CWL16 v Minister for Immigration
[2018] FCCA 3280
•19 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CWL16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3280 |
| Catchwords: RELOCATION – whether Authority failed to consider relevant evidence – whether failure to consider risk of generalised violence – whether Authority misconstrued ‘real chance’ test – no error found. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5J(1)(a), 36(2)(a), 473BA, 473CB(1)(d), 473DA, 473DC(2) & (3), 473DD, 473DE, 473FA(1) and Part 7AA |
| Cases cited: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v Li (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | CWL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 322 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 8 December 2017 |
| Date of Last Submission: | 8 December 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 19 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guo |
| Solicitors for the Applicant: | Beena Rezaee Legal & Migration |
| Counsel for the Respondents: | Mr O'Leary |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The Application is dismissed.
The applicant do forthwith pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 322 of 2016
| CWL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for constitutional writs in relation to a decision of the Immigration Assessment Authority (‘the IAA’) dated 30 August 2016. That decision affirmed an earlier decision of a delegate of the first respondent not to grant the applicant a Safe Haven Enterprise Visa (‘the visa’). The application proceeded before me on the basis of the Amended Application filed on 3 October 2017, which raises three grounds as follows:
“(1)The IAA’s making of its decision, in the absence of a response to the invitation to comment sent to the applicant purportedly under s.473DE of the Migration Act 1958 (Cth) (‘the Act’), was unreasonable.
(2)The IAA's conclusion that it was reasonable for the applicant to relocate:
(a)Did not disclose any awareness nor process of reconciling the conflicting UNHCR assessments that the applicant’s family were refugees; and/or
(b)Did not take into account evidence that there was a risk of generalised violence in Kabul.
(3)In determining whether the applicant satisfied the criteria in s.36(2)(a)-(aa) of the Act, the IAA misconstrued the law by:
(a)Failing to apply the proper test of whether there was real chance or real risk of harm; and/or
(b)Failing to consider the consequences if its conclusion was wrong, in circumstances where its conclusion did not exclude the possibility that it was wrong.”
(Grounds reproduced verbatim)
The applicant relies on the materials in the Court Book, his affidavit dated 27 September 2016, and the affidavit of his Migration Agent, Sister Mary Simmonds, dated 3 October 2017.
Background
The background to this matter has been helpfully summarised by the first respondent in its written outline of submissions and I have paraphrased it below.
The applicant is a Hazara man of Shia faith from Uruzgan in Afghanistan. He arrived in Australia in August 2012. He lodged a valid application for the visa on 27 October 2015. The applicant is a ‘fast track applicant’ within the meaning of s.5 of the Migration Act 1958 (Cth) (‘the Act’).
The IAA identified the two aspects of the applicant’s claims for protection in its Decision Record.[1] Firstly, he fears that if he were to be returned to Uruzgan he would be in danger of harm by the Taliban as a Hazara person of the Shia Muslim faith.
[1] Court Book (‘CB’), p 174 at [11].
Secondly, he claims to fear harm because of a land dispute between his father and another person. That dispute was said to date from 1998 and the other person is said to be a member of the Taliban. A delegate of the first respondent had initially rejected the applicant’s claim to protection on the basis that whilst it found that the applicant would face a real chance of persecution in Uruzgan, on the basis of his ethnicity and race, he would not face a real chance of persecution for those reasons in Kabul. Further, it concluded he would not face a real chance of harm as a returnee from the West. As for the land dispute, it concluded that whilst credible, it did not give rise to a well-founded fear of persecution given the terms of s.5J(l)(a), and that it did not fall within the complementary protection obligations given the viability of relocation to Kabul.
As the applicant was a ‘fast track applicant’, the delegate's decision was automatically referred to the IAA. The applicant was provided with relevant information about the IAA process including a copy of the standard practice directions.[2]
[2] CB, Section 473.
