CMO18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 85

Federal Circuit and Family Court of Australia

(DIVISION 2)

CMO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 85

File number(s):

SYG 1361 of 2018

Judgment of:

JUDGE LAING

Date of judgment:

15 February 2023

Catchwords:

MIGRATION – where Immigration Assessment Authority (“IAA”) refused application for a protection visa – allegations that the IAA was inconsistent, illogical or unreasonable – whether the IAA ignored, overlooked or misunderstood relevant facts or materials – whether the IAA failed to form the requisite state of satisfaction by reference to country information that was before it and post-dated the applicant’s departure from Afghanistan – application allowed.

Legislation:

Migration Act 1958 (Cth) s 36

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431

Division:

Division 2 General Federal Law

Number of paragraphs:

46

Date of hearing:

16 November 2022

Solicitor for the Applicant

Mr S. Hodges (Stephen Hodges Solicitor) appeared in-person

Counsel for the First Respondent

Mr N. Swan appeared via video-link

Solicitor for the First Respondent

Australian Government Solicitor

Solicitor for the Second Respondent

Submitting appearance, save as to costs

ORDERS

SYG 1361 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CMO18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	15 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The applicant has leave to rely upon the amended application filed on 12 December 2022.

2.A writ of certiorari issue bringing the decision of the second respondent dated 20 April 2018 affirming the decision of a delegate of the first respondent not to grant the applicant a protection visa (original decision) into this Court and quashing it.

3.A writ of mandamus issue directing the second respondent to re-determine the review of the original decision according to law.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING

1. Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).

   background

2. The applicant is a Hazara Shia from Parwan Province, Afghanistan.

3. On 2 January 2013, he arrived in Australia as an unauthorised maritime arrival.

4. On 23 June 2017, the applicant lodged an application for a protection visa.

5. The Delegate refused the application on 6 July 2017. On 11 July 2017, the Delegate’s decision was referred to the IAA for review.

6. The IAA affirmed the Delegate’s decision on 20 April 2018.

   the iaa’s decision

7. The IAA observed that it had received a submission from the applicant on 1 August 2017. The IAA considered that the submission contained argument and discussion regarding the Delegate’s decision. The IAA did not consider this to be new information and stated that it had been considered.

8. The IAA observed that it had also received a report written by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS), indicating that the applicant had been diagnosed with anxiety, depression and past trauma. The period of treatment appeared to have commenced in July 2017 and ceased in December 2017. The IAA accepted that this information could not have been provided to the Delegate prior to their decision and that exceptional circumstances justified its consideration.

9. The IAA accepted that the applicant was a Shia Hazara from Parwan Province in Afghanistan, and that the applicant had spent some time in Kabul (at [9]).

10. The IAA accepted that the applicant had previously experienced mental health issues. However, it considered that the evidence did not demonstrate that the applicant would require future treatment or that these issues had affected his ability to present his claims. The IAA was not satisfied that these issues would impact upon the applicant’s return to Afghanistan, or that he would face a real chance of harm due to such issues (at [10]).

11. In relation to the applicant’s claim to have previously been stopped and assaulted by the Taliban whilst travelling between Kabul and his home area in Parwan Province, the IAA reasoned as follows:

    18. I accept that incidences such as the one the applicant has described occur throughout Afghanistan. And on the basis of the evidence before me, I am willing to accept the applicant and his cousin, while travelling through Parwan Province were stopped by the Taliban and that their vehicle and personal possessions were searched. However I do not accept the applicant had to escape this situation as I am not satisfied they would have been of any interest to the Taliban. The country information cited above indicates that the main targets are government officials and people associated with the international community. I am not satisfied the applicant fits into any of these profiles. While the applicant claims his cousin was an interpreter and the Taliban accused them of being government sympathisers, the applicant has provided no supporting evidence of this and I do not accept this claim. The applicant also failed to mention his cousin’s occupation during the arrival interview. I accept the Taliban had, and possibly continue to have, access to the applicant’s taskera and student card. However I am not satisfied that on the basis of being stopped by the Taliban and them having access to his personal documents that he will face any harm upon return to Afghanistan, specifically Parwan Province.

