COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2024] FedCFamC2G 1430

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2024] FedCFamC2G 1430

File number(s):

MLG 1231 of 2017

Judgment of:

JUDGE LUCEV

Date of judgment:

19 December 2024

Catchwords:

MIGRATION – Application for judicial review – decision of the Immigration Assessment Authority – citizen of Afghanistan – Hazara Shia – previously resident in Quetta, Pakistan – whether the test for internal relocation in considering whether there was taken not to be a real risk of suffering significant harm in Afghanistan was misunderstood or misapplied – whether constructive failure to exercise jurisdiction – whether comparative analysis rather than consideration of safe place for relocation engaged in – whether constructive failure to exercise jurisdiction by failing to rely upon most recent new information concerning the security situation in Afghanistan – whether decision irrational or illogical because finding of fact not open – whether error in exercise of jurisdiction by misunderstanding or misapplying the meaning of “well-founded fear of persecution” – whether material jurisdictional error.

EVIDENCE – Objection to annexures to affidavit filed on behalf of the applicant – new information – whether new information must be considered by the Authority – where evidence relevant to a ground of review – evidence admissible

Legislation:

Evidence Act 1995 (Cth), ss 55, 56

Migration Act 1958 (Cth) Pt 7AA, ss 5H, 5J, 36, 473CB, 473DA, 473DB, 473DC, 473DD, 473EA, 474, 476, 501

Cases cited:

ACL17 v Minister for Home Affairs & Anor [2019] HCASL 318

ACL17 v Minister for Home Affairs [2019] FCA 753; (2019) 165 ALD 301

ACL17 v Minister for Immigration and Border Protection [2018] FCCA 3191

AMA16 v Minister for Immigration & Border Protection & Ors [2017] FCCA 303; (2017) 317 FLR 141

APE16 v Minister for Home Affairs [2020] FCAFC 93; (2020) 277 FCR 640

Aporo v Minister for Immigration & Citizenship [2009] FCAFC 123; (2009) 113 ALD 46

Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630

ARX18 v Minister for Home Affairs [2020] FCA 1351

ARX18 v Minister for Immigration [2019] FCCA 3021

BON17 v Minister for Immigration & Border Protection [2019] FCCA 1456

BVS16 v Minister for Immigration & Anor [2020] FCCA 401

BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173

CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1

CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362

CID15 v Minister for Immigration and Border Protection [2017] FCA 780

CIT17v Minister for Immigration and Border Protection [2018] FCAFC 150; (2018) 265 FCR 572

CMI17 v Minister for Home Affairs [2019] FCA 1193

CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; (2018) 260 FCR 134; (2018) 353 ALR 666

CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 156

DBE16 v Minister for Immigration and Border Protection [2017] FCA 942

DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 24; (2024) 302 FCR 25

DQU16 v Minister for Immigration [2021] HCA 10; (2021) 273 CLR 1; (2021) 95 ALJR 352; (2021) 388 ALR 363

DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222; (2018) 267 FCR 69

DZABS v Minister for Immigration [2012] FMCA 297; (2012) 261 FLR 447

FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628; (2018) 364 ALR 423

Januzi v Secretary of State for the Home Department [2006] 2 AC 426; [2006] 3 All ER 305

Lesuma v Minister for Immigration and Citizenship (No.2) [2007] FCA 2106; (2007) 99 ALD 514; (2007) 48 AAR 99

Minister for Immigration & Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534

Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration and Border Protection vDZU16 [2018] FCAFC 32; (2018) 253 FCR 526; (2018) 357 ALR 474

Minister for Immigration and Border Protection v SZSCA & Anor [2014] HCA 45; (2014) 254 CLR 317; (2014) 89 ALJR 47; (2014) 314 ALR 514

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224

Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412

Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547

MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2018) 161 ALD 73

MZANX v Minister for Immigration and Border Protection [2017] FCA 307

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 177 ALD 464; (2021) 95 ALJR 441; (2021) 390 ALR 590

MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 72 ALD 1; (2003) 77 ALJR 454; (2003) 195 ALR 24

Ross v Minister for Immigration & Multicultural Affairs [2000] FCA 1716; (2000) 107 FCR 1

SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411

Shrestha v Minister for Immigration & Anor [2013] FCCA 710

Suh and Others v Minister for Immigration and Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470

SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 237 ALR 634; (2007) 97 ALD 1

SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143

SZGEO v Minister for Immigration [2008] FMCA 999

SZGRK v Minister for Immigration and Citizenship [2010] FCA 153

SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725

SZIGC v Minister for Immigration and Citizenship [2008] HCASL 176

VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291; (2005) 87 ALD 333

Division:

Division 2 General Federal Law

Number of paragraphs:

73

Date of last submission/s:

7 February 2023

Date of hearing:

7 February 2023

Place:

Perth

Counsel for the Applicant:

Mr G Hughan

Solicitor for the Applicant:

AUM Lawyers

Counsel for the First Respondent:

Mr T Lettenmaier

Solicitor for the Respondents:

Sparke Helmore Lawyers

Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 1231 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

COF17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	19 DECEMBER 2024

THE COURT ORDERS THAT:

1.The objections of the Second Respondent to the admissibility of annexures KC-2 and KC-3 of the affidavit of Kathleen Clare Coffey sworn 25 July 2022 be dismissed.

2.The originating application filed 13 June 2017, as amended by an amended originating application filed 25 July 2022, be dismissed.

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 LUCEV

INTRODUCTION

1. The applicant, COF17, has filed an amended application for judicial review (“Amended Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Amended Judicial Review Application concerns a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively). The Authority Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”), not to grant COF17 a Temporary Protection (Subclass 785) visa (“Protection Visa”).

2. The Court has before it the following material:

   (a)the Amended Judicial Review Application filed 25 July 2022;

   (b)an affidavit of COF17 (“COF17’s Affidavit”) affirmed 7 June 2017 and filed on 13 June 2017 annexing the Authority Decision;

   (c)the 272 page Court Book filed on 6 February 2018, and marked at hearing as Exhibit 1;

   (d)COF17’s outline of submissions (“COF17’s Submissions”) filed 25 July 2022;

   (e)the Minister’s outline of submissions (“Minister’s Submissions”) filed 25 January 2023; and

   (f)the transcript of the hearing in this Court on 7 February 2023 (“Transcript”).

3. COF17 also sought to read an affidavit of a solicitor for COF17, Ms Kathleen Coffey (“Coffey Affidavit”), affirmed and filed 25 July 2022, and annexing various materials. The Minister objected to some of the annexed materials being admitted into evidence. The objections are dealt with at [9]-[13] below.

4. All references in these Reasons for Judgment to provisions in the Migration Act refer to the provisions as at the date of the Authority Decision.

   BACKGROUND

5. The relevant background to this matter is as follows:

   (a)COF17 is an Afghan national, born in 1985 in the Jaghori area, a Shia Muslim, ethnically Hazara, single and never married: CB 56-59;

   (b)COF17’s family moved to Quetta in Pakistan when COF17 was about five years old, and he, and his family resided there illegally: CB 246 at [11] and 247 at [15];

   (c)COF17 remained in Pakistan until 2012 when he left and travelled to Indonesia: CB 44 at Q 82;

   (d)in August 2012 COF17 arrived in Australia at Christmas Island as an unauthorised maritime arrival and was detained: CB 1-12;

   (e)in December 2012 COF17 was removed from detention: CB 44 at Q 82;

   (f)in July 2015 COF17 started working at the Nissan factory in Dandenong: CB 46 at        Q 85;

   (g)on 26 August 2015 the Minister’s Department invited COF17 to apply for a Protection Visa: CB 12;

   (h)on 28 September 2015 COF17 applied for the Protection Visa (“Protection Visa Application”): CB 20-55;

   (i)COF17 annexed to his Protection Visa Application a statutory declaration setting out his Protection Visa claims (“Statutory Declaration”): CB 56-59;

   (j)on 14 December 2015 COF17 attended an interview with the Delegate (“Delegate’s Interview”): CB 74-76 and 78;

   (k)on 24 December 2015 COF17’s solicitor provided written submissions to the Delegate: CB 98-147;

   (l)on 27 July 2016 COF17’s solicitor provided further submissions and material to the Delegate: CB 158-162;

   (m)on 7 October 2016 the Delegate’s Decision was to refuse to grant COF17 the Protection Visa and the Delegate’s Decision was referred to the Authority for review under Pt 7AA of the Migration Act: CB 166-197 and 202-203;

   (n)on 11 November 2016 COF17’s solicitor provided written submissions to the Authority: CB 218-223;

   (o)on 12 April 2017 the Authority invited COF17 to comment on information that he could relocate within Afghanistan and a range of new country information (“Invitation to Comment”): CB 225-229;

   (p)on 26 April 2017 COF17’s solicitor provided submissions to the Authority in response to the Invitation to Comment: CB 231-238;

   (q)on 15 May 2017 the Authority Decision affirmed the Delegate’s Decision: CB 240-263; and

   (r)on 13 June 2017 COF17 applied to this Court for judicial review of the Authority Decision.