On 11 August 2016, the applicant was invited by letter to comment on the recent security situation in Kabul and, as a result, the question of relocation to that city. It also invited comment on recent information relating to the security situation in Mazar-e-Sharif and the question of a possible relocation there.
The letter of invitation indicated that any response should be in writing and should be provided by 25 August 2016; that is, within 14 days.[3] The applicant is illiterate in English and his native language.[4]
[3] CB, p 161 – 163.
[4] CB, p 35.
It is at this point in the chronology that the applicant takes issue with the manner in which the IAA proceeded. I will summarise the evidence of Sister Simmonds later in these reasons.
On 30 August 2016, the IAA affirmed the delegate's decision. Its basis for doing so was as follows:
a)It was not satisfied that there was a real chance that the applicant would be seriously harmed outside of Uruzgan in a city such as Kabul.
b)It took into account the size of the Hazara Shia population in Kabul.
c)The situation in Afghanistan for Hazara Shias had improved significantly following the fall of the Taliban in 2001.
d)It found that the government in Kabul maintained effective control at least to some extent.
e)Information as to attacks in Kabul indicated that the focus of those attacks was not against Hazara Shias but rather on high profile targets such as government institutions and security forces.
f)The 2016 attack in Kabul had occurred in the context of a high profile protest.
g)It was not part of the applicant’s case that he had ever been politically motivated, or had assumed a high profile for Hazara Shia rights, or that he would seek to protest on his return to Afghanistan. Rather, he could be regarded as a low profile Hazara Shia.
h)The economic and living conditions in Kabul are conditions faced by the population generally and of themselves would not constitute a basis for a well-founded fear of persecution under the Act.
i)It found that if the applicant returned to Kabul he would be a low profile Hazara Shia and have no other profile and for that reason it was not a real chance that he would be seriously harmed by reason of his ethnicity or religion or any other reason.
j)As a result of the above it was reasonable for the applicant to relocate to Kabul.
k)The applicant and his wife were of working age and he was able bodied and whilst there would be some difficulties there were no obvious vulnerabilities facing them that would prevent them from relocating.
Affidavit of Sister Simmonds
The affidavit of Sister Simmonds indicates that she is a volunteer with an organisation that provides a service to people seeking asylum in Australia. The applicant asked her to be his migration agent for both the Department and the IAA stages of his protection visa application. On 27 August 2016 she checked the voicemail service on her mobile phone. She was out of the office at the time. She heard a message from someone who said that they were from the Authority and the message asked her to return the call. As far as she can recall there was no other substantive content to that message, and in particular she had no recollection of it suggesting there was any urgency for her to return the call, or that it stated the reason for why they were calling her. She did not work on Fridays or Mondays and intended to call the IAA on her next working day which was the Tuesday. That was the day the IAA made its decision. Had the message indicated that it was urgent she would have called the IAA on the next business day; in other words, the day before the decision was made. It is her usual practice to return urgent calls as soon as possible even if they occur on Fridays or Mondays.
The position of the IAA is that it contacted both the applicant and his Agent to follow up on whether a response to the new information would be forthcoming. Case file notes indicate three calls being made between 24 August 2016 and 26 August 2016. The note with respect to the message left on the Agents phone describes it as “a detailed message requesting a call back”.[5]
[5] CB, pp 164 – 166.
Submissions
Applicant’s submissions with respect to ground one
With respect to ground one, the applicant acknowledges that the question of unreasonableness with respect to the exercise of a power must be assessed in the context of the relevant statutory framework in order to determine whether it has the character of being unreasonable.[6]
[6] Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11]; Minister for Immigration and Border Protection v Li (2013) 249 CLR 332.
With respect to the statutory context, the applicant acknowledges, as he must, that the IAA was not under any statutory obligation to invite him to comment on country information with respect to Kabul or Mazar-e-Sharif. This is because of the operation of s.473DC(2) of the Act which states:
“The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.”
The Authority may however invite a person to give new information.[7]
[7] Section 473DC(3).