    19.Based on the country information cited above, I am [not] satisfied the applicant would be of continuing interest to the Taliban. He claims that as a student and because the Taliban have his student card, he will be harmed. However there is no independent evidence before me to indicate that the Taliban have an interest in students, particularly those studying veterinary studies such as the applicant. I am not satisfied this course would be of any interest to the Taliban. I note the applicant’s cousin who he was travelling with was an interpreter and worked with foreigners, however the applicant has provided no evidence to support his claim that his cousin was an interpreter, nor has the applicant provided any evidence to indicate what happened to his cousin and his current whereabouts to corroborate his claims.

    20. I am not satisfied there is a real chance the applicant will face any harm on the basis of him previously being stopped by the Taliban and his personal identification documents being held by them. I am satisfied the applicant is able to return to Parwan Province and reside with his immediate family who continue to reside there. I note the applicant previously worked as a taxi driver within Kabul and claimed that during his holidays he worked as a taxi driver between Kabul and Parwan Province, specifically… his home area. Apart from being stopped by the Taliban on this one occasion, the applicant has not made any claims that he faced any harm during his travels while working as a taxi driver, nor has the applicant made any claims to fear returning to Parwan Province via road. I am therefore satisfied the applicant will be able to return to his home area, as he has done many times before from Kabul, and I am satisfied there is no real chance he will face any harm during this journey.

12. Having regard to country information, the IAA was not satisfied that there was a real chance that the applicant would face harm on the basis of his ethnicity or religion as a Hazara Shia upon return to Parwan Provice (at [21]-[25]). Nor was the IAA satisfied that the applicant would face a real chance of harm on the basis of being a Hazara Shia, or as a person returning from Australia as a failed asylum seeker, or as someone who had received treatment for mental health conditions (at [26]-[35]).

13. The IAA concluded that the applicant was unable to meet the criteria for a protection visa. Accordingly, it affirmed the Delegate's decision (at [32]-[36]).

    proceedings before this court

14. In the application commencing these proceedings filed on 15 May 2018, four grounds of review were raised by the applicant. However, only ground 3 from that application was pressed by the time of the hearing:

    Ground 3

    The Authority's reasoning at [18] is inconsistent, illogical and so unreasonable that no reasonable decision maker will make a similar decision.

    PARTICULARS

    1.The Authority accepted that the Applicant and his cousin were stopped by the Taliban and that their vehicle and personal possessions were searched by the Taliban and that "the Taliban had and possibly continue to have, access to the Applicant's taskera and student card" [18].

    2The Authority accepted "that incidents such as the one the applicant has described occur throughout Afghanistan" [18].

    3.At [17] the Authority considered the 2015 DFAT report which inter alia states "All Afghans are vulnerable to violent attacks associated with insurgent and/or terrorist groups".

    4.At [16] the Authority refers to country information (i.e. EASO report) that it considered which states inter alia “... in recent years the security situation in Parwan deteriorated due to insurgent activity and clashes between anti-government elements...”

    5.The Authority did not accept that the Applicant had to "escape this situation" as the Authority was not satisfied that the Applicant and his cousin would have been of any interest to the Taliban [18].

    6.The Authority did not provide reasons for not accepting the integer of the claim that the Applicant was able to escape from "this situation" despite having considered that insurgent activity and clashes between anti-government elements take place”.

    7.The Authority having accepted that the Taliban had, and possibly continue to have, access to the Applicant's taskera and student card [is] inconsistent with the Authority's finding that the Applicant and his cousin were not of any interest to the Taliban [18].

15. The applicant also sought to rely upon two further grounds in an amended application filed on 12 December 2022:

    Proposed new ground 5

    In circumstances where:

    1The IAA accepted that the applicant had been stopped previously by the Taliban when driving outside Kabul.

    2The applicant clearly expressed a fear of again being stopped by the Taliban as he was a Hazara Shia and they had his identification documents.

    3the DFAT thematic report Hazaras in Afghanistan 2015-16 update, which was before the IAA, reported that Hazara returnees face a greater risk of kidnap or violence than other ethnic groups when travelling on roads outside Kabul

    it was legally unreasonable for the IAA to assess the applicant's case for complimentary protection as not including a claim that he had a fear of being stopped by the Taliban and risked kidnap or violence by them as a Hazara Shia if he returned to Parwan province from Kabul by road.

