CPE16 v Minister for Immigration
[2018] FCCA 3325
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CPE16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3325 |
| Catchwords: MIGRATION – Application for remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision of Immigration Assessment Authority (Authority) affirming decision not to grant a safe haven enterprise visa – whether Authority made a dispositive finding that was irrational or unreasonable – whether the Authority denied applicant procedural fairness by not disclosing certificate purportedly issued under s.473GB of the Act – whether when assessing relocation Authority failed to consider that if the applicant were to resume a particular occupation he would be exposed to a real chance of significant harm (omitted issue) – whether when assessing whether the applicant would face a real risk of significant harm if he were to relocate to the putative area of relocation it was open to the Authority to consider that question on the basis that the applicant would take reasonable steps to avoid the real risk of significant harm – assuming the Authority did not consider the omitted issue but it made a finding that it would be reasonable for the applicant to resume in the putative area of relocation an occupation that would not expose the applicant to a real risk of significant harm whether the Authority’s not considering the omitted issue was material to the Authority’s decision – whether the Authority misunderstood or overlooked country information about the risk of harm of Hazaras – whether Authority misunderstood or misapplied real risk test when assessing the risk of significant harm to the applicant – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36(2), 65, 473, 473GB, 476 |
| Cases cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33 | ||
| Applicant: | CPE16 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2488 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 17 November 2017 |
| Date of Last Submission: | 17 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Tambimuttu of Hodges Legal |
| Counsel for the First Respondent: | Mr P Knowles |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2488 of 2016
| CPE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Afghanistan, applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise Visa (SHEV).
Claims for Protection
Although the applicant stated his claims for a protection on a number of occasions, it would be convenient if I set out the claims contained in the statement dated 25 September 2015.[1] They are as follows:
a)The applicant is a Hazara and a Shia Muslim. He was born in a village in the district of Jaghori in the province of Ghazni. The applicant has not lived in any other part of Afghanistan.
b)The applicant attended school until year 8. After working initially as a casual labourer and then for himself as a welder, in 2008 he began working for himself selling petrol. This consisted of the applicant’s travelling by bus to Herat, purchasing barrels of petrol and arranging for the petrol he purchased to be delivered to a market in Kabul, the applicant himself travelling to the market in Kabul, and from there selling the petrol he had purchased from Herat. This occurred once or twice a month. The applicant had sold petrol to the Afghan National Army (ANA) on at least one occasion.
c)In August 2011 the Taliban stopped the driver of a truck that the applicant had engaged to transport petrol as it was passing through Muqur. The Taliban set the truck alight, and detained, beat, and tortured the driver, accusing him of selling petrol to the ANA. The driver produced a receipt of the purchase of petrol from Herat recording the applicant’s name as the owner of the petrol. The driver was released and contacted the applicant informing him of what had occurred.
d)As soon as the applicant received the news, he arranged to flee Afghanistan with his family by travelling to Pakistan until he arrived in Quetta. The applicant met difficulties there. Shia were targeted, and many people were being killed. The applicant decided to travel to a safe country.
e)The applicant fears that if he returns to Afghanistan he will be killed by the Taliban because they believe the applicant sold petrol to the ANA, and because he would be known to have been seeling petrol and, for that reason, immediately come under suspicion. He also fears harm from the Taliban because the applicant is Hazara and Shia. Finally, the applicant stated he believes he will not receive protection from the authorities if he returns to Afghanistan.
[1] CB120-123
Before the delegate
The delegate accepted the applicant was who he claimed he was; the applicant is a Shia Hazara;[2] the applicant unknowingly sold petrol to agents of the ANA in Kabul, and that Taliban informants who were present in Kabul may have been aware of those transactions;[3] the applicant had engaged a person to deliver petrol the applicant had bought in Herat on one occasion in August 2011,[4] and the driver knew some details of the applicant’s life, such as the applicant’s name, the applicant’s father’s name, and where he lived;[5] the driver was captured, tortured, and released by the Taliban in the course of the driver transporting petrol for the applicant;[6] during his detention the driver provided to the Taliban evidence that the applicant owned the petrol, and also provided some of the details of the applicant’s name, home address, and routes he travelled between his home and work in Herat and Kabul;[7] and the driver warned the applicant the Taliban knew the petrol belonged to the applicant, and that they were looking for him; and this discussion provided the applicant with the impetus to leave Afghanistan.[8]
[2] CB149, [44]
[3] CB150, [50]
[4] CB149, [46]
[5] CB149, [46]
[6] CB151, [52]
[7] CB151, [52]
[8] CB152, [55]
Based on these findings the delegate found the applicant had a well-founded fear of persecution within the meaning of s.5J(1) of the Act. The delegate, however, found that the applicant could take reasonable steps to modify his behaviour to avoid a real chance of persecution by ceasing to sell petrol and instead sell other goods in Kabul; and, because of s.5J(3) of the Act, the applicant does not have a well-founded fear of persecution. The delegate also found that, although there are substantial grounds for believing that if the applicant were to return to his home region of Ghazni there is a real risk he will suffer significant harm, he would not face such risk if he were to relocate to Kabul, and it was reasonable for the applicant to relocate to Kabul.[9]
[9] CB166-167, [119]- [123]
Authority’s reasons
The Authority accepted the applicant was involved in the business of buying and selling petrol as he had claimed; the Taliban hijacked in Ghazni a truck carrying a supply of petrol the applicant had purchased; the Taliban detained and abused the driver of the truck; and in the course of his detention and abuse, the truck driver disclosed to the Taliban information that revealed the applicant’s name and other details of the applicant.[10] The Authority did not accept, however, that the Taliban or its agents or anyone else working in the market in which the applicant sold petrol viewed the applicant as a person who sold petrol to the ANA.[11] Whatever links the applicant had in providing petrol to the ANA were “indirect and peripheral”. The applicant sold the petrol in open markets to intermediaries who had no formal connection to the ANA; and the applicant did not know that any of the agents to whom he sold petrol were agents for the ANA.[12] That finding was based on what the applicant said to the delegate, namely, that the applicant’s business was largely wholesale where, for instance, the petrol would be sold to a single grocery store which, in turn, would place the barrel of petrol out the front for sale to customers.[13]
[10] CB202, [21]
[11] CB202, [22]
[12] CB202, [22]
[13] CB201, [19]
Having not accepted the applicant was considered to be a person who was selling petrol to the ANA, the Authority did not accept the Taliban targeted the truck carrying the applicant’s petrol for that reason.[14] But the Authority relied on additional matters for not accepting the Taliban targeted the truck for that reason. Although the applicant knew the driver, the attack occurred on the first occasion the applicant engaged the driver and, for that reason, the Authority said it is not clear how the Taliban could have known the applicant had engaged the driver.[15] The Authority found that the truck was targeted in an opportunistic attack for either criminal reasons, or because the truck was perceived to be a government or military shipment.[16]
[14] CB202, [23]
[15] CB202, [23]
[16] CB203, [25]
Although the Authority accepted the driver gave the Taliban the applicant’s details, and it was prepared to accept that in the immediate aftermath of the attack “there may have been a genuine threat to the applicant in his home area that prompted him and his family to leave”, what was of significance to the Authority was that the Taliban did not directly target or threaten the applicant. There was no evidence of any direct interaction between the applicant and the Taliban at all, notwithstanding the applicant’s selling petrol in markets and bazaars in Kabul for nearly three years.[17] The Authority, therefore, did not accept the applicant had any profile or contact with the Taliban, or had done anything else to prompt their interest in him; and the Authority found it implausible that the Taliban would continue to have any interest in the applicant, or that he would be targeted for harm on return for the reasons claimed by the applicant.[18]
[17] CB203, [28]
[18] CB203, [29]
The Authority, however, was prepared to accept that, because it had found the Taliban in Ghazni have accessed the applicant’s information, there is a remote risk the applicant would be “identified on the basis if he returns to his home area and continues to work and travel on the roads in this area”; but the Authority did not accept that “any profile he has is anything more than a very low profile that is localised to Ghazni”.[19] The Authority concluded:[20]
For these reasons, I do not accept there is any chance of him being seen as associated with the ANA, the Government or International Community or that he would be imputed to hold any political opinion or association with the government, outside Ghazni.
