CSZ16 v Minister for Immigration
[2020] FCCA 772
•8 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSZ16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 772 |
| Catchwords: MIGRATION – Protection Visa – decision of the Immigration Assessment Authority – whether the IAA failed to consider exercising the discretion in s.473DC(3) of the Migration Act – whether it was unreasonable for the IAA not to exercise the discretion in s.473DC(3) of the Migration Act – whether IAA erred in assessment relocation – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2B), 473CC, 473DB, 473DC, 473DD, 473DE, 476 Migration Regulations 1994 (Cth), reg.4.42 |
| Cases cited: BJB16 v Minister for Immigration [2018] FCAFC 49 |
| Applicant: | CSZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2076 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 16 May 2018 |
| Date of Last Submission: | 16 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 8 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms G. Costello |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr J. Maloney |
| The Second Respondent submitting appearance, save as to costs. |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s amended application for judicial review filed on 3 May 2018 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2076 of 2016
| CSZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (IAA), dated 23 August 2016.
The IAA’s decision affirmed a decision of a delegate of the First Respondent (Minister) not to grant the Applicant a Temporary Protection (Subclass 785) visa (Visa).
The Applicant filed an amended application in this Court with three grounds of review on 3 May 2018, those grounds of review, discussed below, are the subject of this Judgment.
These proceedings are brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). To obtain assistance from this Court, the Applicant must show that the IAA has fallen into jurisdictional error.
The Court had before it a Court Book spanning 388 pages, written submissions from the Applicant dated 2 May 2018 and written submissions from the Minister dated 9 May 2018.
Background
The Applicant in these proceedings is a citizen of Afghanistan[1].
[1] Court Book (CB) 37.
On 13 July 2015, the Applicant applied for the Visa. The Applicant’s Visa application was accompanied by a Statutory Declaration, dated 25 June 2015[2].
[2] CB 82.
The Applicant claimed that he faced a risk of harm as a result of him previously transporting goods for the Afghan government. He believed the Taliban would identify him as an affiliate of the government and would kill him for this reason. The Applicant also claimed that he can be easily identified as a Shia Muslim and that he would be continually targeted by the Sunni Majority and the Taliban. Finally, the Applicant claimed that having spent a significant period of time in Australia and having claimed asylum here, he will be considered an ally of the West and targeted by the Taliban. The Applicant claimed that he could not relocate as he would be vulnerable to exploitation and at risk anywhere in Afghanistan[3].
[3] CB 82-85.
The Applicant was invited to attend an interview with the Minister’s delegate (Delegate) on 10 December 2015. Following the interview, the Applicant’s representatives made a three page submission addressing matters that arose in the course of the interview with the Delegate[4].
[4] CB 218-220.
On 28 June 2016, the Delegate refused the Applicant’s application[5] (Delegate’s Decision). While the Delegate found that the poor security situation in Logar Province meant that the Applicant could not safely return there, the Delegate found that the Applicant could relocate to Kabul and he would not suffer harm for any of the reasons he had claimed.
[5] CB 247-275.
Following the referral of the matter to the IAA, the Applicant’s representative provided a submission for consideration (Applicant’s July 2016 Submission)[6]. Relevantly, that submission made extensive reference to the issue of relocation. The Applicant’s July 2016 Submission stated as follows[7]:
[T]he delegate failed to take into consideration the applicant’s personal circumstances when assessing whether it was reasonable to expect him to relocate. Given the volatile situation in Afghanistan, we submit the applicant’s lack of familiarity with Kabul and lack of support networks would make him vulnerable to serious harm and exploitation upon return. The Applicant instructs that he was able to obtain work previously due to family ties he held with his community. He reiterates that he does not have such ties in Kabul, Afghanistan. Further, we note the applicant is not educated and has very limited life experience.
[…] [W]ithout family support and appropriate accommodation in Kabul, the applicant will be extremely vulnerable to harm. In particular, we note that resources in Kabul are extremely limited given the high number of IDPs forced to live there. […] Given these matters, we submit that the applicant would be vulnerable to exploitation and harm if forced to return to Kabul.
[6] CB 287-294.
[7] CB 293.
On 25 July 2016, the Applicant provided further information to the IAA relating to the capacity for an attack to be undertaken in Kabul that targets people based on their religious identity or ethnicity (Applicant’s Additional July 2016 Submissions)[8].
