CVQ17 v Minister for Immigration
[2018] FCCA 2121
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVQ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2121 |
| Catchwords: MIGRATION – Protection visa application – judicial review of Immigration Assessment Authority decision – relocation within Afghanistan – whether the Authority erred in making findings that were not open to it – whether the Authority erred in finding that it was reasonable to relocate to Mazar-e-Sharif – whether the Authority erred in its assessment of real risk of serious harm – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 473CA Other materials cited: |
| Cases cited: AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 CRI026 v The Republic of Nauru (2018) 355 ALR 216 CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14 DFE16 v Minister for Immigration & Border Protection (2017) 317 FLR 215 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | CVQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 349 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 2 May 2018 |
| Date of Last Submission: | 14 June 2018 |
| Delivered at: | Sydney (Perth by video link) |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Draper, Granich Partners |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 349 of 2017
| CVQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 5 June 2017. The Authority affirmed a decision of a delegate of the Minister of Immigration to refuse to grant the applicant a protection visa.
Background
The applicant is a citizen of Afghanistan who comes from the Malistan district of Ghazni province. He arrived in Australia by boat on 23 September 2012.
On 15 December 2015, the applicant lodged an application for a protection visa after the Minister had exercised his power under s.46A of the Migration Act 1958 (Cth) to allow him to do so. That application was made on the basis of the following claims.
The applicant’s father, a farmer from Malistan died in February 2014 as a result of injuries sustained at the hands of the Taliban. His mother had died of natural causes. The applicant’s youngest brother went missing 7 or 8 years ago and the applicant believes the brother was abducted by the Taliban because his work involved government contracting.
The applicant claimed that the Taliban would harass the people of his village and force them to allow nomadic Kuchi people to raise livestock on their land. The Taliban threatened, assaulted, abducted and in some cases killed Hazara Shi’a.
The applicant said that he worked in Afghanistan as a logistics driver for a company called Contrack International. In April 2012, the Taliban sent threatening letters to all of the employees of the company in the applicant’s local area. They also set up check points on the roads which the applicant sought to avoid. On at least one occasion, the applicant had to abandon his vehicle in order to avoid the Taliban.
The applicant claimed that since he had left his village the Taliban were searching for him there.
On 1 November 2016, a delegate of the Minister made a decision to refuse to grant the applicant a visa. The matter was then referred to the Authority pursuant to s.473CA of the Act. Subsequently, the applicant’s adviser provided a detailed outline of submissions to the Authority and, upon invitation by the Authority, made further submissions in relation to up-to-date country information and in particular, in respect of the question of the safety of certain areas of Afghanistan.
Authority’s decision
The Authority accepted the applicant’s factual claims concerning where he came from, what he did and the threats that he had received from the Taliban. It also accepted that his brother had disappeared in 2006/2007 but found that that did not have any bearing on the risk that the applicant faced upon return to Afghanistan. The Authority did not however, accept that the applicant had abandoned his truck in order to avoid the Taliban in 2012. In light of those findings and the country information concerning the risk facing Hazara Shi’as in the applicant’s home district the Authority accepted at [28] that the applicant faced a “real chance of serious harm in travelling to and on his return to his home district due to his race, religion and imputed political opinion”.
The Authority then noted that sub-s.5J(1)(c) of the Act required that the real chance of persecution faced by the applicant must relate to all areas of Afghanistan. In the next section of its reasons, the Authority addressed that by reference to the city of Mazar-e-Sharif. One of the applicant’s arguments in these proceedings focuses upon the Authority’s reasoning in connection with this question. In light of that, it will be necessary later in these reasons to analyse the Authority’s reasoning process in some detail.
For present purposes, it is sufficient to observe that the Authority found that the applicant would be able to safely and legally access Mazar-e-Sharif after being returned to Kabul airport [58] and that the applicant did not face a real chance of being killed or otherwise suffering serious harm in Mazar-e-Sharif in the reasonably foreseeable future: [61]. In light of that conclusion, the Authority found that the applicant did not meet the definition of refugee in s.5H(1) of the Act and so did not satisfy sub-s.36(2)(a) of the Act.
