CMV18 v Minister for Immigration
[2019] FCCA 2522
•4 October 2019, by telephone
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CMV18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2522 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – applicant’s claims accepted but Authority finding that he could relocate to Mazar-e-Sharif – whether the Authority erred in considering the reasonableness of relocation considered – jurisdictional error established in that the Authority failed to engage with part of the applicant’s submission on the reasonableness of relocation. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25D |
| Cases cited: BMR17 v Minister for Immigration [2018] FCA 1250 SZMCD v Minister for Immigration [2009] FCAFC 46 |
| Applicant: | CMV18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1366 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 6 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 October 2019, by telephone |
REPRESENTATION
| Counsel for the Applicant: | Mr R Jahnke, by videolink |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 23 April 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1366 of 2018
| CMV18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 23 April 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Afghanistan who arrived in Australia at Christmas Island on 18 March 2013[1] and on 23 January 2017 applied for a Safe Haven Enterprise Visa.[2] He claimed to fear harm if returned to Afghanistan on the basis of his ethnicity. He is a Shia Muslim and Hazara, born in the Behsud district of Wardak province. He claimed that every year the Pashtun Kuchis came to his province and destroyed their crops and that when he was 13 his father was shot in a Pashtun attack. The applicant claimed that between 2002 and 2010 he and his family resided illegally in Iran. He claimed that in 2010 he was deported from Iran back to Afghanistan and stayed in Kabul for one to two weeks before returning to Iran. He was again deported from Iran to Afghanistan in 2012, and lived in Kabul for one year before coming to Australia.[3]
[1] see Court Book (CB) 31
[2] SHEV
[3] see the Authority’s summary of the applicant’s claims at CB 250 [8]
On 26 July 2017 the delegate refused to grant the applicant a SHEV.[4] The applicant’s matter was referred to the Authority.[5]
[4] CB 212
[5] CB 218
On 31 August 2017, the applicant’s lawyers sent a five page written submission to the Authority.[6] In this submission, the applicant raised a number of objections to relocation to Mazar-e-Sharif including:
a)chronic mass unemployment in Afghanistan;[7]
b)slum-like living conditions;[8]
c)a lack of access to safe water;[9]
d)a lack of “pre-identified” accommodation options;[10] and
e)the lack of health and sanitation.[11]
[6] CB 238-242
[7] CB 241-242 [11]
[8] CB 241 [9]-[10]
[9] CB 241 [10]; 242 [14]
[10] CB 240 [8]; 242 [14]
[11] CB 240 [5]; 241 [9]-[10]
The Authority accepted at [27] that the applicant had a real chance of being subjected to serious harm on return to the district of Behsud. However it found that the real chance of serious harm did not exist in Mazar-e-Sharif, and accordingly he did not have a well-founded fear of persecution under s.5J(c) of the Migration Act 1958 (Cth) (Migration Act).[12] In relation to complementary protection, the Authority found that it would be reasonable for the applicant to relocate to Mazar-e-Sharif and that therefore the applicant was not entitled to complementary protection due to operation of the exception in s.36(2B)(a) of the Migration Act.[13]
[12] from [28]-[42]
[13] from [68]-[77]
The Authority’s assessment of the reasonableness of relocation
The Authority’s assessment of the reasonableness of relocation is at [69]‑[77].