[19] CB203, [30]
[20] CB204, [31]
The Authority then considered whether, if he were to return to Ghazni, the applicant faced a real chance of being seriously harmed because of his ethnicity and religion. The Authority was satisfied the applicant did face such a real chance.[21] Relying on country information the Authority accepted that although the Jaghori District is almost entirely inhabited by Hazaras and is a somewhat secure area for Hazaras with good access to schools and health care,[22] Ghazni Province is one of the most volatile provinces in the south-east of Afghanistan. The Authority accepted that Hazaras travelling around the Hazarajat face a greater risk than other ethnic groups, and are more likely to be selected for violence or kidnapping.[23] The Authority, however, was not satisfied the applicant faced a real chance of being seriously harmed outside of Ghazni, such as in Kabul.[24]
[21] CB204, [36]
[22] CB204, [32]
[23] CB204, [34]
[24] CB205, [37]
The Authority relied on two broad matters. The first was a matter about which it had already made a finding, namely, that the applicant had no profile in Kabul as a person connected to or associated with the ANA as a result of his petrol-selling business.[25] Here the Authority relied on “a separate and independent basis” for concluding the applicant would not have a well-founded fear of persecution if he were to relocate in Kabul. It found the applicant could take reasonable steps to modify his business practices to ensure the applicant did not sell petrol to the ANA or other high profile entities, or operate his business in a way that would impute the applicant with any political opinion or association with the government.[26] The Authority also made an alternate finding:[27]
. . . the applicant worked as a welder for several years prior to commencing his petrol business and he has the ability to work and make a living in an industry entirely unrelated or connected to the government. I consider it also would not be unreasonable for the applicant to choose to return to that or another profession in Kabul.
[25] CB205, [40]
[26] CB205, [41]
[27] CB205, [41]
The second matter on which the Authority relied for not being satisfied the applicant would not have a well-founded fear of persecution in Kabul because he is a Hazara Shia is the position of Hazaras living in Kabul. Relying on country information, the Authority found that in Kabul the government continues to maintain effective control, and Kabul has a high presence of national and international security forces. The Authority acknowledged that the ANA’s capacity to maintain law and order is limited by a lack of resources, poor training, insufficient and outmoded equipment and corruption; but the Authority noted the police in Kabul tend to be more effective than most other urban and rural areas, and that “this is part of the reason the security risks in Kabul are fewer”.[28] The Authority also acknowledged there is evidence of ongoing insurgent attacks in Kabul, but country information has not indicated that the focus of these attacks has been against Hazaras.[29]
[28] CB206, [45]
[29] CB206, [47]
In assessing the position of Hazaras in Kabul, the Authority addressed a submission by the applicant about the current security situation in Kabul. The submission referred to two articles about a suicide attack on 23 July 2016 in Kabul that killed more than 80 people and injured over 230 people. The attack was directed to a civilian protest involving a large number of Hazara Shias. The Authority made the following findings in relation to the significance of this attack:[30]
While the attack appears to have clearly been directed at Hazara Shias, the attack occurred in a high profile protest. The country information has consistently indicated that high profile targets are most vulnerable and at risk in Kabul and elsewhere in Afghanistan. Given this, the attack may not be indicative of an increased risk to ordinary low profile Hazara Shia living in the city. Apart from his petrol business, the applicant has not impressed me as someone who believes in Hazara Shia rights or would seek to protest in any way. I find that he is a low profile Hazara Shia who would live and work in the city in a low profile manner and I find he would not involve himself in high profile activities such as protests on return, nor would he have previously.
[30] CB208, [53]
The Authority accepted the country information showed that “AGE” (that is, anti-government element) attacks against high profile groups and places continue in Kabul, but country information does not support a finding that a low profile Hazara Shia like the applicant would face a real chance of being targeted for harm by AGE attacks in Kabul.[31]
[31] CB208, [55]
For these reasons the Authority was not satisfied the applicant was a “refugee” within the meaning of s.5H(1) of the Act. The Authority then considered whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act.
Consistent with the findings it had already made about the risk of harm the applicant would face as a Hazara Shia if he were to return to his home area in Jaghori District, Ghazni Province, the Authority was satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Afghanistan he will face a real risk of being arbitrarily deprived of his life or significantly harmed if he returns to live and work in Jaghori District, Ghazni Province.[32] The Authority, however, was satisfied it would be reasonable for the applicant to relocate to Kabul where the applicant will not face a real risk of significant harm. The Authority relied on the applicant’s having some family connection in Kabul, the applicant is a well-bodied man of working age with no specific vulnerabilities, and the applicant’s skills and experience demonstrate he has the capacity and an ability to find work. The applicant speaks Hazari, has completed some schooling, has worked as a welder, and conducted a petrol business.[33]
[32] CB209, [61]
[33] CB210, [66]
Finally, the Authority records in its reasons the submission made on behalf of the applicant that “under complementary protection” the applicant cannot be forced to modify his behaviour. The Authority was of the view that “the question of whether the complementary assessment allows for consideration of behaviour modification does not arise”; and that was because the Authority “found the applicant would not face a real chance or real risk of harm if he recommenced his petrol business in Kabul without modification”.[34]
[34] CB210, [66]
Ground 4
The applicant relies on grounds 4, 6, 7, and 8 of the amended application. I begin with ground 4 which is as follows:
The IAA’s finding at [CB203, 30] is infected with jurisdictional error as the finding is inconsistent illogical and unreasonable.
PARTICULARS
(i)The IAA at [30] found that the applicant does not have a profile outside of Ghazni and that the applicant’s profile is localised to Ghazni. This finding was significant in the IAA concluding at [31]:
“I do not accept there is any chance of [the applicant] being seen as associated with the ANA, the Government or International Community or that he would be imputed to hold any political opinion or association with the government, outside of Ghazni”.
(ii)The IAA failed in its reasoning to consider several integers of the applicant’s claims which were accepted by the IAA, when inferring that the applicant’s fear was localised.
