CMO15 v Minister for Immigration - [2018] FCCA 3554

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMO15 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3554

Catchwords:
MIGRATION – Protection – whether the tribunal applied correct test – it did – application for judicial review failed.

Legislation:

Migration Act1958, ss.36(2)(a), 36(2)(aa), 36(2B)(c)

Cases cited:
AVU15 v Minister for Immigration and Border Protection [2017] FCA 608
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1
SZSPT vMinister for Immigration and Border Protection [2014] FCA 1245
WAEE vMinister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Applicant:

CMO15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2612 of 2015

Judgment of:

His Honour Judge Wilson

Hearing date:

25 September 2018

Date of Last Submission:

25 September 2018

Delivered at:

Melbourne

Delivered on:

5 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr A Aleksov

Solicitors for the Applicant:

Clothier Anderson Immigration Lawyers

Counsel for the First Respondent:

Ms N Campbell

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Clayton Utz

ORDERS

The application filed 26 November 2015 as amended on 22 August 2018 is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $7 467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2612 of 2015

CMO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This application for judicial review made on 26 November 2015 concerned a decision of the Administrative Appeals Tribunal given on 10 November 2015 affirming a decision by the minister’s delegate to refuse to grant the applicant the protection visa he sought.
In his amended application for judicial review, the applicant contended that the –
a)decision of the tribunal was affected by irrationality, illogicality or legal unreasonableness;
b)tribunal applied the wrong test; and
c)tribunal failed to consider, lawfully, the applicant’s complementary protection claims.
The minister contended that the tribunal made no error and requested me to dismiss this proceeding.

Synopsis

For the reasons that follow, in my judgment this application for judicial review failed with the consequence that I dismiss this proceeding and order the applicant to pay the minister’s costs.

Relevant factual narration

The applicant, a citizen of Afghanistan, arrived in Australia on 8 June 2012 as an unauthorised maritime arrival. The department interviewed him on 19 July 2012. On 17 September 2012 the applicant applied for a protection visa to which he attached a statutory declaration. He also provided a form 956 indicating that he had appointed a representative. A delegate of the minister interviewed the applicant on 22 September 2012. By letter dated 29 October 2012 the delegate informed the applicant that his visa had been refused.
The applicant then applied to the tribunal for merits review. The tribunal affirmed the delegate’s decision. On judicial review to this court, a judge of this court determined that the tribunal erred and remitted the proceeding to the tribunal.
On 26 August 2015 the tribunal invited the applicant to attend a hearing and to give evidence on 5 October 2015. On 14 September 2015 the applicant’s representative ceased acting for him.
The scheduled hearing was duly conducted on 5 October 2015. The applicant attended in person assisted by an interpreter. He provided written submissions along with various news articles, photographs and country information obtained from United Nations sources. When distilled, the applicant contended before the tribunal in relation to the hearing on 5 October 2015 that he had a well-founded fear of persecution on account of the following –
a)his Hazara ethnicity, contending that it would result in persecution by the Taliban in Afghanistan;
b)his Shi’a muslim faith, contending that he was present at and affected by a high-profile bombing of a Shi’a mosque on Ashura Day in 2011;
c)his imputed political opinion, contending that he was perceived as being “pro-government”, “pro-western” and/or “anti-Taliban” by reason of his ethnicity and faith;
d)his membership of a political social group, namely failed asylum seekers returned from the west; and
e)the political climate of Afghanistan, contending that the draw down of western troops since late 2014 had caused security in Afghanistan to deteriorate placing Shi’a muslims of the Hazara race at an increased risk of harm.
On 10 November 2015 the tribunal affirmed the delegate’s decision not to grant the applicant the visa he sought.