   AUTHORITY DECISION

6. In the Authority Decision the Authority:

   (a)referred to new information that it had earlier provided to COF17 for comment: CB     244-245 at [6];

   (b)did not accept COF17’s claim to never have visited the United Kingdom and found that COF17 claims in this regard raised serious concerns regarding his credibility: CB 248 at [18];

   (c)did not accept that COF17 would face harm on the basis that he would be perceived as a potential land thief from local Hazaras, noting that COF17 had never been involved in any “land grab” issues in the past: CB 249 at [23];

   (d)having considered relevant country information, accepted that COF17 faced a well-founded fear of persecution as a Shia Hazara on surrounding roads leading to his home village in Jaghori: CB 249-250 at [24]-[27];

   (e)did not accept that COF17 would face harm or would be targeted in Mazar-e-Sharif: CB 250 at [28]-[29], and considered COF17’s objections and relevant country information in relation to relocating, relevantly, that he would be perceived as someone who had spent time in a Western country: CB 250-251 at [30]-[31];

   (f)accepted that COF17 may be subject to discrimination on return in relation to employment due to nepotism, particularly given COF17 had no family links in Mazar-e-Sharif. However, it was not satisfied that there was a real chance that as a consequence of such discrimination COF17 would be denied the capacity to earn a livelihood, that he would be subject to economic hardship that would threaten his capacity to exist, or that he would otherwise suffer treatment that would constitute serious harm: CB 251 at [32];

   (g)noted that it would be open for COF17 to travel from Kabul to Mazar-e-Sharif by air, noting that approximately 5.8 million refugees had returned to Afghanistan from Iran, Pakistan and Western countries between 2002 and 2013, and that returnees from Western countries were almost exclusively returned to Kabul. The Authority did not accept that COF17 would be harmed in Mazar-e-Sharif because of being perceived as Western: CB 251 at [33], nor that he would be harmed because of an imputed political opinion or as a returnee or failed asylum seeker: CB 251-252 at [34];

   (h)further as to Mazar-e-Sharif the Authority stated that it “is regarded as one of the safest cities in Afghanistan … with the relative security of the province ….”. The Authority continued that “[a]lthough there was a reported increase in armed attacks in Mazar-e-Sharif … and in 2015 and 2016 there were some high profile attacks which affected residents, EASO indicates that Mazar-e-Sharif counted the lowest number of civilian victims as these attacks were almost exclusively directed against the national security forces with sporadic bombings in Balkh’s major cities extending to civilian targets ….”: CB 252 at [35]: see also CB 252-253 at [37] and [38]

   (i)with reference to country information and COF17’s solicitor’s submissions, was not satisfied that the evidence indicated that COF17 would face harm in Mazar-e-Sharif, the capital of Balkh, in light of reported attacks against Hazaras in the Balkh province, or that those incidents were indicative of the onset of a sectarian campaign in Balkh. The Authority found that it was not indicative of a risk to Shia Hazaras living in Mazar-e-Sharif and found that it did not indicate that COF17 faced a real chance of persecution as a Shia Hazara on return to Mazar-e-Sharif: CB 252-254 at [36]-[40];

   (j)considered COF17’s objection to relocation on the basis that he would be at a heightened risk of harm on the roads as a Shia Hazara. This was because he would be required to use roads in Balkh to see his family. Considering COF17’s submissions and relevant country information, it found whilst there were attacks against Hazaras on the roads in Balkh, there remained effective government control in Mazar-e-Sharif, which provided greater opportunities for employment, access to services and state protection than rural areas where COF17 originates, and found that COF17 would be able to make a living within Mazar-e-Sharif, find employment and access services, and also found that COF17 would not be required to travel to visit family as he has no family in other parts of Afghanistan: CB 254 at [41];

   (k)was not satisfied that COF17 faced a real chance of harm on return to Mazar-e-Sharif because it could be accessed by air: CB 254 at [42];

   (l)accordingly, was not satisfied that COF17 met s 36(2)(a) of the Migration Act: CB 255 at [43];

   (m)relying on its anterior findings, the Authority found that COF17 faced a real risk of significant harm in Jaghori, specifically of being killed or physically harmed by local Taliban, but was not satisfied that COF17 faced a real risk of harm in Mazar-e-Sharif, which it found he could access by air: CB 255 at [46]-[48];

   (n)considered whether s 36(2B) of the Migration Act applied such that there is taken not to be a real risk of significant harm if it would be reasonable for COF17 to relocate to an area of Afghanistan where there would not be a real risk that he will suffer significant harm: CB 255 at [47];

   (o)with reference to country information, found that COF17 did not have family links to support him and accepted that he may experience nepotism on return to Mazar-e-Sharif. However, it was not satisfied that COF17 would be denied the capacity to subsist, result in him being arbitrarily deprived of his life, facing the death penalty or torture. Nor was the Authority satisfied that nepotism would amount to cruel or inhumane treatment or punishment or degrading treatment or punishment or otherwise constitute significant harm as defined in s 36(2A) of the Migration Act: CB 255-256 at [48]-[50];

   (p)relying on its anterior findings found that COF17 would not face a real risk of harm in Mazar-e-Sharif from Hazaras in Jaghori: CB 256 at [51];

   (q)among the new information was a report of the US Department of Defence, “Enhancing Security and Stability on Afghanistan December 2016 dated 1 December 2016” (“US Defence Report”): CB 244, fn 1. The Authority later footnoted (CB 256 at [52], fn 33), pages 17, 53, 59, 65 and 69 of this Report as the basis for its assertion that:

   I am satisfied there is a strong military presence in Mazar-e-Sharif and government and security forces continue to maintain effective control in Mazar-e-Sharif ensuring the area’s ongoing stability and security.

   (r)observed that “[t]he Taliban is active in Balkh and has conducted attacks in Mazar-e-Sharif ...”; CB 253 at [38], referred again to the “relative security” of the area and repeated the claim that it is “relatively isolated from the conflict” made in the Invitation to Comment (on 12 April 2017): CB 256 at [52];

   (s)also relying on its anterior findings, the Authority found that generalised violence in Mazar-e-Sharif was uncommon and that there was not a real risk of COF17 facing significant harm because of such violence in Mazar-e-Sharif: CB 256 at [52], and therefore did not accept that COF17 faced a real risk of harm on return to Mazar-e-Sharif: CB 256 at [53];

   (t)considered COF17’s solicitor’s submissions in relation to the reasonableness of relocation, COF17’s circumstances and country information. It accepted that there was unemployment and underemployment in Mazar-e-Sharif: CB 256-257 at [54]-[56], but found that COF17 had undertaken an English course in Pakistan, had experience as a shoemaker, including taking over his father’s business for a number of years, had formed a relationship with an Indonesian national whilst living there, and had worked in the car manufacturing industry in Australia. On that basis, COF17 had demonstrated resilience and resourcefulness and the Authority was satisfied that he would be able to obtain employment to enable him to subsist in Mazar-e-Sharif: CB 257 at [56];

   (u)accepted that COF17’s family were residing in Pakistan or the United Kingdom, and that COF17 did not have family members in Mazar-e-Sharif and:

   (i)found that whilst the lack of familial support may initially present challenges, COF17 did not present with any vulnerabilities and had demonstrated the ability and capability to establish himself in new locations and create links with the Hazara community despite a lack of family or other connections; and

   (ii)was satisfied that COF17 had the skills, life experience and resilience to relocate to Mazar-e-Sharif where employment, accommodation and other services would be available: CB 257-258 at [57]-[58];

   (v)also concluded that it would be reasonable for COF17 to relocate to Mazar-e-Sharif: CB 258 at [59];

   (w)in relation to the sporadic general violence in Mazar-e-Sharif, with reference to country information and COF17’s personal circumstances, it found that it was reasonable for COF17 to relocate to Mazar-e-Sharif notwithstanding the sporadic generalised violence and found that he did not face a real risk of harm for this reason: CB 258 at [59]; and

   (x)was not satisfied that COF17 met the requirements for “complementary protection” set out in s 36(2)(aa) of the Migration Act: CB 258 at [60]-[61].

   AMENDED JUDICIAL REVIEW APPLICATION

   The requirement for material jurisdictional error

1. The Authority Decision may be set aside on judicial review if there is jurisdictional error in the Authority Decision: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 72 ALD 1; (2003) 77 ALJR 454; (2003) 195 ALR 24. To constitute jurisdictional error, any error in the Authority Decision must be material: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 177 ALD 464; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] and [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ and Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 (“SZMTA”).

   Grounds

2. The Amended Judicial Review Application has five grounds set out at [14] (ground 1), [32] (ground 2), [42] (ground 3), [54] (ground 4) and [61] (ground 5) below.

   Objection to Affidavit Annexures

3. The Minister objected to annexures KC-2 and KC-3 to the Coffey Affidavit on the basis that they are irrelevant as neither annexure was before the Authority for consideration and that ground 3 does not require consideration of particular pieces of country information.

4. At hearing the Coffey Affidavit was provisionally admitted into evidence subject to the Court’s determination in relation to the objections to annexures KC-2 and KC-3.

5. Annexure KC-2 to the Coffey Affidavit is as a copy of a report from the New York Times: “Afghan Base massacre adds new uncertainty to fight against Taliban” dated 23 April 2017 concerning an attack on Camp Shaheen, near Mazar-e-Sharif (“NYT Article”).