    Proposed new ground 6

    The IAA ignored, overlooked or misunderstood relevant facts or materials

    PARTICULARS GROUNDS 5 AND 6

    The IAA failed to intellectually engage with the DFAT thematic report Hazaras in Afghanistan 2015-16 update which reported that Hazara returnees face a greater risk of kidnap or violence than other ethnic groups when travelling on roads outside Kabul

16. The Minister did not object to leave being granted for the applicant to rely upon the amended application. The proposed new grounds were raised after a potential issue was identified with [20] of the IAA’s reasoning by the Court during the hearing of this matter. Paragraph [20] was as follows:

    20. I am not satisfied there is a real chance the applicant will face any harm on the basis of him previously being stopped by the Taliban and his personal identification documents being held by them. I am satisfied the applicant is able to return to Parwan Province and reside with his immediate family who continue to reside there. I note the applicant previously worked as a taxi driver within Kabul and claimed that during his holidays he worked as a taxi driver between Kabul and Parwan Province, specifically… his home area. Apart from being stopped by the Taliban on this one occasion, the applicant has not made any claims that he faced any harm during his travels while working as a taxi driver, nor has the applicant made any claims to fear returning to Parwan Province via road. I am therefore satisfied the applicant will be able to return to his home area, as he has done many times before from Kabul, and I am satisfied there is no real chance he will face any harm during this journey.

17. In coming to its conclusion at [20], the IAA departed from the following reasoning of the Delegate (at Court Book (CB) 115):

    With reference to the country information in his migration agent’s submission dated 06 July 2017 I am aware of more recent country information which suggests the applicant’s home area, Sorka Parsa, is stable with limited insurgent activity, and road security in the area has been described as relatively secure.²⁶ Nevertheless, I accept that the roads outside of Kabul remain dangerous for Hazaras therefore there is a real chance the applicant may incur serious harm safely returning to his home area in Sorka Parsa via the available road network from Kabul. I have therefore considered if there are other areas in Afghanistan (such as Kabul or Mazar-e-Sharif) which he can safely and lawfully access to avoid harm from the Taliban or any other insurgent groups.

18. Footnote 26 referenced:

    Country of Origin Information Section (COIS), “AFG CI160414124914041 – Travel routes between Parwan (Ghorband) and Kabul – Road safety between Parwan and Kabul between 2009 and 2012 – Current road security between Parwan and Kabul”, Department of Immigration and Border Protection, 29 April 2016, CR0D9DEFA134 [(Travel Report]).

19. Additionally, at CB 119, the Delegate stated:

    Having carefully considered all the information before me, I do not consider the applicant has a profile which would warrant the attention of insurgents in Kabul or Mazar-e-Sharif. I accept that there have been some instances where returnees have been targeted on the road returning to their home district and that if the applicant were to travel outside Kabul there is a risk of him being targeted. However the applicant can safely and lawfully access Kabul and Mazar-e-Sharif through their international airports without having to access roads which are reported as being unsafe for returnees. As part of his PV claims the applicant has expressed no specific political or religious views which I believe would be of any interest to insurgents in Kabul or Mazar-e-Sharif. I find there is no real chance that the applicant will be identified as an infidel or a Christian by insurgent groups upon his return to Afghanistan.

20. There was, therefore, country information before the Delegate that was apparently of sufficient force to persuade them that the applicant faced a real chance of harm travelling to his home area from Kabul. It is not entirely clear if this was confined to the Travel Report, or additionally encompassed other information contained within the various sources referenced in the Delegate’s decision. At minimum, it included the Travel Report which has been received by the Court as Exhibit A.

21. Despite this, the IAA did not refer to this or any other country information at [20] when considering whether the applicant could safely access his home area upon return. Instead, the IAA expressly relied upon two matters:

    (a)firstly, that the applicant had not faced harm whilst working as a taxi driver (in 2011 to 2012), apart from being stopped by the Taliban on one occasion; and

    (b)secondly, that the applicant had not “made any claims to fear returning to Parwan Province via road”.

