CXO16 v Minister for Immigration

[2018] FCCA 2574

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXO16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2574

Catchwords:
MIGRATION – Protection visa application – Review of a decision by the Immigration Assessment Authority – whether the IAA’s decision was based upon jurisdictional error – whether the IAA exercised its power under s.473DC or s.473DE of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DB, 473DC, 473DD, 473DE, 473DF, Pt.7AA
Migration Regulations 1994 (Cth), reg.4.42

Cases cited:

SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68

Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28;(2003) 214 CLR 318
Australian Education Union v Department of Education and Children’s Services [2012] HCA 3;(2012) 248 CLR 1

Sevdalis v Director of Professional Services Review (No.2) [2016] FCA 433

CRY16 v Minister for Immigration & Anor [2017] FCCA 1549
Minister for Immigration v SZRKT [2013] FCA 317; (2013) 212 FCR 99
MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; (2012) 206 FCR 191
MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394
Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32

Applicant: CXO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2181 of 2016

Judgment of: Judge Riethmuller

Hearing date: 21 August 2018

Date of Last Submission: 21 August 2018

Delivered at: Melbourne

Delivered on: 12 September 2018

REPRESENTATION

Counsel for the Applicant: Ms Costello

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Amended Application filed 31 July 2018 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2181 of 2016

CXO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter seeks judicial review of a decision of the Immigration Assessment Authority (“the IAA”) with respect to his application for a Safe Haven Enterprise (Class XE) visa subclass 790.  The applicant is a citizen of Afghanistan who arrived in Australia by boat without a visa in June 2013. 

2. In October 2015 the applicant applied for the visa, claiming that any return to Afghanistan in the reasonable future would leave him exposed to a real chance of serious or significant harm from the Taliban and Daesh and others on account of his mixed Hazara ethnicity, Shia Muslim religion, status as a returnee from a Western country, his relatives’ prior business and other dealings with foreigners, and a family land dispute.

3. The applicant also set out that his family left Afghanistan and moved to Iran before he was born, resulting in him being born in Tehran in 1997.  The applicant said that in 2010/2011 his family were deported from Iran and returned to Afghanistan where he and his family lived in Kandahar.  The applicant said that in Kandahar his father worked providing services to foreigners but ceased that work when they were threatened by the Taliban.  The applicant explained that his father went missing in 2013 and that his circumstances are not known.  At the time that his father went missing he was also involved in a family land dispute.  The applicant said he left Afghanistan around two months after his father’s disappearance.

4. In February 2016, a delegate of the first respondent interviewed the applicant with respect to his visa application.  On 11 February 2016, the applicant’s representative lodged written submissions and other documents in support of that application which appear at Court Book pp.66 to 102.  On 28 June 2016, the delegate refused to grant the applicant a visa; not being satisfied that in the reasonably foreseeable future he would face a real chance of serious or significant harm if returned to Afghanistan.

5. The delegate’s findings were based in a large part upon adverse credibility findings about the applicant’s claims and evidence.  The delegate found that the applicant had contrived his evidence with respect to his father’s disappearance and that the applicant’s father was, in fact, alive and living in Kabul (see [30], [63] to [74] of the delegate’s decision).

6. The delegate rejected the applicant’s claim that he would be recognised as a Hazara, that he would be imputed as being of a Shia Muslim faith, and that any family land dispute had turned violent or involved threats of harm or would involve a real risk of harm in the future.

7. The delegate did not reject all of the applicant’s claims, accepting that he might be identified as a returnee from a Western country, but did not think that this would result in him being exposed to a real chance of serious or significant harm.  The delegate did not accept that if he went to Kabul the applicant would face a real chance of harm as a result of generalised violence and, consequently, found that he could relocate to Kabul (see Court Book p.140 at [142] to [147]).

8. In accordance with the legislation, the delegate’s decision was referred to the IAA on 30 June 2016.  The applicant lodged written submissions with the IAA on 20 July 2016 which appear at Court Book pp.157 to 160.  In those submissions the applicant took issue with the findings of the delegate, and, in particular, the credibility findings of the delegate, listing a number of complaints set out at paragraphs 1(a) to 1(k), spanning three pages.

9. On 3 August 2016, the IAA provided a letter to the applicant inviting him to comment and provide new information.  It seems that that letter did not reach him for reasons that are not relevant to the present proceedings, and was sent again on 9 September 2016.  It is the second letter that is relevant for these proceedings, which appears at Court Book pp.167 to 169. 

