CUB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 410
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CUB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 410
File number(s): SYG 1984 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 19 May 2023 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of the Immigration Assessment Authority (Authority) affirming decision not to grant Safe Haven Enterprise Visa – whether given the Authority did not accept any of the applicant’s claims gave rise to a real risk of serious or significant harm the Authority was nevertheless required to consider cumulatively whether the claims gave rise to a real risk of serious or significant harm – whether the Authority in any event considered such claims cumulatively – whether in determining if it would be reasonable for the applicant to relocate the Authority considered whether the applicant faced a risk or harm that was less than a risk of serious or significant harm – whether in determining if it was reasonable for the applicant to relocate the Authority considered as particularly important one item of information and for that reason failed to apply the proper test for the reasonableness of relocation – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 65, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Pt 2, Sch 2
Cases cited: BZA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 375
DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
Division: General Number of paragraphs: 42 Date of hearing: 1 February 2022 Counsel for the Applicant: Mr O Jones, by video Solicitor for the Applicant: Ray Turner Immigration Lawyers Counsel for the First Respondent: Ms K Hooper, by video Solicitor for the First Respondent: Mills Oakley ORDERS
SYG 1984 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CUB17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
19 May 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.Subject to order 4, the applicant pay the first respondent’s costs set in the amount of $8,371.30.
4.The parties have liberty to apply within 21 days after the day on which these orders are pronounced for an order varying or discharging order 3.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, a citizen of Afghanistan, applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise Visa (SHEV).
CLAIMS FOR PROTECTION
The applicant’s claims for protection are accurately set out in the Authority’s reasons for decision,[1] and they are as follows:
[1] CB257-259, [9]
(a)The applicant is an Afghani citizen of Hazara ethnicity who was born in a village in a local district in Ghazni province. The applicant practises Shia Islam.
(b)The applicant’s parents and wife continue to reside in the applicant’s village. One brother is a student in Sweden; and the applicant’s other brother was a university student in Kabul until recently. The applicant’s uncle and cousins live in Kabul.
(c)The applicant travelled with his parents and brothers to Quetta, Pakistan, in 2000 during the reign of the Taliban, and returned to their home area in Afghanistan in 2005. The applicant attended school in Pakistan, and he completed year 12 in Kabul. The applicant returned to his village, after he had completed year 12, where he worked as a farmer.
(d)The applicant’s village is a Hazara village, but it is very close to areas that are under the control of Pashtun and the Taliban. These areas are around 30 minutes’ walk from the applicant’s village. The Taliban control the roads in and out of the applicant’s village, and block roads in and out of Ghazni, including the major highway from Kabul to Kandahar.
(e)In approximately November 2011, the applicant began teaching English privately in his village in addition to undertaking farming work. He had Hazara male students from his village and the surrounding area. The applicant conducted his English classes for 6-7 months until early June 2012, when he received a letter from the Taliban delivered by one of the people of his village. The letter stated the Taliban were aware the applicant was conducting English classes, and directed him to report to the mullah who, would let the Taliban know he was there, and they would come and see him. The applicant was fearful, and stopped the English classes; but he did not report to the Taliban.
(f)The applicant’s family owned a truck which the applicant purchased in 2009 and registered in his name. The applicant’s family used the truck to transport farm produce to and from Ghazni to sell in the markets and bring back goods for domestic use. The applicant’s family also hired out the truck to others, and paid a driver to drive the truck.
(g)In June 2012 the local headman hired the truck and driver. When the truck had not been returned after a couple of days, the applicant began making local enquiries. The applicant and his friend travelled to Ghazni city, where they made enquiries with the local police. The police said that local government officials had found an abandoned truck.
(h)The local government officials refused to return the empty truck to the applicant until he found the driver and the village head. The officials believed the truck had been carrying international aid. The applicant found out later that the truck was transporting aid from Care International in Ghazni city; but the driver and headman, fearing the Taliban had found out, did not deliver the load to the destination. Instead they sold the aid and fled.
(i)A couple of weeks later the applicant received a second letter which was also addressed to the headman and the driver, telling them to present themselves to the Taliban. The applicant did not respond to the letter. Approximately 3 days later the applicant received a third letter which was also addressed to the headman and driver. This letter was from the local district office, and requested the applicant, as the owner of the truck, to present the driver and the headman at the office and explain. The applicant did not attend the office because he feared being held responsible for the actions of the other two people and being put in gaol.