Parties’ submissions
In his written submissions the applicant submits that the Authority’s finding set out in paragraph (i) of the particulars lacks an intelligible justification.[35] The submission is that the finding is illogical or unreasonable having regard to the following matters:[36]
[35] Applicant’s Outline of Submissions, [17.1]
[36] Applicant’s Outline of Submissions, [17.1]
a)The Authority accepted the applicant owned and operated a petrol business.
b)A truck carrying petrol the applicant had purchased was hijacked by the Taliban where the driver was detained and abused.
c)The applicant claimed the truck was set alight and the Taliban wanted to know who owned the petrol.
d)The applicant claimed the driver was accused of selling petrol to the ANA, and this prompted the driver to provide the receipt with the applicant’s name on it.
e)The Authority accepted there are credible risks to persons who are seen, associated, or perceived to be associated with the Afghan government or military by the Taliban.
f)The Authority accepted that in the immediate aftermath of the hijacking there may have been a genuine threat to the applicant.
g)The Authority found the truck was targeted in an opportunistic attack either for criminal reasons “or a perception that the truck was a government or military shipment”.
h)The Authority accepted the Taliban in Ghazni accessed the applicant’s information, but nevertheless inferred the applicant’s profile is localised to Ghazni.
i)The Authority failed to consider that although it found the applicant did not have contact with the Taliban as a result of the driver providing the Taliban with details concerning the applicant, and the applicant claimed the Taliban wanted to know who owned the petrol.
j)It was not rationally open to the Authority not to accept the applicant was considered or imputed by the Taliban to be a person who sold petrol to the ANA in circumstances where the Authority had also accepted there are credible risks to persons who are seen to be associated, or perceived to be associated with the Afghan government or military by the Taliban.
Mr Tambimuttu, who appeared on behalf of the applicant, submitted the Authority’s finding that it did not accept there is any chance the applicant would be associated with the ANA, the government or the international community, or that he would be imputed to hold any political opinion or association with the government, outside of Ghazni, was inconsistent with matters it had expressly or impliedly found or accepted.
In his written submissions, counsel for the Minister characterises ground 4 as being limited to the contention that the Authority failed to take into account its having accepted that the Taliban who hijacked the truck had obtained the applicant’s details and had asked the driver who owned the petrol.[37] Counsel submits the Authority did take these matters into account, and they formed the basis of its findings that the applicant did face a real risk of significant harm in Ghazni Province. Counsel further submitted that, given the seemingly random nature of the attack, and the absence of further attacks directed at the applicant, it was open to the Authority to find that the threat was localised to the Ghazni Province. In his oral submissions, counsel for the Minister submitted it was open to the Tribunal to find, as it did, that one interaction with the Taliban, where the Taliban in a particular geographical area became aware of the applicant’s details, did not mean that many years later in a different place he would be at risk of harm.
[37] First Respondent’s Outline of Submissions, [8]
Issues
Ground 4 is directed to a particularly strong finding, namely, the Authority’s not being satisfied there is “any chance” of the applicant being seen as associated with the ANA, the government, or international Community or that he would be imputed to hold any political opinion or association with the government outside Ghazni (Finding). Whether or not the applicant faced “any chance” of serious harm, however, is not the test given by s.5J(1)(b) of the Act for determining whether a person has a well-founded fear of persecution. Under s.5J(1)(b), for there to be a well-founded fear of persecution there must be “a real chance that, if the person returned to the receiving country, the person will be persecuted for one or more of the reasons mentioned in” s.5J(1)(a). Thus, by making the Finding, the Authority addressed a question that was not relevant to the task it was required to undertake, at least when assessing the applicant’s claims based on his being a “refugee” within the meaning of s.5H(1) of the Act. Whether or not, therefore, the Authority made an error in arriving at the Finding cannot by itself amount to a jurisdictional error; and that is either because the Authority’s addressing, as opposed to addressing illogically or unreasonably, an irrelevant question constituted jurisdictional error, or its considering an irrelevant question, was not material to the decision the Authority made. For that reason alone, ground 4 must fail.
What I say in the previous paragraph is not a matter I brought to the attention of the parties; and it would, therefore, be unfair to determine this ground on the basis I there identify without inviting submissions about whether the Authority made any jurisdictional error by addressing the question that resulted in the Finding. I will therefore consider the issues that arose on the competing submissions of the parties. But before I identify those issues, I should note that in my opinion the Authority did address the correct question when it considered this part of the applicant’s claims. That is reflected in its finding that it was prepared to accept there is a “remote risk” of the applicant being identified if he returns to his home area and continues to work and travel on the roads.[38] The Authority’s stating it was prepared to accept the applicant faced a “remote risk” was tantamount to the Authority’s not being satisfied the applicant faced a “real chance” of being identified if he returns to his home area and, hence, the applicant did not have a well-founded fear of persecution because of the truck incident within the meaning of s.5J(1)(b) of the Act.
[38] CB203, [30]
I return, then, to the parties’ submissions. In my opinion the Minister’s submissions do not accurately characterise ground 4, and the submissions the applicant makes in support of that ground. Ground 4 is not limited to a claim that the Authority failed to consider its finding that the driver had given the Taliban the applicant’s details. The ground is to the effect that the Finding was inconsistent with matters the Authority had expressly or impliedly accepted.
Two questions, therefore, arise. The first is: assuming the Authority made or accepted matters that are inconsistent with the Finding, is the Authority’s decision liable to be set aside for jurisdictional error? This requires consideration of the irrationality ground of review. The second question arises if the first is answered in the affirmative: did the Authority accept or find matters that are inconsistent with the Finding?
Irrationality ground of review
The irrationality ground of review has been considered by the High Court in the context of applications for judicial review of decisions made by the Refugee Review Tribunal (RRT). And here, two lines of analysis can be identified.
One line begins with the requirement under s.65 of the Act that before the Minister can grant a visa he or she must be “satisfied”, among other things, that the criteria prescribed for the granting of a visa have been satisfied. One of the criteria is that prescribed by s.36(2)(a) of the Act, namely, that the applicant for the visa is “a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee”. The Minister’s satisfaction under s.65 and s.36(2)(a) of the Act is a jurisdictional fact, and, like all jurisdictional facts on which the exercise of Commonwealth executive power may depend, is reviewable under s.75(v) of the Constitution:[39]
A determination that the decision maker is not “satisfied” that an applicant answers a statutory criterion which must be met before the decision maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision maker and is reviewable under s 75(v) of the Constitution.
[39] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [131] (Gummow J)
The circumstances in which the Minister’s satisfaction of the existence of the matters referred to in s.36(2)(a) of the Act is reviewable have been stated by Gummow J, either alone or jointly, in a number of cases. In Eshetu, his Honour said that he “would permit review in cases where the satisfaction of the decision maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds”.[40] In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002,[41] McHugh and Gummow JJ accepted as an appropriate ground for reviewing a decision of the RRT that it was “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds”. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB,[42] Gummow and Hayne JJ said:
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
[40] (1999) 197 CLR 611 at [145]
[41] (2003) 198 ALR 59 at [34]
[42] (2004) 207 ALR 12 at [38]
And in Minister for Immigration and Citizenship v SZMDS,[43] Gummow ACJ and Kiefel J (as her Honour then was) quoted this passage with approval, but noted the following:
However, it should be remarked that what is characterized [sic] as the “critical question” should not receive an affirmative answer that is lightly given. It may be noted that the outcome in SGLB and in Applicant S20/2002 was to deny the presence of jurisdictional error.
