CXR18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 581
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CXR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 581
File number(s): PEG 93 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 22 July 2022 Catchwords: MIGRATION – Judicial review – Immigration Assessment Authority Decision – citizen of Afghanistan – whether consideration of the victory of the Taliban in Afghanistan relevant – relocation – internal relocation – whether reasonableness of relocation considered or required to be considered – whether jurisdictional error Legislation: Migration Act 1958 (Cth) ss 5, 5J, 36, 46A, 473CA, 474, 476 Cases cited: A v Minister for Immigration and Multicultural Affairs [1999] FCA 116; (1999) 53 ALD 545
ADL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 178; (2020) 280 FCR 346; (2020) 384 ALR 458
APE16 v Minister for Home Affairs [2020] FCAFC 93; (2020) 277 FCR 640
Appellant S395/2002 v Minister for Immigrationand Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 78 ALD 8; (2003) 203 ALR 112; (2003) 78 ALJR 180
AWL17 v Minister for Immigration and Border Protection [2018] FCA 570
Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173
CSO15 v Minister for Immigrationand Border Protection [2018] FCAFC 14; (2018) 260 FCR 134; (2018) 353 ALR 666
CTT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1095
Dhiman v Minister for Immigration & Multicultural Affairs [200-] FCA 221
DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 388 ALR 363; (2021) 95 ALJR 352
DVF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 135
EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177
EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10
ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716
FTQ18 v Minister for Home Affairs [2019] FCA 2025
GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9
Januzi v Secretary of State for the Home Department [2006] 2 AC 426
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 62 ALD 225; (2001) 180 ALR 1; (2001) 75 ALJR 1105
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568
Minister for Immigration and Border Protection v SZSCA & Anor [2014] HCA 45; (2014) 254 CLR 317; (2014) 314 ALR 514
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 72 ALD 1; (2003) 77 ALJR 454; (2003) 195 ALR 24
Randhawa v Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 264; (1994) 35 ALD 1
Suh v Minister for Immigration and Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470
SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 97 ALD 1; (2007) 237 ALR 634; (2007) 81 ALJR 1659
SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51; (2007) 97 ALD 27; (2007) 237 ALR 660; (2007) 81 ALJR 1679
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 25 August 2021 Place: Perth Counsel for the Applicant: Mr R Jahnke Solicitor for the Applicant: Estrin Saul Lawyers Counsel for the First Respondent: Mr G Hill Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 93 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CXR18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
22 JULY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 27 March 2020 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application for judicial review filed by the applicant, CXR18,
on 27 March 2020 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application is made in respect of a decision of the Immigration Assessment Authority (“the Second Authority Decision” and “Authority” respectively) handed down on 3 March 2020, a prior decision having been made by the Authority on 10 May 2018 (“First Authority Decision”). The Second Authority Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) to refuse to grant CXR18 a Safe Haven Enterprise visa (subclass 790) visa (“SHE Visa”).
The materials before the Court include:
(a)the Court Book (“CB”), which was marked as Exhibit 1 at hearing: Transcript, p 2; and
(b)the Transcript of the hearing on 25 August 2021.
TAKEOVER OF AFGHANISTAN BY THE TALIBAN
Following the takeover of Afghanistan by the Taliban in August 2021, in EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10 (“EGZ17”) at [41] per Judge Street this Court held as follows:
41.Given the fact that the Taliban has now taken over Afghanistan and that the country of Afghanistan as applied by the IAA to the applicant in considering the protection visa obligations no longer exists, the IAA has exceeded its statutory powers under Part 7AA of the Act, and the outcome is legally unreasonable. The applicant feared harm from the Taliban prior to the cessation of Afghanistan, that country that no longer exists. There can be no issue as to the materiality of the new country and new receiving country being the Islamic Emirate of Afghanistan to the correct application in the review under Part 7AA of the protection criteria under s 36(2)(a) or s 36(2)(aa) of the Act. A fresh review must be conducted according to law under Part 7AA of the Act that addresses the country and receiving country that now exists, being the Islamic Emirate of Afghanistan.
EGZ17 was controversial. It was described as “plainly wrong” by the Court in DVF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 135 at [22] per Judge Egan (“DVF18”). In DVF18 at [30] per Judge Egan the Court found as follows:
30.Being bound by established authorities referred to above, and thereby necessarily uninfluenced by the humanitarian implications arising from the crisis which has unfolded consequent upon the ascendancy of the Taliban in Afghanistan, the Court finds that the learned primary Judge in EGZ17 was plainly wrong, and committed jurisdictional error, in:
(a)Being influenced by events in Afghanistan, subsequent to the handing down of the decision of the Authority on 25 August 2017, when handing down judgment in that matter;
and
(b)Finding that the existence or otherwise of a changed regime in Afghanistan was relevantly a jurisdictional fact.
In EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177 at [5] per Farrell J the Federal Court observed that:
5.It is now well known that by late August 2021, the Taliban had gained control of Kabul and most of Afghanistan during the final withdrawal of international armed forces from Afghanistan. However, it is not open to the Court to take that fact into account on this appeal.
In GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9 (“GLX18”) this Court, differently constituted to EGZ17 and DVF18, concluded that the finding in EGZ17 set out at [3] above was in error: GLX18 at [134]-[138] per Judge Kendall, and said at [139] per Judge Kendall (emphasis in original):
139.As outlined by Judge Egan (in DVF18) … , events which take place after the IAA exercised its power can play no part in assessing whether the IAA’s decision contained any instance of jurisdictional error.
and went on to find that the judgment in EGZ17 “was plainly wrong”: GLX18 at [144] per Judge Kendall.