At [69], the Authority rejected the applicant’s complaint that his “accent will prevent him from obtaining employment, shelter or accessing basic services”.[14]
[14] CB 260 [69]
At [70], the Authority rejected the applicant’s representative’s contention “that the applicant does not fall within the UNHCR[15] exception of ‘single able-bodied men and married couples of working age without identified specific vulnerabilities’ as the applicant belongs to a vulnerable minority ethnic and religious group which has a history of persecution in Afghanistan”.[16] The Authority was of the view that “specific vulnerabilities” only included “persons with disabilities and elderly persons”.[17]
[15] United Nations High Commissioner for Refugees
[16] CB 260 [70]
[17] CB 260 [70]
At [71], the Authority relayed pieces of UNHCR and DFAT[18] advice including that:
a)“In 2016, UNHCR’s opinion was that relocation is reasonable only where the individual has access to shelter, essential services (sanitation, health care, education) and livelihood opportunities, and a traditional support network of members of his or her (extended) family or members of his or her larger ethnic community”;[19] and
b)“DFAT has reported that traditional extended family and tribal community structures of Afghan society are the main protection and coping mechanisms for people in Afghanistan, who rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence”.[20]
[18] Department of Foreign Affairs and Trade
[19] CB 260 [71]
[20] CB 260 [71]
At [72], the Authority noted the UNHCR’s opinion that there were exceptions to the requirements of external support such as “single able bodied men and married couples of working age without identified specific vulnerabilities” and that these persons may be able to access “necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective Government control (as Mazar-e-Sharif is)”.[21] The Authority also noted the DFAT advice that relocation “is generally more successful for single men of working age - provided they are able to make use of family or tribal networks”[22] and that “a lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation and that unemployment and underemployment are high across Afghanistan”.[23]
[21] CB 260 [72]
[22] CB 260 [72]
[23] CB 260-261 [72]
At [73], the Authority accepted that there were “economic and other challenges in relocating to Mazar-e-Sharif”[24] including evidence of “high unemployment and underemployment”. The Authority also accepted that “due to Mazar-e-Sharif being an urban area where IDPs[25] and refugee/returnee populations are likely to settle in there are likely to be pressures on the labour market, infrastructure and services”[26] and that these factors would make relocation challenging.
[24] CB 261 [73]
[25] Internally Displaced Persons
[26] CB 261 [73]
However, despite these findings, the Authority found at [74] that the applicant “would be able to earn a livelihood and that he would have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life”:[27]
Mazar-e-Sharif is under the effective control of the Afghan government and DFAT has reported that large urban centres offer greater opportunities for employment and security. Agriculture, wholesale and retail trade, manufacturing and construction are the main sectors of employment. The applicant has worked in at least one of these areas that being the construction industry when he was previously in Afghanistan and Iran and has since continued to work in this industry since his arrival in Australia. The applicant is able-bodied and of working age with no credible vulnerabilities and his skills would be transferrable into the local labour market in Mazar-e-Sharif. The applicant has demonstrated that he is resourceful and resilient and has successfully lived apart from his family and settled in and found work in unfamiliar places including in the past in Kabul in Afghanistan and more recently Australia. I am satisfied he would be able to earn a livelihood and that he would have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. I am not satisfied the applicant will not be able to obtain employment or shelter or access basic services. I am satisfied that [the] applicant will also be returning to his home country where he speaks one of the two official languages and is familiar with its culture and I am satisfied that over time he will be able to integrate into the local community.
[27] CB 261 [74]
At [75], the Authority considered the situation regarding the applicant’s immediate family members in Afghanistan and at [76] considered the general security situation in Mazar-e-Sharif.
Finally, at [77], the Authority set out its overall conclusion: [28]
Taking into account the applicant’s personal circumstances, and the country information before me, including that relating to the general conditions and security situation in Mazar-e- Sharif, I am satisfied it is reasonable for the applicant to relocate to Mazar-e-Sharif, Afghanistan, and as such that under s.36(2B)(a) of the Act there is taken not to be a real risk that the applicant will suffer significant harm in Afghanistan.
[28] CB 262
The current proceedings
These proceedings began with a show cause application filed on 15 May 2018. The applicant now relies upon an amended application filed on 29 March 2019. There is one ground in that application:
The Immigration Assessment Authority (Authority) erred by not completing its statutory task in concluding that it was reasonable for the Applicant to relocate.
Particulars
When considering the question of relocation under s.36(2B) of the Migration Act 1958 (Cth), the Authority did not engage in any active intellectual process in relation to the Applicant’s submissions and country information in respect of why it would be unreasonable for him to relocate to Mazar-e-Sharif.
The only evidence I have before me is the court book filed on 13 July 2018.
Both the applicant and the Minister filed pre-hearing written submissions and also made oral submissions through their counsel at the trial on 6 September 2019. I have been assisted by those submissions.