In the applicant’s submission, the context in which the statutory power conferred on the IAA must be exercised, includes the following aspects identified by this Court in DZUI6:[8]
a)There being considerable restrictions on the natural justice hearing rule;
b)The lack of requirement for an oral hearing;
c)The fact that the IAA does not have the power to remit the Application to the delegate with a direction that he or she consider a particular factual issue; and
d)As Gageler J said in Li at [99], albeit in the context of Part 5 of the Act, restrictions on natural justice give added significance to the implied requirement of the review authority to act reasonably.
[8] DZUI6 v Minister for Immigration and Border Protection [2017] FCCA 851 at [70].
The unreasonableness arises, it is submitted, by the IAA proceeding to make its decision so soon after the expiry of an arbitrary deadline in the absence of a response from the applicant, in circumstances where it had sought a response from him and been told that a response would be forthcoming.
Counsel for the applicant submitted that it was significant when considering the timing of the IAA in making its decision that the confirmation from the applicant that his representative would be responding on his behalf was conveyed by him to the IAA just four days before it proceeded to make the determination. Further, the letter, written in English inviting the response from the applicant, was emailed directly to the applicant who is illiterate, despite the IAA being on notice that he had an Agent acting for him and having the relevant contact details for the Agent. Those contact details had been provided to the IAA by the Secretary in compliance with s.473CB(l)(d).
It was submitted that because the IAA was obliged by virtue of s.473FA(l) to exercise its functions in a manner consistent with Division 3, communication to the applicant should have been via the s.473CB(l)(d) email address. Failure to do so, combined with affirming the decision very soon after the arbitrary deadline had elapsed, was unreasonable.
The applicant’s fourth contention as to unreasonableness is that the IAA decided[9] that the bombing in Kabul, which occurred after the decision of the delegate, was “directly material” to the question of whether there was a risk of the applicant being persecuted in Kabul, or whether he could reasonably relocate to Kabul to avoid persecution. In that context the IAA had further concluded that any response from the applicant would be “new information” which would be considered because it was satisfied that there were exceptional circumstances to justify considering such new information.[10]
[9] CB, p 172 at [4].
[10] Applicant’s written submissions at [24].
In other words, the applicant submits that the IAA thought that the applicant’s response was so important to it arriving at the correct decision, that there were exceptional circumstances justifying its consideration of any response. It was submitted that the effect of inviting the applicant to comment on the information about the Kabul bombing was to demonstrate that the IAA “thought that the response would be highly material”. With respect, I do not accept that submission. In my view, it is not correct to contend that the IAA was seeking ‘new information’ from the applicant. The new information which it had considered was the country information about both Kabul and Mazar-e-Sharif set out in its letter of 11 August 2016.[11] What the IAA was doing when it extended the opportunity for him to respond was to invite him to comment on the ‘new information’ which it had considered and which it concluded would be the reason, or part of the reason for affirming the fast track reviewable decision. It was not obliged to do so, because the new information was country information and not specifically about the applicant. The fact that the IAA chose to convey the information to the applicant and seek his response does not mean that it sought new information from him, or that it believed that he had new information. The terms ‘new information’ and ‘comment’ are not synonymous under the Act but they may overlap to an extent.[12] It certainly did not amount to a considered view that any response or comment the applicant may choose to give might amount to new information or that it considered that any possible response would be ‘highly material’ to facts asserted in the new information of which it had given him notice.
[11] CB, pp 161 – 163.
[12] AZR16 v Minister for Immigration and Border Protection [2017] FCA 1453 at [65].
Further, it is not correct to submit that the IAA sought a response from the applicant because it believed there were “exceptional circumstances justifying” its consideration of any response from him.[13] The expression ‘exceptional circumstances justifying’ in that submission picks up on the language of s.473DD(a), which sets out the threshold for the IAA to consider new information. The IAA was satisfied that there were exceptional circumstances to justify considering the new information of which it gave the applicant notice. It did not have to be satisfied that there were exceptional circumstances justifying an invitation to him to comment on the new information. It was simply providing him with an opportunity to do so. The most logical explanation for this is that the IAA believed that it was obliged by s.473DE to do so. That it appears to have mistakenly held such belief does not elevate the invitation to a conclusion that any response was likely to be highly material or even that it would necessarily be relevant.