10. In that letter the applicant was invited ‘to comment on’ country information that was outlined in the letter.  The applicant was also invited ‘to provide the following information in writing’, referring to information about why it would not be reasonable for him to relocate to other parts of Afghanistan. In the third part of the letter he was invited ‘to comment on’ further country information.  The concluding part of the letter stated:

    You are invited to give comments on the above information in writing.  Your comments must be received at the IAA by 23 September 2016.  If the comments are in a language other than English, they must be accompanied by an English translation from an accredited translator.

11. The letter stated that if the comments were not received by

    
    

    23 September 2016, the IAA ‘may make a decision on the review without taking any further action to obtain your views on the information’.

12. There is no dispute in this case that the timeframe provided for in the

    
    

    9 September 2016 letter was the appropriate timeframe having regard to

    
    

    s.473DF(2) of the Migration Act 1958 (Cth) (“the Act”) and reg.4.42 of the Migration Regulations 1994 (Cth), which relevantly provide for

    
    

    14 days following receipt of the correspondence (which in this case was provided on the same day by way of email).

13. Ultimately, the IAA received a letter of response from the applicant (see Supplementary Court Book p.3) that was prepared by the applicant’s advisors.  That submission is also substantial, running for five pages in single line spacing.  It addresses relocation, the applicant’s safety in Kabul and his safety in other locations, and the reasonableness of any relocation.

14. The IAA set out in its decision that it had regard to the various materials provided to it including the information provided by the applicant.  It noted at [8] to [10]:

    8. On 9 September 2016 the applicant contacted the IAA in respect to his application and advised that he had not received the invitation to comment on the information. The applicant claimed that the email address to which the invitation was sent was incorrect and provided an email address which had an additional letter. He also provided an email address with a different service provider and stated that he would prefer that this be used as his main contact address. On 9 September 2016 the IAA resent the invitation to the applicant at the nominated email address inviting his comments in respect of the suicide bombing.

    9. On 23 September 2016 the applicant's representative provided a response. I am satisfied that the information contained within the representative's response was not before the Minister and could not have been provided before the delegate's decision. The information relates to issues that have been raised consequently to the delegate's decision. I am satisfied that there are exceptional circumstances for considering it.

    10. The applicant in the IAA submission of 20 July 2016 requested an opportunity to attend an oral hearing to address any credibility findings made by the delegate which the IAA may agree with and reassess his claims. The applicant was given an opportunity to put forward his case and respond to the delegate's concerns at the protection interview. His legal representative made an oral submission at the protection interview and provided a further written submission including country information addressing these matters on 11 February 2016. The delegate's decision was not made until 28 June 2016 which gave the applicant a reasonable period of time to present any further information to the delegate subsequent to the interview. In addition he has provided a submission to the IAA which provided him with an opportunity to address the delegate's findings. I consider that he has been provided with an opportunity to respond to the delegate's findings.

15. The IAA went on to consider the various matters the subject of the claim. Ultimately, the IAA concluded that the applicant was not at risk of serious harm, and that he could move to Kabul. The IAA found that there was a real risk the applicant may be killed or harmed due to his imputed political opinion if he were to return to Kandahar (at [60] of the decision), but concluded that he could relocate to Kabul where the IAA concluded that he would not stand a real risk of significant harm either due to his specific circumstances or generalised violence (see [62] to [63]), and that it would be reasonable for him to relocate to Kabul, having regard to his own circumstances which were discussed in detail at [64] to [66].

Grounds for Judicial Review

1. The applicant relies on his amended Application filed 31 July 2018.  The amended Application sets out two grounds for judicial review as follows:

   1. The IAA's decision not to exercise its power under s473DC to get new information by inviting the applicant to an interview in person was legally unreasonable in the circumstances of this case.

   2. The IAA's reasoning that it would be reasonable for the applicant to relocate to Kabul was legally unreasonable in light of the reasons for the IAA's decision and its failure to actually review and consider the applicant's claims and submissions regarding violence in Kabul.

Ground one

1. In argument before the Court in respect of ground one can usefully be described as encompassing a number of separate complaints with respect to the invitation put to the applicant for comment and new information.

2. The first argument is that the 9 September 2016 letter appears, on its face, to be an invitation under s.473DE of the Act. That section provides for an invitation to an applicant to ‘give comments on’ new information provided by the IAA. However, if the new information is country information that is about a class of persons. it is exempt from the provisions of s.473DE: see s.473DE(3).