The tribunal’s reasons – in detail

It is necessary to trace the tribunal’s chain of reasoning to better understand its conclusions in this case.
On 10 November 2015 the tribunal affirmed the decision not grant the visa. In coming to its decision the tribunal made a number of findings which it is necessary to set out below.
In paragraphs 23, 29 and 32 of its reasons the tribunal accepted that the applicant was of Hazara ethnicity, an Afghanistan citizen and was born in Dawlat Khali and moved to Kabul when aged between 12 and 13 years, as the applicant claimed in his written material.
In paragraph 36 of its reasons the tribunal found that the applicant’s “home area” for the purposes of assessing relocation options was Kabul.
In paragraph 39 of its reasons the tribunal recorded that the issue before the tribunal was whether the applicant was at risk of harm in the future, despite the applicant never having claimed to have experienced serious or significant harm in the past.
In paragraph 46 of its reasons the tribunal recorded the reasons for the matter being remitted to the tribunal by another judge of this court and observed that the tribunal revisited the country information in relation to the withdrawal of international troops from Afghanistan. Thereafter the tribunal accepted that some Hazaras had been killed and in any event the phenomenon of being abducted may also constitute serious harm amounting to persecution.
In paragraph 57 of its reasons the tribunal recorded that as far as it was aware there had been no high-profile attacks on Shi’as or Hazaras in Kabul subsequent to the Ashura Day bombing in 2011 which the applicant conceded.
In paragraph 58 of its reasons the tribunal acknowledged that there had been attempts to carry out attacks on Shi’as in Kabul but those had been unsuccessful, including heavily armed members of the LEJ being intercepted and killed by Afghan security forces in 2013.
In paragraph 59 of its reasons the tribunal recorded that an article provided by the applicant’s former representative stated that while the Shiite minority, many of them ethnic Hazaras, suffered violent discrimination under the Taliban before 2001, ethnic violence had been muted in more recent times.
In paragraph 73 of its reasons the tribunal accepted that the security situation across the country, including in Kabul, had deteriorated in the wake of the withdrawal of most international troops between 2014 and 2015.
In paragraph 74 of its reasons the tribunal stated that it did not consider that the withdrawal of further troops, eventually to 1 000, would lead to a considerable change in the security situation in Afghanistan in general and in Kabul in particular.
In paragraph 75 of its reasons the tribunal stated that it did not accept on the evidence that there was a real chance that the applicant would be persecuted for reasons of an implied political opinion or membership of a particular social group, being western returnees or failed asylum seekers or any particular social group arising out of the applicant’s long stay in Australia or his stay outside of Afghanistan, either alone or in combination with the applicant’s Hazara ethnicity and Shi’a religion.
In paragraph 77 of its reasons the tribunal stated that it was not satisfied on the evidence before it that the Taliban or other extremists would become aware of photographs of the applicant with certain politicians in Australia on social media which would elevate his profile. The tribunal recorded that there was no evidence before it that the Taliban or other extremists would target someone having no political profile but who was an ordinary returnee from a western country by reason of the returnee’s brief engagement with western politicians.
In paragraph 81 of its reasons the tribunal stated that it was not satisfied that the proposition that Hazaras and Shi’as were specifically targeted in Kabul for reasons of their ethnicity, religion, imputed pro-government political opinion or a combination of all of those was supported by the country information.
In paragraph 88 of its reasons the tribunal recorded that it did not consider that the applicant faced a real chance of serious harm despite the deteriorating security situation across Afghanistan and the ability of the Taliban and other insurgents to carry out attacks in Kabul.
In paragraph 89 of its reasons the tribunal accepted that the applicant had rather limited formal education but the tribunal observed that he had been able to find work in Afghanistan and in Iraq in earlier years.
In paragraph 90 of its reasons the tribunal accepted that the applicant remained and for the rest of his life may be fearful of becoming a victim of a terrorist attack by reason of his personal experience in 2011. In the same paragraph the tribunal recorded that it was not satisfied on the evidence before it that there was a real chance that the applicant would be physically ill‑treated, denied employment sufficient for him to subsist or that he would be denied access to essential services for any reason if he returned to Afghanistan presently or in the reasonably foreseeable future.
In paragraph 93 of its reasons the tribunal recorded that according to country information it did not accept that the Taliban controlled the roads inside Kabul in the manner claimed by the applicant and therefore the tribunal did not accept that the applicant faced a real chance of persecution while travelling on the roads of Kabul.
In paragraphs 94 and 95 of its reasons the tribunal stated that it did not accept on the evidence before it that there was a real risk that the applicant had a well-founded fear of persecution in Kabul by the Taliban, by other insurgent groups or by criminal elements on the basis that the applicant was a Hazara, a Shi’a muslim, a returnee from Australia or a western returnee or more generally by reason of the existence online of certain photographs of the applicant with Australian politicians or for any other convention reason, whether at the present date or in the reasonably foreseeable future.
In paragraph 96 of its reasons the tribunal stated that the applicant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act (“Act”).
The tribunal also addressed the applicant’s claims for complementary protection between paragraphs 101 and 108 of its reasons. The applicant had claimed that he may be significantly harmed in generalised violence in Kabul by reason of the fact that he was Hazara and a Shi’a muslim who had been in Australia. To that, the tribunal said the following –
a)in paragraph 101 of its reasons the tribunal did not accept that the applicant would be specifically targeted for harm in his personal circumstances by the Taliban or other insurgent groups in Kabul;
b)in paragraph 102 of its reasons the tribunal accepted that there had been violence against the civilian population in Kabul and that there had been a number of civilian casualties with people caught up in the targeted attacks;
c)in paragraph 103 of its reasons the tribunal accepted that the security situation had deteriorated in 2015 compared to 2014 and that terrorist attacks occurred in Kabul. However, the tribunal found that such a risk of harm was faced by the population generally and that the applicant was not personally at a greater risk than was the general population of Kabul;
d)in paragraph 105 the tribunal found that the applicant did not face a real risk of significant harm arising from the generalised violence in Kabul; and
e)in paragraph 108 of its reasons the tribunal stated that it did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan there was a real risk that he would suffer significant harm as defined in s 36(2)(aa) of the Act.
In the upshot, the tribunal was not satisfied the applicant was a person in respect of whom Australia had protection obligations either under s 36(2)(a) or under s 36(2)(aa) of the Act.
Being dissatisfied with the decision of the tribunal, the applicant applied to this court on 26 November 2015. He amended his application with leave replacing the original grounds of his application that were bereft of detail and therefore probably amenable to summary dismissal. His amended grounds were as follows –
1.The decision of the Tribunal is affected by irrationality, illogicality, legal unreasonableness, or some other unidentified legal error.
Particulars
a.See applicant’s submissions dated 21 August 2018, [2]-[8].
2.The Tribunal applied the wrong test.
Particulars
a.See applicant’s submissions dated 21 August 2018, [9]-[10].
3.The Tribunal failed to consider lawfully the applicant's claims to complementary protection.
Particulars
a.See applicant’s submissions dated 21 August 2018, [11]-[15]
Let me go at once to the grounds, relevantly addressing factual matters to each ground under consideration.