[13] Applicant’s outline of submissions at [24].
The sixth contention as to unreasonableness is that the 14 day time period in which the Authority gave the applicant to respond to the new information was arbitrary. Regulation 4.42(iii) of the Migration Regulations 1994 (Cth) (‘the Regulations’) stipulates a period of 14 days in which to comment in writing. That regulation did not apply in this case because the IAA was not obliged to seek his comment. Hence it is submitted, the timeframe given was arbitrary. That submission seems to me to be overreaching. The 14 day time period was not arbitrary. It was referrable to the period of time prescribed by the Regulations in circumstances where the IAA was required, pursuant to s.473DE, to invite the applicant to comment. In those circumstances, to suggest that it was arbitrary and therefore unreasonable either of itself or in combination with other matters, is unsustainable. In my view, this case is not comparable to the circumstances in DZU16[14] where there was a failure to even consider seeking comment from the applicant. Here, the IAA did consider inviting the applicant to comment and then did so. Nor is the case comparable to the circumstances in the Minister for Immigration and Border Protection v CRY16[15] which also dealt with a failure to consider the exercise of power conferred under ss.473DC and 473DD. The IAA did exercise this power and gave the applicant an opportunity to comment on it. In the applicant’s submission, the analogy with DZU16 and CRY16 is appropriate because the IAA had power to extend the ‘arbitrary’ deadline it had set and a failure to consider that question before affirming the decision was unreasonable. Instead, once the deadline had expired there was a “rush” to affirm the decision in a way that lacked intelligible justification. That submission is difficult to accept given the statutory context. Properly understood, there was no ‘rush’. Having extended an opportunity to comment that it was not obliged to extend, and having made an attempt to contact the applicant’s Agent, it was not in my view legally unreasonable for the IAA to proceed to finalise the matter within the timeframe that it had indicated. Part of the intelligible justification for it doing so is the statutory context which requires the IAA to exercise its powers in a manner that is efficient and quick.[16]
First respondent’s submissions with respect to ground one
[14] Op cit.
[15] Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210.
[16] Section 473BA.
The first respondent points to the lack of obligation on the part of the IAA to extend the invitation it did. It gave the applicant more than he was entitled to under Part 7AA of the Act. Mr O'Leary also submitted, as I have found above, that there was nothing arbitrary and unreasonable in setting a two-week deadline for the applicant to comment. In all the circumstances, the time limit was sufficient to enable the applicant to obtain assistance, which he did, or seek an extension of time in which to comment, which he did not. The first respondent submitted that the applicant had not been deprived of a meaningful opportunity to respond and says the 14 day period given makes that submission self-evident.
Mr O'Leary also made the submission, as I have found above, that there was no rush on the part of the IAA to make the decision once the deadline expired. Both the time given for the response and the fact that the IAA followed up with the applicant, support that conclusion. In the first respondent’s submission, the fact of the applicant’s illiteracy played no role in the failure to respond because he clearly provided the letter setting out the ‘new information’ to his Agent. The decision of the IAA could not be rendered unreasonable by a failure on the part of the applicant’s Agent to respond within the stipulated time.
Applicant’s submissions with respect to ground two
The applicant submits that two matters were not relevantly considered by the IAA. Firstly, the applicant, having provided the UNHCR assessment cards for his family, which stated that they were considered to be refugees, there was an irresistible inference that the UNHCR would likely also have considered the applicant a refugee thus rendering it unreasonable for him to relocate to Kabul. The IAA appears not to have considered that issue and as a result did not attempt to weigh that important “conflicting evidence”.[17] For that reason it fell into jurisdictional error.
[17] Applicant’s outline of submissions at [36].