Consideration
Applicant’s contentions
The applicant relies on the single ground of review set out in his amended application filed on 29 March 2019: that the Authority did not complete its statutory task in concluding that it was reasonable for the applicant to relocate.
Specifically, when considering the question of relocation under s.36(2B) of the Migration Act, the applicant contends that the Authority did not engage in any active intellectual process in relation to his submissions and country information in respect of why it would be unreasonable for him to relocate to Mazar-e-Sharif.
Subsection 36(2B)(a) of the Migration Act provides that there is taken not to be a real risk a non-citizen will suffer significant harm if the Minister is satisfied that “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”. Subsection 36(2B)(a) of the Migration Act imports the “relocation principle” explained by the High Court in SZATV v Minister for Immigration.[29]
[29] (2007) 233 CLR 18
At [68] of the Authority’s decision, reference is made to the applicant’s submissions on the issue of relocation: [30]
The applicant has provided information on this issue in his protection visa application and interview, former and current representative’s submissions to the IAA. I have taken all of this information into account.
[30] CB 260 [68]
However, the applicant submits that, while the Authority may have been cognisant of one or more of the applicant’s particular objections to relocation, it did not engage with them in the manner required by the question raised by s.36(2B)(a) of the Migration Act.
In finding that it was reasonable for the applicant to relocate to Mazar-e-Sharif, the Authority is said to have failed to engage in any active intellectual process in respect of the numerous objections to relocation raised by the applicant’s submissions about why it was unreasonable for him to relocate to this city. Put simply, the level of scrutiny and detail of reasoning given by the Authority in respect of the issue of relocation did not reflect the material before it.
In his submission to the Authority, the applicant raised a number of objections to relocation to Mazar-e-Sharif. With perhaps the exception of a faint reference to unemployment at [73] and [74][31] and the finding that the applicant “would have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life”,[32] the Authority is said to have failed to intellectually engage with the above objections to relocation in its reasons.
[31] CB 261
[32] CB 261 [74]
The reference to the issue of “high unemployment and underemployment throughout Afghanistan” at [73] and [74] is said to have been inadequate. It was little more than an acceptance of advice from the DFAT that “large urban centres offer greater opportunities for employment and security”.[33] This is said to be nothing more than a relative argument, which “completely failed” to grapple with the applicant’s objection regarding the sheer extent of unemployment in Mazar-e-Sharif expressed in his written submission to the Authority as follows: [34]
The Delegate’s own evidence from the 2016 UNHCR Eligibility Guidelines showed that approximately 40 per cent of Afghanistan’s population is unemployed and that economic growth has slowed considerably: ‘The economic situation has deteriorated as economic growth slowed considerably in 2014 and 2015, reportedly as a result of increased violence and increased uncertainty about the future… Unemployment in the formal sector is reported to be at 40 per cent (up from 9.3 per cent in 2011-12).’ In light of this information, the IAA should consider the real impact that the dire economic situation in Afghanistan is likely to have on the Applicant in the reasonably foreseeable future. When near to half of a city’s population is unemployed, even the most resourceful or skilled persons face a real risk of long-term unemployment affecting their capacity to subsist. An unemployment rate at 40 per cent also demonstrates that even persons with family members in urban areas are finding extreme difficulty in securing employment. The Applicant’s inability to secure employment is exacerbated by his limited skillset and his lack of meaningful support networks – familial or ethnic – to call upon in Kabul, Mazar-e-Sharif or Herat.
(applicant’s emphasis retained)
[33] CB 261 [74]
[34] CB 241-242 [11]
The Authority’s finding at [74] that the applicant “would have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life”[35] is said to be equally inadequate. The applicant’s submissions to the Authority raised very specific objections to relocation including that he would not have access to adequate accommodation and safe drinking water in Mazar-e-Sharif.