(j)The applicant left his home area and travelled to Kabul, where he made arrangements to depart Afghanistan. Approximately 1.5 to 2 months after the applicant left Afghanistan, the Taliban delivered a further letter, this time to the applicant’s wife, asking why the applicant had not presented himself as requested. The Taliban also came to the applicant’s village around the time that the fourth letter was delivered and asked about the applicant.
(k)Occasionally the Taliban have come to the village and asked about the applicant. This last occurred in December 2015.
(l)The applicant fears harm on return from the Taliban on the roads as a Shia Hazara who has lived in a western country and will be viewed as a spy; due to the teaching of English in his local area and his perceived work for nongovernment organisations (NGOs) through the transportation of international aid. The applicant also fears harm from the local government authorities that have close links with the Taliban due to his presumed involvement in the misappropriation of international aid.
AUTHORITY’S REASONS
Whether the applicant is a “refugee” within the meaning of s 5H(1) of the Act
The Authority accepted:
(a)the applicant was providing private English tuition to local Hazara male children;[2]
(b)that news of the applicant’s tutoring or teaching may have come to the attention of locals from other villages, including local Pashtuns and, eventually, to the attention of the local Taliban;[3]
(c)the applicant received a letter from the Taliban asking him to come and explain his actions;[4]
(d)the applicant may have received letters from the local Taliban and local district authorities requesting that the applicant provide an explanation of his involvement in the transport and misappropriation of aid, given the applicant was the owner of the truck;[5] and
(e)following the applicant’s departure from his village, a further warning letter may have been received from the Taliban, and enquiries made regarding the applicant’s whereabouts.[6]
[2] CB260, [15]
[3] CB260, [16]
[4] CB260, [17]
[5] CB261, [20]
[6] CB261, [21]
The Authority did not accept that the applicant’s receiving a letter from the Taliban indicates the applicant would be of interest to the Taliban on his return to his local district because of his previous tuition of English, even though the applicant did not report to the Taliban. The applicant had ceased teaching English, and the applicant stated at his interview by the delegate (SHEV interview) that the Taliban had not approached him after the applicant had received the letter regarding his English classes.[7]
[7] CB260, [18]
The Authority also did not accept that the applicant’s fear of harm from his having received letters in relation to the use of his truck in the transport and misappropriation of aid is well founded:[8]
(a)The applicant had been using and hiring his truck without experiencing any issues with the Taliban for approximately 3 years before the incident that led to his receiving letters from the Taliban and the local district authorities.
(b)The Taliban sent letters to the applicant to intimidate them against engaging with agencies such as NGOs.
(c)Although the applicant’s wife had received a further warning letter, and enquiries were made about the applicant, those events occurred about two months after the applicant departed Afghanistan; if the Taliban had serious concerns about the applicant’s purported involvement in NGO activities, they would have been more proactive in their pursuit of the applicant, and would not have waited two months to enquire about the applicant and send a warning letter.
(d)Five years have elapsed since the incident involving the applicant’s truck, and the applicant had indicated, in a post hearing submission, that the family no longer own the truck, and there is no evidence the applicant’s family had been threatened, or targeted due to the incident, or even in the immediate aftermath of the incident, despite receiving a letter.
[8] CB261-262, [21]
Although the Authority concluded the applicant did not have a well-founded fear of persecution because he had taught English, or because of the incident involving his family’s truck, the Authority was satisfied the applicant faces a well-founded fear of persecution as a returnee Shia Hazara if the applicant were to return to the area of his village. The Authority then considered, as it was required to do by s 5J(1)(c) of the Act, whether the applicant faces a real chance of persecution in all areas of Afghanistan. The Authority was not so satisfied, because the Authority made the following findings:
(a)It is remote that the local Taliban would pursue the applicant in Mazar-e-Sharif or Kabul.[9]
[9] CB263, [28]
(b)The applicant’s former activities would not come to the attention of the Taliban or other groups in Mazar-e-Sharif or Kabul, given these are large urban areas with large populations of mixed ethnicity, and which are remote from the applicant’s village.[10]
(c)The Authority did not accept that if the applicant resumed teaching of English in Mazar-e-Sharif or Kabul he would be of adverse interest to the Taliban or other groups.[11]
(d)It is remote that local Taliban and district authorities would pursue the applicant because of the incident involving the applicant’s family truck.[12]