The Authority next considered whether the applicant satisfied the criterion in sub-s.36(2)(aa) of the Act.
In this respect the Authority was satisfied, for the reasons that it had given in connection with the earlier criterion, that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Afghanistan, he would face a real risk of significant harm if he returned to, and lived, in his home area. The Authority noted however, that s.36(2B) of the Act provided that there is taken not to be a real risk that the applicant would suffer significant harm in Afghanistan if it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant would suffer significant harm. On the basis of its earlier findings concerning Mazar-e-Sharif, the Authority found that there was not a real risk of suffering significant harm in that city and then went on to consider whether it would be reasonable for the applicant to relocate to that place.
This aspect of the Authority’s reasoning is also the subject of one of the applicant’s arguments. For that reason, it will be necessary to consider the Authority’s reasoning in some detail later in these reasons and suffice it for present purposes to note that the Authority stated, at [77] that, having considered the applicant’s personal circumstances it was satisfied that it was reasonable for him to relocate there, a place where he would be able to “secure shelter, employment and services upon return even in the absence of an initial familial or otherwise familiar support network”. In light of that conclusion the Authority found that the applicant did not meet the criterion in sub-s.36(2)(aa) and so affirmed the decision of the delegate.
Consideration
There are 3 grounds in the application however, the applicant abandoned the second and third grounds. The first ground asserts unreasonableness in respect of the Authority’s findings concerning relocation to Mazar-e-Sharif and Kabul. The Authority did not make findings about relocation to Kabul and that aspect of the first ground may be left to one side. Further, although the applicant asserts that the Authority’s consideration of relocation to Mazar-e-Sharif was unreasonable, his submissions made it clear that the true complaint was that the Authority did not consider the practical and realistic ability of the applicant to re-start his life in Mazar-e-Sharif without undue hardship. For that reason, even though there is some overlap in the approach to the different aspects of the Authority reasons, I will deal with them separately.
Before doing so, it is necessary to briefly examine why the Authority was concerned with what might happen to the applicant if he were to go to Mazar-e-Sharif, a place it accepted he had never been before.
There are two reasons for the Authority’s focus on that city. First, in order to satisfy the criterion in sub-s.36(2)(a), the applicant had to have a well-founded fear of persecution that related to all parts of Afghanistan: sub-s.5J(1)(c). Secondly, in order to satisfy the criterion in sub-s.36(2)(aa), there had to be a real risk that he would suffer significant harm in Afghanistan. However, s.36(2B) relevantly provides that there is no such risk if:
...
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
...
The question of reasonableness of relocation arises under sub-s.36(2)(aa), but not under sub-s.36(2)(a): DFE16 v Minister for Immigration & Border Protection (2017) 317 FLR 215 at [26].
In light of those provisions, the Authority’s conclusions that there was no real risk of harm to the applicant in Mazar-e-Sharif and that it would be reasonable for him to relocate there were both critical to the Authority’s decision. If they were not arrived at reasonably, or on a proper understanding of the law, then the Authority’s decision would be affected by jurisdictional error.
The real risk of serious harm in Mazar-e-Sharif
Essentially, what the applicant must establish in order to succeed in the first aspect of the first ground, is that the particular findings that are impugned were not open on the material before the Authority. In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, Justices Crennan and Bell explained at [131] that it was insufficient that different minds might reach different conclusions on the jurisdictional fact and that the test for illogicality or irrationality:
… must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109, the Court said, after referring to SZMDS:
[47]Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”. Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error.
(References to authorities omitted)
In his first ground the applicant’s argument focuses on the manner in which the Authority relied upon country information in reaching conclusions regarding the circumstances that might affect the applicant upon return to Afghanistan. While the Authority’s consideration of such information is, like its consideration of any other material, governed by the same principles of logic and reason as discussed immediately above, the identification of relevant information and the weight to be attributed to it is entirely a matter for the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [81] and SZUEP v Minister for Immigration & Border Protection [2017] FCAFC 94 at [27].
With those principles in mind, it is necessary to consider the relevant findings made by the Authority.