6. Annexure KC-3 to the Coffey Affidavit is a copy of pages from a Wikipedia entry headed “2017 Camp Shaheen Attack” and refers to an attack on Camp Shaheen on 21 April 2017, and references various reporting of that attack in the week following the attack (“Camp Shaheen Wikipedia Entry”).

7. The content of annexures KC-2 and KC-3 to the Coffey Affidavit are relevant to the argument that COF17 wishes to put to the Court in relation to ground 3 of the Amended Judicial Review Application which contends, broadly, that the Authority erred, not by having regard to new information: Migration Act, s 473DD, but by failing to have regard to the most recent information, including the information in annexures KC-2 and KC-3 to the Coffey Affidavit. If accepted into evidence annexures KC-2 and KC-3 might affect the Court’s consideration of the new information argument, and because the annexures are relevant to that argument they are admissible as evidence: Evidence Act 1995 (Cth), ss 55 and 56. The admissibility of annexures KC-2 and KC-3 to the Coffey Affidavit does not, however, answer the question of whether information in those annexures ought to have been considered by the Authority.

   Ground 1

8. Ground 1 of the Amended Judicial Review Application is as follows:

   1.The Second Respondent (the IAA) erred in the exercise of its jurisdiction to review the decision of the First Respondent by misunderstanding and/or misapplying the test for internal relocation in considering whether there was taken not to be a real risk that the applicant would suffer significant harm in Afghanistan pursuant to s 36(2B)(a) of the Act.

   COF17’s Submissions on ground 1

9. As to ground 1 COF17 submitted that:

   (a)the test for relocation was set out by the Federal Court in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2018) 161 ALD 73 (“MZACX”) at [35] per Kenny J. The Authority was required to consider and decide whether, objectively, the Authority was satisfied that there was no appreciable risk of the occurrence of the feared persecution in Mazar-e-Sharif. Instead of considering this question at CB 249-250 at [25], the Authority concluded, “I am not satisfied that the applicant faces a real risk of significant harm in Mazare-Sharif”. By doing so, the Authority reversed the legal requirement. In circumstances where COF17 faced a real risk of significant harm in at least one part of Afghanistan, the reversal of the test for internal relocation meant that the Authority Decision failed to comply with the legal requirement for deciding whether there is taken not to be a real risk that a non-citizen will suffer significant harm in that country;

   (b)this error, involving the reversal of the statutory test, is analogous to the error made in Ross v Minister for Immigration & Multicultural Affairs [2000] FCA 1716; (2000) 107 FCR 1 (“Ross”) concerning s 501(2) of the Migration Act. In Ross the Federal Court decided that the Minister had erred in deciding, “I do not exercise my discretion to not cancel the [applicant’s] visa”, stating at [27] per Spender J that:

   27The difficulties in this case, while of the Minister’s officers’ making, are not simply a matter of semantics, or the consequence of a pedantic view of the words used by the Minister to indicate his decision. The words put before the Minister as recording the choices open to him, and his indication of his agreement with the statement “I do not exercise my discretion to not cancel the visa”, demonstrate to me that he wrongly interpreted s 501(2) as conferring a discretion to not cancel the visa. That was an error of law within s 476(1)(e) of the Act. It is apparent that the Minister believed that once para (a) and para (b) of s 501(2) were satisfied he was obliged to cancel the visa unless he positively decided that he should not do so.

   (c)similarly, the words used by the Authority demonstrate that it wrongly interpreted the statutory test for the decision it had to make. It is not merely semantics to require the Authority to consider this critical issue on a correct legal understanding of the test.

   Minister’s Submissions on ground 1

10. As to ground 1 the Minister submitted that:

    (a)it is well established that s 36(2B)(a) of the Migration Act poses two questions:

    (i)first, whether there is a place within the relevant country where there would not be a real risk that the non-citizen will suffer significant harm; and

    (ii)second, whether it would be reasonable for the non-citizen to relocate to that place,

    see CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 156 at [5] per Jagot, Charlesworth and Snaden JJ (“CSZ16”) citing MZACX at [35] per Kenny J;

    (b)consistent with CSZ16, the Authority’s approach to relocation and its assessment of complementary protection under s 36 of the Migration Act was orthodox and compliant with s 36(2B)(2) of the Migration Act;

    (c)the Authority relied on its anterior findings and accepted that COF17 faced a real risk of harm in Jaghori. Accordingly, it turned to the question of whether there was a place within Afghanistan where there would not be a real risk that the COF17 would suffer significant harm: CB 255 at [46]-[48]. The Authority then undertook a comprehensive consideration of the COF17’s claims and concluded that it was not satisfied there was a real risk of the COF17 suffering significant harm on return to Mazar-e-Sharif: CB 255-256 at [48]-[53];

    (d)having determined that there was no real risk of the COF17 suffering significant harm on return to Mazar-e-Sharif the Authority then addressed the second question which was whether relocation was reasonable: CB 256-258 at [54]-[59];

    (e)Ross does not assist the COF17. It concerns a differently worded provision of the Migration Act and the Minister’s error in that case concerned a misunderstanding that there was a presumed obligation “to cancel the visa unless he was positively of the state of mind that he should not cancel the visa”. There is no apparent presumption in the present matter;

    (f)to the extent that the COF17’s complaint is that the Authority’s Decision was expressed in terms that the Authority “was not satisfied that the applicant faces a real risk” as opposed to stating that it “was satisfied that the applicant did not face a real risk”, then there is no difference, let alone a material difference, between the two expressions; and

    (g)the Authority’s Decision demonstrates that it correctly undertook the task before it and for those reasons ground 1 does not disclose jurisdictional error.

    Consideration – ground 1

11. Section 36 of the Migration Act relevantly provides that:

    (2)      A criterion for a protection visa is that the applicant for the visa is:

    (a)       ….

    (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

    (2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

    (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; …

12. Section 36(2B)(a) of the Migration Act is informed by, and gives effect to, a principle akin to the principle of internal relocation, which is well known in the refugee context: APE16 v Minister for Home Affairs [2020] FCAFC 93; (2020) 277 FCR 640 at [48] per Kenny, Wheelahan and Anastassiou JJ. In that context, a common description of the principle is that “a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate” (emphasis added): Januzi v Secretary of State for the Home Department [2006] 2 AC 426; [2006] 3 All ER 305, AC at 440 per Lord Bingham, cited in (among other cases) SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 237 ALR 634; (2007) 97 ALD 1 (“SZATV”) at [19] per Gummow, Hayne and Crennan JJ; see also Minister for Immigration and Border Protection v SZSCA & Anor [2014] HCA 45; (2014) 254 CLR 317; (2014) 89 ALJR 47; (2014) 314 ALR 514 (“SZSCA”) at [23] per French CJ, Hayne, Kiefel and Keane JJ. Other descriptions of the relocation principle refer to an “area” or “region” of a country where a person is expected to return: see SZSCA at [25] per French CJ, Hayne, Kiefel and Keane JJ, and at [40] per Gageler J (dissenting in the result); CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; (2018) 260 FCR 134; (2018) 353 ALR 666 at [30] per Tracey, Mortimer and Moshinsky JJ.

13. The test for relocation was set out by the Federal Court in MZACX at [35] per Kenny J as follows:

    In considering the possibility of relocation within a visa applicant’s country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk, then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is “reasonable”, in the sense of “practicable”, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus. Jurisdictional error may arise where a Tribunal conflates the two stages of the inquiry …

14. In assessing whether it was reasonable for COF17 to relocate to Mazar-e-Sharif the Authority under s 36(2B)(a) of the Migration Act had to consider was whether it was reasonable, in the sense of practicable, for COF17 to relocate to Mazar-e-Sharif: SZATV at [11] and [24] per Gummow, Hayne and Crennan JJ.

15. In Minister for Immigration and Border Protection vDZU16 [2018] FCAFC 32; (2018) 253 FCR 526; (2018) 357 ALR 474 the Full Court of the Federal Court at [137] and [139] per Robertson, Murphy and Kerr JJ observed that:

    [137]In our opinion, a fair reading of the entirety of the Authority’s reasons, including the reasons in relation to s 5J(1)(c), leads to the conclusion that in the present appeal the Authority did not err in its application of the criterion whether it would be reasonable for the respondent to relocate to an area of the country where there would not be a real risk that he will suffer significant harm. In effect, the Authority found that there was no specific or generalised risk and also considered the practical realities for the respondent relocating to Mazar-e-Sharif.

    …

    [139]In our opinion, although the Authority in the present appeal used the word “remote” in relation to the risk of the respondent being harmed in generalised violence, the word is not a technical term and the Authority immediately went on to consider part of the statutory question being the question of real risk of the respondent facing significant harm. As we have said, in effect, the Authority found that there was no specific or generalised risk and also considered the practical realities for the respondent relocating to Mazar-e-Sharif. Its conclusions at [61] included what it had said earlier, especially at [24], [46] and [48]-[49].

16. To similar effect is CIT17v Minister for Immigration and Border Protection [2018] FCAFC 150; (2018) 265 FCR 572 at [84]-[85] per Collier, Markovic and Lee JJ.

17. COF17 submit that the Tribunal’s approach is analogous to the error found in Ross. In Ross the Federal Court concluded that a statement made by the Minister that “I do not exercise my discretion to not cancel the visa”: Ross at [27] per Spender J, demonstrated an error in the Minister’s understanding of the discretion conferred by s 501(2) of the Migration Act, which was a “discretion to cancel” a visa.