Ground one

Somewhat unconventionally, the applicant’s legal representatives used as particulars to the applicant’s further amended application an array of arguments recorded in an array of paragraphs of written submissions, the author of which was Mr Aleksov of counsel. I raised the unorthodox nature of that approach with Mr Aleksov. While it is true that in the migration jurisdiction pleadings as known in common law courts have no role to play, it struck me as being unusual (although I do not say impermissible) for narration-styled submissions to take the place of pithy propositions of fact or law that are called in aid to support a legal contention recorded in a ground of review. That is all the more when the legal contention is one that incorporates the legal and factual complexity of irrationality, illogicality and legal unreasonableness.
At all events, as particulars to ground one the applicant’s solicitors gave eight paragraphs of submissions written by Mr Aleksov. There is no shortcut when recording those particulars other than to set out the submissions to which each relates. Paragraphs 2 to 9 of Mr Aleksov’s written submissions, incorporated into the grounds by reference, were as follows (with errors in the original) –
2.In Reasons [73] (CB 717-718), the Tribunal accepts that “the security situation across the country, including in Kabul, has deteriorated in the wake of the withdrawal of most international troops in 2014-2015”.
3.It noted that troop numbers in 2011 had been as high as 100,000, and in late 2014, troop numbers were at 40,000. It also noted that troop numbers were then at 9,800, and may be further reduced to 5,500 and eventually to 1,000.
4.The Tribunal said, without any explication, that it did not consider the withdrawal of further troop would lead to a considerable change in the security situation (Reasons [74], CB 718).
5.This conclusion is not self-evident, and indeed, appears to be in tension with the country information accepted by the Tribunal.
6.It should be inferred from the failure to state any reason for the conclusion that the Tribunal did not adopt any lawful path of reasoning in reaching that conclusion, and so, it should be further inferred that its decision is affected by irrationality, illogicality, legal unreasonableness, or some other unid
7. entified legal error.
8.The applicant notes that it would be distracting, and wrong, for the Minister to suggest in answer to this ground that the Tribunal’s conclusion was “open” or that it’s reasoning was not so “extreme” as to justify the inference asserted. That is because:
8.1.the “openness” of the finding in hypothetical terms is not to the point – the challenge is to the Tribunal’s state of mind, not to the inability of another Tribunal, properly instructed, to reach the same conclusion; and
8.2.this is not a challenge to the “extreme” nature of any reasoning; there were no reasons given by the Tribunal for reaching this conclusion.
9.The materiality of this conclusion cannot seriously be questioned, given the dominant position of the future “security situation” in any protection assessment.
Two paragraphs of the tribunal’s reasons were the focus of ground one, those being paragraphs 73 and 74. Those paragraphs were in the following terms –
The Tribunal accepts that the security situation across the country, including in Kabul, has deteriorated in the wake of the withdrawal of most international troops in 2014-2015. In mid-October 2015 it was reported that President Obama had decided to halt the withdrawal of US troops and, in the President's own words “instead of going down to a normal embassy presence in Kabul by the end of 2016, [the US] will maintain 5,500 troops at a small number of bases, including at Bagram, Jalalabad in the East and Kandahar in the South. At present, there are some 9,800 troops, which is not an insignificant number, but in 2011 there were more than 100,000 troops and as late as last year, there were almost 40,000.
The Tribunal does not consider that the withdrawal of further troops, from 9,800 to 5,500 and eventually to 1,000, would lead to a considerable change in the security situation In Afghanistan in general and In Kabul in particular.
In his verbal address before me on 25 September 2018, Mr Aleksov put the position in several ways. The following are some of the more important passages of the transcript –
MR ALEKSOV:    So what your Honour will see here is a statement by the tribunal that it accepts the situation isn’t particularly safe, or isn’t great, and then observes the reduction in troop numbers from a very large number to a smallish number by comparison. And then in 74, it says it doesn’t consider that the further withdrawal of troops from 9800 eventually down to 1000 would lead to a considerable change of security situation. We don’t know why it reaches the view that a reduction from 9800 to 1000 would not have any effect or any - - -