[35] CB 261
For example, in the applicant’s written submission to the Authority, the applicant provided evidence from UNHCR in 2016 that “73.8 per cent of the urban population in Afghanistan live in slum households”[36] and that only “46 per cent of the population have access to potable water”.[37] The applicant also raised the following objections on the basis of inadequate housing: [38]
73.8 per cent of the urban population in Afghanistan live in slum households. Poverty among urban households is reportedly widespread and the economic situation of urban households is reported to have deteriorated significantly in the past years…
[36] CB 241 [9]
[37] CB 241 [10]
[38] CB 241 [9]
At [14] the submission continued: [39]
The above information demonstrates that it would be unreasonable for the Applicant to relocate to an urban area, such as Mazar-e-Sharif… where he would be unable to accommodate for his basic needs, including food, safe drinking water, shelter and be forced into a circumstance of poverty. The Applicant requests the IAA consider each one of these factors individually in its assessment of the reasonableness of relocation. All current indicators demonstrate that the urban areas of Afghanistan are is currently incapable of absorbing further returnees and the Applicant is extremely likely to face economic destitution or an existence below at least an adequate level of subsistence.
(applicant’s emphasis retained)
[39] CB 242
The applicant contends that the Authority’s assessment of the reasonableness of relocation should have been informed, at a minimum, by the applicant’s claims and objections to relocation. In SZMCD v Minister for Immigration,[40] Tracey and Foster JJ explained at [124] that the answer to that question in turn depends upon the framework set by the particular objections raised to relocation”.[41]
[40] [2009] FCAFC 46
[41] see also Randhawa v Minister for Immigration (1994) 52 FCR 437 at 442–443, especially at 443C–D
In SZVRA v Minister for Immigration,[42] Markovic J stated at [18] that “[w]hether a claimant can reasonably be expected to relocate depends upon the framework set by an applicant’s particular objection to relocation”. In MZANX v Minister for Immigration,[43] Mortimer J went further, stating at [58] that, while “the ‘framework’ set by an applicant may be an important factor... it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him”.
[42] [2017] FCA 121
[43] [2017] FCA 307
The applicant’s objections to relocation called for a detailed examination of the circumstances of his case and on the ground in Afghanistan. In MZANX, Mortimer J observed at [51] that issues concerning what is “‘practicable’ and ‘reasonable’ for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice”.
It is acknowledged that the level of scrutiny described in MZANX is not universally applicable and each case turn on its own facts.[44] However, in the present matter, the applicant submits that the level of scrutiny the Authority applied to the applicant’s framework of objections was deficient. The dearth of reasoning about reasonableness of relocation shows that the Authority did not in fact consider all objections raised by the applicant, much less so expose in its reasoning any “articulation of the different effects” of the competing evidence and any process of “weighing and preference”.[45]
[44] see DFZ16 v Minister for Immigration & Anor [2017] FCCA 2427, per Judge Smith at [51]; and CSJ17 v Minister for Immigration & Anor [2018] FCCA 269 per Judge Wilson at [34]
[45] Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 at [50]. See also SZSJB v Minister for Immigration [2017] FCA 229 at [45], [56]-[58] (described there as a failure to consider essential integers of the appellant’s claims)
In DIJ17 v Minister for Immigration & Anor,[46] Judge Smith addressed a similar argument and found at [33] that the Authority had erred in failing “to grapple with the essential element of the applicant’s objections to relocation, namely, that the reality in those cities was that the basic resources were meagre and there was stiff competition for them”:
The Authority’s reasoning was that, given the relative economic strength of both Kabul and Mazar-e-Sharif, and the applicant’s own experience and resourcefulness, he will be able to find a job and, as a result, will be able to sustain himself and meet the basic necessities of life. As a matter of logic there appears to be little wrong with that reasoning. The difficulty with it, however, is that it fails to grapple with the essential element of the applicant’s objections to relocation, namely, that the reality in those cities was that the basic resources were meagre and there was stiff competition for them. For instance, the applicant relied on information to the effect that “almost half of the capital’s residents lacked regular access to water”. That information was not qualified by any reference to employment and so objection was not addressed by the Authority’s conclusion that the applicant would be able to find work.
[46] [2018] FCCA 2407
The circumstances in the present case bear a strong resemblance to those in DIJ17. Similarly, in the present case, the Authority did not discharge its statutory task in examining whether relocation would be reasonable.