EGZ17 was appealed. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 (“EGZ17 Appeal”) the Full Court of the Federal Court allowed an appeal against EGZ17, and at [29]-[30] and [33] Beach, Thawley and Cheeseman JJ observed that:
29.The situation in Afghanistan, or whether Afghanistan existed in some form and if so what form, at the time of the court’s hearing was irrelevant to the question before the primary judge as to whether the IAA [Authority] had erred in a way going to jurisdiction …
30.As noted, the primary judge concluded that one country had ceased to exist (Afghanistan) and a different one had come into existence (Islamic Emirate of Afghanistan). This conclusion was not one about which judicial notice could be taken and nor was it based on findings of fact of which judicial notice could be taken. The conclusion was not open on the basis of the evidence before the Court, even if that evidence included the wrongly admitted evidence. A change in governance of a country, even if secured through activity which does not conform to the laws of the country, does not inexorably lead to a conclusion that the country has ceased to exist as the primary judge appears to have assumed. Nor, obviously, does a change in name …
…
33.The IAA’s [Authority’s] power is not conditioned expressly on the existence of the relevant country of nationality or the objective existence of the receiving country the subject of the decision being reviewed and nor is any such condition implied … the existence or otherwise of the receiving country is not a jurisdictional fact in the sense of a fact the objective existence of which is a precondition to the exercise of power.
EGZ17 Appeal
is binding on this Court: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733;
(2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh v Minister for Immigration and Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ. The judgments in EGZ17 Appeal, EGW17, DVF18 and GLX18 make it clear that this Court cannot take into consideration the Taliban takeover in Afghanistan when considering whether the Second Authority Decision is affected by jurisdictional error.
Background to the Second Authority Decision
The background to the Second Authority Decision is as follows:
(a)CXR18 is an Afghan male citizen from a district in the Maidan Wardak province of Afghanistan: CB 70. He is a Shia Muslim of Hazara ethnicity: CB 44, and has been in Australia since 2013 as an unauthorised maritime arrival: CB 20;
(b)
on 25 July 2016 CXR18 was notified that the Minister had exercised his power under
s 46A(2) of the Migration Act to allow CXR18 to lodge an application for a protection visa: CB 20-24;
(c)on 17 January 2017 CXR18 lodged an application for the SHE Visa, detailing his fear of being harmed because of:
(i)his Hazara ethnicity;
(ii)his Shia religion;
(iii)the heightened danger he faced in Afghanistan as a returned asylum-seeker from the West;
(iv)internal disputes and conflicts with Kuchis on a seasonal basis; and
(v)the Taliban’s failed attempts to recruit him or attempts which he had refused: CB 28-71;
(d)on 4 April 2017 CXR18 was invited to an interview with a delegate of the Minister regarding his SHE Visa application on 26 April 2017 (“Delegate’s Interview”): CB 76-95;
(e)on 26 April 2017 CXR18 attended the Delegate’s Interview: CB 1357 at [14];
(f)
on 18 July 2017 the Delegate’s Decision was to refuse to grant CXR18 a SHE Visa:
CB 102-126, and the matter was referred to the Authority in accordance with s 473CA of the Migration Act: CB 102;
(g)on 23 August 2017 CXR18’s representatives emailed the Authority with written submissions and supporting material: CB 127-133;
(h)on 10 May 2018 the First Authority Decision affirmed the Delegate’s Decision to refuse CXR18 a SHE Visa: CB 134-150;
(i)in the First Authority Decision the Authority:
(i)found there was a real chance CXR18 may be killed or physically harmed by the local Taliban or Kuchis if he returned to his home village, and that this amounted to significant harm: CB 144 at [37];
(ii)observed that s 36(2B) of the Migration Act provides that there is taken not to be a real risk of significant harm where relocation to another area of the country where there would not be a real risk that a person would suffer significant harm is possible, and the Authority went on to outline the reasons why it was not satisfied that CXR18 faced a real risk of significant harm in Mazar-e-Sharif and that it was reasonable for him to relocate there: CB 144 at [38];
(iii)accepted that, as pointed out elsewhere in the First Authority Decision, CXR18, as a Shia Hazara may be affected by nepotism on return, particularly as he did not have any family links in Mazar-e-Sharif, but that on the evidence, it was not satisfied that nepotism would result in CXR18 being at risk of significant harm or cruel or inhuman treatment, and that this treatment would not constitute significant harm under s 36(2A) of the Migration Act. The Authority also found that there was not a real chance CXR18 would face other forms of harm in Mazar-e-Sharif as a Shia Hazara: CB 144 at [39];
(iv)found there was not a real chance CXR18 would face harm in Mazar-e-Sharif as a returnee from the West, due to his refusal to be forcibly recruited by the Taliban, or due to the local seasonal conflict with Kuchis and his refusal to fight against the Kuchis: CB 144 at [40];
(v)noted the submissions put forward by CXR18’s representative as to why CXR18 could not reasonably relocate, including his membership of a vulnerable ethnic and religious minority, having no pre-identified livelihood options and being unable to meet his basic needs, including food, clean water and shelter, as well as high unemployment, having no family support and current indicators showing Mazar-e-Sharif was incapable of absorbing further returnees: CB 144 at [41];
(vi)detailed the United Nations High Commissioner for Refugees (“UNHCR”) view on reasonableness of relocation, noting that CXR18 fell into the exceptions outlined in the UNHCR guidelines: CB 144 at [42];
(vii)considered the relative stability of Mazar-e-Sharif, being (then) under the effective control of the Afghan government and acknowledging that though there was unemployment in Mazar-e-Sharif, CXR18 was a young able-bodied male of working age, who had learnt Dari and speaks Hazaragi, with working experience: CB 145 at [43];
(viii)accepted the lack of family support available to CXR18 if he returned to Mazar-e-Sharif, noting that he had lived apart from his family since 2013: CB 145 at [44]-[45];
(ix)noted that general violence in Mazar-e-Sharif was sporadic and that it remained under the effective control of the security forces: CB 145 at [46]; and
(x)found there were not substantial grounds for believing there was a real risk that if CXR18 returned to Afghanistan and relocated to Mazar-e-Sharif he would suffer significant harm: CB 146 at [47];
(j)on 5 June 2018 CXR18 applied to the Court for judicial review, and on 7 February 2020 consent orders were made by the Court quashing the First Authority Decision and remitting the matter back to the Authority to be reconsidered according to law: CB 151-152, with a note to the consent orders recording that:
1.The second respondent failed to consider an integer of a claim raised by the applicant, namely, that it would be unreasonable for him to relocate to Mazar-e-Sharif because of lack of access to basic services such as safe drinking water and shelter.