[43] (2010) 240 CLR 611 at [40]
The second line of analysis of the irrationality ground of review is to be found in the joint judgment of Crennan and Bell JJ in SZMDS. Their Honours noted that irrationality as a ground of review is related to three other principles, one of which is the implied standard of reasonableness which has come to be known as “Wednesbury unreasonableness”.[44] Their Honours further noted that there are a number of difficulties in accepting “irrationality” as a separate ground of review, one of which is that irrationality is “only one facet of unreasonableness”,[45] and that, therefore, there is an “undeniable semantic overlap between “irrationality”, “illogicality” and “unreasonableness””.[46] Their Honours, nevertheless, formulated the irrationality ground as follows:[47]
In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.
[44] (2010) 240 CLR 611 at [124]
[45] (2010) 240 CLR 611 at [126]. The quote is from the reasons of Sir Thomas Bingham MR in R v Secretary of State for Home Department; Ex parte Onibiyo [1996] QB 768 at 785
[46] (2010) 240 CLR 611 at [128]
[47] (2010) 240 CLR 611 at [130]
Their Honours further said:[48]
Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[48] (2010) 240 CLR 611 at [130]
Later in their reasons for judgment, Crennan and Bell JJ said:[49]
[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from the evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[49] (2010) 240 CLR 611 at [131]
Thus, for Gummow ACJ and Kiefel J, the irrationality ground of review applies to a jurisdictional finding of fact that is “irrational” or “illogical”; and for Crennan and Bell JJ it applies to a jurisdictional finding of fact that no rational or logical decision maker could make on the material that was before the decision maker.
If, therefore, as the applicant contends, the Authority made or accepted matters that are inconsistent with its finding that it did not accept there is any chance that the applicant would be seen as associated with the ANA, the government or international community, or that he would be imputed to hold any political opinion or association with the government outside of Ghazni, the Authority’s decision would be irrational and liable to be set aside for jurisdictional error.
Inconsistent?
Whether or not the Authority made inconsistent findings requires me to identify the findings the Authority made, expressly and impliedly. The Applicant made the following express findings:
a)The applicant was involved in the business of buying and selling petrol, as he had claimed.[50]
b)The Taliban hijacked in Ghazni a truck carrying petrol the applicant had purchased.[51]
c)The Taliban detained and abused the driver of the truck; and in the course of his detention and abuse the truck driver disclosed to the Taliban information which revealed the applicant’s name and other details of the applicant.[52]
d)The applicant’s truck was not detained because the Taliban or anyone else perceived him to be selling petrol to the ANA;[53] the applicant’s truck was targeted in an opportunistic attack for either criminal reasons, or a perception that the truck was a government or military shipment.[54]
e)The Authority did not accept the applicant had any profile or contact with the Taliban, or had done anything else to prompt their interest in him.[55]
f)In the immediate aftermath of the incident there may have been a genuine threat to the applicant in his home area which promoted him to leave.[56]
[50] CB202, [21]
[51] CB202, [21]
[52] CB202, [21]
[53] CB202, [22]
[54] CB203, [25]
[55] CB203, [29]
[56] CB203, [28]
The Authority referred to the following claims made by the applicant about which it did not make any express findings:
a)When they detained the driver the Taliban wanted to know who owned the petrol.[57]
b)The Taliban accused the driver of selling petrol to ANA, and this prompted the driver to provide the invoice with the applicant’s name on it, and to volunteer several personal details about the applicant.[58]
[57] CB201, [17]
[58] CB203, [26]
Although it did not expressly say it accepted these two claims, given the Authority referred to the claims, and it accepted the applicant’s claims that the Taliban hijacked the truck, the driver provided to the Taliban details concerning the applicant, and the driver warned the applicant after the incident, I find that the Authority impliedly accepted these claims as well.
The question, then, is whether any of these findings, express or implied, are inconsistent with each other or with the Finding. In my opinion, the only potentially inconsistent finding is that, when the driver informed the applicant of the incident involving the driver and the truck, there “may have been a genuine threat to the applicant in his home area”.[59] That finding, however, must be seen in the context of the Authority’s reasons as a whole and, in particular, in the sentence that followed this finding. The Authority there said that “of significance to me is that the applicant was never directly targeted or threatened by the Taliban”.[60] In that context, the Authority’s reference to a “genuine threat” cannot reasonably be read as referring to some objective threat, but to the applicant’s genuinely believing he faced a threat as a consequence of what the driver had reported to him.
[59] CB203, [28]
[60] CB203, [28]
On this construction of its reasons, there are no inconsistencies in the findings the Authority made. Further, in my opinion, the Finding was one that was reasonably open to it to make for the reasons it gave. It was reasonably open to the Authority to find that the name of a person given to the Taliban in the course of a random attack on a truck, even if the attack were triggered by a perceived link between the truck and the army or government, would not expose that person to anything other than a remote risk in the person’s home area, and to no risk in other parts of Afghanistan, in circumstances where the person whose name was given to the Taliban had no profile with the Taliban, and it is not suggested that it was asserted to the Taliban that the person did have a profile that would give rise to an adverse interest in the applicant by the Taliban.
Ground 4, therefore, fails.
Ground 6
Ground 6 of the amended application is as follows (emphasis in original):
The IAA’s decision is infected with jurisdictional error as information that ought not to have disclosed to the IAA by the Secretary, has been disclosed to the IAA under s473GB of the Migration and the IAA had regard to this information.
Particulars
1.The Ministerial Certificate issued to the IAA states at [CB 171] “This information could be used by individuals attempting to commit identity fraud against the commonwealth” [sic].
2.s473GA(1)(a) of the Migration Act states that “the secretary must not give the Immigration Assessment Authority a document, or information, if the Minister certifies, under subsection (2) that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest … because it wold prejudice the security … of Australia”.
3.The IAA therefore was in possession of a document or information that it ought not to have been in possession of, which was provided by the Secretary.
4.The applicant or his legal representative were not put on notice regarding the information that the IAA had been provided by the Secretary, which it ought not have been in possession of, which the IAA had regard to [CB198, 3]
This ground relates to a certificate that was issued purportedly pursuant to s.473GB of the Act, which is as follows:
(1)This section applies to a document or information if:
(a)the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:
(a)must notify the Authority in writing that this section applies in relation to the document or information; and
(b)may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a)may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b)may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
(4)If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.
(5)The Minister may issue a written certificate for the purposes of subsection (1).
The certificate (Certificate) that was given is as follows:[61]
I notify the Immigration Assessment Authority that section 473GB of the Migration Act1958 applies to a document or information in the document titled . . . Identity Assessment Form contained in . . . .