3. The other section provides for the IAA to request documents or information under s.473DC of the Act which permits the IAA to ‘get any documents or information (new information)’, and further to ‘invite a person, orally or in writing, to give new information’. If a person gives ‘new information’ then the limits upon the IAA considering it are set out in s.473DD in the following terms:

   473DD 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.

4. It is difficult to ascertain from the letter whether or not the author intended to exercise the power in s.473DE, the power in s.473DC, or both. A textual analysis shows that the word ‘comment’ has been used in the letter with respect to country information, which is the word used in s.473DE and the word ‘information’ was used with respect to the relocation invitation, which is the word used in s.473DC.

5. It is not jurisdictional error to utilise a section to request information, such as s.473DE, in circumstances where there is no obligation to do so. In effect, there is no difficulty with providing an applicant with greater procedural rights or opportunities to be heard than the minimum required in the Act: see generally SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30]. In these circumstances, to the extent that the letter was purportedly issued under s.473DE, even though it was not necessary as a result of the exemption in s.473DE(3) it does not result in a judicially reviewable error.

6. Alternatively, the letter could entirely, or in part, be considered to be written under s.473DC. The argument against this is the use of the word ‘comment’ in two parts of the letter rather than ‘information’, as the word ‘comment’ is not used in s.473DC.

7. A response to a s.473DC letter can only be provided in the form of providing new information that must then pass the tests in s.473DD. There is no similar threshold restriction with respect to the provision of comments under s.473DE.

8. It appears to me that the appropriate interpretation of the power being exercised by the IAA when sending the letter was that it was, in fact, a letter under both ss.473DC and 473DE. The country information, whilst not necessarily requiring an invitation to comment under s.473DE, was nonetheless country information that was not available at the delegate stage and, therefore, information of which the applicant would have been unaware.

9. Even if there was confusion by a decision-maker as to the particular source of power that is not of itself a cause of invalidity, as explained by the High Court in Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 at [124] where the Court said:

   …If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power [FN: Moore v Attorney-General (Irish Free State) [1935] AC 484; R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 487; Lockwood v The Commonwealth (1954) 90 CLR 177 at 184; Brown v West (1990) 169 CLR 195 at 203; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 412, 424-425, 435-437; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 618-619; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 353-354 [49], 383 [151]; Harris v Great Barrier Reef Marine Park Authority (1999) 162 ALR 651 at 654-657 [8]-[22].]

10. This principle was applied in Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 248 CLR 1 at [34] and more recently, Sevdalis v Director of Professional Services Review (No.2) [2016] FCA 433 and the cases referred to therein at [134].

11. Despite the confusing nature of the legislation and the wording of the letter, the substance of the letter was to provide the applicant an opportunity to respond to the new country information and alternative relocation locations.

12. It was appropriate that the IAA provide him an opportunity to provide any further information in light of this material that he would have been unaware of prior to the letter.  The fact that the letter may rely upon both sections does not appear to me to provide a significant impediment provided the IAA complied with both sections.  In any event, no material was provided that was not considered by the IAA. 

13. I have considered the argument that the decision-maker may have duly constrained themselves by having regard to s.473DE rather than merely s.473DC. Unlike DZU16 v Minister for Immigration & Anor [2018] FCAFC 32; 253 FCR 526 where the very short time limits imposed in a letter purportedly written under s.473DE unduly constrained the obtaining of material which ought to have been sought under s.473DC, and resulted in jurisdictional error, there was no similar unpunishable constraints.

14. There was nothing about the letter which restricted the applicant’s opportunity beyond what was available had the decision-maker utilised the appropriate source of power in this case. 

15. To the extent that it is argued that the IAA may have received more material from the applicant than was strictly permitted by the operation of Pt.7AA, such a transgression could only benefit the applicant. In such circumstances it would be appropriate to exercise the discretion not to grant relief.

16. The second point that was raised under ground one was a complaint that the IAA had failed to offer the applicant an opportunity for a further oral hearing. It was a matter for the IAA to consider whether or not to make the invitation one to provide material in writing or attend an interview, as is provided for in both ss.473DC(3) and 473DE(3). There are no specific reasons given by the IAA addressing this issue beyond paragraph 10 set out above.

17. To the extent that the complaint is simply based on the abstract argument that the delegate’s decision turned in large part upon a credibility assessment of the applicant based on how he presented when giving evidence, this of itself does not indicate an error in the exercise of the discretion by the IAA. The purpose of Pt.7AA of the Act is clearly set out in s.473DB(1) in the following terms:

    (1)  Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

    (a)  without accepting or requesting new information; and

    (b)  without interviewing the referred applicant.