…
MR ALEKSOV: The legal argument is that the tribunal, in para 74, from – following from 73, makes a very important conclusion - - -
HIS HONOUR: Yes.
MR ALEKSOV:   - - - that the reduction in troop numbers from 9800 to 1000 would not have a material – an appreciable effect on the security situation. Of itself, that’s not a self-explanatory statement; it’s not like saying night follows day. Okay? Human experience explains it. It is not one of those kinds of situations when your Honour would just say, “okay, well, that just goes on a nod and a wink”. Some reasoning would be expected from the tribunal to have been held in mind for the statement of conclusion that a reduction from 9800 to 1000 would not lead to any change in situation. Your Honour would expect that the tribunal had some reason in its mind for that statement if it was to be asserted.
MR ALEKSOV:   Well, and the fact that there isn’t anything else on this topic. Let me come at it from a higher perspective. I, perhaps, should have given your Honour some more context. As your Honour will know, a key issue in all of these cases is country information about the security situation upon return. In Afghanistan, the general security situation is often a very significant matter of concern. And here the tribunal reviews country information preceding 73, and I haven’t troubled your Honour with that for the moment, condensing, or distilling, it’s position in 73 where the tribunal itself observes decreased troop numbers has led to a deterioration in the situation.
Troop numbers have decreased from a very large number to 9800 as at the point of the decision, based on what the information said before the tribunal at that time. The information before the tribunal also said there was to be a further reduction in the reasonably foreseeable future, because that was know[n] to the tribunal, from 9800 to 1000. The tribunal has accepted reduced troop numbers – and this is highly shorthand and my gloss but it’s a summary – reduced troop numbers equals increased deterioration in [the] situation. It then says – it then says further reduction is not going to lead to a change; [it] does not explain why.
HIS HONOUR: Well, just one second. In that line of reasoning, it gets from a particular point to a much more low level critical mass and - - -
MR ALEKSOV:   We - - -
HIS HONOUR: - - - you say that once it gets to that - - -
MR ALEKSOV:   If I could – if I could jump in with a sidewind there, your Honour - - -
HIS HONOUR: Yes.
MR ALEKSOV: - - - your Honour says low level critical mass. We say, actually, high level, very important topic. The tribunal has observed the past and made findings about the past which reach a point at the time of decision, its present. It then speculates into the reasonably foreseeable future, as it must, and observes the present troop numbers are at risk. There’s a possibility of them reducing in a significant amount down to about 10 per cent of – or 11 per cent of their current volume. Having observed the past reduction in troop numbers means deterioration in security situation, your Honour would expect that the tribunal had a reason in mind for saying the further reduction in troop numbers would not lead to a further deterioration in the security situation.
HIS HONOUR: Because it has hit an all time low and can’t go any further?
MR ALEKSOV: Whatever.
HIS HONOUR: Is that the argument?
MR ALEKSOV: Whatever. Whatever the reason is, your Honour would expect, if the tribunal was lawfully performing its function, that it would have a reason. If it had that reason, your Honour would expect it to be produced in black and white in the statement of reasons because it was a crucial issue in this review. It was clear to all parties that the current troop situation had gone from a significantly high number to a reduced number and that that number was to – or at risk of continuing to reduce in a significant measure. The tribunal has given us [an] analysis of its views about the security situation deteriorating in the reduction from high to a lower level at present – or its present, I should say, but says nothing about why it thinks the further reduction of troops would not affect the deterioration in security situation.
In circumstances where the point is of such magnitude that it must have had some reason – intelligible reason for doing so and in circumstances where, if it had some such reason, it would have been in its reasons. And so what we say flows from that is that an inference should follow that the tribunal did not have a lawful reason for that statement of conclusion. And I want to take your Honour to a case where the observation by the tribunal – or the mere statement by the tribunal of a position, or a conclusion, in its reasons was not sufficient to amount to a relevant consideration – consideration in the relevant sense. It’s behind tab 1 of the joint bundle, your Honour.