22. The second matter is questionable. I accept, as was contended by the Minister, that the applicant had not specifically, in terms, stated that he feared harm during the process of being returned to his home area via road. However, it is at least arguable that such a claim had been conveyed through his representative’s submissions to the Delegate. In those submissions, the representative had submitted that the applicant’s claims were consistent with reports regarding dangers on the roads. The representative also submitted articles expressing an increasingly dangerous situation on the roads through Ghorband en route to and from areas such as Kabul. A submitted article referred to the potential for the situation regarding insurgents to worsen “if all conventional NATO combat troops exit the country as scheduled by the end of 2014”. Reference was also made in a submitted article to dangers faced by travellers of being mistaken by the government for the Taliban on the roads, or of being perceived by the Taliban as being associated with the government.

23. This material was contended in the representative’s submissions to corroborate the applicant’s claims regarding what had happened to him on the roads in 2012, and the adverse profile he claimed to have therefore acquired. It was contended to corroborate these claims because, it was claimed, travel on the roads to the applicant’s home area was “dangerous”.

24. I do not accept the Minister’s submission that the material in this regard was only submitted to corroborate the applicant’s claims as to what had happened to him on one specific occasion in 2012. The representative’s submissions specifically drew attention to material within the country information that went beyond this (including projected challenges following the then anticipated withdrawal of NATO troops towards the end of 2014). Whilst the representative did not refer to what may happen to the applicant during the specific act of returning to his home area from Australia, a claim that this may involve danger was, in my view, included in the generality of the claimed dangers of travel to the applicant’s home area via road from areas such as Kabul.

25. In any event, both the Delegate and the IAA sought to address the issue of whether the applicant faced a real chance of relevant harm travelling on the roads between Kabul and his home area on return to Afghanistan. The Delegate found that he would. The IAA found that he would not.

26. In coming to its conclusion, the IAA relied heavily upon the applicant’s experiences travelling on the roads in 2011 and 2012. It observed that he had not claimed to have experienced harm during those travels, apart from being stopped by the Taliban on one occasion. That occasion was not found to have given rise to any adverse profile with the Taliban.

27. However, the IAA did not expressly refer in [20] to any country information. This was despite the Delegate’s reliance upon the 2016 Travel Report, from which they had apparently concluded that the applicant would face a real chance of relevant harm returning to his home area via the available road network from Kabul.

1. At the hearing, I raised whether the IAA in this case may have fallen into a similar species of error to that which was considered in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (MZYTS). In that case, the Tribunal did not have regard to the most recent country information that was before it. The Tribunal’s reasoning also did not disclose consideration of central aspects of the applicant’s claim to face harm relating to cyclical and increasing political violence. The Court (Kenny, Griffiths and Mortimer JJ) stated:

   32. Before both the Federal Magistrates Court and this Court the asserted error in the Tribunal’s decision was often described as a “failure to consider more recent information”. That description might suggest as a corollary some kind of freestanding legal obligation on the Tribunal to consider the most recent information. In our opinion, while those descriptions may explain the path leading to error, the error itself is a failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Migration Act…

   38. That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there. While it is most certainly the case that “[i]t is for the applicant to advance whatever evidence or argument she [or he] wishes to advance in support of her [or his] contention that she [or he] has a well-founded fear of persecution for a Convention reason”, the Tribunal “must then decide whether that claim is made out”: Abebe v Commonwealth (1999) 197 CLR 510 at [187]. Evidence and material about what it was like for “ordinary” MDC supporters and members in 2002, or 2007, or 2010 might give the most accurate picture, but that decision could only be made by the Tribunal after evaluation of all the pertinent material put forward by the visa applicant in support of the specific claim (and, of course, any contradictory information to which the Tribunal chose to make reference), including the most recent material and a decision about whether or not things had changed, were changing, were likely to change or had stayed much the same…

   46. Although in one sense this might be described as a “failure to consider” most recent country information, or a failure to consider a claim about increased risk of persecution on return to Zimbabwe, in our opinion the error is, fundamentally, a failure to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s 36(2)(a). Judicial review of the formation, by an inferior tribunal, of the state of satisfaction required by the empowering provision may be, as the High Court pointed out in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 (Kirk) (at [64]) best described as a “functional exercise” (citing Jaffe, 1957). Affixing a pre-existing label or meta-description to what a decision-maker did in purported exercise of a statutory power, for example “a failure to consider”, may assist the analysis, although it may also provide a distraction…

   73. Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend 162 CLR 24 at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well founded.

