CNV17 v Minister for Immigration
[2018] FCCA 2408
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CNV17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2408 |
| Catchwords: MIGRATION – Protection visa application – judicial review of Immigration Assessment Authority decision – relocation within Afghanistan – whether the Authority erred in making findings that were not open to it – whether the Authority erred in finding that it was reasonable to relocate to Mazar-e-Sharif – whether the Authority erred in its assessment of real risk of serious harm – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 473CA |
Articles and other materials:
Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2)
International Covenant on Civil and Political Rights opened for signature 16 December 1966 (entered into force 23 March 1976)
Refugees Convention Act 2012 (Republic of Nauru)
United Nations Human Rights Committee, Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014)
| Cases cited: AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 CRI026 v The Republic of Nauru (2018) 355 ALR 216 CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14 SZUEP v Minister for Immigration & Border Protection [2017] FCAFC 94 |
| Applicant: | CNV17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 307 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 2 May 2018 |
| Date of Last Submission: | 14 June 2018 |
| Delivered at: | Sydney (Perth by video link) |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Draper, Granich Partners |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 307 of 2017
| CNV17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 16 May 2017. The Authority affirmed a decision of a delegate of the Minister of Immigration to refuse to grant the applicant a protection visa.
Background
The applicant is a Hazara Shi’a Muslim who comes from the Uruzgan province of Afghanistan. He arrived in Australia as an unauthorised maritime arrival on 14 August 2012.
On 2 September 2016, the applicant lodged an application for a protection visa after the Minister had exercised his power under s.46A of the Migration Act 1958 (Cth) to allow him to do so. That application was made on the basis of his claim to fear harm because he is a Hazara Shi’a Muslim who would be imputed with an anti-Taliban or pro-Western political opinion and would be returning as a failed asylum seeker. He claimed that he had had a land dispute with the Taliban, was threatened by them and that they had attempted to kill him. They had kidnapped his brother and killed his brother’s father-in-law.
On 9 February 2017, a delegate of the Minister made a decision to refuse to grant the applicant a visa. The matter was then referred to the Authority pursuant to s.473CA of the Act. Subsequently, the applicant’s adviser provided a detailed outline of submissions to the Authority and, upon invitation by the Authority, made further submissions in relation to up-to-date country information and in particular, in respect of the question of the safety of certain areas of Afghanistan.
On 16 May 2017, the Authority made a decision to affirm the delegate’s decision.
Authority’s decision
The Authority accepted the applicant’s claims as to what had happened to him in Afghanistan except that it found that his father-in-law was killed in a conflict related incident rather than that he was specifically targeted and killed by the Taliban as claimed. It also found that, while the applicant’s father had been mistreated by the Taliban in the past, the applicant did not fear harm for reason of his father’s profile in 2000 or the circumstances he faced at around that time.
The Authority accepted that the applicant had been transferring money to people he knew in Kabul and that he had personal links there; however, it did not accept that his parents had been travelling there for temporary stays for medical treatment or that the money was transferred for that purpose.
On the basis of these findings, the Authority found that there was a real chance that the applicant would be seriously harmed by the Taliban if he returned to his home area in the Uruzgan province.
The Authority then noted that sub-s.5J(1)(c) of the Act required that the real chance of persecution faced by the applicant must relate to all areas of Afghanistan. In the next section of its reasons, the Authority addressed that by reference to the cities of Kabul and Mazar-e-Sharif. The applicant’s single ground of review focuses upon the Authority’s reasoning in connection with this question. In light of that, it will be necessary later in these reasons to analyse the Authority’s reasoning process in some detail. For present purposes, it is sufficient to observe that the Authority found that the applicant did not face a real chance of suffering serious harm in either Kabul or Mazar-e-Sharif in the reasonably foreseeable future: [41], [56]. In light of that conclusion, the Authority found that the applicant did not meet the definition of refugee in s.5H(1) of the Act and so did not satisfy sub-s.36(2)(a) of the Act.
The Authority next considered whether the applicant satisfied the criterion in sub-s.36(2)(aa) of the Act.