(k)on 3 March 2020 the Second Authority Decision affirmed the Delegate’s Decision: CB 1353-1372.
Second Authority Decision
In the Second Authority Decision the Authority:
(a)accepted that some of CXR18’s relatives may have been killed in conflict with Kuchis thought not in CXR18’s village: CB 1357 at [18];
(b)was not satisfied that having to leave his village at times of seasonal migration of the Kuchis’ was conduct that would threaten CXR18’s life or liberty or constitute significant physical harassment or physical ill-treatment nor that it would constitute significant economic hardship, a denial of access to basic services or a denial of a capacity to earn a livelihood of any kind, such that it would threaten his capacity to subsist and that it was not satisfied this would constitute serious harm within the meaning of s 5J(4)(b) and (5) of the Migration Act: CB 1358 at [22];
(c)was not satisfied that CXR18 faced a more than remote chance of facing serious harm from the violence with Kuchis should he return to Maidan Wardak or if he left his home during the Kuchis seasonal migration period: CB 1366 at [57];
(d)was prepared to accept that CXR18 was asked to protect his community from the Kuchis and that there was more than a remote chance he may be asked to do so again should he return: CB 1359 at [26];
(e)found there was no apparent reason why CXR18 would be of interest to the Taliban so as to attract forcible recruitment, or why the Taliban would wish to harm him for not having joined them, and that it did not accept that the Taliban had been looking for him since he left Afghanistan, or had been harassing his family: CB 1360 at [32];
(f)was not satisfied that there was more than a remote chance that CXR18 would be harmed in sectarian attacks as a Shia or Hazara in or around his district in Maidan Wardak: CB 1363 at [44]; and
(g)
was not satisfied that CXR18 faced a real chance of harm from the Taliban,
Kuchi nomads or other Hazaras, as a Shia and a Hazara, or as a returned asylum-seeker who has been in the West, should he return to Maidan Wardak, and that it was not satisfied that he had a well-founded fear of persecution for any reason in Afghanistan: CB 1366 at [57].
Judicial Review Application
The requirement for jurisdictional error
The Second Authority Decision may be set aside on judicial review if there is jurisdictional error in the Second Authority Decision: Migration Act ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 72 ALD 1; (2003) 77 ALJR 454; (2003) 195 ALR 24. Jurisdictional error may be established where the Authority asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Authority’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Authority under the Migration Act:Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 62 ALD 225; (2001) 180 ALR 1; (2001) 75 ALJR 1105 at [82] per McHugh, Gummow and Hayne JJ. Further, the error must be material in the requisite sense as explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ:
Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA [2019] HCA 3, (2019) 264 CLR 421; (2019) ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon CXR18 to establish jurisdictional error in the Authority Decision: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [47] per Griffiths, White and Bromwich JJ; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ.
It is not within the jurisdiction of this Court to review the merits of the Second Authority Decision, or to determine CXR18’s claim for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Grounds of review
The Judicial Review Application set out three grounds of review, but ground 3 was not pressed. Grounds 1 and 2 appear respectively at [15] and [29] below.
Ground 1
Ground 1 is as follows:
1.The Immigration Assessment Authority (IAA) erred by not completing its statutory task of considering whether it was reasonable for the Applicant to relocate to another area of Afghanistan.
Particulars
1.The Applicant claimed ‘to fear harm from the Kuchi nomads, who come through his area each year’ and ‘burn down the houses, kill the people and take the livestock’: paragraph [10] [sic [16]] of the IAA’s decision record.
2.The IAA noted that ‘the Hazara districts in Wardak have been the scene of ongoing violent disputes between Hazara farmers and Pashtun nomads (the Kuchis)’ and that the ‘conflict is characterised by random, violent attacks caused by Kuchi nomads entering Hazara areas in the summer months’: paragraph [17] of the IAA’s decision record.
3. The IAA accepted that ‘the tension and conflict with the Kuchis in that area continues’: paragraph [22] of the IAA’s decision record.
4. The IAA concluded that ‘the applicant may need or want to leave his home during the period of the Kuchi migration’ and that while this ‘may be frustrating’ this would not ‘rise to the level of significant harm intentionally inflicted, as contemplated by s.36(2A) of the Act’: paragraph [62] of the IAA’s decision record.
5.However, in finding that the Applicant would be required to relocate to another area of Afghanistan for the duration of the summer months annually, the IAA did not consider whether it was reasonable for the Applicant to relocate.
CXR18’s Submissions
CXR18 submitted that:
(a)when assessing CXR18’s claims for protection under the s 36(2A) of the Migration Act’s complementary protection provisions the Authority provided the following assessment: CB 1367 at [62]:
I accept that the applicant may need or want to leave his home during the period of the Kuchi migration. I accept that this may be frustrating for him but there is nothing in the information before me which indicates, and I am not satisfied that, having to leave his village and remain elsewhere for this period would, singly or cumulatively, involve him being arbitrarily deprived of life, subjected to the death penalty or tortured. Nor would it involve pain or suffering that could reasonably be regarded as cruel or inhuman in nature, or severe pain or suffering, or be intended to cause extreme humiliation, or otherwise amount to significant harm as defined in the Act, even when considered together.