18. It cannot reasonably be contemplated that Parliament would be unaware that the IAA would commonly be reviewing decisions that were with respect to credibility based upon appearances of an applicant before a delegate. The legislation nonetheless provides for reviews on the papers, rather than a fresh hearing.  In such circumstances the mere fact that a credit finding was made by the delegate would not, on its own, require the IAA to have an oral hearing.

19. I inquired of the applicant as to whether or not the argument was to be developed to an argument that the nature of the oral hearing before the delegate was so inadequate as to reasonably require detailed consideration as to whether or not an oral hearing should be provided before the IAA.  This could possibly arise as a result of the nature of the hearing before the delegate, such as through the failure of an interpreter to properly interpret at the delegate hearing stage.

1. The applicant in pursuing such an argument relies upon particulars (e) and (f) of the letter provided to the IAA (at court book pp.159) which are in the following terms:

   (e) At paragraph 72 of the Department decision record, the delegate has doubted my credibility in relation to my account of my father's disappearance due to my lack of emotion in describing his disappearance during my protection visa interview. I do not believe that my lack of emotion should be held against me. I tried to answer the delegate's questions to the best of my ability. I believe that the IAA should conduct a further interview with me if the 1AA intends to place any weight on the delegate's assessment of my demeanour during interview. It would be unfair and unreasonable for the IAA to agree with the delegate's conclusions in this regard without conducting its own face-to-face assessment of my demeanour.

   (f) The delegate has concluded that my emotional and verbal responses were consistent with a person who is confident that their father is alive. I believe that this conclusion lacks reason and that the delegate did not approach my case with an open mind. I would like to explain that demeanour is a complex assessment and the Department's findings are not justified. In this regard, Hathaway and Foster in their leading text on refugee law comment that in the absence compelling evidence of dishonesty, the assessment of credibility involves a nuanced and careful analysis. In practice, credibility is usually determined by reference to four main factors: plausibility, relevant knowledge, demeanour and consistency of testimony (fn: The law of Refugee Status (2nd edition). James Hathaway and Michelle Foster (2014) Cambridge University Press p 139). Any finding of adverse credibility must be specifically justified, with a 'stated, cogent reason' for any disbelief, not just 'personal conjecture' by a decision maker (fn: Ibid p 159).

2. With respect to demeanour, the delegate discussed this at [72] and [74] as follows:

   72. Further reinforcing the assessment that the applicant's father remains very much alive was the applicant's emotional and verbal responses at interview. When questioned about the details of his father's disappearance at his PV interview, the applicant showed no emotion whatsoever and complete indifference to answering questions regarding the well-being of his father. When asked to recall the circumstances of the disappearance the applicant looked blankly, shrugged his shoulders and after a pause asked “How do you want me?” When prompted, the applicant stated without emotion and without detail:

   He used to go to work, and on that day he went to work. As usual, sometimes he had daily job, sometimes it would take several days. One day he went to work and never returned. He was working as a labourer.

   …

   74. This false claim, combined with the highly dubious nature of the documents provided by the applicant regarding his grandfather, strongly supports the assessment that the applicant lacks general credibility. This false claim, combined with the highly dubious nature of the documents provided by the applicant regarding his grandfather, strongly supports the assessment that the applicant lacks general credibility.

3. The IAA covered this issue at [34] and [39] saying:

   34. After consideration of the applicant's account at interview I have significant concerns about the veracity of this claim. The applicant claims in his application that his mother did not go to the police as they would not be able to do anything and she was concerned that she would be vulnerable with no male protection but that she told close family members about it. I accept that if her husband was missing then the applicant's mother may not approach the police herself but she had two of the applicant's paternal uncles and her family which included the applicant's maternal grandfather and uncles living in Kandahar, who could have approached the police and may have provided male support if the applicant's father had disappeared as claimed.

   ...

   39. After considering the applicant's responses at interview in respect to the social media account I am not satisfied that the applicant's father is missing, but is living in Kabul and is in contact with all the family members including the applicant and his siblings.