As I observed at [10] above, after finding that the applicant faced a real chance of serious harm in travelling to and on his return to his home area, the Authority noted that sub-s.5J(1)(c) of the Act required that the real chance of persecution faced by the applicant must relate to all areas of Afghanistan: [29]. It also noted that it had invited the applicant to comment on information relating to relocation to Mazar-e-Sharif, the capital of the Balkh province and that the applicant had replied, saying amongst other things, that he would be harmed anywhere he went in Afghanistan.
The Authority then considered the country information before it relevant to the risk that the applicant may be harmed in Mazar-e-Sharif: [30] – [44]. It concluded that that risk was remote. In summary, its reasons were as follows:
a)the Hazara and Shi’as’ legal position and interests are largely respected and official discrimination is low: [30];
b)there is no information to suggest that state protection is not available and Hazaras are politically active, free to participate fully in public life and do not face discrimination from the government or authorities: [30];
c)Mazar-e-Sharif has a strong police and military presence and the Balkh province has maintained relative security for several years: [32];
d)Mazar-e-Sharif has been described as one of the safest cities in Afghanistan, the government has maintained effective control over it and there is no indication that that would be lost in the reasonably foreseeable future even taking into account the Presidential elections due in 2019: [32];
e)while militant attacks do occur in Mazar-e-Sharif, the incidents have been infrequent and primarily aimed at government or international community targets: [33];
f)the applicant would not be seen as part of the international community or face a real chance of harm in Mazar-e-Sharif because of his previous work as a truck driver: [34];
g)Shi’as have been targeted in Mazar-e-Sharif, but there is no evidence of any attacks on them since 2011: [35]-[36];
h)Islamic State has a presence in Afghanistan including in parts of Balkh province and are trying to “stoke sectarian conflict”; however, previous DFAT[1] advice was that civilians in Afghanistan face a low risk of violence from that organisation compared to the risks to high profile groups from other AGEs and the threat of violence generally in Afghanistan: [38];
i)Islamic State is likely to continue its attacks and Shi’as will be among its targets; however, the attacks will be infrequent and the combined efforts of the Afghan authorities, international communities and Taliban will limit its expansion and capabilities and will not share or support its sectarian slant in the reasonably foreseeable future: [39]-[40];
j)any incidents of sectarian violence from Hazara and other militia, including retaliatory violence, is not likely to take hold at the community level such that they would occur with such frequency or severity so as to lead to a real chance of serious harm for the applicant in Mazar-e-Sharif: [41];
k)the Taliban continue to threaten stability across Afghanistan, however, recent “security incidents in Mazar-e-Sharif have been infrequent and have also been generally targeted against government or international community institutions” and the applicant does not have a pro-government, pro-security forces or international community profile. Further, there was no evidence of the Taliban targeting Hazaras or Shi’as in Mazar-e-Sharif: [42];
l)even though Mazar-e-Sharif is not completely isolated from the conflict and there have been attacks in that city and militant action in neighbouring provinces, these threats did not indicate that Mazar-e-Sharif would fall in the reasonably foreseeable future or that the applicant would face a real chance of harm: [43];
m)sectarianism would not extend beyond sporadic attacks and the combination of a strong security presence, effective government control, Islamic State’s limited capacity and lack of territorial foothold in Balkh province, and the applicant’s lack of relevant profile meant that the chance that the applicant would be seriously harmed for reason of his race, religion, or political opinion in Mazar-e-Sharif was remote: [44].
[1] Department of Foreign Affairs and Trade.
The applicant makes a number of attacks on the Authority’s reasoning on this issue.
First, in respect of the reasoning in [33] of the Authority’s reasons, the applicant argues that the infrequency of attacks is not a ground leading to the reasonable conclusion that Shia Hazaras are not being persecuted, and that it was not reasonable to conclude that Hazaras are less persecuted because the targets of attacks are government and international targets. Neither of these arguments has any merit.