   74.That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.

2. In response, the Minister relied upon a copy of the Travel Report (Exhibit A) that was referenced in the Delegate’s decision. The Minister submitted that there was nothing in this information which “necessitated a finding” that there was a real chance of harm to the applicant travelling back to his home area, or meant that the IAA “could not rationally and reasonably reach the state of satisfaction that it did”.

3. That may be accepted, in the sense that it may have been open to the IAA, after considering this information and the other information before it, to have concluded that the applicant did not face a real chance of harm on this basis.

4. However, I find that it was not open to the IAA to have omitted this material from consideration in coming to the conclusion that it reached at [20], and to have instead relied upon the more limited, dated (and in one respect, questionable) matters that it did.

5. I accept that the information in the Travel Report indicated a limited number of incidents over certain periods on the roads, as was submitted by the Minister. Parwan Province was described as “one of the relatively stable provinces” in a report from 2015. Of the two routes that were identified as being available to and from Kabul, the second (Route 2) was identified as having a lower number of attacks. In this regard, provincial officials had claimed in July 2015 that security had been restored to Jalrez district by clearance operations and that commuters were able to travel on the Kabul-Behsud Highway “without any fear”.

6. However, the Travel Report also indicated that attacks had occurred repeatedly on the roads between the applicant’s home district and Kabul, with varying severity and frequency, over a number of years. Information was acknowledged to the effect that although limited security incidents had been reported in 2016 at the time the report was produced (29 April), Hazara travellers had reported in December 2015 that they avoided using a 40 kilometre stretch along the Behsud-Kabul Highway (Route 2) due to attacks and abductions. That section of road was said to run “through several Pashtun villages and Taliban strongholds in Jalrez district” and to have since 2013 “been a location of insecurity for travellers” (at page 24). Country information referred to in the Travel Report from 2013 indicated that it had not been unusual “to see ethnicity-based targeting of Hazaras” by “Pashtun pro-opposition units” along this route (at page 17).

7. It is possible that, after considering and weighing this information, a decision maker may have formed the view that the applicant would not face a real chance of harm whilst travelling by road from Kabul to his home area. It is also possible that a different conclusion may have been reached. It is of some significance that the Delegate, after considering this country information, concluded that the roads outside of Kabul were sufficiently dangerous to give rise to a real chance of relevant harm. In these circumstances, for the reasons given in MZYTS, the IAA was obliged to consider this information. That information was capable of indicating that travellers, and in particular Hazara travellers, may face at least some risk of harm on the roads in question.

8. The Minister submitted that it was unnecessary for the IAA to refer to every piece of evidence before it, and that non-reference to evidence does not necessitate a conclusion that it was not considered: Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [31]. That is so. However, a similar argument was rejected in MZYTS at [50] as follows:

   50.We do not accept the Minister’s submission. The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference…

9. The IAA did not refer to the information in question at [20] of its decision, despite its apparently central relevance to the question that the IAA sought to determine in that paragraph. This was also despite indications that it had apparently been the basis upon which the Delegate had reached a contrary conclusion. The IAA instead at [20] expressly gave two reasons for being “therefore satisfied the applicant” would be able to return to his home area without facing a real chance of harm. Those reasons were that he had not “made any claims to fear returning to Parwan Province via road” and that he had only previously been stopped once whilst working as a taxi driver between 2011 and 2012.

10. I accept that the IAA’s reasoning occurred within the context of having earlier considered general DFAT country information from 2015 and 2016 indicating that the main targets of the Taliban were persons with different profiles to the applicant (at [18]). This informed the IAA’s non-acceptance of the applicant’s claims to have had to escape the Taliban when stopped in Parwan Province in 2012, as the IAA was not convinced that the applicant was of adverse interest to them. It also informed the IAA’s conclusion that he would not face a relevant risk of harm upon return to “specifically Parwan Province”.