[8] CB 295-298.
On 4 August 2016, the IAA invited the Applicant to comment on a range of matters (IAA Invitation to Comment). Those matters included[9]:
a)Commenting on country information which the IAA considered may lead it to conclude that ‘future attacks upon Kabul’s Shia population are likely to be infrequent, and not to such an extent as to pose a real chance or risk of harm to you’.
b)Providing ‘Information as to why it would not be reasonable for you to relocate to any other areas of Afghanistan apart from those places you claim you will suffer harm’.
c)Commenting on country information about Tajiks in the Balkh province, the relative safety of Mazar-e-Sharif and the dominance of Tajiks in Herat, and the availability of flights from Kabul to Herat and Mazar-e-Sharif.
[9] CB 308-309.
On 18 August 2016, the Applicant’s representatives responded to the IAA Invitation to Comment. The Applicant’s representatives reiterated their reliance on the previous submissions and information that they had provided and further submitted that it was not relevant or reasonable for the Applicant to relocate[10].
[10] CB 311-315.
On 23 August 2016, the IAA affirmed the Delegate’s Decision (IAA Decision)[11].
[11] CB 319-338.
The IAA Decision
The Applicant’s grounds of review largely relate to the IAA’s consideration of the reasonableness of relocation. For this reason, it is unnecessary to set out at length the reasons of the IAA.
Suffice to observe that the IAA accepted that the Applicant may face a real chance of being physically harmed in Logar Province and as such considered whether this chance of harm extended to other areas of Afghanistan, specifically, Kabul. The IAA found that the Applicant did not face a real chance of harm were he to return to Kabul.
When turning to consider the complimentary protection provision, the IAA recognised that it must consider whether it would be reasonable for the Applicant to relocate to a particular area. The IAA found as follows[12]:
48.I have found that there is not a real chance that the applicant will face serious harm in Kabul due to his imputed political opinion as a returnee from the West, as a Tajik Shia or due to his previous employment. As the ‘real risk’ test imposes the same standard as the ‘real chance’ test, for the reasons stated above I am also not satisfied that there is a real risk of the applicant suffering significant harm on the return to Kabul for those reasons. Given the current security situation in Afghanistan, I have given consideration to whether there is a real risk of significant harm due to generalised violence in Kabul. Country information indicates that there was a marked increase in security incidents in Kabul in 2015, however DFAT assesses that the primary targets are government institutions, political figures, the Afghan National Defence and Security forces (ANDSF), personnel associated with NATO’s Resolute Support Mission and other coalition forces, other security services, international organisations and diplomatic representatives of some countries. Despite this, these attacks cause significant casualties among civilian bystanders in addition to those being targeted. The Afghan government maintains effective control over Kabul, and a range of counter-measures have been put in place to prevent and respond to insurgent attacks. Although these measures provide a deterrent and ANDSF are quick to respond, attacks are still common. People associated with the government or the international community are at a significantly higher risk than ordinary Afghans in Kabul. The applicant does not have a profile or association with any of these targets and the security situation for Tajiks in Kabul does not differ from that of the general population. I am therefore not satisfied that there is a real risk of him facing significant harm on the basis of the general security situation in Kabul.
49.I have therefore considered the reasonableness of the applicant relocating to Kabul on return. The applicant’s representative submits that the applicant’s personal circumstances were not previously considered when assessing the reasonableness of relocation, claiming that the volatile situation, the applicant’s unfamiliarity with and lack of support network in Kabul or other areas, no access to accommodation, limited life experience and lack of formal education would make him vulnerable to serious harm and exploitation upon return. The applicant has, until 18 August 2016 claimed that his family remain in Logar, however he states they have now relocated to Pakistan and he would not have any family in Afghanistan on return. UNHCR advised that many internally displaced people end up in large urban centres which have limited absorption capacity and where access to services remains a major concern. Kabul has seen the largest population increase with 70% of the population being estimated to live in informal settlements which are poorly located and under-serviced. UNHCR advises that relocation is reasonable where an individual has access to shelter, essential services, livelihood opportunities, and the traditional support network of extended family members or members of the larger ethnic community who are willing and able to provide support. The only exception to the requirement of external support are single able bodied men and married couples of working age without identified specific vulnerabilities. Such persons may in certain circumstances be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective Government control. DFAT has also advised that traditional extended family and tribal community structures are the main protection and coping mechanisms for people in Afghanistan, who rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence. In practice, lack of financial resources and employment opportunities are the greatest constraints to successful internal relocation which is generally more successful for single men of working age although lack of family or tribal networks for single men can impact on their ability to reintegrate into the Afghan community. However the financial situation of Kabul residents and their employment opportunities are also reportedly worsening.