In this respect it was satisfied, for the reasons that it had given in connection with the criterion in sub-s.36(2)(a), that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Afghanistan, he would face a real risk of significant harm if he returned to, and lived, in his home area. The Authority noted however, that s.36(2B) of the Act provided that there is taken not to be a real risk that the applicant would suffer significant harm in Afghanistan if it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant would suffer significant harm. On the basis of its earlier findings concerning Kabul and Mazar-e-Sharif, the Authority found that there was not a real risk of suffering significant harm in those cities and then went on to consider whether it would be reasonable for the applicant to relocate to that place.
This aspect of the Authority’s reasoning is also the subject of one of the applicant’s arguments. For that reason, it will be necessary to consider the Authority’s reasoning in some detail later in these reasons and it suffices for present purposes to note that the Authority concluded, at [73] that, having considered the applicant’s personal circumstances it was satisfied that it was reasonable for him to relocate to Kabul or Mazar-e-Sharif, places where he would be able to earn a livelihood and have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. In light of that conclusion the Authority found that the applicant did not meet the criterion in sub-s.36(2)(aa) and so affirmed the decision of the delegate.
Consideration
There are 3 grounds in the application. The applicant abandoned the second and third grounds. The first ground is that “[t]he Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution.”
That ground, as particularised in the application, is plainly addressed to the way in which the Authority addressed the criterion in sub-s.36(2)(a) of the Act. However, the applicant’s submissions went beyond that ground and addressed 2 further issues. Both concerned the way in which the Authority dealt with the issue of whether the applicant could reasonably relocate to Kabul or Mazar-e-Sharif.
The applicant argued, first, that the Authority had unreasonably concluded that it was reasonable and practicable for the applicant to relocate to Kabul or Mazar-e-Sharif and, secondly, in submissions that addressed the decision of the High Court in CRI026 v The Republic of Nauru (2018) 355 ALR 216, that the Authority erred by relying on information that was not reliable. Although there was no application to amend the application to include those arguments I consider that there is no unfairness to the Minister arising from the way in which they arise and I will deal with them as though they were formally before the Court.
Before doing so, it is necessary to briefly examine why the Authority was concerned with what might happen to the applicant if he were to go to Kabul or Mazar-e-Sharif upon his return to Afghanistan.
There are two reasons for the Authority’s focus on those places. First, in order to satisfy the criterion in sub-s.36(2)(a), the applicant had to have a well-founded fear of persecution that related to all parts of Afghanistan: sub-s.5J(1)(c). Secondly, in order to satisfy the criterion in sub-s.36(2)(aa), there had to be a real risk that the applicant would suffer significant harm in Afghanistan. However, s.36(2B) relevantly provides that there is no such risk if:
...
(a)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; or
...
The question of reasonableness of relocation arises under sub-s.36(2)(aa), but not under sub-s.36(2)(a): DFE16 v Minister for Immigration & Border Protection (2017) 317 FLR 215 at [26].
In light of those provisions, the Authority’s conclusions that there was no real risk of harm to the applicant in Kabul or Mazar-e-Sharif and that it would be reasonable for him to relocate there were both critical to the Authority’s decision. If they were not arrived at reasonably, or on a proper understanding of the law, then the Authority’s decision would be affected by jurisdictional error.
The real risk of serious harm in Kabul and Mazar-e-Sharif
Essentially, what the applicant must establish in order to succeed in his first argument is that the particular findings that are impugned were not open on the material before the Authority. In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, Justices Crennan and Bell explained at [131] that it was insufficient that different minds might reach different conclusions on the jurisdictional fact and that the test for illogicality or irrationality:
… must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109, the Court said, after referring to SZMDS:
[47]Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”. Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error.
(References to authorities omitted)
In his first argument the applicant focuses on the manner in which the Authority relied upon country information in reaching conclusions regarding the circumstances that might affect the applicant upon return to Afghanistan. While the Authority’s consideration of such information is, like its consideration of any other material, governed by the same principles of logic and reason as discussed immediately above, the identification of relevant information and the weight to be attributed to it is entirely a matter for the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [81] and SZUEP v Minister for Immigration & Border Protection [2017] FCAFC 94 at [27].
With those principles in mind, it is necessary to consider the relevant findings made by the Authority.