11. However, the fact remains that the IAA does not appear to have considered, at least expressly, the Travel Report. That report, from 2016, specifically dealt with the issue under consideration at [20], namely, whether the applicant would face relevant risk in the process of attempting to return to his home area from Kabul via available road networks. That report had been relied upon by the Delegate in concluding that the applicant would face a real chance of harm in this regard. The relative centrality of that report to the issue under consideration, its significance to the Delegate’s decision, and the lack of any reference to it in the IAA’s decision all combine to compel the conclusion that the report was not considered by the IAA. Had the report been considered, then it is possible that the IAA may have come to a similar conclusion to the Delegate regarding the risks on the roads. Had this occurred, then it is possible that the outcome could have been different.

12. On the basis of the above, I accept that the IAA fell into jurisdictional error in the manner in which it dealt with the question of whether the applicant would face relevant risk on the roads between Kabul and his home area at [20].

13. For the reasons given in MZYTS at [32] and [46], I do not consider the contention that the IAA thereby “ignored, overlooked or misunderstood relevant facts or materials” the most apt description of the error that occurred. Rather, the error may more appropriately be described as “fundamentally, a failure to form the state of satisfaction (one way or the other) required”: MZYTS at [46].

14. Nor do I consider that it is the DFAT thematic report “Hazaras in Afghanistan 2015-16 update”, relied upon in the particulars to the applicant’s proposed new grounds, which demonstrates the relevant error. The applicant did not reference the part of the materials he relied upon in this regard as demonstrating that Hazaras faced greater risk than other returnees when travelling on roads outside Kabul. As the Minister has submitted, the Delegate appears to have relied upon this report for the proposition that Hazaras faced greater risk when travelling “between Kabul and the Hazarajat” (at CB 115). In the applicant’s submissions, it was stated that, “Parwan does not form part of the Hazarajat- and the roads travelled to Parwan would not all be the same as those travelled to Hazarajat”. Given this concession, and the lack of further geographical and/or other relevant evidence placed before the Court in support of the applicant’s contention, the applicant has not placed the Court in a position to attribute the significance to this country information that he has sought.

15. However, the Minister has placed the Travel Report before the Court. This occurred after the applicant’s amended application and submissions were filed. It was in response to my raising at hearing whether the Tribunal’s reliance at [20] upon the applicant’s experiences in 2011 and 2012, without express consideration of the 2016 Travel Report, demonstrated a similar type of error to that considered in MZYTS. The Minister, appropriately, did not oppose that issue being determined either by reference to the question raised at hearing, or any amended application subsequently filed. I am grateful for the capable assistance that has been provided by the Minister’s representatives in this matter.

16. Nonetheless, for the reasons given above, I have concluded that the IAA’s decision was affected by jurisdictional error.

17. It is therefore unnecessary for the Court to determine the remaining ground relied upon by the applicant (ground 3). For completeness, however, I note that I would not have been inclined to accept that relevant error had been demonstrated under this ground. The IAA was not required to find that the applicant faced a real chance of harm or was of interest to the Taliban, simply because it had accepted that his documents may have been taken and held. Whilst I accept that this event could have been found to indicate interest in the applicant, this was not necessarily the case. The country information before the IAA indicated that although all Afghans were vulnerable to violent attacks associated with insurgent and/or terrorist groups, the targets of such attacks tended to be those with different profiles to the applicant. This was a logically available basis upon which the IAA was able to conclude that the Taliban were not interested in the applicant or his cousin when they were encountered in Parwan in 2012. Whilst association with the international community was indicated in the country information to potentially give rise to some risk, the IAA also had regard to country information indicating that such risk would generally be low for someone in the applicant’s position (at [30]). I am not persuaded that relevant error has been demonstrated in this regard.

    CONCLUSION

18. As jurisdictional error has been demonstrated, the application before this Court succeeds.

19. I will hear from the parties in relation to costs.

47          I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Laing.

Associate:

Dated: 15 February 2023