50.The applicant is an able bodied male of working age. He is unmarried and has no children. Although he claims that he has no formal education in Dari I am satisfied that his social media account indicates that he has some basic literacy despite his claim at the protection interview that he receives assistance, and he has gained a basic knowledge of English in Australia. The applicant has limited work experience in construction and as an assistant truck driver in Afghanistan. He has demonstrated resilience in travelling from Afghanistan to Australia as an 18 year old and does not present with any health problems or other specified vulnerabilities identified by UNHCR as requiring durable support. Whilst I accept that living conditions in Kabul would be difficult on return and he may face challenges in establishing himself, particularly as the applicant claims that he has no family links in Kabul which he would be able to utilise, I am not satisfied that the applicant would be unable to obtain accommodation or employment. Although unemployment and underemployment is common reportedly due to the influx of returnees and internally displaced people which has put pressure on the local labour market, Kabul offers a greater range of employment opportunities particularly in the service sector, including in small businesses and in the construction industry. Taking into account the applicant’s personal circumstances I find it reasonable for the applicant to relocate to Kabul.
(Citations removed)
[12] CB 332-333.
The IAA was satisfied that it was reasonable for the Applicant to relocate to Kabul and therefore s.36(2B) of the Act applied and the Applicant was taken not to be at a real risk of significant harm in Kabul.
The IAA affirmed the Delegate’s Decision not to grant the Visa.
Proceedings Before This Court
The Applicant’s amended application contains three grounds of review which have each been considered, as follows.
Ground One
The IAA’s Decision is affected by legal unreasonableness in the circumstances of this case, which included:
(a)The IAA found that the delegate had not interviewed the Applicant in relation to relocating to Kabul.
(b)The IAA wrongly considered that it was under a duty under s 473DE to invite the respondent to give comments on country information about places in Afghanistan to which the Applicant may relocate. If the IAA had not been so mistaken then to carry out its statutory review in a legally reasonable way it would have had to consider acting under s 473DC. The IAA’s mistake had an operative effect on its review.
(c)The IAA invited the Applicant to give information about relocating to anywhere in Afghanistan (CB 309).
(d)The IAA did not exercise its discretionary power under s 473DC of the Act to invite the Applicant to give new information about whether it would be reasonable for him to relocate to Kabul.
(e)Requiring the Applicant to prove a negative (that he could not relocate to anywhere else in Afghanistan) in circumstances where he had not been interviewed by the delegate on subject of relocation and he was invited to respond in writing within a short deadline, was unreasonable.
(f)It was legally unreasonable for the Authority not to consider the exercise of its statutory power under s 473DC.
(g)The IAA mistook its procedural power and deprived the applicant of the possibility of impressing the Authority about his claims during an oral interview.
(h)The IAA did not consider whether to exercise its discretionary power in s 473CC(2) to remit the matter to the Delegate so that the Applicant could be interviewed about the issue of relocation within Afghanistan.
Consideration
Ground One argues that the IAA acted unreasonably in failing to consider to exercise the discretion in s.473DC(3)(b) of the Act. The leading cases on this issue are Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 (DZU16) and Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16).
The Applicant submits that the IAA Invitation to Comment was issued pursuant to s.473DE of the Act. It is common ground that the IAA was not required to seek the Applicant’s comment on the country information. However, the Applicant submits that in doing so, the IAA distracted itself from considering exercising the power under s.473DC(3). The Applicant relies on DZU16 wherein the Full Court stated[13]:
[…] if the Authority had not been mistaken as to its obligation to act under s 473DE, then to carry out its statutory task of review in a legally reasonable way it would have had to consider acting under s 473DC […]
[13] DZU16, at [79].