In my view, this document or information should not be disclosed to the referred applicant or the referred applicant’s representative because:
(a)the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because it discloses the department’s methodology for investigating an applicant’s claimed identity. This information could be used by individuals attempting to commit identity fraud against the Commonwealth.
[61] CB171
The Immigration Assessment Authority’s use and disclosure of a document or information covered by this certificate is subject to subsections 473GB(3) and 473GB(4) of the Migration Act 1958.
This certificate is made pursuant to subsection 473GB(5) of the Migration Act 1958.
Ground 6 makes two claims. The first is that the Secretary was prohibited by s.473GA of the Act from providing to the Authority the documents or information covered by the Certificate because the disclosure of the information would prejudice the security of the Commonwealth. I do not accept this claim. The prohibitions contained in s.473GA apply only if a certificate is issued under s.473GA(2) “for the purposes of subsection (1)”. The Certificate, on the other hand, was purportedly given under s.473GB(5) of the Act.
The second claim ground 6 makes is the Authority was required to disclose to the applicant the existence of the Certificate. I also do not accept that claim. First, it has been held that the existence of a certificate issued or purportedly issued pursuant to s.473GB by itself is not a matter that triggers any obligation on the Authority to disclose or even consider disclosing anything to an applicant.[62] Second, even if in the circumstances of this case the Certificate did trigger any such obligation, and the Authority failed to discharge such obligation, that would not have resulted in the Authority making any jurisdictional error. The reason is that the information covered by the Certificate related only to the identity of the applicant. The Authority accepted the applicant is the person who he has represented to be. Thus even if the Authority disclosed or considered disclosing the certificate this could not have resulted in the Authority making a different decision.[63]
[62] AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129
[63] Hossain v Minister for Immigration and Border Protection [2018] HCA 34, at [31] (Kiefel CJ and Gageler and Keane JJ): “Thus, as it was put in Wei v Minister for Immigration and Border Protection, "[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act". Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
Ground 6, therefore, also fails.
Ground 7
Ground 7 of the amended application is as follows (emphasis in original):
The IAA failed to consider an essential integer of the applicant’s claims.
Particulars
1. The IAA states at [CB206, 43], “I am satisfied that if the applicant returned to live in Kabul and recommenced his petrol business there is not a real chance that he would be harmed by the Taliban or other AGEs on the basis of his past history selling petrol in the city”.
2. At [CB199] the applicant claimed “He was a supplier of petrol. He used to obtain petrol in Herat and then on-sell it in Kabul” and at [CB201, 14] “As part of his business, the applicant would buy petrol in Herat. The applicant would travel to Herat by bus to purchase the petrol and arrange for it to be delivered in Kabul”.
3. The IAA was “satisfied there is a more than remote chance the applicant, as a Hazara Shia, will be seriously harmed in the form of kidnapping, detention, violence or death at the hands of the Taliban or other AGEs while travelling on the roads around his home area is Jaghori, Ghazni Province” [CB204, 35].
4. The IAA accepted at [CB204, 34] “…Hazaras travelling the Hazarajat face a greater risk than other ethnic groups and, while not clearly an indication of ethnic targeting, they are more likely to be selected for violence or kidnapping”.
5. The delegate at [CB163] stated “I consider that the applicant would face a real chance of persecution if he were to return to Kabul and continue to travel as part of his work as a petrol vendor, particularly given that the main road between Herat and Kabul passess [sic] through Ghazni, where Mohammad Ali was captured and the applicant is known to the Taliban”.
6. The IAA failed to consider that should the applicant return to live in Kabul and recommence his petrol business, as part of his business as a petrol vendor he would need to travel to Herat by bus via the main road between Herat and Kabul that passess [sic] through Ghazni to purchase the petrol and arrange for it to be delivered in Kabul.
7. The IAA having accepted that “there is a more than remote chance that applicant, as a Hazara Shia, will be seriously harmed ………. while travelling on the roads around his home area in Jaghori, Ghazni Province” and that “Hazaras travelling around the Hazarajat face a greater risk than other ethnic groups” failed to consider that the applicant would need to travel through “his home area in Jaghori, Ghazni Province” (an area accepted as unsafe for the applicant) if he was to relocate to Kabul and recommence his business.
8. The real chance of the applicant being seriously harmed if he relocated to Kabul and recommenced his business (for reasons mentioned at 7 above) was not considered when assessing the applicant’s claims under the Complimentary [sic] protection criterion.
In his written submissions, the applicant submits the Authority did not consider the risk of significant harm that emanates from non-state agents such as the Taliban or other AGEs should the applicant relocate to Kabul and recommence his petrol-selling business. In particular, the applicant submits the Authority failed to consider that as part of the applicant’s petrol-selling business he would need to travel to Herat from Kabul and return to Kabul which, the Authority found, consisted of an area which was unsafe for that purpose.[64]
[64] Applicant’s Outline of Submissions, [20.2]
The Minister submits the Authority did not have to consider, when assessing whether the applicant is a “refugee” within the meaning of s.5H(1) of the Act, whether the applicant could be harmed in travelling between Herat and Kabul. That is so, the Minister submits, because, consistently with s.5J(3) of the Act, the Authority found the applicant could take reasonable steps to modify his business practices to avoid the risk of harm.[65] In the case of the Authority’s assessment of the applicant’s claims against the complimentary protection criterion provided for by s.36(2)(aa) of the Act, the Minister makes two submissions. The first is that although the Authority did not specifically refer to the applicant’s having to travel outside of Kabul, that does not mean the Authority did not consider it, and the Court should not infer, therefore, that the Authority overlooked this question when considering the relocation in the context of the applicant’s claims against the complementary protection criterion.[66]
[65] First Respondent’s Outline of Submissions, [17]
[66] First Respondent’s Outline of Submissions, [19]
Second, even if the Authority did not consider that the applicant’s conducting a petrol-selling business in Kabul would expose the applicant to the real risk of significant harm, the Minister submits it is clear from the Authority’s finding that it was satisfied that if the applicant were to relocate in Kabul the applicant could avoid the risk of harm either by modifying the manner in which he conducted his petrol business, or by working as a welder. The Minister submits that although the Authority made these findings when considering the applicant’s claims against the refugee criterion provided for by s.36(2)(a) of the Act, the second of those findings, namely, that the applicant could work in Kabul as a welder (Modification of Occupation Finding), is available to support the conclusion that even if the Authority did not consider the question of whether the applicant would be exposed to the real risk of significant harm while travelling between Kabul and Herat if he were to continue his petrol-selling business in Kabul without modification, its failing to do so could have made no difference to the decision the Authority made and, for that reason, the Authority made no jurisdictional error.