The analysis of risk is one of probability. As such, the frequency and targets of historical attacks can have a logical bearing on the likelihood of future attacks on a specific individual. First, unless there is something to suggest that the frequency of attacks might increase, one can infer from the pattern and number of past attacks the possible number of attacks in the future. Secondly, if an analysis of past attacks reveals that they were not random, but focused on particular targets, as they were here, it is reasonable (in the sense described above) to infer that future attacks are also likely to be focused on those targets.
The third step in the analysis is to determine whether the applicant had any of the characteristics that were targeted in the past attacks. Together, these steps provide a rational basis for a conclusion of the probability of the applicant being harmed in an attack in the future. This was the analysis undertaken by the Authority and so no error has been shown in its reasons.
Secondly, the applicant attacks the Authority’s conclusion that there is a low risk of violence from Islamic State: see [38] and [44]. This attack is based on the fact that, on the one hand, the Authority accepted that there had been attacks by Islamic State in 2015 and 2016 and that Islamic State had specifically targeted Shi’a Hazaras and yet, on the other, accepted older advice to conclude that there was only a low risk of violence from that group. The applicant points to reports contradicting the Authority’s view and argues that the Authority did not give reasons for accepting the older advice.
The applicant is not correct to say that the Authority did not give any reason for accepting older advice. That advice was an assessment by DFAT of the risk of harm from Islamic State. At [38], the Authority acknowledged that that assessment predated the attacks in 2015 and 2016, but relied on more recent information to the effect that Islamic State had struggled to expand beyond four districts in another province and had failed to establish itself in other parts of Afghanistan.
The Authority also referred to information that the group’s numbers had been reduced greatly since 2015 and that several high-ranking leaders had recently been killed. Further, as the Minister submitted, the Authority’s conclusion in respect of this issue was specifically based on a careful analysis of the situation in Mazar-e-Sharif including the control of the government there, the lack of frequency of the attacks there, and the fact that those attacks were focused on specific targets. In effect, the Authority considered the information concerning the recent circumstances in Afghanistan and came to a conclusion based on that consideration. The fact that there was information that might support a different conclusion does not support the conclusion that the Authority’s decision was unreasonable in the sense required by law.
Thirdly, the applicant argues that the Authority erred by assessing the applicant’s profile. He relies on a DFAT report that suggests that, even though attacks are targeted, they can result in civilian casualties. He suggests that, in light of that report, the applicant’s profile was irrelevant. The difficulty with this argument is that there is no inconsistency between the fact that civilians can be harmed in attacks that are focussed on government or international targets and the conclusion that, in all of the circumstances considered by the Authority, there was no real risk that the applicant would be harmed in such an attack. Simply put, the fact that a civilian can be harmed in targeted attacks does not require the conclusion that there is a real chance that the applicant will be harmed in such an attack.
For those reasons, the applicant’s attacks on the Authority’s findings about the risk of serious harm in Mazar-e-Sharif must be rejected.
Reasonableness of relocation to Mazar-e-Sharif
The analysis of whether it is reasonable for an applicant to relocate within his or her country of nationality is a fact intensive one which must focus on the applicant’s specific circumstances and those of the place of relocation: CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14 at [48]. In AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 the Full Court explained:
[27]It is well accepted that how an administrative decision-maker (including the Tribunal) approaches the question of whether it is reasonable to expect a protection visa applicant to return to a particular part of her or his country of nationality will depend to some extent on the framework set by the claims made by the visa applicant about why it is not safe, and/or not reasonable for her or him to return to a particular location or locations: see SZMCD at 438 [123]; Randhawa at 443 (Black CJ); SZATV at [24] (Gummow, Hayne, Crennan JJ), at [81] (Kirby J); SZSCA at [27], [31]-[33] (French CJ, Hayne, Kiefel, Keane JJ); CSO15 at [26]-[27], [47]-[48] and MZYPW at [9] (Flick and Jagot JJ). However as Mortimer J noted in MZANX at [58]:
There is no doubt that the “framework” set by an applicant may be an important factor. Indeed, the appellant submits the reviewer did not pay sufficient attention to the framework set by his adviser’s submissions on the two questions of “insecurity, political instability and social problems” and “unemployment such as to impact his ability to meet his basic needs”. However, it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.