I am not satisfied that it would rise to the level of significant harm intentionally inflicted, as contemplated by s 36(2A) of the Act. I am not satisfied that the applicant faces a real risk of significant harm for this reason.(b)importantly, absent from the Authority’s complementary protection assessment is a finding that the Kuchi-inflicted violence would not reach the threshold of “significant harm”. This is unsurprising given that the Authority accepted CXR18’s evidence that the Kuchi nomads “come through his area each year” and “they burn down the houses, kill the people and take the livestock.”: CB 1357 at [16];
(c)equally important is the fact that the Authority made no finding that the risk of the Kuchi-inflicted violence was not real. Further, this is not an occasion where the Authority’s findings made under the refugee assessment regarding the level of risk can be carried across to its complementary protection assessment. This is because the Authority’s finding in this regard was premised upon the assumption that CXR18 may be relocating annually to avoid the feared harm: see CB 1358 at [23] (emphasis added):
I am not satisfied on the evidence before me that the tension and conflict with the Kuchis is at such a level or frequency that the applicant faces more than a remote chance of facing serious harm from this violence now, or in the reasonably foreseeable future, should he return to Wardak, including if he had to leave his home during the migration period.
(d)so long as the Authority contemplated CXR18 relocating temporarily to avoid the feared harm, then its risk assessment under the refugee assessment cannot be imported to its findings under the complementary protection assessment;
(e)instead, in its complementary protection assessment, the Authority found that CXR18 did not face a real risk of significant harm, because he would be able to annually and temporarily relocate to another part of Afghanistan to avoid the annual violent Kuchi migration in his home area;
(f)section 36(2B)(a) of the Migration Act prescribes that there is taken not to be a real risk that a non-citizen will suffer significant harm if the Minister is satisfied that “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”;
(g)before arriving at the conclusion that CXR18 could relocate annually to avoid the feared harm, the Authority was required to:
(i)
first, ask itself whether there is an area of Afghanistan where, objectively,
there would not be a real risk that CXR18 would suffer significant harm: SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51; (2007) 97 ALD 27; (2007) 237 ALR 660; (2007) 81 ALJR 1679 at [14] per Gummow, Hayne and Crennan JJ; and
(ii)second, consider whether it would be reasonable to expect CXR18 to relocate to this proposed area of relocation: Randhawa v Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 264; (1994) 35 ALD 1; and
(h)in the present case, the Authority failed to ask itself either of these two questions and in doing so, failed to carry out its statutory task.
Minister’s Submissions
The Minister submitted that:
(a)ground 1 contends that the Authority erred in its consideration of CXR18’s complementary protection claims by failing to consider, for the purposes of s 36(2B)(a) of the Migration Act each of the following:
(i)whether there was an area of Afghanistan where there would not be a real risk that CXR18 would suffer significant harm; and
(ii)whether it would be reasonable to expect CXR18 to relocate to this proposed area of relocation;
(b)
the premise of ground 1 is that CXR18 leaving his home to escape the annual
Kuchi migration amounts to a “relocation” within s 36(2B)(a) of the Migration Act. However, the Authority expressly stated that it found it was not necessary to consider relocation: CB 1355 at [8], and there is no error in that conclusion;
(c)the Authority’s findings under complementary protection must be read together with its earlier factual findings about the effects of the Kuchi migration, and the steps taken by CXR18 and his family to avoid them:
(i)CXR18 claimed that the Kuchis burn down houses, kill people and take the livestock. CXR18 and his family would flee the area and stay in another place about 5 hours away until the Kuchis left for at the end of the season: CB 1357 at [16];
(ii)the Authority accepted that shots may have been fired at or near CXR18 and his family on one occasion as part of the generalised violence between Hazaras and Kuchis, and accepted that some of CXR18’s relatives in another village may have been killed as part of this generalised violence. However, CXR18 and his family returned to their home each year, and continued to do so until CXR18 left Afghanistan in 2013: CB 1357 at [18];
(iii)
CXR18’s family remain in their village and he has not claimed that they have suffered any violence or harm from the Kuchis since he left Afghanistan. Although CXR18 claimed that the Kuchis have destroyed property,
killed people and stolen livestock, he has not claimed that these things have occurred to his immediate family or family home, apart from one night when shots were fired: CB 1358 at [21]. The Authority accepted that, if CXR18 returned to Maidan Wardak, he may again have to leave his home during the Kuchi migration. However, having to leave his home would not constitute serious harm within s 5J of the Migration Act: CB 1358 at [22]; and
(iv)the Authority was not satisfied that the tension and conflict with the Kuchis was at such a level or frequency that CXR18 faced more than a remote chance of facing serious harm from this violence should he return to Maidan Wardak, including if he had to leave home during the migration period: CB 1358 at [23];
(d)this annual leaving home to a place five hours away, and returning home after the Kuchis have left for the season, does not amount to a “relocation” within the meaning of s 36(2B)(a) of the Migration Act. Section 36(2B) provides that “there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that” 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;