After finding that the applicant faced a real chance of serious harm in travelling to and on his return to his home area, the Authority noted that sub-s.5J(1)(c) of the Act required that the real chance of persecution faced by the applicant must relate to all areas of Afghanistan. It noted, at [21], that it accepted that the applicant had personal links in Kabul and that Hazaras comprised a large portion of Kabul’s population and that Mazar-e-Sharif also had a substantial Hazara population.
The Authority then considered the country information before it relevant to the risk that the applicant may be harmed in Kabul or Mazar-e-Sharif: [22] – [56]. It concluded that that risk was remote. In summary, its reasons were as follows:
a)Kabul has a “higher level of government control and a greater level of security and state protection than other parts of Afghanistan” and the “government maintains effective control and has implemented a range of counter-measures to detect threats, deter insurgents” and to quickly respond to attacks: [23];
b)while attacks in Kabul continue to occur, they are mostly against high-profile targets including persons and locations associated with government institutions and international forces: [23];
c)Mazar-e-Sharif also has heavy political and economic weight and has a strong military and police presence: [24];
d)militant attacks do occur in Mazar-e-Sharif; however, these incidents have been infrequent and have been primarily aimed at government or international community targets: [25];
e)the Afghan government would maintain control over Mazar-e-Sharif in the reasonably foreseeable future: [26];
f)in both cities Hazara Shi’as are “free to participate fully in public life and do not face discrimination from the government or authorities”: [27];
g)the applicant’s origins may become known but he would not face a real chance of being harmed for that reason: [29];
h)although Islamic State will probably continue to conduct attacks in urban areas, they will be infrequent and the continued efforts of the Afghan government, international community and the Taliban’s efforts will limit any expansion in the year ahead: [35];
i)the Taliban continue to threaten stability across Afghanistan, however, recent “security incidents in Mazar-e-Sharif have been infrequent and have also been generally targeted against government or international community institutions” and the applicant does not have a pro-government, pro-security forces or international community profile. Further, there was no evidence of the Taliban targeting Hazaras or Shi’as in Kabul or Mazar-e-Sharif: [36], [38];
j)in respect of ethnic and inter-faith violence, the applicant has not had personal interactions with Kuchis and has not been threatened by anyone other than the Taliban and its Commander in his area. Further, DFAT[1] information was that ethnic based violence in Kabul was rare and inter-faith violence across Afghanistan was also rare. The incidents of harm for these reasons were not so frequent or severe as to lead to a real chance of serious harm in Kabul or Mazar-e-Sharif and state protection would not be withheld: [40];
k)the applicant did not face a real chance of serious harm in Kabul or Mazar-e-Sharif from AGEs[2]/extremists/insurgents or others in society on the basis of being Hazara or Shi’a: [41];
l)on the basis of information from DFAT, and the fact that the applicant would not be personally targeted, there was not a real chance of serious harm to the applicant, even coming from Uruzgan, on the basis that he would be a westernised returned asylum seeker: [44];
m)the applicant may face societal discrimination and there is a high level of serious crime in Kabul and Mazar-e-Sharif but none of that gave rise to a real chance of serious harm in either of those places: [45] – [56]; and
n)in spite of a number of attacks on and around Kabul airport and the road to Kabul city, given the strong military presence and the infrequency of the attacks and the applicant’s profile, there is no real chance of the applicant being seriously harmed while in transit to Kabul or Mazar-e-Sharif: [54].
[1] Department of Foreign Affairs and Trade.
[2] Anti-government elements.
The applicant makes a number of specific attacks on the Authority’s reasoning on this issue.
First, he argues that the fact that the government has a higher level of control in Kabul and Mazar-e-Sharif did not enable the Authority to reasonably conclude that the applicant did not face a real risk of harm there. This argument may be accepted insofar as it goes; however, the Authority did not rely solely on the level of government control in Kabul and Mazar-e-Sharif in concluding that there was no real risk of serious harm in those places. While that was certainly one factor in the Authority’s reasoning (see, for example, [23]) the Authority also found that that control was “effective” and would be maintained in the reasonably foreseeable future. It considered the level of insurgency by various non-state actors in those places, the level and type of insurgent and other violence including ethnic and religious violence and the applicant’s own profile. The Authority stated that its conclusion was based on its “consideration of all the evidence”: [41]. The applicant’s argument fails to grapple with the actual reasoning process and so proceeds on a false premise. It is rejected.