18. The circumstances in Ross were that Ms Ross, a citizen of New Zealand, had been convicted in the District Court of Queensland on three counts of misappropriation and sentenced to imprisonment for three years on each charge and sentenced to terms of imprisonment of one year for a number of other offences. A “Notice of Intention to Cancel a Visa under Subsection 501(2)” was sent to Ms Ross. Ms Ross provided written submissions in response to that notice. The Minister decided to cancel Ms Ross’ visa. Ms Ross was sent notification of the cancellation decision together with a document referred to as the “decision record for visa cancellation under section 501”. That document included a two-page document headed “Minute” to the Minister. Under the heading “Discretion” was the following statement:

    “If you agree… with the assessment that Ms Ross does not pass the Character Test for the purpose of section 501 of the Act, you must then consider your discretion not to cancel her permanent visa.”

19. Ross does not assist COF17.  The circumstances in Ross are distinguishable from the circumstances in the present case. In Ross the question was whether the Minister considered that s 501(2) of the Migration Act obliged it to cancel an applicant’s visa, unless it was satisfied that it should not cancel the visa, and the Minister there incorrectly interpretated s 501(2) of the Migration Act: Ross at [27] per Spender J; Lesuma v Minister for Immigration and Citizenship (No.2) [2007] FCA 2106; (2007) 99 ALD 514; (2007) 48 AAR 99 at [30] per Emmett J, not, as here, where the question is whether to grant a Protection Visa under an unrelated and differently worded provision of the Migration Act. Further, for the reasons set out otherwise in relation to ground 1 and expressed in the conclusion at [31] below, there was, in any event, no error in the Authority’s application of the internal relocation test.

20. In determining if the Authority undertook a consideration of the reasonableness of COF17’s possible relocation to Mazar-e-Sharif it is necessary to consider the Authority Decision as a whole: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“Applicant WAEE”) at [47] per French, Sackville and Hely JJ.

21. The Authority plainly understood the relevant statutory test, observing at CB 255 at [47] that:

    … s.36(2B) of the Act provides that there is taken not to be a real risk that a person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm.

22. The Authority expressly considered whether there was a real risk of harm to COF17 if he were to relocate to Mazar-e-Sharif and, adopting its earlier findings as to a real chance of harm, as it was entitled to do: DQU16 v Minister for Immigration [2021] HCA 10; (2021) 273 CLR 1; (2021) 95 ALJR 352; (2021) 388 ALR 363 at [27] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ, found that COF17 did not face a real risk of harm in Mazar-e-Sharif: CB 258 at [59].

23. In its findings the Authority referred to:

    (a)relevant country information concerning conditions in Afghanistan, including the DFAT Country Information Report Afghanistan 18 September 2015 and country information from the European Asylum Support Office (“EASO”), the United States Department of Defence and Al-Jazeera: CB 250-254 at [28]-[41];

    (b)country information concerning Mazar-e-Sharif and relocation to Mazar-e-Sharif by Shias: CB 252 at [35], 252-253 at [37], 253-254 at [39]-[41], 255 at [49] and 256 at [51]-[53];

    (c)country information concerning the treatment of Shias and Hazaras in Mazar-e-Sharif: CB 251 at [31]-[32], 251-252 at [34] and 252-254 at [36]-[41]; and

    (d)COF17’s personal circumstances including:

    (i)his capacity to obtain employment in Mazar-e-Sharif: CB 257 at [56];

    (ii)the lack of family support for him in Mazar-e-Sharif: CB 257-258 at [57]-[58]; and

    (iii)whether he would face harm in Mazar-e-Sharif as a Shia Hazara and a returnee from a Western country: CB 256 at [50],

    before concluding at CB 258 at [59] that it was “reasonable for … [COF17] to relocate to Mazar-e-Sharif where he does not face a real risk of significant harm”.

24. Reading the Authority Decision as a whole it is apparent that the Authority’s conclusions in relation to the reasonableness of relocation considered the practical realities of relocation (as it was required to do: SZATV at [11] and [24] per Gummow, Hayne and Crennan JJ; DZU16 at [139] per Robertson, Murphy and Kerr JJ). The Authority plainly undertook consideration of the reasonableness of COF17’s relocation to Mazar-e-Sharif, including the security situation in Mazar-e-Sharif, and in so doing had particular regard to the matters claimed by COF17 to make relocation to Mazar-e-Sharif unreasonable and impractical. In so doing it cannot be inferred that the Authority had forgotten about or disregarded other earlier relevant findings in relation to the risk to COF17 of relocating to Mazar-e-Sharif: DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 24; (2024) 302 FCR 25 at [36] per Derrington, Goodman and Raper JJ. Having had regard to those various matters and the relevant level of risk in relation to them the Authority found that it was reasonable for COF17 to relocate to Mazar-e-Sharif upon his return to Afghanistan. In the circumstances that conclusion was one that was open to the Authority on the facts as the Authority found them: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [131] and [135] per Crennan and Bell JJ; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 (“Carrascalao”) at [43]-[46] per Griffiths, White and Bromwich JJ.

1. The Court has concluded that the Authority Decision had regard to the proper test for internal relocation, and considered fairly, the reasonableness of the relocation of COF17 to Mazar-e-Sharif, and in so doing neither misunderstood nor misapplied the internal relocation test. Ground 1 of the Amended Judicial Review Application has not therefore been made out and does not establish jurisdictional error in the Authority Decision.

   Ground 2

2. Ground 2 of the Amended Judicial Review Application is as follows:

   2.The IAA constructively failed to exercise its jurisdiction to review the decision of the First Respondent by engaging in a comparative analysis of whether Mazar-e-Sharif was safer than other areas of Afghanistan, rather than whether it was a safe place for the applicant to relocate per se.

   COF17’s Submissions on ground 2

3. As to ground 2 COF17 submitted that:

   (a)the Authority decided that there was a real chance that COF17 would be persecuted in the area around Jaghori because he was a Shia Hazara. For essentially the same reason, there was a real risk he would suffer significant harm in that area, but the Authority concluded that it would be reasonable for him to relocate to Mazar-e-Sharif because it considered there would not be a real risk that he would suffer significant harm in Mazar-e-Sharif;

   (b)in reaching that conclusion the Authority engaged in a comparative analysis of whether Mazar-e-Sharif was “safer” rather than “safe” for COF17 to relocate. This is the effect of the language adopted by the Authority in its Invitation to Comment

   (c)the test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk in one place is less severe: CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 (“CGA15”) at [23] per Murphy, Mortimer and O’Callaghan JJ; and

   (d)the Authority’s analysis of the risks that COF17 will suffer in Mazar-e-Sharif was flawed because it was fundamentally based on a comparison between Mazar-e-Sharif and other parts of Afghanistan. Therefore, the Authority failed to undertake the analysis required by s 36(2B)(a) of the Migration Act.

   Minister’s Submissions on ground 2

4. As to ground 2 the Minister submitted that:

   (a)it is not appropriate to analyse the Authority Decision minutely with a focus upon perceiving error, it must be read in context and without an eye seeking error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ;

   (b)to the extent that COF17 relies on the contents of the Invitation to Comment, they do not form part of the Authority Decision and written statement under s 473EA of the Migration Act;

   (c)whilst the Authority did state that Mazar-e-Sharif was safer than other parts of Afghanistan, the following indicates that it was still satisfied that Mazar-e-Sharif was safe in its own right:

   (i)there was no evidence of any official policy of discrimination against ethnic or religious minorities in Mazar-e-Sharif: CB 251 at [31];

   (ii)whilst there is nepotistic discrimination in Mazar-e-Sharif it was not such that it would amount to serious harm: CB 251 at [32];

   (iii)there was no evidence that returnees are being targeted because of perceived Westernisation in Mazar-e-Sharif: CB 251 at [33]-[34];

   (iv)whilst the Authority did refer to Mazar-e-Sharif having the “lowest civilian deaths” this was in the context of the Authority considering evidence that attacks there were “almost exclusively directed against the national security forces”: CB 252 and 253 at [35]-[37] and [38]. Further, whilst the Authority considered the civilian casualties in the context of Afghanistan more broadly, the final point was that civilians are, generally, not targeted in Mazar-e-Sharif. It also found that “generalised violence in Mazar-e-Sharif was itself uncommon”: CB 256 at [52];

   (v)the Authority found that the Government in Mazar-e-Sharif maintained “effective control” over the area, a finding not qualified by any comparison to other parts of Afghanistan: CB 252-253 at [37] and 256 at [52];

   (vi)the Authority was not satisfied that there was an ISIS presence in or near Mazar-e-Sharif: CB 253 at [39];

   (vii)the Authority was not satisfied that the violence in other parts of Afghanistan was indicative of the risk in Mazar-e-Sharif and the evidence did not suggest that there was a real risk of targeted violence in Mazar-e-Sharif, particularly as the Taliban had recently spoken out against sectarian violence: CB 253-254 at [40]; and

   (viii)there was no evidence to suggest that Hazaras were targeted within Mazar-e-Sharif, and there were employment opportunities such that COF17 would not have to travel outside of the area: CB 254 at [41]; and

   (d)overall, whilst the Authority used words like “relative” and “lowest”, reading the Authority Decision as a whole it should not be taken that its conclusion that COF17 did not face the requisite level of harm in Mazar-e-Sharif was because it was merely safer than other parts of Afghanistan: see, for example, BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 (“BYX17”).