4. With respect to the applicant’s appearance, these issues were dealt with by both the delegate and the IAA, the delegate saying:

   37. I am not satisfied the applicant will be imputed to be Hazara based on his physical appearance. While some scholars argue that it is problematic to equate a phenotype with a particular ethnic group in Afghanistan [FN: CX253963: “Afghanistan Country Study”, Illinois Institute of Technology, 01 January 2010], country information consistently states that Hazaras have a distinctly Central Asian appearance due to their Turkic-Mongol origins [FN: CX320410: Minority Rights Group International 2011, World Directory of Minorities and Indigenous Peoples - Hazaras, 1 December; CX228176: Zabriskie, P 2008, 'The Outsiders', National Geographic, February; CIS2F827D91264: Department of Foreign Affairs & Trade 2014, DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 26 March, p.13, paragraph 4.16; CIS28718 : Poladi, H 1989, The Hazaras, Mughal Publishing Co., 1 January; CIS24317: Saikal, A. 2012, ‘Afghanistan: The Status of the Shi'ite Hazara Minority’, Journal of Muslim Minority Affairs, 1 May; CIS20841: Kristian Berg Harpviken 2011, Social and Political Background. Ethnicity in Afghanistan. Hazara, Fortune City, 1 January]. The Department of Foreign Affairs & Trade (DFAT) states that “Hazaras are a visibly distinct ethnic group in Afghanistan.” [FN: CISEC96CF13366: Department of Foreign Affairs & Trade 2015, DFAT Country Report - Afghanistan, September, section 3.10). Country information consistently indicates that it is their distinct appearance that makes Hazaras particularly vulnerable to targeted harm when travelling by road between the Hazarajat [FN: The central highlands of Afghanistan that constitute the Hazara homeland] and Kabul, and other major centres of Afghanistan (and in Quetta, Pakistan) [FN: CIS2F827D91264: Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Hazaras in Afghanistan and Pakistan, 26 March; CXBD6A0DE12997: “Peril and Persecution in Afghanistan”, Foreign Policy, 27 August 2015; CXBD6A0DE8794: ‘Terrorists behead 5 Shia Hazaras in Afghanistan’ 2015, Press TV, 17 April; CXBD6A0DE16561: “Afghan Kidnappers Prey on Hazaras”, The New York Times, 21 November 2015]. Indeed, Hazara leaders state that they are easily identified due to their distinct appearance, making them particularly vulnerable : [FN: CX1B9ECAB10801: Mahmoud, R 2014, ‘Parkour — The other side of Hazara Town’, The Express Tribune, 16 June]. I am not satisfied the applicant's physical appearance is consistent with the well-established Hazara phenotype; the applicant is not of Turkic-Mongol appearance. Further, I am satisfied that a reasonable person would make the same assessment regarding the applicant's appearance. This observation was put to the applicant at his PV interview. In response, the applicant conceded that his appearance is more akin to that of this mother, an ethnic Baloch. However, the applicant later amended this, saying that “people in Afghanistan will recognise me as a Hazara because of my father and because I have some Hazara features”.

   …

   87. The applicant claims that he is at risk of harm due to his westernisation, a result of living in a western country. For reasons outlined in Findings of Facts, I am satisfied the applicant has a conspicuous interest in his appearance, including his clothing. I am satisfied that it is plausible that some people in Afghanistan may interpret this as a product of westernisation and potentially indicates a wider western world view that can be categorised as a political opinion. I am therefore satisfied the applicant has a claimed fear of persecution for the reason of political opinion.

1. And the IAA saying:

   40. The applicant claims that his grandfather who was a Shia Hazara from the Turkman valley in Surkh Parsa district, Parwan province married a Pashtun woman who was also Shia and was disowned by the family and forced to leave the area as he married outside his race. The applicant's father was born in Kabul, where he met and married the applicant's mother who was he claims from the same Baloch/Pashtun tribe as his paternal grandmother, but had lived most of her life in Iran. The applicant claims that his father is Hazara by descent and the applicant although from an ethnically mixed household, identifies with his father's ethnicity and considers himself as Hazara, despite not having distinct Hazara features. The applicant at interview stated that he would not be recognised as Hazara by Hazaras who would see him as Pashtun and because they are Shia they would be accepted by Pashtuns.

   41. I am satisfied that the applicant's grandfather and father are ethnically Hazara which is consistent with country information indicating that Hazaras are the main ethnic group in Surkh Parsa district [FN: Landilnfo, “Afghanistan: Security Report November 2010-June 2011(Part ll)”,September 2011, CIS22603, p.10] where the applicant claims his grandfather originates. I am also satisfied that the applicant may identify himself with the Hazara race although his appearance may not conform to the typical Hazara phenotype which is supported by country information indicating there are many different phenotypes that may be found in the Afghani population but there are more physical differences found within ethnic groups than between them because of interbreeding [FN: Illinois Institute of Technology, “Afghanistan Country Study”, 1 January 2010, CX253963].