Secondly, it was submitted that the IAA failed to consider the risk of generalised violence in Kabul, contrary to MZACX v Minister for Immigration and Border Protection.[18] In that case it was found that “it may be relevant to include different or lower risks of harm” which is consistent with the principle explained in MZZJY v Minister for Immigration and Border Protection,[19] “the fact that the risk of harm is remote does not necessarily answer the question whether it is reasonable ... to expect the applicant to face that risk”.
[18] [2016] FCA 1212 at [35].
[19] [2014] FCA 1394 at [21].
Having concluded that there was some risk of generalised violence in Kabul,[20] the applicant contends that there was no consideration of whether relocation was reasonable in that context. That demonstrates that the IAA did not understand that a risk less than ‘real risk’ was still a relevant matter when determining whether relocation was reasonable. The failure to take into account that relevant consideration resulted in jurisdictional error.
First respondent’s submissions with respect to ground two
[20] CB, pp 178 – 179.
With respect to this ground, it was submitted by the first respondent that the applicant did not advance a claim based on the implications of the UNHCR cards issued to his family members. Further, the IAA could not determine the applicant’s claim on the basis of those cards. They simply did not amount to relevant material going to the applicant’s claim to protection and nor could they shed any light on the question of relocation.
Further, information as to the resettlement of the applicant’s family to the United States of America after the decision of the IAA, could not make the prior decision of the IAA unreasonable.
As to the reliance by the applicant on MZACX and MZZJY, the first respondent submitted that these were of no assistance to the applicant because the IAA did consider and weigh the information and assessed whether relocation was reasonable in the context of the security situation in Kabul as well as broader social, cultural and economic issues.[21] In doing so, it observed the requirements for relocation as enunciated in SZATV v Minister for Immigration and Citizenship,[22] and other authorities.
Applicant’s submissions with respect to ground three
[21] CB, pp 181 – 182 at [57]-[66].
[22] SZATV v Minister for Immigration and Citizenship [2007] 233 CLR 18.
The applicant submits that the IAA, having found that the 2016 attack on Kabul was “significant”, erred in assessing whether there was a real chance of persecution or real risk of significant harm. The language used by the IAA was that the attack did not “clearly indicate” and “the weight of country information” did not suggest that there had been a change in the security situation in Kabul.[23] This was misconstrued because the question to be asked was, in effect, whether the chance or risk was remote.[24]
[23] CB, p 178 at [43].
[24] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at [398] and [407].
There could be a real chance or real risk of something even in the absence of certainty or probability.[25] The approach taken by the IAA in mentioning lack of a clear indication suggests that it proceeded on the basis that the risk needed to be proven on the balance of probabilities. Such a conclusion was strengthened by the IAA focusing on whether an event might be “infrequent” because doing so was not an assessment of probabilities or remoteness. It was submitted that this was a substantive error and not merely an unfortunate choice of language.
[25] Ibid at [397].
If that submission is not accepted, the applicant further submits that error lies in the tentative nature of the conclusion reached. The conclusion reached by the IAA left open the possibility that there would be further attacks. By analogy with the Minister for Immigration and Multicultural Affairs v Rajalingam,[26] the applicant submits that by choosing to employ a weighing exercise in evaluating the competing information[27] it failed to undertake the required reasonable speculation in deciding whether there was a real substantial basis for the claimed fear of persecution.
First respondent’s submissions with respect to ground three
[26] Minister for Immigration and Multicultural Affairs v Rajalingam & Ors (1999) 93 FCR 220 at [60] - [62].
[27] That is, the fact of the 2016 bombing and the opinion expressed in James Intelligence Weekly.
Counsel for the first respondent submitted that the IAA did apply the proper test. The criticisms of the applicant, based on a close analysis of the language used, amounts to a reading of the decision with an eye keenly attuned to the perception of error.[28]
[28] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].
The findings were sufficiently confident to make the application of Rajalingam’s case redundant.