   Consideration – ground 2

5. The applicable principles with respect to internal relocation are set out at [18]-[22] above.

6. In CGA15 at [23] per Murphy, Mortimer and O’Callaghan JJ the Full Court of the Federal Court stated that:

   The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk in one place is less severe than another place. It is plain that the mere fact that a person might be safer in place B than place A does not entail that the person does not face a real chance of persecution in place B. For example, if place A is very unsafe and place B is relatively safer it might still be the case that a person faces a real chance of serious harm in place B. What matters is the actual level of risk in any particular place: see CID15 at [35]. We respectfully agree with the approach taken by Moshinsky J.

7. In CID15 v Minister for Immigration and Border Protection [2017] FCA 780 at [35] per Moshinsky J the Federal Court observed as follows:

   The ‘real chance’ test is an objective one, whereby the decision-maker considers whether there is more than a remote or far-fetched chance of the applicant being harmed in a place.  It is not a relative test whereby the decision-maker compares the chance of the applicant being harmed in one place relative to another place.  I note that in SZVJE & Ors v Minister for Immigration & Anor [2016] FCCA 594, Judge Driver said: “The test of whether there is a real chance or a real risk of harm is not a relative one. It is not determinative whether the risk in one place is ‘less severe’ than the risk in another place. What matters is the actual level of risk in any particular place” (at [20]). I respectfully agree with this statement of principle.

8. In BYX17 at [49] per Rangiah, White and O’Callaghen JJ the Full Court of the Fderal Court said as follows:

   In our view, it is quite obvious, reading the IAA’s reasons as a whole, and having regard in particular to the matters set out at [46] above, that in referring to the “relative safety” of Mazar-e-Sharif, the IAA is not to be taken as saying, and did not say, that because the appellant was safer in Mazar-e-Sharif than Ghazni he did not face a real chance of persecution or a real risk of being significantly harmed in Mazar-e-Sharif. Read in that context it is clear, in our view, that the IAA’s reference to “relative safety” in [70] of its reasons indicated nothing more than that the appellant’s safety in Mazar-e-Sharif, while sufficient, would be something less than “total safety”. It did not make a comparison of the type that was referred to in CGA15 v Minister for Home Affairs (2019) 268 FCR 362 at 369-370 [23] (Murphy, Mortimer and O’Callaghan JJ) (see [41] above).

9. In determining that Mazar-e-Sharif was a safe place for COF17 to return to the Authority:

   (a)found that it was not satisfied that discrimination (particularly that arising from nepotism in relation to employment in Mazar-e-Sharif) would deny COF17 the capacity to earn a livelihood or subject him to economic hardship, a finding made on the basis of information relating to there being no evidence of the existence of societal discrimination generally in Afghanistan, and particularly so in areas under Government control: CB 251 at [31]-[32], rather than a comparison between places within Afghanistan, and repeated its finding in similar terms at CB 256 at [50];

   (b)found that there was “no evidence” that Mazar-e-Sharif was “an area where returnees are targeted on the basis of being perceived as Western”: CB 251 at [33], see also CB 251-252 at [34];

   (c)in relation to security in Balkh province (of which Mazar-e-Sharif was the capital), at CB 252 at [35] cited EASO reports that:

   (i)Mazar-e-Sharif was “one of the safest cities in Afghanistan, and much safer than Kabul”;

   (ii)referred to the “relative security” of the province being due to the “monopoly on power” of its ethnically Tajik governor; and

   (iii)Mazar-e-Sharif had the lowest number of civilian victims of bombing in the province as the attacks were directed against the national security forces;

   (d)accepted the information in the preceding sub-paragraph, but found that the attacks were aimed at “government or international community targets”, and having repeated the content of the EASO reports found that “the government continues to maintain effective control, and that significant security force deployments which are maintained in Mazar-e-Sharif ensure the area’s ongoing stability and security”: CB 252-253 at [37], thus making a finding that Mazar-e-Sharif’s stability and security was ensured by security force deployments, not a finding made by comparing it with other parts of Afghanistan, a finding repeated in terms at CB 256 at [52];

   (e)assessed the chance of persecution as a Shia Hazara upon return to Mazar-e-Sharif by reference to isolated incidents in or near Mazar-e-Sharif, finding that it was “not satisfied that the isolated incidents” indicated that COF17 faced a real chance of persecution as a Shia Hazara in Mazar-e-Sharif: CB 253-254 at [40];

   (f)found that “Mazar-e-Sharif is in government control, is not a contested area and there is no evidence to indicate that Hazaras are targeted in Mazar-e-Sharif”: CB 254 at [41];

10. When the Authority’s reasons are read as a whole (as they should be: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Applicant WAEE at [47] per French, Sackville and Hely JJ; BYX17 at [49] per Rangiah, White and O’Callaghan JJ) and attention is paid to the matters set out in the preceding paragraph, it is evident that the Authority’s findings in relation to the safety of Mazar-e-Sharif were based on factors particular to Mazar-e-Sharif, or factors in relation to which there was no evidence of a real chance of harm whether in Mazar-e-Sharif or Afghanistan as a whole, and that in the limited referrals to the relativity of safety in Mazar-e-Sharif or of attacks in Mazar-e-Sharif, the Authority was indicating no more than that COF17’s safety in Mazar-e-Sharif was sufficient, but not necessarily absolute. The Authority did not make a comparison like that referred to in CGA15 at [23] per Murphy, Mortimer and O’Callaghan JJ.

11. Finally, the Court notes that the Invitation to Comment is not material, and it is the Authority Decision, in which the Authority’s reasoning actually appears (a point aptly made in oral submissions for the Minister: Transcript, p 18), which is material, and which, for reasons set out above does not disclose a comparative analysis of COF17’s safety in Mazar-e-Sharif. It follows that ground 2 of the Amended Judicial Review Application has not been made out and does not establish jurisdictional error in the Authority Decision.

    Ground 3

12. Ground 3 of the Amended Judicial Review Application is as follows:

    3.The IAA constructively failed to exercise its jurisdiction to review the decision of the First Respondent.

    Particulars

    (a)In its Decision and Reasons (CB 244-245, [6]), the IAA purported to rely on new information about the security situation in Afghanistan and the presence of Hazaras in Mazar-e-Sharif.

    (b)This information was said to be ‘directly relevant’ to determining whether the applicant would face a real chance or real risk of significant harm if he were to relocate to Mazar-e-Sharif and whether it would be reasonable for him to do so.

    (c) A few weeks before the IAA decision, on or about 21 April 2017, the Taliban had carried out a significant attack on a military base close to Mazar-e-Sharif, killing at least 140 people.

    (d)Despite purporting to rely on new information, the Authority did not refer to this incident at all.

    COF17’s Submissions on ground 3

13. As to ground 3 COF17 submitted that:

    (a)in both its Invitation to Comment on new information and the Authority Decision and reasons, the Authority listed sources of new information. Included in both lists was the US Defence Report;

    (b)the US Defence Report included several references to Mazar-e-Sharif, which the Authority footnoted in its Invitation to Comment: CB 228 fn 8, see also CB 256 at [53];

    (c)the first reference listed by the Authority to the US Department of Defence Report was to p. 17, which relevantly includes:

    Train, Advise, and Assist Command – North

    TAAC-N, led by German forces, includes the provinces of Badakhshan, Baghlan, Balkh, Faryab, Jowzjan, Kunduz, Samangan, Sar-e-Pul, and Takhar. However, current TAA efforts are limited primarily to the Mazar-e-Sharif area. TAAC-N provides functionally based SFA to the ANA 209th Corps and ANP units in ANP Zones 707 and 808. TAAC-N maintains Level 1 advising with all ANDSF pillars at the ANA corps and ANP zone level within its area of responsibility. [These being references to the Security Force Assistance, Afghan National Army, Afghan National Police and Afghan National Defence and Security Force]

    (d)at this time the ANA (Afghan National Army) 209th Corps was based near Mazar-e-Sharif, at Camp Shaheen;

    (e)on about 21 April 2017 the Taliban carried out a significant attack on Camp Shaheen, killing at least 140 people: Coffey Affidavit, annexures KC-2 and KC-3;

    (f)the Authority purported to rely on up to date “country information on the security situation in Afghanistan and the presence of Hazaras in Mazar-e-Sharif” because “[t]he situation in Afghanistan has evolved over recent times …”: CB 244-45 at [6]. This attack and the reporting of it related to both the security situation in and around Mazar-e-Sharif and circumstances of people in the area, some of whom joined the army because of “poverty and lack of work”: Coffey Affidavit, annexure KC-2; and

    (g)despite the clear relevance of these matters for the Authority Decision, it made no reference to them. Having embarked on a process of obtaining new information, including seeking COF17’s comments about it, the Authority was required to take into account up to date information in performing its statutory task of reviewing the Delegate’s Decision.