(e)section 36(2B)(a) of the Migration Act is informed by, and gives effect to, a principle akin to the principle of internal relocation, which is well known in the refugee context: APE16 v Minister for Home Affairs [2020] FCAFC 93; (2020) 277 FCR 640 at [48] per Kenny, Wheelahan and Anastassiou JJ. In that context, a common description of the principle is that “a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate” (emphasis added): Januzi v Secretary of State for the Home Department [2006] 2 AC 426; [2006] 3 All ER 305, AC at 440 per Lord Bingham, cited in (among other cases) SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 97 ALD 1; (2007) 237 ALR 634; (2007) 81 ALJR 1659 at [11] per Gummow, Hayne and Crennan JJ; see also Minister for Immigration and Border Protection v SZSCA & Anor [2014] HCA 45; (2014) 254 CLR 317; (2014) 314 ALR 514 (“SZSCA”) at [23] per French CJ, Hayne, Kiefel and Keane JJ. Other descriptions of the relocation principle refer to an “area” or “region” of a country where a person is expected to return: see SZSCA at [25] per French CJ, Hayne, Kiefel and Keane JJ, and at [40] per Gageler J (dissenting in the result); CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; (2018) 260 FCR 134; (2018) 353 ALR 666 (“CSO15”) at [30] per Tracey, Mortimer and Moshinsky JJ;
(f)in other words, “relocation” in this context means something more permanent, and a moving away from the region to which a person would otherwise be expected to return (which is usually the region in which the person last lived before coming to Australia). References to “home region” are shorthand for the region to which a person is expected to return: CSO15 at [37] per Tracy, Mortimer and Moshinsky JJ. Here, by contrast, the Authority found that CXR18 would be expected to return to the same place that he had lived and that his family still lives. The annual movement within the Maidan Wardak area by CXR18 and his family is not a “relocation” for these purposes – the Authority considered that CXR18 and his family would be remaining in the same region of Afghanistan; and
(g)
accordingly, s 36(2B)(a) of the Migration Act was not engaged. In any event,
the Second Authority Decision’s careful findings about the impact of the Kuchi migration include express findings that CXR18 would not face a real risk of serious harm on this basis: CB 1358 at [23], and implicit findings that it is reasonable (or at least not unreasonable) for CXR18 to move from his home each year. Contrast the situation in SZSCA where the person would be safe in Kabul, but his work had previously required him to travel outside Kabul (where he did face a real chance of serious harm).
Consideration of Ground 1
Sections 36(2A) and (2B) of the Migration Act provide as follows:
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
The Authority expressly said that it did not find it necessary to consider relocation: CB 1355 at [8] because it had formed a different view to the Delegate in relation to CXR18’s ability to return to Maidan Wardak: CB 1355 at [10].
At CB 1358 at [21]-[23] the Second Authority found as follows:
21.The applicant said that his family (mother and three younger brothers) remain in C and he has not claimed that they have suffered any violence or harm from the Kuchis since he left Afghanistan, although he did claim they have been harassed by the Taliban (considered further below). He told the delegate that another brother has fled to Pakistan to live with an uncle because life in Afghanistan is hard. Later in the interview he said that part of the reason this brother fled was because he was being pressured to fight against the Kuchis (and to join the Taliban) but he has not claimed that the Kuchis have harmed or threatened this brother. Furthermore, although he has claimed that the Kuchis have destroyed property, killed people and stolen livestock, he has not claimed that such things occurred to his immediate family or family home, other than one night when shots were fired. He has not claimed that his family suffered any harm while they were away from home, such as being unable to support themselves or otherwise subsist.
22.I accept that having to flee the family home was frustrating for the applicant and that the tension and conflict with the Kuchis in that area continues. I also acknowledge that an absence of past harm of itself is not necessarily indicative of the future. I accept that if he was to return to Wardak, the applicant may again have to leave his home during the Kuchi migration. However, I note that in the ten years before he left, the applicant and his immediate family did not suffer any harm beyond having to leave, and hearing shots fired on one occasion. I am not satisfied that having to leave his home for the period of the migration (should he need to do so) is conduct that would threaten his life or liberty or constitute significant physical harassment or physical ill-treatment. Nor would it constitute significant economic hardship, a denial of access to basic services or a denial of a capacity to earn a livelihood of any kind, such that it would threaten his capacity to subsist. I am not satisfied that it is, or would amount to, harm of a level that would constitute serious harm within the meaning of ss.5J(4)(b) and (5).
23.I am not satisfied on the evidence before me that the tension and conflict with the Kuchis is at such a level or frequency that the applicant faces more than a remote chance of facing serious harm from this violence now, or in the reasonably foreseeable future, should he return to Wardak, including if he had to leave his home during the migration period.
At CB 1366 at [57] the Second Authority found as follows:
57.Having regard to all of the above, I am not satisfied that the applicant faces a real chance of harm from the Taliban, Kuchi nomads, other Hazaras, as a Shi’a and a Hazara or as a returned asylum-seeker who has been in the West, should he return to Wardak. I am not satisfied that he faces a real chance of serious harm should he have to leave his home during the Kuchi migration. I am not satisfied that he has a well-founded fear of persecution for any reason in Afghanistan.
Relevant to ground 1 the Second Authority dealt with the issue of complementary protection at CB 1367 at [59]-[63] (the Court notes that [62] is set out in CXR18’s Submissions cited at [16(a)] above), and having set out the definition of “significant harm” under s 36(2A) of the Migration Act in summary form, and having referred to relevant definitions appearing in s 5(1) of the Migration Act, the Authority set out its conclusions at [62] (quoted above) and [63], the latter as follows:
63.I have found above that the applicant does not face a real chance of harm for any other reason should he return to Wardak. As “real chance” and “real risk” equate to the same threshold [MIAC v SZQRB (2013) 210 FCR 505], I am not satisfied that the applicant faces a real risk of significant harm for any other reason, or combination of reasons, should he return to Afghanistan.
The relevant statutory question “is to identify the place to which the non-citizen is likely to return”: APE16 at [51] per Kenny, Wheelahan and Anastassiou JJ; CSO15 at [42] per Tracey, Mortimer and Moshinsky JJ.