The Minister’s submissions rest on the assumption that the only means by which the Modification of Occupation Finding can be made relevant to determining whether the Authority made a jurisdictional error by not considering whether the applicant would face a real risk of significant harm if he were to travel between Kabul and Herat is by construing s.36(2)(aa) of the Act to permit consideration of whether there are steps a person claiming protection may reasonably be expected to take to avoid a real risk of significant harm that they would face if no such steps are taken. I do not accept that assumption. The Authority made the Modification of Occupation Finding when considering the applicant’s claims against the refugee criterion provided for by s.36(2)(a) of the Act.[67] The Authority, however, considered that finding to be relevant to assessing the applicant’s claims against the complementary protection criterion provided for by s.36(2)(aa) of the Act; and in particular in the context of considering whether it would be reasonable for the applicant to relocate to Kabul.[68] That was relevant because of s.36(2B)(a) of the Act, the terms of which I set out later in these reasons.
[67] CB205, [40]
[68] CB210, [66]
The following issues, therefore, arise.
a)Did the Authority consider whether, if the applicant were to relocate to Kabul and recommence his petrol-selling business, he would travel between Kabul and Herat and for that reason face a real risk of significant harm?
b)If (a) is answered in the negative, would it have been open to the Authority to assess whether s.36(2B)(a) of the Act applied to the applicant by relying on the Modification of Occupation Finding?
c)Assuming (b) is answered in the affirmative, would that deny any materiality that might otherwise attach to the Authority’s not having considered the matter referred to in (a) such that the Authority’s decision is not liable to be set aside for jurisdictional error?
Did Authority consider the risk of harm due to travel between Kabul and Herat?
The starting point is the finding the Authority made in response to the submission made by the applicant that when assessing the applicant’s claims against the complementary protection criterion the applicant cannot be “forced to modify his behaviour”. The Authority found that “the applicant would not face a real chance or real risk of harm if he recommenced his petrol business in Kabul without modification”.[69] That finding must be considered having regard to two things. The first is what counsel for the Minister properly accepted is a fact, namely, that “to travel overland between Kabul and Herat, one would, taking the most direct route, pass through Ghazni, which is where the applicant previously lived”.[70] The second thing is the Authority’s finding that the applicant faced a real chance of being seriously harmed if he were to return to Ghazni because he is a Hazara,[71] and the basis of that finding, namely, that Hazaras travelling around the Hazarajat face a greater risk than other ethnic groups, and are more likely to be selected for violence or kidnapping.[72] Given that the most direct route between Kabul and Herat requires passing through Ghazni, the Authority’s findings that the applicant faces a real chance of being seriously harmed if he were to return to his home area in Ghazni and the Authority’s finding that the applicant would not face a real chance or real risk of significant harm if he recommenced his petrol-selling business in Kabul without modification are inconsistent.
[69] CB210, [66]
[70] T12.10
[71] CB204, [36]
[72] CB204, [34]
There are a number of potential explanations for the Authority’s inconsistent findings. One is irrationality – the Authority consciously made inconsistent findings without realising the findings it made are inconsistent. Another explanation is that the Authority was not aware that travel between Herat and Kabul would likely require passage through Ghazni. And yet another potential explanation is that the Authority was aware that travel between Kabul and Herat would likely require passage through Ghazni but it omitted to consider whether by pursuing his business without modification the applicant would travel through Ghazni and, for that reason, would be exposed to a real risk of significant harm. In my opinion, the third is the more likely explanation. It is implausible the Authority would have consciously accepted both that the applicant faced a real risk of harm if he were to return to Ghazni because Hazaras travelling around the Hazarajat face a greater risk than other ethnic groups, and are more likely to be selected for violence or kidnapping, and also the applicant would not face such risk if he were to relocate to Kabul and continue his business without modification which would likely require him to travel through Ghazni. It is also implausible that a specialist authority such as the Authority would be ignorant of basic geographical facts of Afghanistan.
I therefore find that the Authority did not consider whether if the applicant were to relocate to Kabul and continue there with his petrol-selling business without any modification he would face a real chance of significant harm because the continued operation of the applicant’s business without any modification would require the applicant to travel between Kabul and Herat by bus which, in turn, would likely mean travelling through Ghazni.
Was it open to Authority to rely on the Modification of Occupation Finding?
The Authority made the Modification of Occupation Finding when considering the applicant’s claims against the refugee criterion provided for by s.36(2)(a) of the Act.[73] The Authority, however, considered that finding to be relevant to assessing the applicant’s claims against the complementary protection criterion provided for by s.36(2)(aa) of the Act; and in particular in the context of considering whether it would be reasonable for the applicant to relocate to Kabul.[74] That was relevant because of s.36(2B)(a) of the Act which provides:
However, there is taken not to be 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 . . .
[73] CB205, [40]
[74] CB210, [66]
This paragraph is predicated on the view that a non-citizen who faces a real risk of significant harm in a particular area of a country is expected to modify his or her behaviour to avoid such risk if there is another area of the country where the non-citizen will not face a real risk of significant harm. The expected modification of behaviour is that the non-citizen will relocate to that area of the country where there would not be a real risk that the non-citizen will suffer significant harm. Whether in any given case a non-citizen would be expected to relocate to another part of his or her country of nationality would depend on the Minister’s considering, and answering in the affirmative, two questions. The first is whether there is an area in the non-citizen’s country where there would not be a real risk that the non-citizen will suffer significant harm (putative area of relocation). The second is whether it would be reasonable for the non-citizen to relocate to that area of the country.
The determination of the first question depends on the assumptions that are made about the activities the non-citizen will undertake in the putative area of relocation if he or she were to relocate to that area. That is so because in any given case the applicant may be capable of undertaking a range of activities in the putative area of relocation, if he or she were to relocate there, some of which would, but some of which would not, expose the non-citizen to a real risk of significant harm. That possibility is illustrated by the case before me. The Authority found (when considering whether the applicant is a “refugee” within the meaning of s.5H of the Act) that it would be reasonable either for the applicant to continue his petrol-selling business if he were to relocate to Kabul (which would involve the travelling between Kabul and Herat and thus expose him to a real chance of significant harm) or for the applicant to abandon that business and instead work as a welder (which would not expose the applicant to a real chance of significant harm because it would not require the applicant to travel through Ghazni) (this being the Modification of Occupation Finding).
A question that arises is whether the activities it should be assumed a non-citizen will undertake in the putative area of relocation are to be determined by reference to what the non-citizen in fact will do, or by reference to what the non-citizen ought reasonably be expected to do, if he or she were to relocate. The answer to that question must, at least in the first instance, be sought in the text of s.36(2B)(a) of the Act. Of significance are the words “reasonable for the non-citizen to relocate”. They imply that the focus of inquiry is not what the non-citizen will or will not do, but on what the non-citizen ought reasonably be expected to do. At the very least, that implies that the non-citizen is expected to move from the area in which he or she faces a real risk of significant harm if there is another area in the non-citizen’s country where he or she does not face such a risk, whether or not the non-citizen has any intention to relocate to such area. If that is so, then it should follow that whether or not there is an area in the non-citizen’s country where there would not be a real risk that the non-citizen will suffer significant harm should also be determined by reference to what the non-citizen ought reasonably be expected to do at the place of relocation, if he or she were to relocate there. Thus, the application of s.36(2B)(a) of the Act depends on what the non-citizen ought reasonably be expected to do to avoid a real risk of significant harm, both in the area where the non-citizen has a real chance of suffering significant harm (namely, leave that area), and in any other area of the non-citizen’s country.