The Minister, in response, submits that the IAA Invitation to Comment adopts the language of ss.473DC and 473DE of the Act, which supports the inference that the IAA has not exercised the power under s.473DE and has exercised the power under s.473DC of the Act.
Unlike in DZU16, the IAA in this matter did not indicate (in the IAA Invitation to Comment nor in the IAA Decision itself) that the IAA Invitation to Comment was issued pursuant to s.473DE. Neither did the Minister concede that the IAA Invitation to Comment was issued under s.473DE (which was the case in DZU16). This is a critical distinction in the Court’s view.
Read fairly, the IAA Invitation to Comment appears to be issued under both s.473DC and s.473DE of the Act.
The first part of the IAA Invitation to Comment reads as follows[14]:
You are invited to comment on the following information that may be the reason, or part of the reason for affirming the decision of the Department of Immigration and Border Protection:
• Commentary from Afghanistan Analysts Network in respect to the regional group, Islamic State in Khorasan Province (ISKP) which claimed responsibility for the bombing of Shia demonstrators in Kabul on 23 July 2016 states:
“In terms of taking over territory, ISKP’s attempts to expand beyond Nangarhar have failed miserably. However, it does seem to enjoy an appeal much beyond Nangarhar and as far as Kabul in part due to the defection of militants who were previously Taleban, as well as to the presence of a more radical Salafi-jihadist cell in the largest urban centre in Afghanistan. There, it seems to be capable of planning and executing occasional operations against not so-fortified targets, with the help of local recruits, that can cause mass casualties, such as the 23 July 2016 attack. The prospect of ISKP establishing a territorial foothold in Kabul is, however, a distant one.”
•Commentary from HIS Jane’s Intelligence Weekly in respect to the regional group affiliated to the Islamic State, Wilayat Khorasan (WK), (the other name for ISKP) which states:
“Despite the Kabul attack, WK is unlikely to gain substantial strength in Afghanistan in at least the one-year outlook. WK has largely struggled to control territory, even in Nangarhar where its influence is strongest. The Taliban has been aggressive in eradicating any WK supporters and factions, and government counter-terrorism efforts have disproportionately targeted WK fighters in relation to the group's operational strength. Moreover, WK's leadership is dominated by former Tehrik-e-Taliban Pakistan (TTP) commanders, which alienates local communities and undermines recruitment. Nevertheless, WK is clearly operating per the Islamic State's guidelines for evolving operations and building capacity. The group is currently operating in an insurgent mode – in which it is unable to seize and hold territory - and is therefore focused on building strength and conducting asymmetric operations to cause maximum casualties and damage. WK fighters are consequently likely to continue infrequent "one-off" attacks in urban areas, primarily in Jalalabad and Kabul. Likely targets include foreigners, religious minorities (mainly Shia Hazaras), security forces, and assets associated with the Pakistani state.”
This information is relevant to your case because it may lead the IAA to conclude that future attacks upon Kabul’s Shia population are likely to be infrequent, and not to such an extent as to pose a real chance or risk of harm to you. This is may form part of the reason for affirming the decision under review.
(Citations removed)
[14] CB 308-309.
Section 473DE(1) provides:
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i)has been, or is to be, considered by the Authority under section 473DD; and
(ii)would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b)explain to the referred applicant why the new information is relevant to the review; and
(c)invite the referred applicant, orally or in writing, to give comments on the new information:
(i)in writing; or
(ii)at an interview, whether conducted in person, by telephone or in any other way.
[…]
The first part of the IAA Invitation to Comment expressly adopts the language of s.473DE and the requisite requirements of that section. Specifically, the IAA Invitation to Comment invites the Applicant “to comment on the following information that may be the reason, or part of the reason for affirming the decision”. Particulars of that information are given and it is explained why the information is relevant to the review. The Court is satisfied that in this part of the IAA Invitation to Comment the IAA is asking for the Applicant to comment on the information as per s.473DE.
The IAA Invitation to Comment continues as follows[15]:
[15] CB 309.
You are invited to provide the following information in writing:
• Information as to why it would not be reasonable for you to relocate to any other areas of Afghanistan apart from those places you claim you will suffer harm.
You are also invited to comment on the following information that may be relevant to your case:
• Country information that Tajiks form one of the majority ethnic groups in Balkh province. Mazar e Sharif has in the last decade, been relatively isolated from the conflict. It is reportedly one of the safest cities in Afghanistan, much more so than Kabul. Mazar e Sharif’s economy is reportedly growing stronger.