(e)Although the Taliban is active in Kabul and in Balkh, and has conducted attacks in Mazar-e-Sharif, the Department of Foreign Affairs and Trade (DFAT) assessed that the primary targets of the attacks are those associated with the government or the international community; and although some high profile attacks affected residents, the incidents at Mazar-e-Sharif have been infrequent.[13]
(f)Although there are significantly more incidents in Kabul, these attacks have targeted groups the Authority does not accept the applicant, as a Shia Hazara, had been associated with, or that he has an imputed profile as a government affiliate that would likely attract him adverse attention in Kabul or Mazar-e-Sharif.[14]
(g)Although country information indicates a decline in the security situation in 2015, which continued into 2016, the Afghan government remained in control of all major urban centres which were considered to be more secure, and provided greater protection against insurgent attacks. Further, the country information indicates the Afghan army is considered generally capable and effective at protecting major population centres, preventing the Taliban from maintaining prolonged control of specific areas, and at responding to Taliban attacks.[15]
(h)Although Hazaras are concentrated in Hazarajat in central Afghanistan, there are significant populations of Shi Hazaras residing in cities, including Mazar-e-Sharif, and Kabul, which has an estimated Hazara population of approximately 1.6 million. DFAT advised that in areas under government control there is no evidence of any official policy of discrimination on the basis of ethnicity or religion; and, Shia Hazaras are active in the Afghan community, particularly in politics, education, and civil society.[16]
(i)The Authority was not satisfied there is a real chance that, as a consequence of such discrimination, the applicant would be denied the capacity to earn a livelihood, or that he would be subject to economic hardship such that it would threaten the applicant’s capacity to exist, or would otherwise suffer treatment that may be considered serious harm within the meaning of s 5J of the Act.[17] The Authority was not satisfied that the applicant, as a Shia Hazara returnee, may be subject to employment discrimination because of nepotism, even though DFAT reported there was societal discrimination in the form of nepotism in Afghanistan on the basis of ethnicity and religion.
(j)Although there have been attacks on Shias in 2011 in Mazar-e-Sharif; and attacks on Shias in Kabul in July, October, and November 2016, there is no evidence that ethnic or religious groups have been targeted in Mazar-e-Sharif itself since 2011;[18] and although there was an attack in or near Mazar-e-Sharif in 2016 that targeted Shia worshipers, the Authority was not satisfied the attack indicated that the Taliban, ISIS (Islamic State of Iraq and Syria), LeJ (Lashkar-e-Jhangvi), IMU (Islamic Movement of Uzbekistan) were involved in the incident, or that the incident indicates the onset of a sectarian campaign. The Authority, therefore, was satisfied that the isolated incidents in or near Mazar-e-Sharif in 2011 and 2016 do not indicate the applicant faces a real chance of persecution as a Shia Hazara on his return to Mazar-e-Sharif in the reasonably foreseeable future.[19]
(k)The Authority accepted that ISIS was responsible for the attacks that occurred in Kabul in 2016, and is attempting to inject sectarian violence into the Afghan conflict. The Authority, however, accepted country information to the effect that it is unlikely that ISIS can single-handedly drive the conflict into a sectarian direction; that the Taliban condemned the attack on Shias and had moved away from violence which would incite sectarianism; that the Afghan security forces, the Afghan population generally, and religious leaders from both major sects traditionally emphasised the value of co-existence and remain opposed to sectarianism; and that the brutality and extreme ideology of ISIS alienated the local population. For these reasons, the Authority was not satisfied that the attacks on Shias in Kabul indicate an ongoing wider sectarian campaign in Kabul in the reasonably foreseeable future.[20]
[10] CB263, [28]
[11] CB263, [29]
[12] CB263-264, [30]
[13] CB264, [32]
[14] CB264-265, [32]
[15] CB265, [33]
[16] CB264-265, [35]
[17] CB265, [36]
[18] CB266, [37]
[19] CB266-267, [37], [38]
[20] CB267, [39]
The Authority concluded this part of its reasons as follows:[21]
Although the recent attacks on Shias in Kabul have been significant, the city remains under government control and I am not satisfied that the attacks against Shias by IS will escalate in frequency or that they indicate the commencement of a wider sectarian campaign in Kabul. Given the overall strong security presence in Kabul, the ongoing effective government control, the limited influence and weakened operational capacity of IS, the size and diversity of the population of Kabul and the applicant’s lack of associations with groups primarily targeted by insurgents in Kabul, I find that the applicant’s fear of harm by Islamic State, the Taliban or any other insurgents in Kabul as a Shia Hazara is not well founded. I am not satisfied that the applicant faces a real chance of persecution as a Shia Hazara upon return to Kabul in the reasonably foreseeable future.