2. It does not appear to me that the matters raised by the applicant address the quality of the hearing before the delegate, but rather seek to have the IAA reconsider the assessment of credibility of the applicant by way of having the applicant appear and give evidence again before the IAA.  In this respect I am not persuaded that it can be said that the IAA acted in a way that was legally unreasonable in determining to deal with the matter on the papers.

3. It was also argued that the request to provide oral evidence before the IAA was effectively a request to provide new information to the IAA. In this respect, the ‘new information’ was said to be the appearance of the applicant before the IAA, which of itself, could not be provided to the delegate as required by s.473DD(b)(i) as the evidence had not yet been given. This misconstrues the nature of the test in s.473DD(b) which is addressed to the nature of the information or material, not to the presentation of an applicant in giving the evidence before a decision maker.

4. The request in the circumstances of this case did not call for specific reasons by the IAA as to why it would not allow the applicant to simply give evidence again unlike that which may be required where specific new information was sought to be placed before the IAA.

5. The fourth complaint that was raised by the applicant was that the letter from the IAA sought information as to whether it would be reasonable for him to relocate to any other areas in Afghanistan apart from the places where he claimed that he would suffer harm.  It was agreed that this was such a broad category of locations that it was difficult for the applicant to respond. 

6. This issue was discussed in CRY16 v Minister for Immigration & Anor [2017] FCCA 1549 in the first instance judgment where I concluded that some indication of the location in which relocation was being considered was required in order to ensure that a person could properly respond to the claim, even though in theory relocation is always one of the matters that is relevant to a determination of this type. This arises from the practical problem of attempting to prove a negative (that one cannot relocate somewhere else) without having any idea of the contemplated location where it is said one can relocate.

7. In this case, however, the difficulty did not present any practical problem for the applicant in that the relocation considered by the IAA was a relocation to Kabul, which was the relocation location considered by the delegate.  The applicant was on notice from the delegate’s decision that relocation to Kabul was considered to be open and, at the very least, that particular location could easily have been addressed by the applicant.  To the extent that other locations were considered, the result of the IAA’s determination was not a finding that the applicant could relocate to locations other than Kabul.

8. In short, although the letter was less than sufficient in the abstract sense (as it did not provide a specific location to address), the ultimate decision did not turn upon this, but rather affirmed the decision of the delegate that relocation could occur to Kabul, a location of which the applicant was on notice.

9. The applicant also challenged generally the level of engagement of the IAA with the material given the terms of [10] of the IAA’s decision.  Whilst brief, [10] clearly identifies that a specific consideration was given to the issues of further hearings and information generally.  In the circumstances of this case I am not persuaded that more detailed material was needed for the decision to demonstrate that appropriate consideration was given.  Had the facts and circumstances been different, perhaps more detail would be called for in the IAA decision; however, in this case such considerations do not arise.

10. In the circumstances, I am not persuaded that the applicant has established jurisdictional error with respect to ground one.

Ground two

1. The second ground, in substance, seeks consideration of whether or not the IAA properly determined the issue of relocation.  The applicant makes two points, the first of which is that the IAA failed to consider whether it was reasonable for the applicant to relocate given the generalised violence in Kabul. Secondly, whether or not the IAA failed to appropriately consider evidence from Professor Maley. 

2. The evidence of Professor. Maley does not feature large in the Court Book.  It appears, in the submissions of the applicant, only at Court Book p.75 within a submission that the applicant made to the delegate in the following terms:

   It should also be noted that DFAT has limited resources available to collect information, due to the fact that it is too dangerous for them to enter certain provinces to collect information. Professor William Maley, an imminent expert on Afghanistan, had the following to say in this respect, as cited in a recent AAT decision.

   Nevertheless, Professor William Maley urges caution in accepting many of the views put forward in recent advices by DFAT, and observes that, like many of the international organisations on which DFAT relies as informants, DFAT officials are severely constrained in their capacity to gather information. [12] Professor Maley argues that in considering whether a well-founded fear of persecution exists, it is necessary to look beyond “temporary, insignificant or cosmetic changes” and states that “there is no reason to believe that the underlying factors (both ethnic and sectarian) fuelling hostility towards Hazaras have dissipated.