• Country information that Herat city is a Tajik-dominated enclave in a Pashtun-majority province.
• Country information indicates there are international airports in Mazar e Sharif and Herat accepting flights from Kabul and international locations.
You are invited to give comments on the above information in writing.
(Citations removed)
In the Court’s view, the IAA is here exercising the power under s.473DC(3)(a) of the Act. That is, it is inviting the Applicant to give new information in writing. The IAA can exercise the power under s.473DC of the Act at its discretion and in what form it chooses. In this case, the IAA elected to request new information from the Applicant in writing, pursuant to s.473DC(3)(a).
When read in context, the country information to which the IAA refers in these sections was telling the Applicant as to what information the IAA was seeking. The IAA specifically requested information about the Applicant relocating to places “apart from those… you claim you will suffer harm”. The Applicant had made submissions to the IAA previously, in the Applicant’s July 2016 Submission, on why he would suffer harm in Kabul. The information the IAA requested was in relation to areas “apart” from this (i.e., not Kabul). The country information to which the IAA referred was specific to the areas of Herat and Mazar-e-Sharif.
The information being requested in s.473DC(3)(a) was not, therefore, asking the Applicant to prove a negative, as the Applicant suggests. The latter three dot points gave the Applicant notice that the IAA was considering that the Applicant may be able to relocate to Mazar-e-Sharif or Herat. The IAA Invitation to Comment was to be read as a whole.
It is irrelevant in this case that the IAA may have acted mistakenly under s.473DE in putting the country information in the first part of the IAA Invitation to Comment to the Applicant. It did not distract the IAA from considering the exercise of the power under s.473DC, as the Court is satisfied that the IAA, in fact, did so in the second part of the IAA Invitation to Comment.
It must not be overlooked that s.473DC(3) of the Act allows the IAA to invite the Applicant to provide information in writing or at an interview. Further, the IAA’s review is to be conducted on the papers without inviting the Applicant to attend an interview pursuant to s.473DB(1) of the Act. The Applicant submits that the loss of the opportunity to give oral evidence meant that it was possible the outcome of the review could have been different. The Applicant suggests that the IAA ought to have exercised the discretion in s.473DC(3) in a particular way (i.e., by inviting the Applicant to an interview as opposed to responding in writing).
There was nothing in this case to suggest that the Applicant would be prejudiced if he was invited to give information in writing, as opposed to at an interview. The Applicant was represented. He was not in detention and the time in which he was asked to respond was the prescribed time required by reg.4.42 of the Migration Regulations 1994 (Cth). In circumstances where the Applicant had no right to attend an interview and the substantive issue on the review (the reasonableness of relocation) did not turn upon demeanour and presentation, the mere fact that the IAA did not invite the Applicant to attend an interview was not unreasonable. This is particularly so when the Applicant was invited to respond in writing.
As the Court is satisfied that the IAA has exercised the power under s.473DC(3) of the Act, Ground One must fail.
However, even if the Court were to find that the IAA Invitation to Comment was not issued pursuant to s.473DC(3) of the Act, the Court is, nonetheless, satisfied that it was reasonable for the IAA not to have considered exercising the power in s.473DC(3) of the Act.
In CRY16, the Full Court found that the IAA had erred as it was legally unreasonable to have failed to exercise (or consider exercising) the discretion under s.473DC(3), in the circumstances of that case. The Full Court stated:
Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error[16].
[16] CRY16, at [82].
The circumstances in this case differ. Here:
a)The Delegate determined the application on the basis that the Applicant could relocate to Kabul. Therefore, the basis of the IAA Decision (being one of relocation) was the same as the Delegate’s Decision.
b)The Applicant’s July 2016 Submission to the IAA specifically addressed the reasonableness of relocation to Kabul and the Applicant’s particular circumstances (i.e., the Applicant had provided arguments on the issue that was dispositive).
c)The IAA recognised that the manner in which the Delegate had conducted the interview may have led the Applicant to believe that reasonableness of relocation was not an issue. For that reason, the IAA found that the country information the Applicant provided on the reasonableness of relocation met s.473DD and considered it accordingly, so as to allow it to properly assess the ability of the Applicant to relocate.
d)In response to the invitation to comment, the Applicant provided further submissions to the IAA on the Applicant’s ability to relocate to different areas in Afghanistan, including Kabul, Herat and Mazar-e-Sharif. This was another opportunity for the Applicant to address the dispositive issue.