[21] CB268, [41]
The final subject the Authority considered in determining whether the applicant was a “refugee” within the meaning of s 5H of the Act is whether the applicant had a well-founded fear of persecution because he may be perceived to be a westerner and an infidel due to seeking asylum and living in Australia for over four years. The Authority answered that question in the negative.[22]
[22] CB268, [42]
On the basis of these findings the Authority concluded the applicant was not a “refugee” within the meaning of s 5H(1) of the Act and, for that reason, he did not satisfy the criteria for the granting of a SHEV provided for by s 36(2)(a) of the Act.
Complementary protection
The Authority repeated its finding there is a real chance the applicant may be killed or physically harmed by the local Taliban if he returns to the area of his village and, for that reason, there is a real chance the applicant will suffer “significant harm” within the meaning of s 36(2A) of the Act. The Authority noted, however, that s 36(2B) of the Act provides that there is taken not to be a real risk that a person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm.
The Authority first concluded it was not satisfied the applicant faces a real risk of significant harm in Kabul or Mazur-e-Sharif “which he can safely access by air”.[23] The Authority relied on the following matters:
(a)Country information indicates that Kabul provides the most viable option for many people for internal relocation and resettlement in Afghanistan because it offers relatively better opportunities for employment, access to services and state protection than rural areas.[24]
(b)Mazar-e-Sharif also has a significant Hazara population, and is known as a melting pot of diverse cultures and religious influences where liberal attitudes coexist with conservative traditions.[25]
(c)Although the applicant, as a Hazara Shia returnee, may experience discrimination in employment as a result of nepotism in both Kabul and Mazar-e-Sharif, the Authority was not satisfied that such nepotism would result in the applicant being arbitrarily deprived of his life, or would constitute the death penalty, or torture; nor was it satisfied that such nepotism would amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment.[26]
(d)The Authority also repeated its finding there is not a real chance the applicant would face other forms of harm in Kabul or Mazar-e-Sharif. Due to the applicant’s being “a returnee/asylum seeker from the West/former English teacher, or due to the use of his truck to transport international aid or his perceived complicity in the misappropriation of the aid by those who hired his truck”.[27]
(e)The Authority was not satisfied there is a real risk of the applicant facing significant harm because of the general security situation in Mazar-e-Sharif for any reason; and that is because the Authority was satisfied there is a strong military presence in Mazar-e-Sharif, and the government and security forces continue to maintain effective control ensuring the area’s ongoing stability and security.[28]
(f)The Authority was not satisfied there is a real risk of the applicant facing significant harm because of the general security situation in Kabul for any reason. The Authority was not satisfied because, even though attacks remain common in Kabul, the primary targets of such attacks are people associated with the government or the international community, and the applicant does not have such a profile; and further, the Afghan government maintains effective control.[29]
[23] CB269, [50]
[24] CB270, [51]
[25] CB270, [51]
[26] CB270, [52]
[27] CB270, [53]
[28] CB270-271, [54]
[29] CB271, [55]
The Authority then considered whether it would be reasonable for the applicant to relocate to Kabul or to Mazar-e-Sharif. The Authority began by referring to the UNHCR’s view:[30]
With limited exceptions, in UNHCR’s view the reasonableness of relocation is dependent on the effective availability of traditional support mechanisms, provided by members of the applicant’s extended family or ethnic group, and advises that the only exceptions for 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.
[30] CB272, [57]
The Authority also stated advice DFAT had given:[31]
DFAT has also advised that traditional extended family and tribal community structures are the main protection and coping mechanisms for people in Afghanistan, however 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.
[31] CB272, [57]
The Authority then made the following findings:
(a)The applicant has demonstrated resilience and resourcefulness and, for that reason, the applicant will be able to obtain employment to enable him to subsist in Mazar-e-Sharif or Kabul.[32] The Authority relied on finding that the applicant completed 12 years of education in Afghanistan and Pakistan; is literate in English, Dari, and Hazaragi, the applicant had lived independently in Kabul for one year when studying, in a regional town for five years, and in urban Australia for over three years; the applicant has had considerable experience as a farmer in Afghanistan; the applicant continued to operate the family farm after his father went to Iran; the applicant rented out the family truck, and took up English teaching to supplement the family income; and, the applicant worked as a tiler in Australia.[33]
(b)There is no evidence the applicant would not have access to his long standing family and tribal links in the Hazara community in Kabul, and the Authority was satisfied the applicant would be able to obtain the support of his family, and utilise the links with the Hazara community in Kabul.[34]
(c)If the applicant were to relocate to Mazar-e-Sharif, the lack of familial support may initially present challenges, but he has demonstrated the ability and capability to establish himself in new locations including the ability to create links within the Hazara community despite a lack of family and other connections.[35]
[32] CB272, [58]
[33] CB272, [58]
[34] CB273, [59]
[35] CB273, [59]
The Authority concluded this part of its reasons as follows (emphasis added):[36]
As has been noted above, general violence in Mazar-e-Sharif is sporadic and although there are more incidents of violence in Kabul I am satisfied that the government and security forces continue to maintain effective control. Taking into account this, the country information relating to the situation in Mazar-e-Sharif and Kabul, and the applicant’s personal circumstances, I find it reasonable for the applicant to relocate to Mazar-e-Sharif or Kabul where he does not face a real risk of significant harm.