   Furthermore experts, such as Professor Maley state that;

   “....it is essential to appreciate that the situation in Afghanistan is extremely fluid, and assessments of the situation made even a year ago do not necessarily provide an accurate picture of the situation in the first half of 2015” [FN: Comments made by Professor William Maley on 4 February 2014, referred to in R (on the application of Naziri and Others) v Secretary of State for the Home Department (JR - scope - evidence) IJR [2015] UKUT 00437 (IAC)].

3. It goes without saying that not everything will make its way into the reasons of a decision-maker if those reasons are to be kept to a reasonable length explaining the reasons for the decision, rather than recounting the entirety of the evidence in a matter. In these circumstances I am not persuaded to infer that the IAA erred from its absence from their reasons in circumstances that: (a) there was merely a reference in an initial submission to the delegate; (b) there was no specific reference to Professor Maley later in the material, (c) the decision-maker has listed the various submissions that have been considered, and (d) the Professor Maley reference merely cautions against playing too heavy a reliance on the Department of Foreign Affairs & Trade’s (“DAFT”) advice.  The information with respect to Professor Maley is not of such significance that its absence from the terms of the reasons of the IAA indicates that the IAA has failed to have regard to that material. 

4. In the context of the case as a whole, this material does not appear to be so significant as to warrant specific consideration in the reasons given by the IAA, as may be the case with other types of information: see generally the discussion in Minister for Immigration v SZRKT [2013] FCA 317; (2013) 212 FCR 99.

5. The second argument commences with a consideration of [63] where the IAA had regard to the question of generalised violence in Kabul, saying:

   63. Given the current security situation in Afghanistan, I have given consideration to whether there is a real risk of significant harm due to generalised violence in Kabul. Country information indicates that there was a marked increase in security incidents in Kabul in 2015; however DFAT assesses that the primary targets are government institutions, political figures, the Afghan National Defence and Security forces (ANDSF), personnel associated with NATO's Resolute Support Mission and other coalition forces, other security services, international organisations and diplomatic representatives of some countries. Despite this, these attacks cause significant casualties among civilian bystanders in addition to those being targeted [FN: DFAT, “DFAT Thematic Report Hazaras in Afghanistan 2015-16 update”, 8 February 2016, CIS38A8012186, 2.18; DFAT, “Thematic Report: Conditions in Kabul”, 18 September 2015, CiSEC96CF13367, 2.29]. The Afghan government maintains effective control over Kabul [FN: DFAT, “DFAT Thematic Report Hazaras in Afghanistan 2015-16 update”, 8 February 2016, CIS38A8012186, 2.18], and a range of counter-measures have been put in place to prevent and respond to insurgent attacks. Although these measures provide a deterrent and ANDSF are quick to respond, attacks are still common. People associated with the government or the international community are at a significantly higher risk than ordinary Afghans in Kabul [FN: DFAT, “Thematic Report: Conditions in Kabul”, 18 September 2015, CISEC96CF13367, 2.31 and 3.1], but I have concluded the applicant does not have such a profile in Kabul I am therefore not satisfied that there is a real risk of him facing significant harm on the basis of the general security situation in Kabul.

6. The IAA came to the conclusion that generalised violence in Kabul was not such as to present a real risk of significant harm to the applicant.  This does not, of itself, answer the question of whether or not the generalised violence would be a basis for concluding that it was unreasonable for the applicant to relocate to Kabul.  So much is clear from a number of decisions of the Federal Court of Australia: see MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; (2012) 206 FCR 191 at [56] to [62]; MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394, and the comments of the Full Court in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 at [108].

7. When considering the reasonableness of the applicant relocating, the IAA addressed the applicant’s particular circumstances in considerable detail saying:

   64. I have therefore considered whether it is reasonable for the applicant to relocate to Kabul on return. The applicant's representative submitted to the delegate that the applicant left Afghanistan as a teenager and has never lived in Kabul. He could not reasonably relocate to Kabul where he has no family links he can rely on. The applicant would be vulnerable to exploitation and harm as he has never worked and it would be near impossible for him to find work or live there. At interview the applicant stated that he had relatives from his father's side in Kabul but would not be able to obtain support from them as they are not on good terms with his family. In addition he would not be accepted as Hazara by the Hazara community who would regard him as Pashtun. Nor would he be accepted by the Pashtun community which would regard him as Hazara. In the IAA submission of 23 September 2016, the applicant's representative referred to the UNHCR guidelines, stating that although the applicant is a single able bodied male, relocation is not safe or reasonable as he is a Shia Hazara who is easily recognisable; he has spent a significant time as a minor in Australia where he is currently completing year 12 education; he has never worked and has not undertaken any training to enable him to access employment in Afghanistan, nor would he have the social connections to enable him to survive financially without employment.