The applicant placed particular reliance upon the decision of Mortimer J in MZANX v Minister for Immigration & Border Protection [2017] FCA 307 in which her Honour said:
[51]In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.
…
[55]In the context of relocation, detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship (see [60] to [61] below). Likewise, the circumstances of that individual – her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope. …
After the hearing of this matter, the High Court handed down its decision in CRI026 v The Republic of Nauru (2018) 355 ALR 216. That decision was made on appeal from the Supreme Court of Nauru concerning the issue of internal relocation in the context of the Refugees Convention Act 2012 (Republic of Nauru). The appellant contended that the question of reasonableness did not apply in determining whether there was an obligation of complementary protection under that Act because, if it did, it would be incumbent upon an applicant for complementary protection to undertake the practically impossible task of establishing that there is no place in his or her country of nationality to which he or she could reasonably relocate.
The Court rejected that contention:
[39]That contention should also be rejected. Implicitly, it proceeds from the false premise that a claim for complementary protection is in the nature of an adversarial proceeding in which the burden of proof is on the applicant and, therefore, that, in the event of the applicant failing to discharge the burden of proof, the claim for complementary protection must fail. To the contrary, however, as appears from BL v Australia, before a decision maker may properly reject a claim for complementary protection on the basis of the availability of reasonable internal relocation, the decision maker needs reliable information as to the safety and suitability of the place of relocation. Moreover, as Gummow, Hayne and Crennan JJ observed in SZATV v Minister for Immigration and Citizenship in relation to a claim for refugee protection:
What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant's personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable that the claim for complementary protection may be rejected on that basis.
(Citations omitted)
As will be seen, the applicant relies on one aspect of this passage in support of his third argument. For present purposes it is necessary to note that, subject to that argument, the decision in CRI026 is consistent with the authorities considered above.
Here, the applicant argues that the Authority failed to consider matters that affected the practical and realistic ability of the applicant to relocate to Mazar-e-Sharif. They were that he had never lived there, had no family connections in the city, is illiterate, has limited work experience and there is high underemployment. He suggests also that, in light of those matters, it was unreasonable for the Authority to conclude that he could reasonably relocate to Mazar-e-Sharif.
These factors were matters that were part of the framework relied on by the applicant in opposition to the possible conclusion that relocation was reasonable. The Minister did not suggest that they need not have been considered. Rather, he argued that they were considered and that the applicant’s contention is no more than a disagreement with the Authority’s conclusion.
The Authority did in fact consider all of the matters put forward by the applicant:
a)it accepted that he had never lived in Mazar-e-Sharif: [52];
b)it found that there was underemployment and high unemployment there and that, without having family connections in Mazar-e-Sharif, the applicant would face a difficult situation there: [53], [74];
c)it also accepted that most of the applicant’s employment experience had been in driving in the construction industry and bricklaying construction: [53]
d)it considered his lack of formal education and that he may initially be treated as an outsider: [68];
e)it also accepted that there was pressure on the labour market, infrastructure and services from returnees and internally displaced persons: [74];
f)finally, it accepted and carefully considered the fact that the applicant might have some financial responsibility for his family who were living in another part of Afghanistan: [76].
In brief, the Authority accepted that all of these matters would give rise to some difficulties for the applicant in Mazar-e-Sharif. However, it concluded that he could overcome those difficulties and, for that reason, it would be reasonable for him to relocate there: [74].
The bases for that reasoning were, first, information from the UNHCR[2] about the ability of single able bodied men and married couples without identified specific vulnerabilities to “subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective Government control”: [73].
[2] United Nations High Commissioner of Refugees.
Secondly, that Mazar-e-Sharif was under effective government control: [73], [75]. Thirdly, the applicant is from a sizeable minority group in the community, has demonstrated resourcefulness and resilience and has lived away from his family in unfamiliar places including in large urban areas in Iran: [74].
Fourthly, there are greater opportunities for employment and access to services in large urban areas where construction is amongst the main sectors of employment and Mazar-e-Sharif is one of the biggest commercial and financial centres in Afghanistan: [75]. Fifthly, the applicant has no vulnerability that might hinder his ability to obtain work and establish himself in the city: [75].