In this case, the Authority did not consider the issue of relocation because it formed the view that CXR18 would not suffer a real risk of significant harm if he were to return to Maidan Wardak, a place that he had lived in prior to coming to Australia, and where his family still lives, and where for 10 years prior to coming to Australia CXR18 had moved from annually to a place (not specifically identified in the Authority Decision) but still within Maidan Wardak, and five hours from CXR18’s home.
As the Full Court of the Federal Court observed in CSO15 at [47] per Tracey, Mortimer and Moschinsky JJ “[i]t is only if the place or places to which an individual is likely to return are places within which the person has a well-founded fear of persecution or faces a real risk of significant harm, that a decision-maker must look at any other places in the individual’s country of nationality where neither of those kinds of risks exist. That is: places that are new or unfamiliar locations for the individual” (italicised emphasis in original, underlined emphasis added).
It cannot be said that the Maidan Wardak region, whether it be where CXR18 considers to be home or the place (still within the Maidan Wardak region) that he has moved to at the time of the annual Kuchi migration for the 10 years prior to his leaving Afghanistan, can be said to be “new or unfamiliar locations” for CXR18.
In the circumstances, the Second Authority Decision was not affected by jurisdictional error because:
(a)the issue of relocation does not arise because CXR18 was not leaving the Maidan Wardak region; and
(b)the Authority’s findings with respect to the annual Kuchi migration, and its impact upon CXR18, do not identify any significant harm to be suffered by CXR18 within the Maidan Wardak region, whether at home or at the other place to which CXR18 moved during the period of the annual Kuchi migration.
It follows from the above that ground 1 is not made out, and does not establish jurisdictional error in the Authority Decision.
Ground 2
Ground 2 is as follows:
2.The IAA erred by misconstruing or misapplying the test under s.36(2)(a) of the Act or by failing to ask itself the right question.
Particulars
1. The Applicant claimed ‘to fear harm from the Kuchi nomads, who come through his area each year’ and ‘burn down the houses, kill the people and take the livestock: paragraph [10] (sic [16]) of the IAA’s decision record.
2. The IAA noted that ‘the Hazara districts in Wardak have been the scene of ongoing violent disputes between Hazara farmers and Pashtun nomads (the Kuchis)’ and that the ‘conflict is characterised by random, violent attacks caused by Kuchi nomads entering Hazara areas in the summer months’: paragraph [17] of the IAA’s decision record.
3. The IAA accepted that ‘the tension and conflict with the Kuchis in that area continues’: paragraph [22] of the IAA’s decision record.
4. When assessing the Applicant’s claims under the refugee criterion under s.36(2)(a) of the Act, the IAA found that the Applicant ‘may again have to leave his home during the Kuchi migration’ but was ‘not satisfied that having to leave his home for the period of the migration (should he need to do so) is conduct’ that ‘would amount to, harm of a level that would constitute serious harm within the meaning of ss.5J(4)(b) and (5)’: paragraph [22] of the IAA’s decision record.
5. However, the IAA failed to consider whether these steps (i.e. fleeing one’s home area annually for the Summer months) are ‘reasonable’ as required by s.5J(3) of the Act.
CXR18’s Submissions
CXR18 submitted that:
(a)when assessing CXR18’s claims for protection against the refugee criterion, the Authority accepted that Kuchi nomads would migrate to CXR18’s home area annually but found that “if he was to return to Wardak, [CXR18] may again have to leave his home during the Kuchi migration”: CB 1358 at [22];
(b)however, as the Kuchi nomads’ actions were not overly frequent (perhaps occurring only once annually), and this risk of harm would be mitigated by CXR18 temporarily relocating during these periods, the Second Authority assessed the overall risk of CXR18 facing harm for these reasons as being “remote”: CB 1358 at [23];
(c)section 5J(3) of the Migration Act provides that a person will not have a well-founded-fear of persecution if they could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution (other than particular types of modifications listed in s 5J(3)(a)‑(c) of the Migration Act). Section 5J(3) of the Migration Act requires the Authority to consider whether the steps an applicant can take to modify their behaviour are considered “reasonable”;
(d)in ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716 (“ESD17”) at [24]-[25] per Rangiah J the Federal Court described the operation of these provisions as follows:
[24]Section 5J(1) of the Act sets out three requirements—in paras (a) to (c)—that must be satisfied for a person to have a “well-founded fear of persecution”. If a person does not satisfy the requirements of each of paras (a), (b) and (c) of subs (1), the claim must fail at that stage—the person does not have a well-founded fear of persecution, is not a refugee and does not satisfy the criteria in s 36(2)(a) of the Act. It is only if subs (1) is satisfied, that it becomes necessary to consider whether subs (2) and (3) operate such that the person “does not have a well-founded fear of persecution”.
[25] Section 5J(3) of the Act provides that a person will not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour (other than certain specified kinds of modifications) to avoid a real chance of persecution. There is plainly a relationship between s 5J(1)(b) and s 5J(3). The former refers to “a real chance that...the person would be persecuted”, while the latter uses the similar expression “a real chance of persecution”. The relationship is that s 5J(3) qualifies s 5J(1)(b). A decision-maker must first consider whether paras (a), (b) and (c) of s 5J(1) are satisfied. If they are, then the person “has a well-founded fear of persecution” and the decision-maker must go on to consider s 5J(3). However, if s 5J(3) if not satisfied, the person “does not have a well-founded fear of persecution”.