[36] CB273, [61]
GROUNDS OF APPLICATION
The applicant relies on the three grounds of application contained in the second amended application.[37]
[37] A draft of the second amended application was attached to the applicant’s written submissions. At the hearing I granted the applicant leave to file the second amended application.
Ground 1
Ground 1 of the second amended application is as follows:
The Second Respondent (IAA) failed to consider the reasons advanced by the Applicant as grounds for a well-founded fear of persecution for the purposes of s 36(2)(a) of the Migration Act 1958 (Cth) (the Act) and/or the existence of a real risk of significant harm for the purposes of s 36(2)(aa) of the Act, on a cumulative basis. This constituted jurisdictional error.
Particulars
(a) The Applicant contended that there was a well-founded fear or persecution and/or a real risk of significant harm due to his profile arising from a combination of his status as a former English teacher, someone with involvement in the delivery and/or misappropriation of international aid, a returning asylum seeker, someone who had been “Westernised”, his ethnicity and his religion.
(b) The IAA considered each of those claims in isolation, but not cumulatively.
Parties’ submissions
In his counsel’s written submissions, the applicant submitted that he expressly advanced his claims concerning the risks of harm he faced on a cumulative basis;[38] the Authority was required in any event to consider the “totality of the case [the applicant] put forward”;[39] but the Authority did not assess the applicant’s claims cumulatively. Instead, the Authority considered the applicant’s contentions in relation to each reason why he claimed to fear harm in isolation, first, by reference to his being an English teacher; next, by reference to his being (or being perceived to be) involved with NGOs in the distribution of international aid; next because he was a returned asylum seeker who would be seen to have “westernised”; and, lastly, because the applicant was of Hazara ethnicity and Shia religion.[40]
[38] Submissions of the Applicant, [9]
[39] Submissions of the Applicant, [10]. The quotation comes from the judgment of Weinberg J in MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095, at [69] on which the applicant relies.
[40] Submissions of the Applicant, [13]
Counsel for the applicant repeated the effect of these submissions at the hearing, but also relied on observations I made in BZA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[41] about the Full Federal Court’s judgment in Minister for Immigration and Border Protection v DDK16.[42] In DDK16, the Full Federal Court said:[43]
It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result. It follows, in our respectful view, that the primary judge was wrong to hold otherwise.
[41] BZA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 375
[42] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
[43] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188, at [34]
In BZA17 I made the following observations in relation to this passage:[44]
With respect, it is not “inexorable logic” that renders the cumulative consideration of rejected claims incapable of producing a different result. If a decision maker finds an applicant will be exposed to a number of risks of seriously or significantly harmful events, each of which has a less than a real chance of occurring, but the probability of the occurrence of each harmful event is mutually exclusive of the probability of the occurrence of each of the other events, it is conceivable that the probability of any one of those harmful events occurring could rise to the level of a real chance. That is a consequence of the rule for assessing the probability of one of two or more mutually exclusive events occurring.[45]
It is not, therefore, any principle of logic that prevents the cumulative assessment of claims that have been rejected; the limiting consideration is the statutory task the decision-maker is required to undertake when assessing a claim or claims for protection. In the case of a person who claims to be a “refugee” within the meaning of s.5H of the Act, the decision maker’s statutory task is to identify the serious harm of which the applicant claims there is a real chance he or she will suffer, and to determine whether there is a real chance the applicant will suffer such harm. The statutory task is for the decision maker either to be satisfied or not satisfied the applicant faces such a real risk.[46] It forms no part of the decision-maker’s statutory task to consider any other assessment of risk. The same applies when a decision maker is considering whether an applicant satisfies the complementary protection criterion provided for by s.36(2)(aa) of the Act. The statutory task is to identify the significant harm the applicant claims there is a real chance he will suffer, and to determine whether there is a real chance the applicant will suffer such harm. Again, it forms no part of the decision-maker’s statutory task to consider any other assessment of risk.