Consideration
In considering the context of the statutory framework underpinning the powers of the IAA, at least the following matters should be noted. Part 7AA of the Act introduces the Fast Track Assessment Process. The simplified outline in s.473BA of the Act notes that the purpose of the Part is to provide a limited form of review of fast track decisions. Pursuant to s.473CA, a fast track reviewable decision must be referred to the IAA as soon as reasonably practicable after a decision has been made by a delegate of the first respondent. The Authority is required to “pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 of Part 7AA (conduct of review).”[29]
[29] Section 473BA.
Division 3, together with ss.473GA and 473GB is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.[30]
[30] Section 473DA.
The material to which the IAA may have regard is limited and the review is to be conducted on the papers. Any new information provided by an applicant must only be considered if the requirements of s.473DD have been met. Section 473DD provides as follows:
“For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)The Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)The referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information;
(i)Was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)Is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”
There is no duty on the IAA to obtain or receive new information at the request of an applicant,[31] although, the IAA may invite a person to furnish new information.[32] If new information is country information of a general nature there is no requirement to provide it to an applicant. The IAA is only required to give the applicant new information for comment in the following circumstances:
[31] Section 473DC(2).
[32] Section 473DC(3).
“(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.”
It is in that context that the applicant’s submissions as to unreasonableness must be considered.
As I have already stated with respect to ground one, I do not accept that the timeframe given by the IAA in which the applicant was at liberty to comment on the new information was arbitrary and thus legally unreasonable. I do not accept that there was a rush to affirm the delegate’s decision after the deadline expired. No extension of time in which to comment was sought by or on behalf of the applicant. The fact that the IAA had learnt that the applicant’s Agent was in the process of preparing a response 4 business days before making the decision to affirm does not in my view render its decision unreasonable. It had provided a timeframe and it was open to the IAA to proceed as it said it would. Further, it would not have been unreasonable for the IAA to conclude, having been told that a response was being prepared on behalf of the applicant, that such response would, in the absence of any request for an extension of time, be provided within the timeframe it had stipulated.
Further, I accept the submission of the first respondent that the fact of the applicant’s illiteracy appears to have had no material effect on the failure to respond to the invitation. The matter was in the hands of his Agent and on his own case, he was aware that a response was required and he believed a response was being prepared.
Further, the affidavit of the applicant’s Agent is silent on whether she was in fact in the process of preparing a response, as he has claimed, and her state of knowledge as to the deadline itself.
As I have already indicated, I do not accept that the IAA had determined that there were exceptional circumstances that warranted seeking a response from the applicant. Given that the IAA was under no duty to seek a response from the applicant on the country information, I am not satisfied that it was unreasonable for it to have refrained from unilaterally extending the deadline it had given. As the first respondent has submitted, the failure of the applicant’s Agent to respond within the deadline or seek an extension of time in which to respond does not render the IAA’s decision unreasonable. I am satisfied that the decision of the IAA to proceed in the absence of a response was within of the scope of its discretion. I dismiss ground one.
As to ground two, I accept the submission of the first respondent that the applicant does not appear to have advanced a claim based on the significance of the UNHCR cards that had been issued to his family. The fact that the UNHCR had made a determination with respect to his family members did not bind the IAA, which was required to determine the applicant’s status on the basis of his claims and any evidence before it. The cards issued to members of the applicant’s family[33] represent a conclusion reached by the UNHCR issuing authority that the bearer of the card is considered a refugee within the mandate of the UNHCR. If those cards are evidence of anything, they are evidence only of the conclusion reached by the UNHCR with respect to family members of the applicant. In my view, it does not follow as a matter of logic, let alone “irresistible inference”[34] that because cards had been issued to his relatives, the UNHCR would have likely found the applicant to be a refugee within its mandate. The facts and the claims considered by the UNHCR with respect to the applicant’s family members are not known. The applicant’s visa application had to rise and fall on his circumstances as known to the IAA, determined consistently with Australian law.