If there was a failure to exercise the discretion, it did not deprive the IAA of the ability to consider whether it was reasonable, in the sense of practicable, for the Applicant to relocate to Kabul. The Applicant, prior to the IAA Invitation to Comment, had provided submissions and information that specifically addressed the reasonableness of relocation. The IAA was entitled to assume that the Applicant had provided what he wanted to be taken into account when considering the reasonableness of relocation. The IAA cannot be said to have known that it did not have information on the Applicant’s particular circumstances and the impact relocation to Kabul would have[17].
[17] DZU16.
In the circumstances of this case, there was nothing unreasonable in the IAA not exercising the discretion in s.473DC(3) of the Act.
The final particular of Ground One alleges that the IAA did not consider whether to exercise its discretionary power in s.473CC(2) to remit the matter to the Delegate, so that the Applicant could be interviewed about the issue of relocation within Afghanistan. As the Minister submitted, the IAA has no power to remit the matter with a direction that the Delegate reinterview an applicant[18].
[18] BJB16 v Minister for Immigration [2018] FCAFC 49 at [52].
The Court is not satisfied that the IAA has erred as the Applicant argues in Ground One.
Ground One is dismissed.
Ground Two
The IAA did not consider – in the context of the reasonableness of relocation in the complementary protection context– the risk of harm in Kabul. In purporting to consider and assess the reasonableness and practicability of the Applicant relocating to Kabul (at [49]-[50] of its decision), the IAA failed to consider the Applicant’s claim that if he relocated to Kabul he would be subject to a volatile security situation, and failed to consider the Applicant’s submissions and evidence on this point, particularly the Applicant’s submissions to the IAA and the report by Professor Maley.
Consideration
The Applicant’s argument here is whether the IAA’s assessment of the risk arising from the general security situation in Kabul (which it addressed at [48] of its decision) can be taken to be a part of the IAA’s assessment of whether it would be reasonable for the Applicant to relocate. Counsel for the Applicant argues that the IAA did not take into account the submissions and claims that it is dangerous to live in Kabul when assessing the reasonableness of relocation.
It was not disputed that the IAA was required to address each of the Applicant’s objections to relocation in the context of the Applicant’s particular circumstances[19].
[19] MZANX v Minister for Immigration and Border Protection [2017] FCA 307.
The Court notes that in MZZZA v Minister for Immigration and Border Protection [2015] FCA 594, the parties in that case agreed, and the Court had no difficulty accepting, that the approach to be taken to relocation was:
[…] that the Tribunal could satisfy itself there were other places in Pakistan that appeared to be safe for the appellant, and to which it considered it was reasonable to expect him to relocate, and then deal specifically with any evidence, material or arguments put by the appellant about why those other places were not safe, or involved difficulties for him of the kind that made relocation unreasonable[20].
[20] MZZZA v Minister for Immigration and Border Protection [2015] FCA 594, at [49].
This supports the Applicant’s argument that the IAA was required to consider the evidence and arguments put by the Applicant about why those locations were not safe.
However, the Applicant’s references and arguments about why it was not safe to relocate to Kabul were made in the context of arguing that there was a risk of harm to him in Kabul. There was no distinction between the Applicant’s claims that he faced a risk of harm in Kabul with a claim that it was not safe in the sense it would be unreasonable to relocate to Kabul. The IAA found that there was no real risk of the harm that the Applicant alleged he would be subjected to in Kabul. In the Court’s view, this finding subsumed the need to make an express finding as to whether it was safe (and therefore reasonable) for the Applicant to live in Kabul.
The expressly made reference to the “volatile situation” (at [49] of the IAA’s Decision) was a direct reference to the Applicant’s July 2016 Submission, where it was stated[21]:
Complementary Protection – Reasonableness of Relocation
We note the delegate when assessing whether complementary protection was owed to the applicant concluded that it was reasonable to expect him to relocate to Kabul. The most recent UNHCR Guidelines outline the following factors must be taken into consideration when assessing the reasonableness of relocation:
the effective availability of traditional support mechanisms, provided by members of the applicant’s extended family or members of his or her ethnic group;
access to shelter in the proposed area of relocation;
the availability of basic infrastructure and access to essential services in the proposed area of relocation, such as potable water and sanitation, health care and education;
the presence of livelihood opportunities, including access to land for Afghans originating from rural areas;
the scale of internal displacement in the proposed area of relocation.