Sixthly, the applicant had experience farming, bricklaying, running his own business and truck driving, all skills which were transferable and he could draw upon: [75]. Seventhly, although continued separation from his family would be difficult, it would not be unreasonable because it would be possible for his family also to re-settle in the medium term.
This reasoning is consistent with what the authorities referred to above indicate is required to address the reasonableness of relocation. On the material before it, the Authority was not required to descend into any finer level of detail, assessing, for example, precisely where the applicant would live, with whom and for how long, what he would do on a daily or weekly basis. The Authority engaged at the level of specificity driven by the applicant’s own claims, which it largely accepted, and the information before it including the opinion of the UNHCR on the issue of relocation within Afghanistan.
The applicant also argued that, in light of CRI026, the Authority could only be satisfied that it was reasonable for the applicant to relocate on the basis of reliable information about the relevant circumstances in Mazar-e-Sharif.
The passage in CRI026 relied on by the applicant is set out at [36] above. He argues that this passage means that the Court must undertake an evaluation as to the accuracy and reliability of the country information considered by the Authority. His argument was that where, as here, there was information that was contradictory and inconsistent with the information relied on by the Authority, the latter information was, for that reason, unreliable and so the Authority’s reliance on it was unreasonable.
There are many difficulties with that submission. Leaving to one side the different statutory context in which CRI026 was decided, there are two particular issues. First, what was meant in CRI026 by the word “reliable”; and secondly, whether the information here was “reliable”.
The applicant contends that information is reliable if it is “suitable or fit to be relied on” and “of proven consistency in producing satisfactory results”. The error in this approach is that the words of the High Court in CRI026 are not to be examined as though they were part of the Act. The Court adopted this word from a communication of the United Nations Human Rights Committee[3] concerning whether Australia would breach its obligations under the International Covenant on Civil and Political Rights[4] if it were to return a citizen of Senegal to Senegal. In a concurring opinion, one of the members of the committee said[5]:
... The duty of ascertaining the location where adequate and effective protection is available in Senegal does not rest upon the authorities of [Australia]. Their duty is limited to obtaining reliable information that Senegal is a secular State where there is religious tolerance.
[3] United Nations Human Rights Committee, Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014).
[4] International Covenant on Civil and Political Rights opened for signature 16 December 1966 (entered into force 23 March 1976).
[5] Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014) at Appendix II per Dheerujlall B Seetulsingh.
There is nothing in either CRI026 or the communication from the United Nations Human Rights Committee to suggest that information had to be consistent with all other information before it could support the view that relocation would be reasonable. It may be accepted for present purposes, and without the benefit of any argument from the Minister on the point, that any administrative decision must be based on “reliable” information in the sense that the information must provide a logical basis for the decision maker to be satisfied of the likelihood of the existence of a fact in issue. Even if “reliable” required more, as suggested by the applicant, it was not, and could not have been, submitted that there was no such information here.
The Authority relied on information from sources including DFAT and the UNHCR. It would be surprising if the views of the Australian government or the international agency with responsibility for the Refugees Convention[6] could not be a sufficient basis for determining the question of reasonableness of relocation: see, albeit in a different context, Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 428 (McHugh J).
[6] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2).
The fact that there may have been information inconsistent with the information relied on by the Authority did not mean that either information was unreliable. Contrary to the applicant’s argument, the High Court in CRI026 did not overrule the well-established principle that it is a matter for the Authority, and not the Court, to decide what information it accepts: NAHI at [11]. The High Court did not specifically refer to that proposition because it was not relevant to any of the issues before the Court. It is not only a principle stated in a decision binding on me but is also consistent with a long line of authority about the limits of the Court’s role in the judicial review of administrative action: see, for example, Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J).
For those reasons, I am not satisfied that the Authority failed to address either the questions posed by sub-s.5J(1)(c) or sub-s.36(2B)(a) or that its conclusions in respect of those questions were not open to it on the material before it.
Conclusion
There is no jurisdictional error in the Authority’s decision. The application must be dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 7 September 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
-
Jurisdiction
11
7