The applicant’s second argument is that the “Authority provided no reasons for concluding why government control in Kabul appears strong enough to retain control over IS” in light of the DFAT information that the security situation remained fluid throughout the country. Again, that is not an accurate representation of the Authority’s reasons.
The Authority accepted, at [22], that the security situation in Afghanistan was fluid and complex and had deteriorated. In the next paragraph of its reasons, [23], the Authority referred to information that there was a “higher level of government control and a greater level of security” in Kabul than in the rest of the country. In other words, it reasoned that the information about the whole of Afghanistan was not necessarily indicative of the situation in Kabul.
The Authority next developed that reasoning by examining the position in Kabul in finer detail. First, it noted that the government in Kabul maintained effective control and had “implemented a range of counter-measures to detect threats, deter insurgents and quickly respond to attacks”. Secondly, while it accepted that there were still attacks in Kabul, it noted information about the types of attacks, the reasons for them and information concerning the level of risk faced by different individuals. In other words, the Authority did give reasons, based on the available information, for its conclusions about government control in Kabul.
Thirdly, the applicant argues that his profile was irrelevant to the assessment of harm. He relies on a DFAT report that suggests that, even though attacks are targeted, they can result in civilian casualties. The difficulty with this argument is that there is no inconsistency between the fact that civilians can be harmed in attacks that are focused on government or international targets and the conclusion that, in all of the circumstances considered by the Authority, there was no real risk that the applicant would be harmed in such an attack. Simply put, the fact that a civilian can be harmed in targeted attacks does not require the conclusion that there is a real chance that the applicant will be harmed in such an attack.
Fourthly, the applicant argues that the Authority reduced its consideration of the risk of harm to a “numbers game” and ignored the fact that there were attacks targeted at Hazaras.
While it may be accepted that an assessment of the risk of future harm is not entirely a numbers game (as the focus on specific targets is often a very important consideration), it is not necessarily irrelevant, or unreasonable, to take into account the mathematical probability of an event’s occurrence. This will be affected by the nature, actions and intentions of the perpetrators but also potentially by the number of potential victims. This is particularly the case where, as here, a number of attacks had been on civilian targets. The fact that such attacks take place in a large city with a large population necessarily affects the likelihood of any one of the residents being harmed in such an attack.
In any event, the Authority did not reduce its consideration of the evidence to a mathematical analysis. While it did refer to the size of the population, it did so in examining the effect of the number of attacks in Kabul: [23]. The population, together with the high concentration of government, international and security presence there had an impact on the number of attacks in that city.
Fifthly, the applicant attacks the Authority’s findings about the IS’s struggle to expand. First, he says that it ignored “the fact that, irrespective of who carried out the attacks, there have been significant, complex recent mass casualty attacks in ... Mazar-e-Sharif” and that the “identity of the perpetrators is not a reasonable or relevant consideration in determining the extent of the risk of harm facing the applicant”. Secondly, he says that there was no reason given for the finding. This submission must be rejected.
The Authority accepted, at [25], that there had been attacks in Mazar-e-Sharif and that the identity of the perpetrators was unclear. It also accepted that there had been recent attacks in Kabul: [30], [31]. In that context, it next considered the possibility of future harm from different insurgent groups including IS and the Taliban. The information concerning each group was different. For that reason alone, far from being irrelevant to the review, it was incumbent on the Authority to examine whether IS posed a threat to the applicant’s safety.
I also do not accept that the Authority gave no reasons for its conclusions about IS. The Authority’s conclusion concerning that group was based on information before it including information from DFAT. It gave its reasons at [34] – [35]. The applicant’s argument overlooks those paragraphs and must be rejected.
Finally, the applicant argues that the Authority does not explain why it found that the discrimination that the applicant would face on return to Afghanistan would not amount to persecution. Again, that submission runs contrary to a sensible reading of the Authority’s reasons. Having stated its conclusion at [45], the Authority proceeds to explain that the discrimination that ordinarily arises in Afghanistan is positive rather than negative; that is, that it entails preference being shown to a person’s own group. Next, it examined other aspects of life in closer detail including education, employment and access to basic services. In each case, and overall, it concluded, on the basis of the information before it, that any discrimination faced by the applicant would not amount to persecution.