(e)in the present matter, the Authority was satisfied: CB 1358 at [22] that CXR18, in modifying his behaviour to “leave his home for the period of the migration” would not:
(i)“threaten his life or liberty or constitute significant physical harassment or physical ill-treatment”: CB 1358 at [22];
(ii)“constitute significant economic hardship, a denial of access to basic services or a denial of a capacity to earn a livelihood of any kind, such that it would threaten his capacity to subsist”; CB 1358 at [22]; and
(iii)“amount to, harm of a level that would constitute serious harm within the meaning of ss.5J(4)(b) and (5)”: CB 1358 at [22],
(f)while these findings may be correct, they did not negate the need for the Authority to carry out an assessment of whether the modifications in question, that is, fleeing his home area annually, but temporarily to avoid harm, were reasonable. This assessment of reasonableness is entirely absent from the Authority Decision; and
(g)
in failing to assess whether the proposed behaviour modifications were reasonable,
the Authority failed to carry out its statutory task.
Minister’s Submissions
The Minister submitted that:
(a)ground 2 contends that the Authority erred in its consideration of CXR18’s refugee claims by failing to consider, for the purposes of s 5J(3)(a) of the Migration Act, whether the steps that would be taken by CXR18 to avoid a real chance of persecution were reasonable;
(b)
section 5J of the Migration Act defines “well-founded fear of persecution”. By s 5J(3), “[a] person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country”, other than a modification of a kind listed in s 5J(3)(a)-(c) of the Migration Act (such as a modification which would conflict with a characteristic that is fundamental to the person’s identity or conscience:
s 5J(3)(a) of the Migration Act);
(c)in ADL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 178; (2020) 280 FCR 346; (2020) 384 ALR 458 (“ADL17”) at [24] per White, Bromwich and Burleyy JJ, the Full Court held that s 5J(3) of the Migration Act has to be understood in the light of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 78 ALD 8; (2003) 203 ALR 112; (2003) 78 ALJR 180 (“S395”);
(d)although s 5J(3) of the Migration Act modifies the principles in S395: see ESD17 at [29] per Rangiah J; AWL17 v Minister for Immigration and Border Protection [2018] FCA 570 at [40] per Bromwich J, s 5J(3) of the Migration Act ensures that the principle in S395 “will therefore not apply where a person may be expected to modify behaviour that is not a manifestation of a Convention characteristic” DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 388 ALR 363; (2021) 95 ALJR 352 at [26] per Kiefel CJ, Keane Gordon, Edelman and Steward JJ. The error in S395 was that the Tribunal wrongly focused on an assumption about how the risk of persecution might be avoided, where the correct inquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided: see the analysis of S395 in SZSCA at [17] per French CJ, Hayne, Kiefel and Keane JJ. Here, the Authority did consider what would happen if CXR18 returned to Maidan Wardak;
(e)the Authority considered the risk of harm based on CXR18’s past behaviour, being that he and his family previously left their home during the Kuchi migration, and were likely to continue doing so. The Authority maybe doubted whether CXR18 continuing to behave the way he had previously done is properly described as modifying his behaviour: FTQ18 v Minister for Home Affairs [2019] FCA 2025 at [25] per Steward J. However, even if s 5J(3) of the Migration Act is applicable, there is no error;
(f)here, the Authority carefully considered the consequences of the annual Kuchi migration, its consequences on CXR18 and his family in the past, and the likely consequences of this migration in the future. Implicit in these findings is that it would be reasonable for CXR18 and his family to continue to leave their home. For example, the Authority specifically considered whether CXR18 or his family would be unable to support themselves while they were away from home, and whether the Kuchis would threaten their ability to subsist: CB 1358 at [21]-[22]. This may be contrasted with SZSCA at [31]-[32] per French CJ, Hayne, Kiefel and Keane JJ, where the Tribunal failed to address whether the person could continue to earn a living if he did not drive trucks outside Kabul. It was not necessary for the Authority to make an express finding that it would be reasonable for CXR18 to continue to leave his home annually, this finding can be made (and was made) implicitly. A finding may be implicit rather than express: A v Minister for Immigration and Multicultural Affairs [1999] FCA 116; (1999) 53 ALD 545 (“A v Minister”) at [54] per French, Merkel and Finkelstein JJ; Dhiman v Minister for Immigration & Multicultural Affairs [2000] FCA 221 (“Dhiman”) at [12] per Sundberg, Katz and Hely JJ.
Consideration of Ground 2
Section 36(2)(a) of the Migration Act provides as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee;
…
Section 5H(1)(a) of the Migration Act provides as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
…
Section 5J of the Migration Act provides as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
…
(2) A person does not have well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
…
(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person's identity or conscience; or
(b)conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)the persecution must involve serious harm to the person; and
(c)the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(6)In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.
Although lengthy, it is pertinent to set out what was said by the Full Court of the Federal Court in ADL17 at [23]-[28] per White, Bromwich and Burley JJ:
23.Section 5J(3) is in the nature of a qualification of the expression “well‑founded fear of persecution” contained in subs (1), in that it provides that a person does not have such a fear if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. That qualification is itself qualified by the provision that the modifications which the person may make are not to have any of the effects mentioned in subparas (a), (b) or (c). As explained by Bromwich J in AWL17 v Minister for Immigration and Border Protection [2018] FCA 570 at [41], s 5J(3) has the effect that a reasonable modification of conduct can be expected provided that it does not go so far as to compromise the essential terms of the Refugee Convention. That is to say, reasonable steps by way of modification of behaviour to avoid a real chance of persecution can be expected, but not if doing so would have any of the effects listed in s 5J(3)(a)‑(c). If the modification would have such an effect, the reasonableness or otherwise of the steps by which the modification may be effected does not arise. An applicant is not expected to take those steps. Otherwise, the ability of an applicant to take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution is to be taken into account.