    Minister’s Submissions on ground 3

14. As to ground 3 the Minister submitted that:

    (a)there are two important points with respect to COF17’s proposition in relation to ground 3:

    (i)first, whilst the Authority relied on new country information because the situation in Afghanistan had “evolved in recent times”, it did not purport to rely on, as at the time of its decision, completely up to date information. Rather, it had clearly obtained information that was current as of 12 April 2017 when it invited COF17 to comment on it; and

    (ii)second, the attack on Camp Shaheen occurred after the Authority had invited COF17 to comment but before COF17 did so. And there were several weeks between COF17’s submission in relation to the situation in Afghanistan and the Authority Decision, and

    (b)COF17’s submission appears to be that the Authority was under a duty to (effectively constantly) enquire as to the current situation in Afghanistan. It was for COF17, who was represented by a competent solicitor, to make out his case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 (“SGLB”). It was well within COF17’s capability to provide information in relation to Camp Shaheen to the Authority prior to the Authority Decision. The Authority did not have a duty to obtain new information or monitor for country information that might assist COF17: DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222; (2018) 267 FCR 69 and BVS16 v Minister for Immigration & Anor [2020] FCCA 401 at [33]-[38] per Judge Dowdy.

    Consideration – ground 3

15. It is well-established that in referring to and considering country information, the identification of relevant country information, and the weight to be attributed to it are matters for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] and [13] per Gray, Tamberlin and Lander JJ.

16. In VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291; (2005) 87 ALD 333 at [41] per Heerey, Finkelstein and Lander JJ, the Full Court of the Federal Court held that there was no obligation on the then Refugee Review Tribunal to accept more recent information, even if it had been supplied, noting that it may be from a less reliable source, nor was that Tribunal obliged to inquire into more recent country information than was before it.

17. In ACL17 v Minister for Immigration and Border Protection [2018] FCCA 3191 (“ACL17 – FCCA”) at [42] per Judge Driver it was observed that:

    I accept from Minister for Immigration v MZYTS, ARG15 v Minister for Immigration and MZYXP v Minister for Immigration, that where the Tribunal has various pieces of country information before it, it may fall into error by not considering the most recent or cogent information. That does not mean, however, that the Tribunal has to go hunting for information it does not have. There is no general duty to inquire and nothing in this case triggered an obligation to inquire.

18. ACL17’s appeal against the judgment of this Court in ACL17- FCCA was dismissed by the Federal Court: ACL17 v Minister for Home Affairs [2019] FCA 753; (2019) 165 ALD 301 (“ACL17 – FCA”). Special leave to appeal ACL17 – FCA was refused by the High Court: ACL17 v Minister for Home Affairs & Anor [2019] HCASL 318.

19. The passage from ACL17-FCCA set out at [46] above refers to Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”). In MZYTS the Full Court of the Federal Court, having stated the general principle at [73] per Kenny, Griffiths and Mortimer JJ “that administrative decision-making should be based on the most up-to-date information 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”, the Full Court of the Federal Court went on at [74] per Kenny, Griffiths and Mortimer JJ to make the following observations about the use of older country information by the Tribunal:

    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.

1. It is only in “exceptional circumstances” that the Authority may consider new information: Migration Act s 473DD, but s 473DC(2) of the Migration Act is a complete description of the Authority’s obligation to consider new information, namely that it has no duty to seek out other information. In DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [61]-[65] per Barker J the Federal Court made it clear that the hearing rule at common law does not apply to fast-track reviews, and the combined effect of ss 473DA(1), 473DB(1) and 473DC(2) of the Migration Act requires the Authority to conduct a hearing on the papers, generally without having regard to additional information: AMA16 v Minister for Immigration & Border Protection & Ors [2017] FCCA 303; (2017) 317 FLR 141 at [18]-[21] per Judge Riley; Minister for Immigration & Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 at [20] per Griffiths J.

2. In this case it would appear that neither the NYT Article nor the Camp Shaheen Wikipedia Entry were sought to be put to the Authority by COF17, who was represented before the Authority (and before the Delegate): CB 212 and 61-63. It is well established that it is for an applicant to provide their evidence and arguments in sufficient detail to enable an administrative decision-maker to establish the relevant facts: Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412 at [76] per Heerey, Conti and Jacobson JJ; Aporo v Minister for Immigration & Citizenship [2009] FCAFC 123; (2009) 113 ALD 46 at [45] per Spender, Moore and Foster JJ. If COF17 intended to rely upon either the NYT Article or the Camp Shaheen Wikipedia Entry then it was for his representative to bring those reports to the attention of the Authority: Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 (“S214/2003”) at [26] per Allsop, Jacobson and Graham JJ; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [16] per Selway J (“SGBB”). In Shrestha v Minister for Immigration & Anor [2013] FCCA 710 (“Shrestha”) at [73] per Judge Nicholls, the then Federal Circuit Court referred to S214/2003 and SGBB when finding that if there was medical evidence in support of a claim made in that case, it ought to have been put before the then Migration Review Tribunal by the applicant in that case. The Court in Shrestha at [73] per Judge Nicholls agreed with a submission made by the Minister “that the absence of such evidence before the Tribunal, despite opportunity given to the applicant, means that the Tribunal’s findings were reasonably open to it on what was (and was not put) before it”. The same applies here: on what was put, or not put, before the Authority by COF17, the conclusions reached by the Authority were reasonably open to be made. Had COF17 sought to put the NYT Article and the Camp Shaheen Wikipedia Entry before the Authority at any time prior to the Authority Decision as new information the position might have been different, but COF17 did not do so. Reliance on new information does not require the Authority to “go hunting” for the most recent new information: ACL17 – FCCA at [42] per Judge Driver. The more so where, as here, the new information allegedly not taken into account, or not hunted for and found, by the Authority, was information about an event on 21 April 2017 which pre-dated both COF17’s submissions to the Authority on 26 April 2017, and, more particularly, the making of the Authority Decision on 15 May 2017. And, contrary to what was seemingly put in oral submissions for COF17: see Transcript, pp 10-11, the Authority was not under any positive duty to make enquiries outside the material referred to it by the Secretary or presented to it by COF17 and accepted as new information: Migration Act, ss 473CB and 473DD; SGLB at [43] per Gummow and Hayne JJ; SZGRK v Minister for Immigration and Citizenship [2010] FCA 153 at [18] per Rares J; CMI17 v Minister for Home Affairs [2019] FCA 1193.

3. The failure by COF17 to put the country information now referred to, namely the NYT Article and the Camp Shaheen Wikipedia Entry, before the Authority also distinguishes this matter from the finding made in MZYTS at [73] per Kenny, Griffiths and Mortimer JJ, because in MZYTS the Tribunal ignored more recent country information which was actually put before it.

4. It follows that ground 3 of the Amended Judicial Review Application has not been made out and does not establish jurisdictional error in the Authority Decision.

   Ground 4

5. Ground 4 of the Amended Judicial Review Application is as follows:

   4.The decision of the IAA was irrational and/or illogical in that the Authority made a finding of fact [that] was not open to it.

   Particulars

   (a)The IAA was required to consider whether it was reasonable for the applicant to relocate to Mazar-e-Sharif, an area of Afghanistan for which it stated, “I am not satisfied that there is a real risk of the applicant suffering significant harm on return to Mazar-e-Sharif”, although the applicant had never been to Mazar-e-Sharif (CB 256, [53]).

   (b)In considering the reasonableness of such relocation the IAA stated, “... I am satisfied that he has demonstrated the ability and capability to establish himself in new locations including the ability to create links to the Hazara community despite a lack of family and other connections” (CB 258, [57]).

   (c)The applicant had previously worked in Pakistan where he initially worked in his father’s business and then, after his father disappeared, he carried on his father’s business.

   (d)Approximately 2½ years after being released into the Australian community, starting in July 2015, the applicant was employed at the Nissan factory in Dandenong (CB 46).

   (e)There was no evidence that the applicant had “demonstrated the ability and capability to establish himself in new locations including the ability to create links to the Hazara community despite a lack of family and other connections”.

   COF17’s Submissions on ground 4

6. As to ground 4 COF17 submitted that:

   (a)the Authority was required to consider whether it was reasonable for COF17 to relocate to Mazar-e-Sharif, an area of Afghanistan. In doing so, the Authority was required to address the “practical realities” for COF17: MZANX v Minister for Immigration and Border Protection [2017] FCA 307 (“MZANX”) at [64] per Mortimer J. COF17 had no family in Afghanistan and no connections to Mazar-e-Sharif. He did not have a job available for him there on arrival. Nor did he have any accommodation available to him. He does not have friends or extended family living there who could support him;

   (b)COF17 had worked in Quetta, Pakistan. He initially worked in his father’s business and then, after his father disappeared, he carried on his father’s business. Therefore, he had a close family connection to that work. After coming to Australia, and approximately two and a half years after being released into the Australian community, in July 2015, COF17 began working at the Nissan factory in Dandenong: CB 46 at Q 85. There was no evidence as to how COF17 obtained this job, but the circumstances he would face in Mazar-e-Sharif could not rationally be said to be comparable to living in Australia, at the very least because of the existence of a functioning social security system in Australia;

   (c)at CB 258 at [57] the Authority set out some history of COF17 and his circumstances, before stating that “on the evidence I am satisfied that he has demonstrated the ability and capability to establish himself in new locations including the ability to create links to the Hazara community despite a lack of family and other connections”;

   (d)the Authority did not refer to the “evidence” on which it relied for this conclusion;

   (e)nothing in the history it set out provided a rational basis to conclude that COF17 had created any links to any Hazara community, without there having been a pre-existing family or other connection, or that he had the ability or the capability to do so; and

   (f)the Authority made a finding that was not open to it on the evidence. Therefore, the finding is illogical or irrational:  SZMDS at [135] per Crennan and Bell JJ.