That the limit to the cumulative assessment of discrete claims of risk of harm, each falling short of a real chance of harm, is not a logical one, but a reflection of the statutory tasks the decision maker is required to carry out, means that it is possible in any given case for there to be before a decision maker a claim that the applicant will be exposed to a number of risks of harm, each of which falls short of a real chance of harm, but which, when considered cumulatively, any one or more of the risks amounts to a real chance of harm. Whether a decision maker is confronted with any such claim will depend on the circumstances of the case.
If this analysis is correct, the relevant question in the case before me is whether the applicant claimed he was exposed to a number of risks of harm, each of which falls short of a real chance of harm but which, when considered cumulatively, one or more of the risks amounts to a real chance of harm.
[44] BZA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 375, at [46]-[49]
[45] This is the often called the “addition rule”, one formulation of which is: “The probability of any one of a number of mutually exclusive events is equal to the sum of their individual probabilities.” (M.O. Finkelstein, Basic Concepts of Probability and Statistics in the Law, Springer Science + Business Media, LLC 2009, page 41)
[46] See s 65 of the Act.
Counsel for the applicant acknowledged there are many cases that have applied the passage I have quoted from the Full Federal Court’s judgment in DDK16, but counsel after noting that he has been unable to find any case that referred to the observations I made in BZA17, submitted it was open to me to apply the observations I made in BZA17 to the circumstances of the case before me.
In his counsel’s written submissions, the Minister accepts that the Authority considered each of the reasons on which the applicant relied for claiming fear of harm, if he were to return to Afghanistan. The Minister submits, however, that this shows that the Authority dealt with each claim in a structured and logical manner. Having done so, the Authority made its ultimate finding that it was not satisfied the applicant faced a real risk of significant harm in Kabul or Mazar-e-Sharif after stating that it had considered “all the circumstances”;[47] and, the Authority made its ultimate finding that it was not satisfied the applicant faced a real risk of significant harm in Kabul or Mazar-e-Sharif “[f]or the following reasons” which it set out in the paragraphs after the Authority made this statement.[48]
[47] First Respondent’s Written Outline of Submissions, [20], referring to CB269, [44]
[48] First Respondent’s Written Outline of Submissions, [20], referring to CB269, [50]
Determination
The relevant principles that apply to a claim that a decision-maker, such as the Authority, failed to cumulatively consider a number of claimed reasons for fearing harm are those the Full Federal Court stated in DDK16 in the passage I have reproduced above. It is not open to me to apply the observations I made in BZA17 to the extent those observations are inconsistent with what the Full Federal Court said in DDK16. In DDK16 the Full Federal Court said that where each ground for claiming fear of harm has been assessed not to give rise to a real or significant risk of harm on a visa applicant’s return to his or her receiving country, then “no amount of “cumulative consideration” of those rejected claims is capable of giving a different result”. Given the Authority assessed each of the applicant’s claims as not giving rise to a real or significant risk of harm on his return to Afghanistan, no amount of cumulative assessment is capable of giving a different result.
What I say in the previous paragraph assumes the Authority did not purport to consider whether the reasons on which the applicant relied, viewed as a whole, give rise to a real or significant risk of harm on his return to Afghanistan. That assumption would not be correct. The Authority used language that indicates it considered whether the reasons on which the applicant relied, viewed as a whole, give rise to a real or significant risk of harm on the applicant’s return to Afghanistan.
For these reasons, ground 1 of the second amended application fails.
Ground 2
Ground 2 of the second amended application is as follows:
In considering whether it would be reasonable for the Applicant to relocate within Afghanistan for the purposes of s 36(2B) of the Act, the IAA failed to consider the risk that the Applicant would suffer harm if he did so. This constituted jurisdictional error.
Particulars
(a)The Applicant contended that he would suffer harm if he relocated to Kabul or Mazar-e-Sharif and that it would therefore be unreasonable for him to do so.
(b)The risk of harm that the Applicant may suffer on relocation was relevant to the assessment of reasonableness, even if that that was not a risk of significant harm for the purposes of s 36(2A) of the Act.
(c) In assessing reasonableness, the IAA did not consider the risk that the Applicant would suffer harm on relocation.