Mr Aleksov argued that the tribunal wrote about the reduction in troop numbers. It therefore was aware that a material issue for it in its review was resolving the question of what might happen to the general security situation in Afghanistan when troop numbers were reduced from 9 800 to possibly 1 000. Mr Aleksov put the position in the following terms –
That is what the tribunal is telling us in 74. I need it to resolve this. And the tribunal is telling us that, “I resolve this adversely to the applicant”. The complaint we make is that the tribunal does not, in its reasons – in its statement of reasons, I should say, tell us why that resolution took that form. And we say, from the absence to give a reason, the proper inference is that there was not a lawful reason. And absent a lawful reason for determining a material issue a legal issue is exposed. That’s not the performance of the review that’s required by the tribunal. That’s our argument. Now, I did want to still take your Honour back to AVU.
Then, in a further aspect of the debate Mr Aleksov pointed to a vice in the reasoning process revealed by paragraphs 73 and 74 of the tribunal’s reasons. He developed the point in the following terms –
MR ALEKSOV: Now, let us pause with that point of agreement, which I am very grateful we could achieve, your Honour, and to look – and to look at paragraph 74 of the tribunal’s statement of reasons. What we have here – now, obviously this is a non-judicial function. It’s an enquiry and a speculation rather that an adjudication. But taking the analogy as far as I can, paragraph 74 concerns a major issue in this case. What might happen to the general security situation in Afghanistan, Kabul in particular, when troops potentially reduce from 9800 to 1000, given the tribunal itself has noticed that the situation deteriorated substantially when troops had reduced by a substantial amount previously.
Para[graph] 73 records the tribunal’s observation, “look, troop numbers reduced and instability rose”. Then it, “says troop numbers will further reduce but I don’t think instability will further rise”. If that was an exercise of a judicial function, your Honour would expect in an appellant court, as your Honour is sort of sitting in here in respect of the tribunal, would expect to see some reasoning to explain why that conclusion was reached. This is a bald or bare assertion of conclusion without any reasoning to tell the author how the tribunal got there. If I am with – if your Honour is against me in that, then the point is dead.
In support for those contentions Mr Aleksov referred to various decisions of the Full Court, collected by Bromberg J in his Honour’s decision in AVU15 v Minister for Immigration and Border Protection.[1] Those Full Court authorities include WAEE v Minister for Immigration and Multicultural and Indigenous Affairs,[2] and NBMZ v Minister for Immigration and Border Protection[3] as well as the High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf.[4] In addition, Mr Aleksov referred to the High Court’s decision Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme.[5]
[1] [2017] FCA 608
[2] (2003) 236 FCR 593
[3] (2014) 220 FCR 1
[4] (2001) 206 CLR 323
[5] (2003) 216 CLR 212
Ms Campbell contended in her written submissions that the applicant needed to demonstrate that extreme illogicality had to be shown before a decision will be vitiated for jurisdictional error. She relied on the conventional authorities of Minister for Immigration and Citizenship v SZRKT,[6] SZOOR v Minister for Immigration and Citizenship[7] and Minister for Immigration and Border Protection v SZUXN[8] in contending that ground one was not made out. She argued that the tribunal’s reasoning in paragraphs 73 and 74 showed at least some logical foundation to support the finding that it was not likely that there would be a considerable change in the security situation and that the decision to withdraw troops was consistent with an improvement in the security situation. In her verbal address to me, Ms Campbell recognised that the applicant placed his principal focus on the tribunal engaging in some generic legal error as opposed to irrationality or illogicality. She contended that the tribunal’s approach in paragraphs 73 and 74 was adequate and that a connecting link was evident to support the conclusion that despite the reduction in troop numbers a change in the security situation would not necessarily follow. Ms Campbell put the proposition in the following terms –
So the first thing that the tribunal accepts is that the security situation across the country, including Kabul, has deteriorated in the wake of the withdrawal of most of the international troops in 2014 and 2015.
It was reported that President Obama had decided to halt to withdrawal of the US troops and to maintain 5500 troops. At present, there was 9800 troops, which is not in insignificant number, but in 2011, there were more than 100,000 troops, and as late last year, there were almost 40,000. So the characterisation that we say there sets out that from 100,000 to 40,000, there was a deterioration. The state remained deteriorated, and then the withdrawal from 9000 to 800 – sorry, 9800, which is not an insignificant number, to 5500 eventually would not lead to a considerable change in the already deteriorated security situation. So that’s how we say that those reasons should be characterised. We don’t say that there’s a logical leap that should have otherwise been explained by the reasons.