What I say in the preceding paragraph is supported by the judgments of the plurality and Gageler J in Minister for Immigration and Border Protection v SZSCA.[75] In that case the Refugee Review Tribunal (RRT) found that the non-citizen, a national of Afghanistan, did not have a well-founded fear of persecution if he remained in Kabul where he lived, abandoned his occupation of driving trucks between Kabul, Ghazni, and Jaghori, and instead would work as a jeweller, an occupation for which he was qualified. In other words, the RRT assessed the non-citizen’s claims he was a refugee on the basis of an expectation that he would remain in Kabul and work as a jeweller rather than as a driver of trucks. The plurality found that the RRT’s considering the non-citizen’s claims on the basis of an expectation he would work as a jeweller rather than a truck driver raised “considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable”.[76] The plurality held the RRT “did not consider the question whether the [non-citizen] could reasonably be expected to remain there and transport materials on the roads outside Kabul, where he would be at risk of harm”;[77] and for that reason the RRT made an error of law. The plurality said (emphasis added):[78]
In the present case it is not just the living conditions for the respondent in Kabul – and whether he would face a real chance of persecution if he stayed there – which should have been considered by the Tribunal. Rather, it was necessary for the Tribunal to consider the impact on the [non-citizen] of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business. Addressing this question properly may have raised various issues for the Tribunal's consideration. At the least, the question clearly directs attention to the [non-citizen’s] ability to earn an income from other sources and to his needs and those of his family.
The Tribunal did not address this question. It did not address what was necessary to an enquiry whether it was reasonable to expect the [non-citizen] to remain in Kabul and not drive trucks outside it. It made one assumption – that the respondent would be able to work as a jewellery maker in Kabul, as he had formerly done in Jaghori. This assumption does not appear to have been put to the respondent for his comment. The [non-citizen] had raised concerns about his ability to earn a living if he were to return to Afghanistan, but the Tribunal did not explore this subject with him.
. . . . Without addressing the question whether it would be reasonable to expect the [non-citizen] to remain and work in Kabul, having regard to the circumstances in which that would place him, the Tribunal could not make a final determination as to whether he could be said to have a well-founded fear of persecution. Failure to address this question constituted an error of law.
[75] [2014] HCA 45
[76] [2014] HCA 45, at [29]
[77] [2014] HCA 45, at [29]
[78] [2014] HCA 45, at [31]-[33]
Gageler J was also of the opinion that the findings the RRT made gave “rise to an issue about the application to the [non-citizen] of the same principle as that which underlies an issue of relocation”, and that the “question which the Tribunal needed to address was whether it would be reasonable for the [non-citizen], on return to Afghanistan, to live and work in Kabul”.[79] His Honour, however, found the RRT did consider that question and, therefore, made no jurisdictional error.
[79] [2014] HCA 45, at [46]
There are four matters to note about the judgments in SZSCA.
a)First, the plurality and Gageler J proceeded on the footing that, when considering whether the non-citizen had a well-founded fear of persecution, it was open to the RRT to consider whether the non-citizen could have avoided that risk by modifying his conduct, namely, by abandoning one occupation which exposed him to a real chance of serious harm and replacing it with an occupation that did not expose him to a real chance of serious harm. In other words, all Justices assumed that, when considering whether a non-citizen has a well-founded fear of persecution, it is relevant to consider whether the non-citizen could modify his behaviour so as to avoid a real chance of serious harm.
b)Second, the plurality and Gageler J also proceeded on the footing that the only modification of behaviour that could be considered when determining whether the non-citizen could avoid a real chance of serious harm is a modification that it is reasonable to expect a non-citizen would make. What divided the plurality and Gageler J is whether the RRT considered whether it was reasonable to expect that the non-citizen in that case would modify his conduct by substituting one occupation for another.
c)Third, as the plurality and Gageler J observed, the case before the RRT did not involve the relocation principle;[80] but the plurality and Gageler J also observed that a principle analogous to the relocation principle, or (in the case of Gageler J) the same principle that underlies the relocation principle, applied. That means that what the plurality and Gageler J said applies equally to a relocation case. That is, when considering whether a person could avoid a well-founded fear of persecution in the putative area of relocation it is permissible to proceed on the basis that the non-citizen would take such reasonable steps as are available to him or her to avoid the real chance of serious harm.[81]
d)Fourth, the relocation principle to which the plurality and Gageler J referred is a principle that has been developed in the context of the definition of “refugee” given in Art.1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. Paragraph (a) of s.36(2B) of the Act, however, has now made the relocation principle relevant to the assessment of a claim for protection based on the complementary protection criterion provided for by s.36(2)(aa).
[80] As for the relocation principle, see SZATV v Minister for Immigration and Citizenship [2007] HCA 40 and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41
[81] That, of course, is subject to the decision and reasoning in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71. I take S395 to be authority for the proposition that when considering whether a non-citizen has a well-founded fear of persecution, it is not permissible to consider whether the non-citizen could avoid a real chance of persecution by concealing from actual or potential persecutors those characteristics, qualities, or traits that would otherwise expose the non-citizen to a well-founded fear of persecution on the ground of that person’s race, religion, nationality, membership of a political group, or political opinion.
It follows that, when considering for the purposes of s.36(2B)(a) of the Act whether it is reasonable for a person to relocate to a putative relocation area, it is open to the decision maker to answer that question by reference to what the person may reasonably be expected to do in the putative area of relocation to avoid a real chance of significant harm. Thus, in the case before me, it would have been open to the Authority, when considering whether the applicant faces a real risk of significant harm if he were to relocate to Kabul, to consider that question having regard to whether it is reasonable for the applicant to modify his behaviour so as to avoid the real risk of significant harm by abandoning his petrol-selling business, and instead resume his occupation as a welder.
Was Authority’s failure to consider the risk of harm due to travel between Kabul and Herat material?
The notion of materiality in the context of an administrative decision denotes a causal relationship between something the decision maker did or failed to do, and the decision. Where, for example, the relevant act or omission of a decision maker is one that involves an error of law, the error of law will be material to the decision if “it contributes to it so that, but for the error, the decision would have been, or might have been, different”.[82] Ordinarily, a statute conferring decision-making power will be subject to an implied condition that the decision maker “must proceed by reference to correct legal principles, correctly implied”;[83] and the statute might also impose some other condition to the exercise of the power. In those circumstances, the “statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”.[84] That threshold, however, “would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made”.[85]
[82] Australian Broadcasting Tribunal v Bond [1990] HCA 33, at [80]; (1990) 170 CLR 321, at page 353
[83] Plaintiff M61/2010E v The Commonwealth (Offshore Processing Case) (2010) 243 CLR 319, at page 354 [78]; [2010] HCA 41.