Parties’ submissions
In his counsel’s written submissions, the applicant submits the Authority failed to apply the second of two questions the Full Federal Court, in DFE16 v Minister for Immigration and Border Protection, [49] held a decision maker should address when considering reasonableness for the purposes of s 36(2B)(a) of the Act. The second of the two questions is whether the applicant might be exposed to a risk of harm that is less than a risk of significant harm (as defined in s 36(2A) of the Act). The applicant submits the Authority only considered whether the applicant would face a real risk of significant harm if he were to relocate to Kabul or to Mazar-e-Sharif.
[49] DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177, at [27]
The Minister accepts that the prospect of an applicant encountering, in a putative place of relocation, violence or harm of an unspecified nature or level that is below the level of serious or significant harm, may be relevant to assessing the reasonableness of relocation. The Minister, however, submits the Authority did not limit its consideration of relevant harm to that which amounted to, or might amount to, significant harm.[50] The Minister relies on the passage from the Authority’s reasons I reproduce in paragraph 15 of these reasons. The Minister submits that in that passage, the Authority refers to findings it had already made, including “generalised violence within Mazar-e-Sharif”, and to the security forces maintaining effective control, ensuring the area’s ongoing stability and security.[51]
[50] First Respondent’s Written Outline of Submissions, [21]
[51] First Respondent’s Written Outline of Submissions, [22]
Determination
Subsection 36(2B) of the Act provides that “there is taken not to be a real risk that a non-citizen will suffer significant harm”, for the purposes of s 36(2)(aa) of the Act:
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; or
(b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
In DFE16, the Full Federal Court made the following observations about s 36(2B) of the Act:[52]
[26] Section 36(2B) was introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) and took effect from 24 March 2012. As we have noted, it included a provision to the effect that there is taken not to be a real risk of significant harm in a country for an applicant if, amongst other alternatives, it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm as statutorily defined. (For completeness, we note that different issues may arise concerning relocation when considering the refugee criterion as it arises under s 5J of the Act and amendments effected by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) but these issues do not arise for consideration in this case.)
[27] So, where relocation is being considered in the context of a claim to a protection visa based upon complementary protection as provided for in s 36(2)(aa) of the Migration Act, there are two aspects that arise. Firstly, whether there is an area within the receiving country where the visa applicant will not suffer significant harm. Secondly, whether it would be reasonable for the visa applicant to relocate to that area.
[28] As to the first aspect, as already noted at [6] above, there will be a real risk of significant harm (as defined) if there is a real risk that the visa applicant will die or will suffer cruel, inhuman or degrading treatment or punishment that is intentionally inflicted.
[29] As to the second aspect, there may be many factors personal to the particular visa applicant which mean that it would be unreasonable for an applicant to relocate to an area even though there is the absence of a real risk of significant harm as defined. In that context, significant harm as defined is confined to quite serious consequences that may befall the visa applicant. So, the fact that it may be concluded that there is not a real risk of significant harm as defined does not mean that the area is safe or that there may not otherwise be quite serious adverse outcomes if the visa applicant was to relocate to that area. Therefore, it is necessary in considering a claim to a protection visa based upon the complementary protection criteria, for the repository of the power determining the application to maintain a clear distinction between the two aspects to which s 36(2)(aa) and the related provisions in (2A) and (2B) direct attention. Further, the risk of harm that does not amount to significant harm as defined may be advanced as part of why it is not reasonable for a particular visa applicant to relocate to a particular area.
[52] DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177, at [26]-[29]
I am not satisfied the Authority failed to consider as relevant whether the applicant, if he were to relocate to Kabul or to Mazar-e-Sharif, would be exposed to a risk of harm that was less than a real risk of significant harm; and I am not satisfied the Authority failed to take into account such risk of harm when concluding it was reasonable for the applicant to relocate to Kabul or to Mazar-e-Sharif. The structure of the Authority’s reasons suggests that it did consider such risk of harm to be relevant, and that the Authority did take such risk into account.
As my summary of its reasons show, the Authority first considered whether the applicant would face a real risk of significant harm if he were to relocate to Kabul or to Mazar-e-Sharif. It determined that question in the negative. The Authority then considered the applicant’s particular circumstances, such as his education, skills, employment history, ability to adapt, and the location of his family ties, to determine whether it was reasonable to relocate to Kabul or to Mazar-e-Sharif. Finally, the Authority, in the passage I have reproduced in paragraph 15 of these reasons, referred to sporadic violence in Mazar-e-Sharif and the greater incidents of violence in Kabul (which the Authority had already found did not give rise to a real risk of significant harm), and also to its earlier findings that the government and security forces continue to maintain effective control. The Authority then concluded that “[t]aking into account this information”, country information relating to the situation in Mazar-e-Sharif and Kabul, and the applicant’s personal circumstances, it was reasonable for the applicant to relocate to Kabul or to Mazar-e-Sharif. What the Authority took into account when deciding it was satisfied that it was reasonable for the applicant to relocate to Kabul or to Mazar-e-Sharif are its findings in relation to violence, which it had held did not amount to a real risk of significant harm.