   65. UNHCR advised that many internally displaced people end up in large urban centres which have limited absorption capacity and where access to services remains a major concern. Kabul has seen the largest population increase with 70% of the population being estimated to live in informal settlements which are poorly located and under-serviced [FN: UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Australia”, 19 April 2016, UN6C8EFBB3, p. 29]. I have had regard to the UNHCR recommendations for considering the reasonableness of relocation referred to by the applicant's representative, indicating 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 [FN: Ibid, p. 86]. 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 [FN: DFAT, “Thematic Report: Conditions in Kabul”, 18 September 2015, CISEC96CF13367, 3.8 and 3.12-3.13; DFAT, “Country Information Report Afghanistan”, 18 September 2015, CISEC96CF13366, 5.20]. However the financial situation of Kabul residents and their employment opportunities are also reportedly worsening [FN: UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Australia”, 19 April 2016, UN6C8EFBB3, p. 30].

   66. The applicant is a young able bodied male of working age. He is unmarried and has no children. I accept that he arrived in Australia as a 15/16 year old, is now only 18 years of age and has spent the majority of his life outside Afghanistan. He is currently completing education to Year 12 level in Australia, is literate in Dari, Farsi and has gained literacy of English in Australia. The applicant has no work experience but has demonstrated resilience in travelling from Afghanistan to Australia as an 15 year old and does not present with any health problems or other specified vulnerabilities identified by UNHCR as requiring durable support. Although the applicant claims to have no family support in Kabul I am satisfied that his father has been living in Kabul and quite possibly his mother and siblings. Whilst I accept that living conditions in Kabul would not be without difficulties, the applicant has close family links in Kabul which I am satisfied he would be able to utilise to obtain their support. During the protection interview the applicant indicated that he is in regular contact with his family in Afghanistan. Although the applicant has not resided in Kabul previously, he is an able bodied male of working age who has family residing in Kabul as support, and who would be able to assist him in establishing himself in Kabul. Taking into account the applicant's personal circumstances I find it reasonable for the applicant to relocate to Kabul.

1. The applicant argues that there is very little reference to safety, and no reference to generalised violence in these paragraphs, even though generalised violence was specifically considered in [63]. In response. Counsel for the Minister points out that; first, safety was mentioned in [64] and secondly, when one turns to the most recent submissions of the applicant on the issue of relocation (as appears in the Supplementary Court Book) generalised violence was not one of the matters specifically addressed by the applicant under the heading of ‘Reasonableness of Relocation’.

2. The applicant also argues that the DFAT’s travel advice in respect to Afghanistan was part of the evidence and that the advice was to the effect that:

   …the Australian Government advises against travel in Afghanistan, and Kabul in particular, due to increasing frequency of terrorist attacks.  It advises that the international airport, roads leading to the airport and roads in and around Kabul are regularly under threat of such attacks. [FN: See see Supplementary Court Book, p.5.

3. The travel advice is but one piece of evidence, just as the evidence of Professor Maley referred to above.  The absence of a reference to it, of itself, does not persuade me that the IAA failed to have regard to the travel advice.  The travel advice by DFAT is for general use, commonly by Australian tourists.  One would expect them to be cautious. They do not provide reasons or explanation of the data or reports on which they are based.  so do not admit of critical analysis in the way that DFAT country information can be analysed.

4. The IAA considered in some detail the nature of the generalised violence in Kabul at [63], and, importantly, the reasons that it did not impact upon the applicant for the purpose of assessing the risk of significant harm.  In this case those reasons also bear upon whether or not the applicant would be safe in Kabul, in that he was not in the category of persons who were likely to be targeted in this regard.  Having regard to the nature of the reasons as a whole it appears to me that the IAA has sufficiently identified this issue when referring to whether or not it was safe for him to go to Kabul and concluding at the end of [66] that, ‘Taking into account the applicant’s personal circumstances’, the IAA found that it was ‘reasonable for the applicant to relocate to Kabul’.

Conclusion

1. As the applicant has not established a ground for judicial review, I therefore dismiss the application.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  12 September 2018