For those reasons, the applicant’s attacks on the Authority’s findings about the risk of serious harm in Mazar-e-Sharif must be rejected.
Reasonableness of relocation to Kabul and Mazar-e-Sharif
The analysis of whether it is reasonable for an applicant to relocate within his or her country of nationality is a fact intensive one which must focus on the applicant’s specific circumstances and those of the place of relocation: CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14 at [48]. In AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 the Full Court explained:
[27]It is well accepted that how an administrative decision-maker (including the Tribunal) approaches the question of whether it is reasonable to expect a protection visa applicant to return to a particular part of her or his country of nationality will depend to some extent on the framework set by the claims made by the visa applicant about why it is not safe, and/or not reasonable for her or him to return to a particular location or locations: see SZMCD at 438 [123]; Randhawa at 443 (Black CJ); SZATV at [24] (Gummow, Hayne, Crennan JJ), at [81] (Kirby J); SZSCA at [27], [31]-[33] (French CJ, Hayne, Kiefel, Keane JJ); CSO15 at [26]-[27], [47]-[48] and MZYPW at [9] (Flick and Jagot JJ). However as Mortimer J noted in MZANX at [58]:
There is no doubt that the “framework” set by an applicant may be an important factor. Indeed, the appellant submits the reviewer did not pay sufficient attention to the framework set by his adviser’s submissions on the two questions of “insecurity, political instability and social problems” and “unemployment such as to impact his ability to meet his basic needs”. However, 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, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.
The applicant placed particular reliance upon the decision of Mortimer J in MZANX v Minister for Immigration & Border Protection [2017] FCA 307 in which her Honour said:
[51]In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.
…
[55]In the context of relocation detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to restart her or his life in a new place, without undue hardship (see [60] to [61] below). 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. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope. …
After the hearing of this matter, the High Court handed down its decision in CRI026. That decision was made on appeal from the Supreme Court of Nauru concerning the issue of internal relocation in the context of the Refugees Convention Act 2012 (Republic of Nauru). The appellant contended that the question of reasonableness did not apply in determining whether there was an obligation of complementary protection under that Act because, if it did, it would be incumbent upon an applicant for complementary protection to undertake the practically impossible task of establishing that there is no place in his or her country of nationality to which he or she could reasonably relocate.
The Court rejected that contention:
[39]That contention should also be rejected. Implicitly, it proceeds from the false premise that a claim for complementary protection is in the nature of an adversarial proceeding in which the burden of proof is on the applicant and, therefore, that, in the event of the applicant failing to discharge the burden of proof, the claim for complementary protection must fail. To the contrary, however, as appears from BL v Australia, before a decision maker may properly reject a claim for complementary protection on the basis of the availability of reasonable internal relocation, the decision maker needs reliable information as to the safety and suitability of the place of relocation. Moreover, as Gummow, Hayne and Crennan JJ observed in SZATV v Minister for Immigration and Citizenship in relation to a claim for refugee protection:
What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant's personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable that the claim for complementary protection may be rejected on that basis.
(Citations omitted)
As will be seen, the applicant relies on one aspect of this passage in support of his third argument. For present purposes it is necessary to note that, subject to that argument, the decision in CRI026 is consistent with the authorities considered above.
Here, the applicant argues that the Authority failed to consider matters that affected the practical and realistic ability of the applicant to relocate to Kabul or Mazar-e-Sharif. First, he points to the accepted facts that the applicant had never lived there and had no family connections in the city, he would be discriminated against as a returnee from a western country, he is illiterate with limited work experience, there is high underemployment and unemployment and there will be decreasing opportunities as a result of the withdrawal of the international community and an increase in returning refugees.
The applicant also argues that the Authority was required to make a meaningful comparison between the opportunities available to the applicant in Kabul or Mazar-e-Sharif and other cities in Afghanistan. He suggests also that, in light of those matters, it was unreasonable for the Authority to conclude that he could reasonably relocate to Kabul or Mazar-e-Sharif. I reject those arguments.