[84] Hossain v Minister for Immigration and Border Protection [2018] HCA 34, at [29]
[85] Hossain v Minister for Immigration and Border Protection [2018] HCA 34, at [30]
In my opinion, it was a condition of the Authority’s exercise of the power to review the delegate’s decision that it “proceed by reference to correct legal principles, correctly implied”, and that required the Authority to consider, when assessing the applicant’s claims against the complementary protection criterion, whether the applicant’s resuming his petrol-selling business would likely require him to travel between Kabul and Herat and thus expose him to a real risk of significant harm. I also find that the Authority’s power to review the delegate’s decision is to be construed as incorporating the threshold of materiality in the event of non-compliance. In those circumstances the question that arises is whether, when assessing the applicant’s claims against the complementary protection criterion provided for by s.36(2)(aa) of the Act, the Authority’s failure to consider whether the applicant would face a real risk of significant harm if he were to travel between Kabul and Herat was material to the Authority’s decision. More particularly, had the Authority considered that question, could that have made any difference to the Authority’s decision?
That question is to be answered in the negative. Had the Authority considered whether the applicant would face a real risk of significant harm if he were to travel between Kabul and Herat then, consistently with what the Authority had already concluded about the risks the applicant would face if he were to return to his home area, the Authority would have answered that question in the affirmative. In those circumstances, the Authority would inevitably have relied on its finding that, given “the applicant worked as a welder for several years prior to commencing his petrol business and he has the ability to work and make a living in an industry entirely unrelated or connected to the government”, it “would not be unreasonable for the applicant to choose to return to that or another profession”.[86]
[86] CB205, [41]
Conclusion on ground 7
For these reasons, ground 7 also fails.
Ground 8
Ground 8 of the amended application is as follows (emphasis in original):
The IAA erred at [CB208, 53-54] when assessing future harm the applicant would face in Kabul.
Particulars
1. The IAA states at [CB208, 53] that the recent attack “appears to have clearly been directed at Hazara Shias, the attack occurred in a high profile protect”.
2. The country information relied by the IAA could be found at [CB189, the news article refers to a “Hazara Shia minority” groups of “protestors” who took part in a “peaceful protest” who were targeted by ISIS. The news article further states that the attack would be the group’s first against civilians in the Afghan capital…”
3. On the basis of the news article relied by the IAA the protestors who took park in the protest were:
a. Members of the Hazara Shia minority
b. They were civilians
c. The protest was peaceful
4. There is no indication in the news article relied by the IAA which suggests that the protestors were “high profile” or “high profile Hazara Shia”.
5. The IAA appears to have inferred (impliedly) after considering the news article that persons who attended the protest/demonstration were High [sic] profile members of the Hazara Shia community due to the reasoning a “low profile Hazara Shia”.
6. The IAA thereafter infers that because the applicant is a low profile Hazara Shia (due to his lack of beliefs in “Hazara Shia rights” or the likelihood of him participating in protests if returned) [sic] there is no real chance of him suffering serious harm.
7. The IAA makes further findings that the applicant “would like and work in the city in a low profile manner”, the IAA does not explain in its reasons what it means by living and working in a low profile manner. On the basis of the IAA’s reasoning it would appear anyone who does not “involve himself in high profile activities such as protests” would be living and working in a low profile manner.
8. The IAA further states “Given [sic] this, the attack may not be indicative of an increased risk to ordinary low profile Hazara Shias living in the city”. This sentence appears to suggest that there was and remains a “risk” (though the risk may not have increased) even for ordinary low profile Hazara Shias. The IAA does not appear to have assessed the “risk” that was and remains for ordinary low profile Hazara Shias.
It is apparent from the particulars that this ground is directed to the Authority’s consideration of whether a suicide attack in Kabul that occurred on 23 July 2016 to which I refer in paragraph 12 of these reasons “may not be indicative of an increased risk to ordinary low profile Hazara Shias living in the city”.[87]
[87] CB208, [53]
In his written submissions, the applicant submits that the articles do not suggest the protestors who were Hazara Shias had a “high profile”, but instead refer to an attack having been carried out “against civilians”.[88] The applicant further submits the Authority impliedly inferred that the persons who attended the protest were high profile members of the Hazara Shia community, but it was not reasonably open to the Authority to so infer.[89] In oral address, Mr Tambimuttu seemed to make a broader if not different claim to that contained in the particulars to ground 8. He submitted that the articles contain information of attacks on Hazaras in addition to those who attended the peaceful protest which suggests ordinary Hazaras face the risk of harm, and the Authority did not consider that information.
[88] Applicant’s Outline of Submissions, [21.2]
[89] Applicant’s Outline of Submissions, [21.3], [21.4]
Ground 8, when considered with the applicant’s written, and Mr Tambimuttu’s oral, submissions, can be taken to make three claims. The first is that the Authority inferred that it was high profile Hazaras who attended the protest that was the subject of the attack. I do not accept that claim. I accept the Minister’s submission that what the Authority considered to be “high profile” was the protest, not those who participated in the protest.[90] It is true the Authority used the expression “ordinary low profile Hazara Shias”; but it did not use that expression to mean a person who is not a “high profile Hazara Shia”. The Authority used the expression “ordinary low profile Hazara Shias” in a specific sense to mean Hazara Shias who would not involve themselves in high profile activities, such as protests.
[90] First Respondent’s Outline of Submissions, [29]
The second claim ground 8 appears to make is that the reports of the incident contain information that other attacks have been made or at least there was a risk that attacks would be made against ordinary Hazara Shia, but the Authority did not consider that information. There are two reports. The first is an article published in “The Guardian” headed “Isis claims responsibility for Kabul bomb attack on Hazara protesters”.[91] It was reasonably open to the Authority to consider that this article referred to the attack of 23 July 2016, and not to other attacks. The second article appears to have been published by Reuters, and is titled “Afghanistan weighs Islamic State threat after Kabul”.[92] The opening sentence of the article states that “Islamic State is threatening more attacks against Afghanistan’s Hazara minority after Saturday’s suicide blast in Kabul that killed 80 people”.
[91] CB189
[92] CB191
I accept that the second of the two articles refers to the risk of further attacks from Islamic State. I do not accept, however, that the Authority did not consider that information. It was consistent with other country information to which the Authority referred and which the Authority stated indicates “that Islamic State has threatened that it will strike again”.[93] The Authority referred to the attack reported in the two articles specifically for the purpose of considering whether the attack was an isolated attack, or whether Islamic State has the capacity to continue to orchestrate such attacks in Afghanistan. The Authority considered that question and concluded that the attack did not indicate any increased risk to “ordinary low profile Hazara Shia” like the applicant.
[93] CB207, [51]
The third claim ground 8 makes is that, by finding that the attack on 23 July 2016 “may not be indicative of an increased risk to ordinary low profile Hazara Shias living in the city”, the Authority assumed there was and remains a risk even for ordinary low profile Hazara Shia, but the Authority did not assess that risk. I do not accept that claim. The Authority accepted “there continued to be security issues in Kabul”, but in view of all of the information before it, the Authority did “not accept there is a real chance of the applicant being seriously harmed as a low profile Hazara Shia by Islamic State in Kabul”.[94]
[94] CB208, [54]
Ground 8 of the amended application, therefore, also fails.
Conclusion and disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed. I will deal with the question of costs when I pronounce my order.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 16 November 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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Proportionality
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Jurisdiction
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