The second issue that arose in my learned friend’s submissions was whether or not this finding itself was actually material. Now, you were taken to some statements that were made by the – some reasons about the general situation in Kabul, and I believe there’s also some about the situation in Afghanistan generally. I think it’s accepted that this wasn’t a claim that was put by the applicant, rather something that was raised by the tribunal itself arising from the country information that had been viewed. I would suggest that had – if the claim isn’t said to be dealt with here, it can otherwise be said to be dealt with under the complementary provision assessment that takes place commencing at paragraph 98.
[6] (2013) 212 FCR 99
[7] (2012) 202 FCR 1
[8] [2016] FCA 516
Insofar as the adequacy of its reasons were concerned and whether a connecting link existed in the reasoning exposed in paragraph 74, Ms Campbell submitted that the reasoning was adequate in fact and in law. She contended as follows –
MS CAMPBELL: Well, we do say that that is adequate. There is a connecting link. There’s a jump from a large number of troops to a lesser number of troops that is still significant. The tribunal has said here that it’s – the jump from 9800, which is not an insignificant number, to – by comparison to the 100,000, where there was almost 40,000. I think what it’s doing there is showing a significant decrease, but regardless of that, what it’s talking about is a security situation which is already deteriorated. It’s satisfied that that situation is deteriorated. It doesn’t make a finding, however, that the reduction in troops from 9800 to 500 would be a considerable change. That’s what the finding is.
I don’t think the finding can be said to be any higher than that. It’s not saying that there will be no change in the security situation, just that it’s not one that’s considerable when compared to the deteriorated situation that occurred with the 100,000 to the 40,000. That’s how we defend the reasons at paragraph 73 to 74. I don’t know that I need to address your Honour on any of the cases or the legal issues that were raised in relation to 73 and 74, but to summarise, we say that the reasons are defensible and otherwise the error itself would be – if it is found to be an error – is not one that’s material and, in fact, because it’s dealt with in the complementary protection section, would otherwise be one that’s futile because it’s an issue that relates to generalised violence rather than a claim that has been made specifically to the extent that it accepts the applicant.
There is a finding at paragraph 75 where the tribunal says that it doesn’t accept on the evidence there’s a real chance that the applicant would be persecuted for reasons of his political opinion, membership of a particular social group, or his failed asylum seeker status or anything arising out of what occurred in his stay in Australia.
When properly understood, the competing contentions between the parties were quite narrow. The applicant said legal error was disclosed by the tribunal acknowledging that after troop numbers reduced, instability rose yet the tribunal concluded that with a further reduction in troop numbers instability will not rise as that was no more than a bald assertion unsupported by reasoning to explain the conclusion. Conversely, the minister said that the security situation deteriorated when troop numbers reduced yet a further reduction in troop numbers would not lead to a considerable change in the already deteriorated security situation.
The minister contended by other words that the security situation was poor and that by a further reduction in troops that situation will not considerably change.
Logically, there is no vice in that thread of reasoning adopted by the minister. I am unable to see how the path of reasoning must be better explained. The security position was bleak by the troop reductions previously made. That security position will not markedly alter by further troop reduction. To my mind, it does not follow that the continued reduction in troop numbers corresponded to an increase in the deterioration of security.
It was next necessary to consider whether the tribunal was required to explain in its reasons its process of logic by which it arrived at the conclusion expressed in paragraph 74 of its reasons. In my view the answer is in the negative. I do not agree that the single sentence that made up paragraph 74 was bereft of connective reasoning. The tribunal’s conclusion followed axiomatically. There was no need for it to set out a sequence of steps by which it arrived at its conclusion.
This was not a matter in respect of which an inference was to be drawn. To that end I did not consider it necessary to embark upon the intellectual exercise recorded by Bromberg J in AVU15.[9]
[9] [2017] FCA 608, especially at ([112])
In my view the tribunal’s reasoning at paragraphs 73 and 74 of its reasons was not defective in the manner advanced by the applicant. I reject ground one.