Consistently with the principles referred to above, the Authority addressed the question of reasonableness of relocation by reference to the “objections” put forward by the applicant: [65]. Thus, it considered the applicant’s lack of family connections or community support, his lack of formal education, the lack of employment opportunities and that Kabul and Mazar-e-Sharif are unsafe. It did so against the background of information from the UNHCR[3] about the ability of single able bodied men and married couples without identified specific vulnerabilities, to subsist without family and community support in urban and semi-urban areas that have the infrastructure and livelihood opportunities to meet the basic necessities of life and are under effective government control: [66].
[3] United Nations High Commissioner for Refugees.
It accepted the information from DFAT concerning the economic circumstances in Afghanistan but differentiated Kabul and Mazar-e-Sharif on the basis of other information particular to those cities. That is a point that the applicant’s arguments overlook.
I am not satisfied that the Authority misunderstood what was required by sub-s.36(2B)(a) of the Act or that it was not open for it to be satisfied that relocation to Kabul or Mazar-e-Sharif was reasonable for the applicant. In other words, the Authority’s conclusion to that effect was not unreasonable in the sense required to give rise to jurisdictional error.
The applicant also argued that, in light of CRI026, the Authority could only be satisfied that it was reasonable for the applicant to relocate on the basis of reliable information about the relevant circumstances in Kabul or Mazar-e-Sharif.
The passage in CRI026 relied on by the applicant is set out at [43] above. He argues that this passage means that the Court must undertake an evaluation as to the accuracy and reliability of the country information considered by the Authority. His argument was that where, as here, there was information that was contradictory and inconsistent with the information relied on by the Authority, the latter information was, for that reason, unreliable and so the Authority’s reliance on it was unreasonable.
There are many difficulties with that submission. Leaving to one side the different statutory context in which CRI026 was decided, there are two particular issues. First, what was meant in CRI026 by the word “reliable”; and secondly, whether the information here was “reliable”.
The applicant contends that information is reliable if it is “suitable or fit to be relied on” and “of proven consistency in producing satisfactory results.” The error in this approach is that the words of the High Court in CRI026 are not to be examined as though they were part of the Act. The Court adopted this word from a communication of the United Nations Human Rights Committee[4] concerning whether Australia would breach its obligations under the International Covenant on Civil and Political Rights[5] if it were to return a citizen of Senegal to Senegal. In a concurring opinion, one of the members of the committee said[6]:
... The duty of ascertaining the location where adequate and effective protection is available in Senegal does not rest upon the authorities of [Australia]. Their duty is limited to obtaining reliable information that Senegal is a secular State where there is religious tolerance.
[4] United Nations Human Rights Committee, Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014).
[5] International Covenant on Civil and Political Rights opened for signature 16 December 1966 (entered into force 23 March 1976).
[6] Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014) at Appendix II per Dheerujlall B Seetulsingh.
There is nothing in either CRI026 or the communication from the United Nations Human Rights Committee to suggest that information had to be consistent with all other information before it could support the view that relocation would be reasonable. It may be accepted for present purposes, and without the benefit of any argument from the Minister on the point, that any administrative decision must be based on “reliable” information in the sense that the information must provide a logical basis for the decision maker to be satisfied of the likelihood of the existence of a fact in issue. Even if “reliable” required more, as suggested by the applicant, it was not, and could not have been, submitted that there was no such information here.
The Authority relied on information from sources including DFAT and the UNHCR. It would be surprising if the views of the Australian government or the international agency with responsibility for the Refugees Convention[7] could not be a sufficient basis for determining the question of reasonableness of relocation: see, albeit in a different context, Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 428 (McHugh J).
[7] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2).
The fact that there may have been information inconsistent with the information relied on by the Authority did not mean that either information was unreliable. Contrary to the applicant’s argument, the High Court in CRI026 did not overrule the well-established principle that it is a matter for the Authority, and not the Court, to decide what information it accepts: NAHI at [11]. The High Court did not specifically refer to that proposition because it was not relevant to any of the issues before the Court. It is not only a principle stated in a decision binding on me but is also consistent with a long line of authority about the limits of the Court’s role in the judicial review of administrative action: see, for example, Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J).
Conclusion
The applicant has not established that the Authority’s decision is affected by jurisdictional error. The application must be dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 7 September 2018
11
2