Finally, the applicant submits that there is no occasion to resort to the reflexive response that the unaddressed objections were bound up in findings of greater generality. Nor is the Minister’s case assisted by “dismissive” resort to the proposition that there was no need to engage in a line-by-line refutation of all the evidence, or that reasons are not to be read with an eye attuned for error. These statements are said not to intellectually engage with the case that the Authority had a legal requirement to engage in “detailed consideration” of its findings; “general statements will be insufficient”, and a “broad brush approach will not satisfy the requirements of the task to be performed”.[47]
[47] MZANX at [55]
The applicant submits that, had the Authority correctly performed its task, the findings would have been material to its conclusion that relocation was reasonable (given that the assessment needed to be fact-intensive and with reference to the applicant specifically). The Authority therefore would have, consistently with s.473EA of the Migration Act and s.25D of the Acts Interpretation Act 1901 (Cth),[48] set those findings out in its reasoning about the question. This did not occur. The only appropriate inference is that they were not considered in the manner required.
[48] Minister for Immigration v EEI17 [2018] FCAFC 166 at [49]
Minister’s contentions
There is no dispute in the proceeding as to the principles that apply in respect to the “internal relocation principle”.[49] As the High Court (Gordon and Edelman JJ) stated in CRI028 at [26], consistently with earlier pronouncements by the Court in SZATV:
the assessment of whether a person can relocate is not answered only by reference to the risk of harm. The assessment also requires consideration of the individual circumstances of the person, and what is practicable and reasonable for that person.
[49] see SZATV; CRI028 v The Republic of Nauru [2018] HCA 24
The applicant does not appear to take issue with the Authority’s understanding or application of the relevant principles concerning s.36(2B)(a) of the Migration Act. Rather, what is contended is that the Authority failed to give “active intellectual consideration” to submissions advanced by the applicant to the Authority in relation to the practicability of the applicant’s relocating to Mazar-e-Sharif.
The Minister submits that read as a whole, and in context, the Authority’s reasons demonstrate that the Authority did take into account, and give proper consideration to, the applicant’s submissions.
Before addressing the Authority’s reasons, the Minister makes a few observations about the applicant’s submissions concerning relocation. These appear relevantly at CB 239-242:
a)first, the applicant’s reference to information concerning “slum-like living conditions” was a UNHCR report from 2016 that addressed the situation for IDPs in urbanised Afghanistan generally, not Mazar-e-Sharif in particular;
b)secondly, the information relied upon relating to a lack of access to water was the same UNHCR report that again focussed upon the population of Afghanistan generally. There is[50] a reference to people living on hillsides outside of Kabul, but no reference to the situation in Mazar-e-Sharif. Similarly in relation to the stated lack of health and sanitation;
c)thirdly, the information about chronic mass unemployment was again in respect of a population-wide assessment by the UNHCR. The applicant made a submission that the applicant’s capacity to secure employment would be exacerbated by his limited skillset and lack of meaningful support networks, matters taken into account by the Authority; and
d)fourthly, in relation to a lack of “pre-identified” accommodation options, the information from the UNHCR was that a person with no access to pre-identified accommodation and no meaningful support networks would find themselves in a situation comparable to that of other urban IDPs. Again, no information was cited that Mazar-e-Sharif was a particular location that the applicant would be unable to find accommodation.
[50] at CB 241 [10]
As to the Authority’s reasons, the Authority indicated in its reasons that it took the applicant’s submission into account at [68], [70] and [73]. Whilst not determinative, appropriate weight should be given to the Authority’s identification of the applicant’s submissions. The Authority was cognisant of the applicant’s submissions concerning the capacity of the applicant to relocate within Afghanistan, and it observed in particular that UNHCR’s opinion was that “relocation is reasonable only where the individual has access to shelter, essential services (sanitation, health care, education) and livelihood opportunities, and a traditional support network of members of his or her (extended) family or members of his or her large ethnic community.”[51] The Authority referred at [70]-[72] also to DFAT information concerning support networks and the capacity of single able-bodied men and married couples of working age without identified specific vulnerabilities to subsist.