[33] CB, pp 107 – 110.
[34] Applicant’s outline, p 9 at [35].
As to the complaint of a failure to consider the risk of generalised violence in Kabul, it is well-established that in the context of relocation, what will be reasonable involves a consideration of what is practicable[35] given the particular circumstances of the applicant. That required a consideration of the impact on him of a potential move to Kabul. I do not understand anything in MZACX[36] to be inconsistent with those principles. Having found that there was a real chance that the applicant would face serious harm in Uruzgan, the IAA did go on to consider the security situation in Kabul. It did so in light of its own finding that there were “ongoing security issues” in that city.[37] When considering relocation it did consider the particular circumstances of the applicant[38] including his marital status, that he was able bodied, that he had a lack of family and support networks in Kabul and his range of past work experience. The IAA specifically considered the applicant’s profile when weighing the generalised risk of violence in Kabul and had this to say:
“I have also weighed the security situation in Kabul in terms of the question of relocation. I accept there remain security issues in the city, I again note that I have found the applicant has no profile or connection to high groups (such as international or government organisations), and there is no indication he would in the future. While there are risks to high profile groups, places and people in Kabul, I am satisfied he would not have any proximity to these groups, places or people. Instead he would be one of many low profile Hazara (and non-Hazara) people returning to Afghanistan to re-establish their lives in Kabul.”[39]
[35] SZATV op cit; Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437.
[36] Op cit.
[37] CB, p 178 at [43].
[38] CB, pp 181 – 182.
[39] CB, p 181 at [59].
I am not persuaded that the IAA failed to consider the risk of generalised violence to the applicant. I dismiss ground two.
With respect to ground three, the ‘real chance test’[40] conveys the notion of a “substantial as distinct from remote chance of persecution”[41] and if there is such a chance then the relevant fear will be established, even though the chance may be less than 50 per cent.[42] It is not necessary for an applicant to establish that there is a probability that the risk will be realised.[43] In Rajalingam’s case it was observed that when considering whether a fear was well-founded, a Tribunal should not foreclose reasonable speculation about the chances of a hypothetical future event occurring.[44]
[40] Section 36(2)(a) of the Act.
[41] Chan Yee Kin, op cit at p 389.
[42] Ibid.
[43] Chan Yee Kin, op cit at p 397.
[44] Rajalingam, op cit at [60].
At paragraph 67 of Rajalingam, Sackville J had this to say:
“In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculations as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at CLR 271-72; ALD 9; ALR 490, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; 115 ALR 1 at FCR 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.”
The applicant’s argument seizes on the findings of the IAA that the security situation in Kabul was “ongoing” and “tense” and for that reason a fair reading of the decision demonstrates that the IAA left open the possibility of further attacks, meaning its conclusion of no real chance or risk of harm was not confidently reached, requiring it to ask itself whether it was wrong. I reject that submission. The applicant is correct to submit that the IAA did not exclude the possibility of generalised violence occurring in the future. However, it did consider the security situation as it was known at the time of the decision in light of the applicant’s profile and claims and whether his profile would bring him into contact with ‘high profile groups’ for whom there were risks in Kabul. I am not satisfied that there was anything tentative about the finding of the IAA with respect to the security situation or the implications for the applicant in the foreseeable future. It looked to past events to reach its conclusion. In other words, it was looking to the past to prospectively assess the reasonableness of relocation for the applicant. Of course, it could not calibrate with minute precision the risk posed by generalised violence at all times into the future but I am satisfied that a fair reading of the decision does not demonstrate that there was a failure on the part of the IAA to undertake reasonable speculation in deciding whether there was a real and substantial basis for the claimed fear of persecution. Nor am I satisfied that the IAA misapplied the real chance test by imposing a burden of proof on the applicant on the balance of probabilities. To the contrary, I take the view that a reading of the decision as a whole shows that the real chance/real risk test was correctly applied. I dismiss ground three.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 19 November 2018
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