Ground two

Under this ground the applicant asserted that the tribunal applied the wrong test. Once again, the particulars subjoined to that ground incorporated by reference Mr Aleksov’s written submissions over two paragraphs. There is no other way available than setting out verbatim those two paragraphs as those are the applicant’s particulars to ground two. They read as follows[10] –
10.In considering the applicant’s claims for complementary protection, the Tribunal set out the limitation under s 36(2B)(c) (Tribunal Reasons [99]), and then referred to a passage in SZSFF [2013] FCCA 1884, which purports to set out the principle applicable to the operation of s 36(2B)(c). However, the statement of principle in SZSFF is wrong, and it is inconsistent with SZSPT v Minister for Immigration [2014] FCA 1245, [13], where Rares J held that s.36(2B)(c) is engaged by a risk of harm if the general population of which an applicant is a member was exposed to that risk. Attention to human rights violations for the purpose of applying s 36(2B)(c) is wrong and distracts from the correct question: whether the risk of harm faced by an applicant is faced by the population of the country generally, and not by the applicant personally.
11.In applying the statement of principle in SZSFF, the Tribunal applied the wrong test or failed to ask itself the correct question.
[10] Applicant’s submissions (filed on 22 August 2018) 2 [10]-[11]
The applicant brought into focus paragraph 98 of the tribunal’s reasons. That paragraph recorded the following –
Further to the claimed Refugees Convention fears analysed above, the applicant raised the issue that he may be significantly harmed in the generalised violence in Kabul. It was argued that because of the particular circumstances of the applicant – including the fact that he has been in Australia, he is a Shi’a and a Hazara – he was a greater risk of harm than the general population.
Mr Aleksov submitted before me that paragraph 98 was referring to Kabul, not Afghanistan, in that paragraph. He said the tribunal erroneously applied as the relevant discriminator the population of Kabul. He said the tribunal should have applied as the relevant discriminator the population of the country Afghanistan. Mr Aleksov argued that the tribunal erred by following a decision of this court in its process of reasoning when a decision of the Federal Court of Australia, pointing in a different direction, should have been followed by the tribunal.
In developing that argument, Mr Aleksov contended that the Federal Court decision that the tribunal should have but did not follow had been handed down in 2014 and the tribunal’s decision was given in 2015. He argued that in applying the law as it stood as at the date of the tribunal’s decision, the tribunal might be later shown to have incorrectly applied the law because, so Mr Aleksov said, the law was shown (after the tribunal decision) to have been different to the law that the tribunal actually applied. The debate unfolded in the following manner –
HIS HONOUR: But as at the date of its decision, it is charged with reaching a decision according to law at the particular point of time in which the decision is made. Not as it later unfolds. It might be subsequently found to be wrong.
MR ALEKSOV:   This debate, your Honour, is, I think - - -
HIS HONOUR: Sterile, probably.
MR ALEKSOV:   I think so, but I’m going to finish it, just so that your Honour doesn’t think I’m chicken. Take this scenario. A tribunal decides on – in 2011, a point, a case on the basis of the law as it stood following a 2010 Full Court decision. In 2011, after the tribunal’s decision, the Full Court decision is the subject of a special leave application; that’s granted, and the High Court overturns it and says the principle is different, in 2012. At the time the tribunal made its decision, prior to any grant of special leave, it would have been imprudent in the extreme for the tribunal to adopt a different position than that set out in the Full Court decision. However, subsequent events have shown that the Full Court was always wrong, and in having followed the Full Court, the tribunal, too, was wrong, even though at the time of its decision, it would have been criticised for doing otherwise.
HIS HONOUR: Well, that might explain why intermediate courts, knowing that a point is pending before a higher court, generally wait for the outcome before handing down a decision on a point.
MR ALEKSOV:   Absolutely. That’s exactly why we do that, your Honour. Now, taking that example – I think, with respect, your Honour answers the point, that it is unnecessary to focus on what was the position at the time of the decision. The thing that’s appropriate to focus on is what is the position today, and the point – the difficulty in SZSFF, your Honour, is the second quoted paragraph out of 100.
Ms Campbell argued that the tribunal applied the correct legal test. She contended that the tribunal’s reasoning was consistent with the decision of Rares J in SZSPT vMinister for Immigration and Border Protection.[11] She said that paragraph 100 was a correct encapsulation of legal principle. I agree.
[11] [2014] FCA 1245
I did not detect anything inconsistent in the reasoning of the tribunal with the reasoning of Rares J in SZSPT. In my view ground two was devoid of merit.