   Minister’s Submissions on ground 4

7. As to ground 4 the Minister submitted that:

   (a)a submission that there is no evidence to support a finding will fail even if there is a skerrick of evidence underpinning it. Further, supporting evidence is not required to be direct but may be inferred from other material before the Authority: SGLB at [39]-[41] per Gummow and Hayne JJ; MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59] per Murphy J;

   (b)a finding by the Authority that is not supported by evidence does not necessarily lead to jurisdictional error. The importance and context of the particular Migration Act provision must be considered. If it is a central and crucial consideration then it may be a jurisdictional error if it was unsupported by evidence: FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456 (“FSG17”) at [61]-[63] per Bromberg, Davies and O'Bryan JJ; Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628; (2018) 364 ALR 423 (“Hands”) at [45] per Allsop CJ, Markovic and Steward JJ;

   (c)accordingly, there are two questions that need to be resolved:

   (i)first, was there evidence to support the Authority’s finding that COF17 could create links to the Hazara community despite a lack of family and other connections; and

   (ii)second, if there was no evidence was that finding so critical to the Authority’s reasoning  that the Authority Decision was illogical;

   (d)there was evidence underpinning the impugned finding. The Authority found that COF17 had demonstrated resilience and resourcefulness and that he would be able to obtain employment so as to subsist in Mazar-e-Sharif: CB 257 at [56]. This was based on the following:

   (i)COF17 completed an English language course in 2007-2008 (two years after his father went missing);

   (ii)COF17 claimed that he only obtained work through contacts: he had continued to operate the shoemaking business for several years after his father had gone missing and he had supported his family throughout that period as well as saving money to leave Pakistan. Further, COF17 had also worked with another shoemaker; and

   (iii)COF17 had travelled to Indonesia on his own and lived there for six months after forming a relationship with an Indonesian national and had later obtained employment after arriving in Australia: CB 257 at [56];

   (e)further, given the Authority’s comment that COF17 could relocate to Mazar-e-Sharif given his “skills, life experience and resilience” it can be inferred that the Authority also took into account that COF17 had travelled to the United Kingdom: CB 248 at [18], and had undertaken the lengthy journey from Pakistan to Australia in reaching its conclusion that COF17 could create links in Mazar-e-Sharif;

   (f)overall, it was open to the Authority to reach a conclusion that COF17 had the ability and capability to establish himself in a new location including creating links to the Hazara community without his family; and

   (g)even if there was no evidence to support that finding, the fact that COF17 could create links within the Hazara community was not so critical that the Authority’s reasoning was illogical because:

   (i)first, as discussed above, the Authority finding that relocation was reasonable was based on a variety of COF17’s experiences and skills; and

   (ii)second, the Authority had considered that country information indicated that single able-bodied men were able to relocate without traditional support mechanisms: CB 257 at [55]. Accordingly, even if the Authority had not considered that COF17 was able to create links with the Hazara community then its conclusion would not have been different.

   Consideration – ground 4

8. For reasons set out at [27]-[29] above it is evident that the Authority knew that it had to, and did, have regard to the practical realities of relocation, including COF17’s ability and capacity to obtain employment in Mazar-e-Sharif. In relation to COF17’s ability and capacity to obtain employment in Mazar-e-Sharif the Authority:

   (a)accepted that COF17 may be subject to discrimination on return in relation to employment due to nepotism, particularly given COF17 had no family links in Mazar-e-Sharif, but it was not satisfied that there was a real chance that as a consequence of such discrimination COF17 would be denied the capacity to earn a livelihood, that he would be subject to economic hardship that would threaten his capacity to exist or subsist, or that he would otherwise suffer treatment that would constitute serious or significant harm, in Mazar-e-Sharif: CB 251 at [32] and 256 at [50];

   (b)found that Mazar-e-Sharif provided greater opportunities for employment, access to services and state protection than rural areas where COF17 originates, and found that COF17 would be able to make a living within Mazar-e-Sharif, find employment and access services: CB 254 at [41] and 257 at [56];

   (c)found at CB 257 at [56] that:

   I accept that despite there being relatively more employment opportunities in Mazar-e-Sharif there is unemployment and underemployment. However the applicant although he claims to have no formal education indicated in his visa application that he completed an English course in Pakistan in 2007-08. He is literate in Urdu, and speaks Hazaragi and English which he can also read and write a little. Despite claiming to have limited employment experience, he has considerable experience as a shoemaker in Pakistan and after his father went missing in approximately 2005 he continued to operate his father’s business for a number of years until he sold the business. Since his departure from Afghanistan he has undertaken work in Australia in the car manufacturing industry. Although he claims to have obtained work through contacts in Pakistan and worked with his father until his father went missing, the applicant continued to independently operate his father’s business for a number of years and financially supported his mother and sisters until his departure from Pakistan as well as saved money to assist in his travel from Pakistan. He also lived in Indonesia for approximately 6 months where despite a lack of contacts he was able to live and formed a relationship with an Indonesian national. He has demonstrated resilience and resourcefulness and I am satisfied that the applicant will be able to obtain employment to enable him to subsist in Mazar-e-Sharif.

   and at CB 257-258 at [57] that:

   I am satisfied that the applicant has the skills, life experience and resilience to relocate and establish himself in an area of Mazar-e-Sharif where employment, accommodation and other services would be available to him.

9. The Authority thus made findings on the basis of country information and evidence which sufficiently demonstrate that as a matter of practical reality COF17 had the ability and capacity to relocate to Mazar-e-Sharif and to obtain employment there which would enable him to subsist, and which included, but was not limited to:

   (a)country information:

   (i)concerning the business and employment conditions in Mazar-e-Sharif; and

   (ii)that indicated that single able-bodied men were able to relocate within Afghanistan without traditional support mechanisms;

   (b)COF17’s prior experience as a shoemaker working in what was his father’s business and which later became COF17’s business in Quetta in Pakistan (and the Court notes notwithstanding that he was living there illegally);

   (c)COF17’s capacity to form a relationship with an Indonesian national during a short stay in Indonesia on his way to Australia;

   (d)COF17’s ability to find employment in the Australian car manufacturing industry; and

   (e)COF17’s personal attributes – his “resilience and resourcefulness” and “skills, life experience and resilience”: CB 257 at [56] and 257-258 at [57].   

10. There was therefore sufficient evidence for the Authority to make the primary finding complained about, namely that COF17 had “demonstrated the ability and capability to establish himself in new locations”. In the circumstances that finding was one that was open to the Authority on the facts as the Authority found them:  SZMDS at [131] and [135] per Crennan and Bell JJ; Carrascalao at [43]-[46] per Griffiths, White and Bromwich JJ. It was also a finding which rendered the secondary finding concerning COF17’s ability to create links to the Hazara community despite a lack of family and other connections somewhat otiose because it is subsumed by the primary finding which is one of greater generality: Applicant WAEE at [47] per French, Sackville and Hely JJ. In any event it is apparent that the Authority was aware that COF17 had no family links in Mazar-e-Sharif: CB 251 at [32] and 256 at [50], however it can be inferred, based on the Authority’s other findings, such as those set out at (b) to (e) in the preceding paragraph, that the Authority considered that COF17’s capacity and ability to run a business, make contacts and find employment in places as diverse as Quetta in Pakistan, Indonesia, and Dandenong in Victoria, Australia, meant that in order to assist in establishing himself COF17 would be able to make contacts within the significant Shia Hazara community in Mazar-e-Sharif. Finally, because of the secondary nature of the finding concerning COF17’s ability to create links to the Hazara community despite a lack of family and other connections it cannot be said to have been a central and crucial consideration, and thus was not liable to give rise to jurisdictional error: FSG17 at [61]-[63] per Bromberg, Davies and O'Bryan JJ; Hands at [45] per Allsop CJ, Markovic and Steward JJ.

11. In the above circumstances, ground 4 of the Amended Judicial Review Application has not been made out and does not establish jurisdictional error in the Authority Decision.

    Ground 5

12. Ground 5 of the Amended Judicial Review Application is as follows:

    5.The IAA erred in the exercise of its jurisdiction to review the decision of the First Respondent by misunderstanding and/or misapplying the meaning of “well-founded fear of persecution” in s 5J of the Act.

    Particulars

    (a)The IAA was required to consider, inter alia, whether the applicant would suffer “serious harm” if he were returned to Afghanistan – s 5J(4)(b) of the Act.

    (b)“Serious harm” includes the “significant economic hardship that threatens the person’s capacity to subsist” – s 5J(5)(d) of the Act.

    (c)Instead of addressing this question, in its Decision and Reasons the Authority stated, “.... I am not satisfied there is a real chance that as a consequence of such discrimination that [the applicant] would be denied the capacity to earn a livelihood or that he would be subject to economic hardship such that it would threaten his capacity to exist ....” (CB 251, [32]).