For these reasons, ground 2 of the second amended application fails.
Ground 3
Ground 3 of the second amended application is as follows:
In considering whether it would be reasonable for the Applicant to relocate within Afghanistan for the purposes of s 36(2B) of the Act, the IAA applied a test derived from the UNCHR that does not apply in the context of s 36(2B) of the Act. This constituted jurisdictional error.
Particulars
(a) The IAA adopted a test for determining reasonableness articulated by the UNCHR, namely there was effective availability of traditional support mechanisms, subject to an exception for single able bodied men in areas under effective Government control.
(b) There was no basis within the text or purpose of the Act for adopting and applying the test articulated by the UNHCR.
(c) As a result, the IAA placed undue weight on whether the Applicant was a single able bodied man in an area under effective Government control.
Parties’ submissions
The applicant, in his counsel’s written submissions, submits the Authority applied the UNHCR test for reasonableness in the context of relocation, and submits that the test is different from the test that applies for the purpose of s 36(2B)(a) of the Act. The latter test is whether relocation is reasonable, in the sense of practicable, depending on the particular circumstances of the applicant, and the impact on him or her relocating their place of residence.[53] The applicant does not submit that the UNHCR test was irrelevant; the applicant submits that the Authority made an error by considering these matters “particularly important” components of the UNHCR’s test of reasonableness.[54]
[53] Submissions of the Applicant, [31], relying on SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, at [23]-[24].
[54] Submissions of the Applicant, [33]
The Minister, in his counsel’s written submissions, submits that the Authority was required to determine the question of reasonableness by reference to the “framework set by the particular objections raised to relocation”;[55] and this required the Authority to undertake a factual enquiry and make an evaluative judgment.[56] The Minister submits that this is what the Authority did;[57] the Authority did not erect and apply a test that had to be met by any particular item of country information.
[55] First Respondent’s Written Outline of Submissions, [26]. The quote is from the judgment of Tracey and Foster JJ in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415, at pages 438-439 ([124]).
[56] First Respondent’s Written Outline of Submissions, [26]
[57] First Respondent’s Written Outline of Submissions, [27]
Determination
As I have already noted, the applicant does not contend the Authority made an error by referring to or relying on the UNHCR’s view of reasonableness of relocation; the applicant’s contention is that the Authority considered the UNHCR’s view as “particularly important”. The Authority did not, however, expressly say that the UNHCR’s view was “particularly important”. The Authority referred to UNHCR’s view because it was responding to the claim the applicant made that it would not be reasonable to relocate because he would be returning to Afghanistan, not as a single man, but as a married man with dependents;[58] and the applicant himself relied on the UNHCR’s view.[59] The UNHCR’s view supported the applicant’s contention because, according to that view, there were limited circumstances in which it would be reasonable to require a person to relocate to an area where traditional support mechanisms provided by members of an applicant’s extended family or ethnic group are not effectively available. The limited circumstances related to single able bodied men and married couples of working age without identified specific vulnerabilities. The Authority found it was reasonable for the applicant to relocate to Kabul or to Mazar-e-Sharif, even though he was not a single male; and the Authority did so by considering the UNHCR’s view together with other country information.
[58] CB271, [56]
[59] CB248
In these circumstances, I am not satisfied the Authority considered the UNHCR’s view as “particularly important”, other than as constituting information on which the applicant relied, and which the Authority was bound to consider. In truth, the UNHCR’s view was one of a number of items of country information the Authority considered in determining whether it would be reasonable, in the sense of practicable, for the applicant to relocate to Kabul or to Mazar-e-Sharif.
For these reasons, ground 3 of the second amended application also fails.
DISPOSITION
I propose to order that the application be dismissed.
There is no apparent reason why costs should not follow the event. I will therefore order that the applicant pay the Minister’s costs set in the amount of $8,371.30, being the amount provided for in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I will, however, grant the parties liberty to apply within 21 days after the day I pronounce my orders for an order to discharge or vary the order for costs I propose to make.
Finally, I will order that the Minister’s name be changed to its current description.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 19 May 2023
0
7
0