[51] CB 260 [71]
The Authority accepted at [73] there were challenges to the applicant relocating to Mazar-e-Sharif, and in particular it recognised high unemployment and underemployment. This is, of itself, reflective of a consideration of the applicant’s submission that a significant proportion of Afghanistan’s population is unemployed. The Authority also recognised the pressures on the labour market, infrastructure and services, which indicates a consideration of the applicant’s submission as to the poor conditions and lack of access to water, and to health and sanitation concerns. The Authority referred at [74] to the applicant’s skill-set as a construction worker, and the fact that the applicant had “settled in and found work in unfamiliar places” such as Kabul, and had done so without his family. This finding was capable of addressing the expressed concern about accommodation options.
The Minister submits that it was unnecessary for the Authority to refer “line by line” to the applicant’s submissions. That the information cited by the applicant in his submissions to the Authority was of a general nature, and not directed towards condition or circumstances in Mazar-e-Sharif, it was open to the Authority to consider the claims and evidence as it did. As stated above, there is no apparent challenge raised in this proceeding about the Authority’s understanding of the internal relocation principle.
In this respect, the Minister submits that the Authority directed itself to the objections raised by the applicant in relation to relocation.[52] The Authority did not fail to conduct an assessment of what the applicant was likely to face in Mazar-e-Sharif.[53] Neither is it the case that a failure by the Authority to consider some particular evidence relevant to an issue (if this were the case) results in a conclusion that the Authority has failed to conduct its review.[54]
[52] cf SZMCD
[53] MZANX at [51]
[54] BMR17 v Minister for Immigration [2018] FCA 1250 at [27] (Besanko J)
BMR17 was itself a case where the appellant had contended that the Authority had failed to consider particular submissions and other information relevant to the appellant’s ability to relocate within Afghanistan. The findings of the Authority in that case were materially identical to the findings in the present case.[55] What this case indicates is that, as the authorities otherwise state, the assessment of the sufficiency of a decision-maker’s reasons concerning relocation will ultimately be fact-specific. To that end, attempting to draw comparisons with other cases may assist, but will not be determinative.
[55] see the passages of the Authority’s reasons extracted at [30], [32] and [33] of his Honour’s reasons for judgment
In the present case the Minister submits that when proper regard is had to the applicant’s submissions advanced to the Authority, the general nature of the country information reports relied upon by the applicant in support of his contention that he could not reasonably relocate to Mazar-e-Sharif, and to the Authority’s reasoning that addressed not just information about Mazar-e-Sharif but the applicant’s personal circumstances, it should be concluded that the Authority did not fail to properly engage with the applicant’s objections.
Resolution
I prefer the submissions of the applicant on the ground of review. The arguments are finely balanced but, on balance, I accept that the Authority did not truly engage with the critical arguments of scarcity and meagreness advanced on behalf of the applicant in his submission to the Authority at CB 237-242. In particular, [7] of the submission stated: [56]
The 2016 UNHCR Eligibility Guidelines also warn that a failed asylum seeker returning to Afghanistan without ‘access to preidentified accommodation and livelihood options’ and ‘meaningful support networks’ is ‘likely find him or herself in a situation comparable to that of other urban IDPs’:
Where the proposed area of relocation is an urban area where the applicant has no access to pre-identified accommodation and livelihood options, and where he or she cannot reasonably be expected to be able to fall back on meaningful support networks, the applicant would likely find him or herself in a situation comparable to that of other urban IDPs… IDPs remain among the most vulnerable groups in Afghanistan.
(emphasis retained, footnotes omitted)
[56] CB 240
The submission went on to assert that the applicant will not have access to any pre-identified accommodation or livelihood options and a meaningful support network for the reasonably foreseeable future. The submission argued that 73.8 per cent of the urban population of Afghanistan lives in slums in endemic poverty. The lack of adequate land in urban areas and a lack of affordable housing was said to often force new and protracted IDPs to reside in informal settlements without an adequate standard of living with limited access to water and sanitation. This is described at [10] of the submission as a “miserable reality” in which 40 per cent of returnees are reportedly vulnerable with poor access to livelihood, food and shelter.