Ground three

Under this ground the applicant contended that the tribunal failed to consider lawfully the applicant’s complementary protection claims. As particulars of his contentions the applicant relied on several paragraphs of Mr Aleksov’s written submissions as if incorporated verbatim in the grounds of review. There is no shortcut to record as particulars those contentions so, unhelpful as it may be to record in narrative form propositions better expressed more succinctly, I have no option but to record in longhand below Mr Aleksov’s more verbose propositions. They were as follows[12] –
12.An issue in the review before the Tribunal was whether generalised violence as occurs in Kabul was such as to give rise to a real risk of significant harm if the applicant were to be returned to that place.
13.Section 36(2B)( c) relevantly provides that “there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.”
14.The provision must be taken to have selected the term “country” deliberately, and did so with the purpose of identifying that concept as the focus of s 36(2B)(c). A “country” is different from a “city”, “province”, “region”, “territory”, “State” etc. In this context, the term should be understood to be meant in the sense of “nation” or “State”.
15.It follows that where a Tribunal purports to rely on s 36(2B)(c), it must make findings sufficient to engage that provision by reference to the relevant “country”. Factual findings made by reference to other geopolitical units, such as a “city” are inadequate.
16.In this case, the Tribunal purported to rely on s 36(2B)(c) on the basis of findings about the situation in Kabul (Reasons [101]-[104]), rather than “Afghanistan”. These findings were inadequate to engage s 36(2B)(c), and the attempt to rely on the provision was in error (with the result that the complementary protection claim based on generalised violence in Kabul was not considered lawfully).
[12] Applicant’s submissions, above n 10, 3 [12]-[16]
In developing the argument before me, Mr Aleksov argued that s 36(2B)(c) required the tribunal to make an assessment of the risk of significant harm and whether it was a risk faced by the population of the country generally or whether it was a risk faced by a person specifically. He said the word “country” in the subsection must be taken to mean the nation state of Afghanistan in this case whereas the tribunal, so Mr Aleksov said, focused on the city of Kabul rather than on the nation state Afghanistan.
Ms Campbell argued that the tribunal did not fall into error in its construction of complementary protection. She said that the applicant raised as a claim his fear of significant harm by the generalised violence in Kabul. She said that the tribunal was therefore required to consider generalised violence in a specified location. She said the tribunal was correct in considering the claim as made, referable specifically to a particular city.
It seemed to me that the minister’s contentions were correct. The tribunal was required to consider the claim as made. That was referable to the specific city of Kabul. Kabul was a city within the nation state of Afghanistan. It would have been erroneous for the tribunal to have not considered Kabul specifically having regard to the fact that the applicant’s claim spoke of Kabul. But in focusing on Kabul, in my view the tribunal did not err. Had the tribunal not focused on Kabul when the applicant’s claim related specifically to Kabul, then the tribunal would have erred. And, by addressing Kabul (a city within Afghanistan) of necessity the tribunal considered an area within the country of which the subsection spoke. I detected no error in that approach. In my view, this ground failed.

Conclusion

All grounds of review fail. I dismiss this proceeding and order the applicant to pay the minister’s costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Associate:

Date: 5 December 2018