[21] CB 292-293.
Further, the UNHCR Guidelines note:
Moreover, the presence of members of the same ethnic background as the applicant in the proposed area of relocation cannot by itself be taken as evidence that the applicant would be able to benefit from meaningful support from such communities in the absence of specific pre-existing social relations connecting the applicant to individual members of the ethnic community in question.
The extent to which applicants are able to rely on family networks in the proposed area of relocation also has to be considered in light of the reported stigma and discrimination against those who return to Afghanistan after spending time abroad
Where the proposed area of relocation is an urban area where the applicant has no access to preidentified accommodation and livelihood options, and where he or she cannot reasonably be expected to be able to fall back on meaningful support networks, the applicant would likely find him- or herself in a situation comparable to that of other urban IDPs. To assess the reasonableness of such an outcome, adjudicators need to take into account the scale of internal displacement in the area of prospective relocation, and the living conditions of IDPs in that location. Relevant considerations in this regard include the fact that IDPs are considered to be among the most vulnerable groups in Afghanistan, many of whom are beyond the reach of humanitarian organizations;546 as well as available information to the effect that urban IDPs are more vulnerable than the non-displaced urban poor, as they are particularly affected by unemployment; limited access to water and sanitation; and food insecurity
Professor William Maley has provided extensive information which indicates it is not safe to return ethnic minorities to Kabul. In particular, he notes that the fact individuals of a similar ethnic background reside in Kabul does not mean a returnee would be safe.
The mere fact that there may be people of similar ethnic background living in a potential relocation destination does not overcome this problem, since ethnic identities do not in and of themselves give rise to the ties of personal affinity and reciprocity that arise from family connections. Indeed one mistake observers, including Afghan Observers on occasion make is to underestimate the degree of differentiation amogs groups such as the Hazaras, including distinctions between elite and non-elite figures, distinctions based on district of origin and tribe and distinction based on values and ideology.
We respectfully submit the delegate failed to take into consideration the applicant’s personal circumstances when assessing whether it was reasonable to expect him to relocate. Given the volatile situation in Afghanistan, we submit the applicant’s lack of familiarity with Kabul and lack of support network would make him vulnerable to serious harm and exploitation upon return. The Applicant instructs that he was able to obtain work previously due to family ties he held with his community. He reiterates that he does not have such ties in Kabul, Afghanistan. Further, we note the applicant is not educated and has very limited life experience. We note the applicant’s most recent attempt to secure work in Afghanistan to support his family, placed him at risk of serious harm.
It is highly evident from the above excerpts that without family support and appropriate accommodation in Kabul, the applicant will be extremely vulnerable to harm. In particular, we note that resources in Kabul are extremely limited given the high number of IDPs forced to live there. The Applicant has consistently instructed throughout the immigration process; he does not have a support network in Kabul, Afghanistan. In fact, his only family is his mother and younger siblings who despite the security situation remain in their village. The fact they have not relocated indicates that it is not a viable option. Given these matters, we submit the applicant would be vulnerable to exploitation and harm if forced to return to Kabul.
(Emphasis added. Citations removed)
The “volatile” security situation the Applicant referred to was but a preface to the Applicant’s objections to relocation. Specifically, the Applicant’s objection was that the availability of support mechanisms (such as family), accommodation, livelihood opportunities (including employment) and resources (such as access to water, sanitation and food insecurity) made him vulnerable. The IAA addressed these objections at [49]-[50] of the IAA Decision.
Counsel for the Applicant also submits that the IAA does not reference Professor Maley’s report, when considering reasonableness of relocation. The Applicant’s representative provided Professor Maley’s report to the IAA with the Applicant’s Additional July 2016 Submissions, with the following explanation:
We note the delegate’s decision hinged on the fact the applicant would not be specifically targeted as a Shia Muslim throughout the country, namely in Kabul. We respectfully submit the attack perpetrated by Islamic State specifically against the Shia Muslim Community indicates that there is a real risk the applicant would face serious and significant harm in the foreseeable future if returned to Afghansitan, no matter where he resides. Accordingly, we submit recent events further indicate the applicant should be afforded protection in Australia[22].