Importantly, at [14],[57] the submission stated (without alteration):
the above information demonstrates that it would be unreasonable for the Applicant to relocate to an urban area, such as Mazar-e-Sharif, Kabul or Herat, where he would be unable to accommodate for his basic needs, including food, safe drinking water, shelter and be forced into a circumstance of poverty. The Applicant requests the IAA consider each one of these factors individually in its assessment of the reasonableness of relocation. All current indicators demonstrate that the urban areas of Afghanistan are … currently incapable of absorbing further returnees and the Applicant is extremely likely to face economic destitution or an existence below at least an adequate level of subsistence.
[57] CB 242
It is true that the submission dealt with circumstances in Afghanistan as a whole but it did refer specifically to Mazar-e-Sharif as well as other places. Although the delegate had directed his attention to Mazar-e-Sharif, there was no guarantee that the Authority would do the same and neither was there any guarantee that the Authority would invite further information from the applicant if it chose to look at some other location. Hence, the submission needed to cover all possibilities.
The reasoning of the Authority acknowledged at [71] that relocation (for the purposes of the complementary protection criterion) would be reasonable only where the individual has access to shelter, essential services (sanitation, health care, education) and livelihood opportunities. While exceptions to that principle were referred to at [72], those related to the need for a traditional support network rather than the necessities of life.
The Authority also recognised at [73][58] that there would be economic and other challenges for the applicant in relocating to Mazar-e-Sharif. These included high unemployment or underemployment with pressures on the labour market, infrastructure and services. The Authority concluded that paragraph by stating that it was not satisfied that the applicant would be “unable to subsist”, which is curious, as it is an issue bearing upon the refugee criterion assessment, not the complementary protection assessment.
[58] CB 261
The Authority sought to resolve the issues in its reasons at [74] quoted above. The essence of the Authority’s reasoning was that all problems could be solved by money and that, in the social Darwinian struggle to which the applicant would be subjected if he were to go to Mazar-e-Sharif, he would succeed because he is young, male, fit and healthy and resilient.
In addressing the question of complementary protection, the relocation test involves two stages or two questions; the first is whether there is an area in the receiving country where there is “no appreciable risk” of the relevant harm; the second is whether, if there is such an area, relocation to it is reasonable.[59] The issue of reasonableness is “separate and distinct”.[60]
[59] MZACX v Minister for Immigration (2016) 161 ALD 73 at [35]; see also CID15 v Minister for Immigration [2017] FCA 780 at [32]
[60] MZACX at [25]; SZQPY v Minister for Immigration [2013] FCA 1133 at [73]
Secondly, when dealing with the reasonableness question, the matters to be considered include “particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”.[61] The “extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant”,[62] but that is not to say that the task is wholly determined by the applicant’s case. Rather, a “range of issues may become relevant to the question of whether internal relocation is reasonable, depending on the circumstances and the issues raised by an applicant for refugee status, and, when they do, must be carefully regarded by the decision maker”.[63] (emphasis added)
[61] SZATV at [24]
[62] Randhawa at 443
[63] MZZQV v Minister for Immigration [2015] FCA 533 at [68]
Thirdly, as MZZQV shows, the task of assessing reasonableness requires careful attention to the relevant material. As Mortimer J stated in MZANX, it “involves a fact intensive assessment. Generalities will not suffice”.[64] Her Honour continued at [55]:
General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship… Likewise, the circumstances of that individual — her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed…
[64] MZANX at [51]
Absent this careful, factually intensive analysis, “the risk is that the assessment becomes formulaic, and removed from any real factual basis” relevant to the individual in question.[65]
[65] MZANX at [56]
In my view, it was insufficient for the Authority to deal with the applicant’s submission at such a high level of abstraction. The assumptions made by the Authority were both bold and broad. In my view, the Authority needed to consider what level of scarcity and meagreness was practicable and what level of scarcity and meagreness was reasonable for the applicant to accept in his struggle for existence. Some things should no doubt be assessed against basic standards, such as access to potable water, food, clothing and shelter. Other things might be assessed on a more relativistic basis, because if a person is returning to a third world country, they must expect third world conditions. These may be issues of some subtlety of analysis which was absent from the Authority’s reasoning.
The applicant was entitled to expect more and he should receive the relief he seeks.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will make orders in the nature of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 October 2019
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