerable to criminal attack.
Counsel for the applicant submitted that the danger to the applicant was increased due to the sporadic militant attacks that the Authority accepted did occur.
Counsel for the applicant submitted that in those circumstances, aspects of the practical realities facing the applicant in Mazar-e-Sharif suggested that a risk of harm less than that of a real risk of significant harm, should have been considered by the Authority in the course of considering whether it was reasonable for the applicant to relocate to Mazar-e-Sharif. Counsel for the applicant stated that because the Authority’s consideration of the issue was under the heading “Real risk of significant harm”, the Authority made clear that it was giving consideration only to those matters that would put the applicant at a real risk of significant harm.

I do not accept that submission. True it is that the Authority considered whether the applicant faced a real risk of significant harm arising from his substantive claims and repeated its conclusions made in considering whether the applicant met the requirements in s.36(2A) of the Act, which it was entitled to do. Based on those considerations, the Authority was not satisfied that the applicant faced a real risk of suffering significant harm in returning to and residing in Mazar-e-Sharif.
The Authority then went on to consider independently of that conclusion, the applicant’s personal circumstances in considering whether it was reasonable for the applicant to relocate to Mazar-e-Sharif.
The Authority then identified with particularity all those matters that were relevant to the applicant’s personal circumstances, such as access to shelter, central services, livelihood opportunities, support of family members or larger ethnic community. In particular, the Authority noted that DFAT had stated that a lack of financial resources and a lack of employment opportunities were the greatest constraints on internal relocation. The Authority found that there were sufficient employment opportunities in Mazar-e-Sharif. The Authority found there was a large Hazara community in Mazar-e-Sharif and that the applicant had demonstrated that he is resourceful and resilient and has successfully lived apart from his family and settled in unfamiliar places.
Fairly read, in the Authority’s consideration of the applicant’s submission that Mazar-e-Sharif does not offer durable safety, that he has never been to Mazar-e-Sharif, that he would not have family support and has other vulnerabilities that may threaten his capacity to subsist, the Authority was careful to consider whether Mazar-e-Sharif would offer durable safety to the applicant.
Whilst the Authority referred to its finding that the applicant would not face a real risk of serious or significant harm on the basis of targeted harm or generalised violence or criminality, a fair reading of its reasons makes clear that the insecurity that may affect the applicant’s durable safety in Mazar-e-Sharif was based on its finding that incidents that may affect insecurity in Mazar-e-Sharif were infrequent. I do not accept that finding was based on a real risk of serious or significant harm. Rather, it was an assessment of a lower risk of harm that may affect the applicant.
In the circumstances, I do not accept that the Authority restricted itself only to considerations that may have demonstrated a real risk of serious or significant harm to the applicant in Mazar-e-Sharif. In other words, as expressed by counsel for the first respondent:
“…paragraph [79] needs to be read fairly and in context. As noted above, the IAA engaged in a detailed and nuanced analysis of the security situation in Mazar-e-Sharif from [52] onwards. That analysis took account of the level of risk (albeit in the context of a different statutory assessment). In that regard, the IAA then noted in [79] the reference back to that analysis in circumstances where it observed that security incidents were “infrequent”. It brought that analysis to bear in considering whether the [sic] risk (shorn of the different statutory conclusion about real risk) would make relocation “unreasonable”.
Accordingly, I do not accept the applicant’s argument that there was any conflation of a risk of serious or significant harm and a lower risk of harm by the Authority in considering whether it was reasonable, in the sense of practicable, for the applicant to relocate to Mazar-e-Sharif.
Accordingly, Ground 2 is not made out.

Conclusion

A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified with particularity independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 9 March 2020