24.For reasons to be stated shortly, s 5J(3) has to be understood in the light of S395. In that case, the Refugee Review Tribunal had found that, while homosexuality was unacceptable in Bangladesh, the appellants (who were homosexual) could be expected to avoid a risk of persecution on account of their sexuality by continuing to act discreetly, as they had in the past. Their appeal contending error of law by the Tribunal succeeded. McHugh and Kirby JJ, who formed part of the majority, said that the Tribunal had erred by failing to consider why the appellants would live discreetly and whether that “was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly” (emphasis added), at [35]. Their Honours continued:
[43]The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
(Italicised emphasis in the original and bold emphasis added)
25. Gummow and Hayne JJ, who also formed part of the majority, held:
[82]Saying that an applicant for protection would live "discreetly" in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision‑maker "expects" that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is "expected" to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well‑founded fear of persecution. It has asked the wrong question.
(Emphasis in the original)
26. S395 was considered (and distinguished) by the High Court in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 217, a case concerning the application of the internal relocation principle. The plurality (French CJ, Hayne, Kiefel and Keane JJ) explained the reasoning in S395 as follows:
[17]The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct enquiry was directed – whether the fear of persecution was well founded – had not been addressed.
(Emphasis added and citation omitted)
27. In his separate reasons in SZSCA, Gageler J said:
[36]… The principle for which [S395] stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution …
His Honour went on to note, however, that the S395 principle should not be extended beyond its rationale and that it had no application to a person who would or could be expected to hide or change such behaviour in any event for some reason other than a fear of persecution, at [37].
28.The appropriateness of having regard to S395 in the present case is indicated by the reference to it in the Explanatory Memorandum concerning the introduction of s 5J, which stated at [1194]:
In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (S395), the High Court held that an assessment under the Refugees Convention does not extend to what a person could or should do if they were returned to their country of origin, but what they would do. New subsection 5J(3) is intended to clarify that any assessment of whether a person has a well‑founded fear of persecution is to take into account not only what a person would do to avoid a real chance of persecution upon returning to a receiving country, but also what reasonable steps they could objectively take to avoid the persecution. As new subsection 5J(3) imports a consideration of “reasonable steps” and is qualified by new paragraphs 5J(3)(a) and 5J(3)(b), the Government considers that new subsection 5J(3) is not inconsistent with the principles enunciated by the majority in the High Court’s finding in S395.
(Bold emphasis in the original and italicised emphasis added)
In CTT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1095 at [67] per Judge Driver this Court observed as follows:
67.The terms of s 5J(3) [of the Migration Act] clearly mean that the provision operates after a finding that an applicant might face a real risk of persecution. Once such a finding is made, s 5J(3) [of the Migration Act] operates to limit the scope of that persecution to circumstances where an applicant could not avoid the persecution by reasonably modifying his behaviour.
The correct enquiry in this case was to determine what might happen if CXR18 returned to Maidan Wardak, and not whether the adverse consequences of that return could be avoided: SZSCA at [17] per French CJ, Hayne, Kiefel and Keane JJ. That enquiry was made by the Authority in the Second Authority Decision at CB 1358 at [21]-[23] (set out at [20] above, and which need not be repeated), and otherwise in the Second Authority Decision, see for example the consideration of:
(a)CXR18’s profile as a Shia and Hazara, and the risk of harm arising therefrom in Maidan Wardak at CB 1361-1364 at [35]-[46], culminating in the conclusion at CB 1364 at [46] that the Authority was “not satisfied that … [CXR18] faces any more than a remote chance of harm arising from general or societal discrimination as a Shi’a or a Shi’a Hazara in Wardak”;
(b)the risk of harm to CXR18 in trying to access Wardak at CB 1364-1366 at [49]-[56],
which saw the Authority conclude that CXR18 did not have a well-founded fear of persecution for any reason in Afghanistan: see CB 1366 at [57] (set out at [10(c)] above), and that CXR18 did not meet the definition of refugee in s 5H(1) of the Migration Act, and did not therefore meet the criteria under s 36(2)(a) of the Migration Act: CB 1367 at [58].
It follows from this consideration by the Authority that s 5J(3) of the Migration Act, including the requirement to assess whether a person could have taken reasonable steps to modify their behaviour, is not engaged, and if the Authority failed to undertake that assessment it cannot therefore constitute jurisdictional error in the Second Authority Decision.
In Dhiman the Full Court of the Federal Court had before it a matter relating to the authenticity of certain letters, and at [12] per Sundberg, Katz and Hely JJ observed that:
12.… It is true that the Tribunal did not expressly find that the letters were authentic. It simply proceeded on the basis that they were. The Tribunal is not obliged explicitly to formulate all its findings. It can make implicit findings such as that in question here …
The principle in Dhiman set out above was similarly expressed by a differently constituted Full Court of the Federal Court in A v Minister at [54] per French, Merkel and Finkelstein JJ.
It would therefore have been open to the Court to consider, if necessary, whether it is implicit in the Second Authority Decision that any behaviour modification by CXR18 in leaving his village and going to a place five hours distant from the village was reasonable for the purposes of s 5J(3) of the Migration Act. Assuming that such conduct was behaviour modification (it might not have been given it had been engaged in by CXR18 for 10 years prior to his leaving Afghanistan) the Court finds, in the alternative, that it is implicit in the relevant consideration and findings made in the Second Authority Decision that the Authority considered that such behaviour modification was reasonable for the purposes of s 5J(3) of the Migration Act. Those considerations and findings include those referred to or set out and cited above from CB 1358 at [21]-[23], CB 1361-1364 at [35]-[46], CB 1364-1366 at [49]-[56] and CB 1366-1367 at [57]-[63].
It follows from the above that ground 2 is not made out, and does not establish jurisdictional error in the Authority Decision.
CONCLUSION AND ORDERS
The Court has concluded that neither of the grounds of the Judicial Review Application have been made out, and no jurisdictional error in the Second Authority Decision has been established. It follows that the Judicial Review Application will be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 22 July 2022
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