[22] CB 295.
The IAA Decision is to be read as a whole. While the IAA does not expressly refer to Professor Maley’s report when assessing the reasonableness of relocation, it does refer back to its findings in relation to its assessment of the Applicant’s fear of harm in regards to all of Afghanistan. Relevantly, this passage of the IAA’s reasons did refer to Professor Maley’s report[23].
[23] IAA Decision, at [34].
Further, Professor Maley’s report must be considered in the context in which it was put to the IAA. Specifically, the report was relied upon to indicate that “there is a real risk the Applicant would face serious and significant harm in the foreseeable future if returned to Afghanistan, no matter where he resides”. The IAA, appropriately, referred to Professor Maley’s report when considering that specific issue.
The Court accepts that the Applicant did refer to a part of Professor Maley’s report in the context of reasonableness of relocation. However, the IAA is not required to refer to every piece of evidence. The IAA specifically referred to the information that:
[…] UNHCR advises that relocation is reasonable where an individual has access to shelter, essential services, livelihood opportunities, and the traditional support network of extended family members or members of the larger ethnic community who are willing and able to provide support. The only exception to the requirement of external support are single able bodied men and married couples of working age without identified specific vulnerabilities. Such persons may in certain circumstances be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective Government control […][24]
[24] CB 333, at [49].
Notably, the information that the IAA relies upon here postdates the information that Professor Maley cites. On this basis, it is assumed that the IAA did not reference Professor Maley’s report because it relied on other country information, the choice of which was a matter for the IAA.
The Minister referred the Court to DZU16 at [101]-[141]. In the Court’s view the reasoning of the IAA in DZU16 is analogous to the reasons that the IAA gave in this case. A fair reading of the IAA’s decision as a whole (including at [29]-[42] and [47]-[50]) indicates that the IAA has found that there was no specific or generalised risk of harm to the Applicant in Kabul and the IAA has then considered the practical realities of the Applicant relocating to Kabul[25]. This was an approach without error.
[25] DZU16, at [137] and [139].
In the Court’s view, the IAA has not misapplied the test of relocation or failed to consider the security situation when assessing the reasonableness of relocation.
Ground Two, accordingly, is dismissed.
Ground Three
In purporting to consider whether it was reasonable for the Applicant to relocate to Kabul, the IAA stated “I am not satisfied that the applicant would be unable to obtain accommodation or employment” (IAA decision at [50]). The IAA’s finding demonstrates that the IAA misconstrued s 36(2A) and/or s 36(2B) of the Act by considering whether it would be impossible for the Applicant to find accommodation and employment in Kabul, rather than whether it would be reasonable for the Applicant to relocate to Kabul.
Consideration
Counsel for the Applicant conceded that this was not her strongest argument, though she did not abandon it. No submissions were, however, advanced.
In effect, the Applicant is suggesting that the IAA reasoned that it would only be unreasonable for the Applicant to relocate to Kabul if it was impossible for him to obtain accommodation or employment.
The IAA did not reason in this way. The IAA’s reasons must be read as a whole. The IAA specifically indicated after the particular passage that the Applicant impugns that Kabul offers a greater range of employment opportunities particularly in the service sector, including in small businesses and in the construction industry. It had noted previously that the Applicant had (albeit limited) work experience in the construction industry.
The IAA was, as the Minister submits, simply rejecting the Applicant’s submission that he would face difficulty in securing any employment and attaining access to accommodation. In the Applicant’s particular circumstances, it was satisfied that it would be reasonable for him to relocate as he would be able to access these things. Again, the reasons must be read as a whole, in particular [49]-[50] make clear that the IAA did have regard to country information on the ability of the Applicant to relocate and the barriers to particular persons.
The Court is not satisfied that the IAA adopted the assumption that it had to be “impossible” for the Applicant to obtain accommodation or employment, in order for it to be unreasonable for the Applicant to relocate.
Ground Three, accordingly, is dismissed.
Conclusion
The judicial review application has not identified any error.
The application is dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 8 April 2020
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