    COF17’s Submissions on ground 5

13. As to ground 5 COF17 submitted that:

    (a)sub-paragraphs (d)-(f) of s 5J(5) of the Migration Act focusses on something which threatens the person’s capacity to subsist. While in some circumstances “exist” and “subsist” are synonymous, in this section the expression “capacity to subsist” should be seen as meaning “the capacity to have or acquire the necessities of life (such as food and clothing)”;

    (b)instead of considering whether the circumstances in which COF17 may find himself in Mazar-e-Sharif would threaten his capacity to subsist, the Authority considered whether the circumstances would threaten his capacity to exist, that is, his life. Thus, the Authority misunderstood the statutory test for determining whether COF17 would qualify as a refugee under the definition in the one part of Afghanistan which the Authority said was safe for him to return;

    (c)in BON17 v Minister for Immigration & Border Protection [2019] FCCA 1456 (“BON17”) at [134] per Judge W Neville the then Federal Circuit Court observed that:

    For reasons already given, in my view the Authority (a) failed properly to consider (or to consider at all) the evidence of Professor Maley regarding the very significant difficulties faced by “returnee”; such as the Applicant faces in Afghanistan regarding, among other things, employment, access to services and lack of familial support; (b) in the light of the principles outlined by Mortimer J in MZANX regarding proper attention to the practical realities facing the Applicant, the Authority failed properly to consider those practical realities facing the Applicant; and (c) by referring to “exist” rather than “subsist”, it misunderstood a relevant indicia as prescribed by the Act in s.5J. Accordingly, the first Ground of Review is made out.

    (d)in the same way, the Authority in this case misunderstood the relevant indicia in s 5J of the Migration Act and therefore erred in the exercise of its jurisdiction: BON17 at [134] per Judge W Neville.

    Minister’s Submissions on ground 5

1. As to ground 5 the Minister submitted that:

   (a)section 5J of the Migration Act required the Authority to assess whether the threats to subsistence faced by COF17 challenged his ability to continue to exist or remain in being: SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143 at [11] per Tamberlin J (“SZBQJ”) and SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725 at [23]-[24] per Greenwood J (“SZIGC”). Further, the test under section 5J of the Migration Act is not the same as that under the reasonableness of relocation, it is more stringent and the threshold for a threat to a person’s capacity to subsist is very high: MZACX at [35] per Kenny J;

   (b)in the present case, the Authority Decision demonstrates that it correctly understood s 5J of the Migration Act given:

   (i)the Authority was not satisfied that there was a real chance that COF17 would face hardship such that his capacity to exist would be threatened: CB 251 at [32]. Those words are entirely consistent with the approach set out in SZBQJ and SZIGC;

   (ii)it set out the relevant legislation at the end of the Authority Decision: CB 260; and

   (iii)in any event, the Authority was satisfied that COF17 could obtain employment, accommodation and other services in Mazar-e-Sharif, not merely that he could stay alive: CB 257 at [55]-[57]. Respectfully, it would be an absurd conclusion to find that the Authority committed jurisdictional error in relation to s 5J of the Migration Act in circumstances where the Authority was otherwise satisfied it was reasonable for COF17 to relocate to Mazar-e-Sharif. Put another way, even if using the word exist was an error (which is not conceded), the Authority reached a conclusion that COF17 could subsist in the sense proffered by COF17’s submissions in any event;

   (c)in relation to COF17’s reliance on BON17, the Minister submits:

   (i)the Court in BON17 did find that the use of the word “exist” in place of “subsist” indicated that the Authority had misunderstood s 5J of the Migration Act and failed to reach the requisite state of satisfaction under the Migration Act: BON17 at [134] per Judge W Neville. However, that conclusion was made in circumstances where the Authority had also failed to properly consider relevant evidence and the practical realities facing COF17 in that case in the context of considering the reasonableness of internal relocation;

   (ii)the question of whether the Authority has properly undertaken its task under s 5J of the Migration Act is to be answered by reference to its reasons read as a whole, not by extracting single words from the reasons: Wu Shan Liang; and

   (iii)the Court in BON17 was not taken to SZIGC and SZBQJ and to the extent that it is inconsistent with those cases it must not be followed; and

   (d)the test under s 5J of the Migration Act is not commensurate with the test for reasonableness of relocation.

   Consideration – ground 5

2. Section 5J of the Migration Act sets out the meaning of the expression “well-founded fear of persecution” for the purposes of the Migration Act, including whether a person is a refugee pursuant to s 5H of the Migration Act. Section 5J(4)(b) of the Migration Act requires that “persecution must involve serious harm to the person”. Section 5J(5) of the Migration Act then provides as follows:

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)       a threat to the person’s life or liberty;

   (b)       significant physical harassment of the person;

   (c)       significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

3. In SZIGC at [23] per Greenwood J the Federal Court observed that:

   In relation to that question, two things should be mentioned.  The first is that the question of significant economic hardship that threatens a person’s capacity to subsist has been described by Tamberlin J in SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 143 as reflecting an emphasis which ‘denotes the ability to continue to exist or remain in being’ [11]. In other words, the level of threat must be such as to challenge the ability of the individual to continue to exist or remain in being. The second thing is that in this particular case, on the facts, the appellant is a person of skilled trade and experience and is in fact a ‘senior carpenter’.

4. In relation to SZIGC:

   (a)the High Court dismissed an application for special leave to appeal SZIGC: SZIGC v Minister for Immigration and Citizenship [2008] HCASL 176 at [5] per Gummow and Kiefel JJ;

   (b)prior to the hearing of this matter SZIGC at [23] per Greenwood J had been followed and applied or referred to without disapproval:

   (i)by the Federal Court differently constituted: see ARX18 v Minister for Home Affairs [2020] FCA 1351 (“ARX18 – FCA”) at [18] per Murphy J (also citing SZBQJ); and

   (ii)by this Court, in its former statutory manifestations as the Federal Circuit Court and Federal Magistrates Court: ARX18 v Minister for Immigration [2019] FCCA 3021 (“ARX18-FCCA”) at [40] per Judge A Kelly; DZABS v Minister for Immigration [2012] FMCA 297; (2012) 261 FLR 447 (“DZABS”) at [85] per Lindsay FM; SZGEO v Minister for Immigration [2008] FMCA 999 (“SZGEO”) at [36] per Scarlett FM.

5. ARX18-FCA is binding on this Court: Suh and Others v Minister for Immigration and Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [50]-[55] per Judge Lucev.

6. It follows that there was no error in the Authority’s consideration of this matter on the basis of COF17’s capacity to “exist” as opposed to “subsist”: CB 251 at [32], or the use of the word “exist” by the Authority. What was required to be considered, and what was considered by the Authority, was whether the claimed threat to COF17’s “capacity to subsist” was such that it challenged COF17’s ability “to continue to exist or remain in being”: SZIGC at [23] per Greenwood J. Further:

   (a)the Authority was satisfied that COF17 could obtain employment, accommodation and other services in Mazar-e-Sharif, not merely that he could stay alive: CB 257 at [55]-[57]. This state of satisfaction involved a factual assessment that was for the Tribunal to make: Wu Shan Liang; and

   (b)as correctly submitted by the Minister, it would be an absurd conclusion to find that the Authority committed jurisdictional error in relation to COF17’s capacity to subsist for the purposes of s 5J of the Migration Act in circumstances where the Authority was otherwise satisfied it was reasonable for COF17 to relocate to Mazar-e-Sharif where it found he could obtain employment, accommodation and other services.

7. On the facts of this case, and in circumstances where the Authority was otherwise satisfied it was reasonable for COF17 to relocate to Mazar-e-Sharif, even if the use of the word “exist” was an error, the Authority effectively reached a conclusion that COF17 could “subsist” in the sense argued by COF17. In that case, any error was not material, and therefore not jurisdictional, because the same decision would have been made by the Authority if it had used or applied “subsist” rather than “exist”: MZAPC at [2] and [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ; SZMTA.

8. In relation to BON17 the Court observes that:

   (a)this Court is bound by ARX18–FCA, SZIGC and SZBQJ and it cannot therefore relevantly apply BON17 which is inconsistent with ARX18–FCA; SZIGC and SZBQJ;

   (b)ARX18–FCA; SZIGC and SZBQJ were not cited to (or at the very least not referred to by) the Federal Circuit Court in BON17, and nor were ARX18-FCCA, DZABS or SZGEO, and therefore BON17 is per incuriam and not to be relied upon or followed; or

   (c)BON17 is, at the very least, on the basis of (a) and (b) above, distinguishable; and

   (d)BON17 has not been applied or followed by this Court or the Federal Court.

9. In the above circumstances, ground 5 of the Amended Judicial Review Application has not been made out and does not establish jurisdictional error in the Authority Decision.

   CONCLUSION AND ORDERS

10. In conclusion the Court finds that:

    (a)the Minister’s objections to the admissibility of annexures KC-2 and KC-3 of the Coffey Affidavit are to be dismissed; and

    (b)none of the grounds of alleged jurisdictional error in the Amended Judicial Review Application have been made out, and therefore the Amended Judicial Review Application must be dismissed.

11. The Court will hear the parties as to costs.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       19 December 2024