CXT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 649
•1 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CXT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 649
File number(s): MLG 2165 of 2016 Judgment of: JUDGE BLAKE Date of judgment: 1 April 2021 Catchwords: MIGRATION – Immigration Assessment Authority – temporary protection visa – Application in a Case to amend Application for review – Application in a Case dismissed following the delivery of BXT17 v Minister for Home Affairs [2021] FCAFC 9 – proposed ground indistinguishable from BXT17 – principles of relocation – whether the Authority failed to consider a claim – whether the Authority asked itself the wrong question – no jurisdictional error – Application dismissed. Legislation: Migration Act 1958 (Cth) ss 32(2)(a), 36(2)(aa), 36(2B)(a) Cases cited: AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457; [2018] FCAFC 106
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
BXT17 v Minister for Home Affairs [2021] FCAFC 9
MZACX v Minister for Immigration and Border Protection [2016] FCA 1212
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46
Number of paragraphs: 53 Date of last submission/s: 24 March 2020 Date of hearing: 2 March 2020 Place: Heard in Melbourne, delivered in Dandenong Counsel for the First Applicant: Mr Kenneally Solicitor for the First Applicant: WLW Lawyers Counsel for the Respondents: Mr Kaplan Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 2165 of 2016 BETWEEN: CXT16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
1 APRIL 2021
THE COURT ORDERS THAT:
1.The title of the proceeding be amended so that the name of the First Respondent is "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs".
2.The Application in a Case filed on 28 February 2020 be dismissed.
3.The Application filed on 6 October 2016 and amended on 6 February 2020 be dismissed.
4.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $7,467.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority ('Authority') on 6 September 2016. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a temporary protection visa ('visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Tajik Shia from the Logar province in Afghanistan. He first arrived in Australia on 23 September 2012 as an irregular maritime arrival. The Applicant applied for the visa on 18 December 2015.
On 19 July 2016, a delegate of the Minister refused to grant the Applicant the visa ('delegate's decision'). The matter then proceeded to the Authority for review of the decision.
On 11 August 2016, the Authority put to the Applicant's legal representatives country information that may be the reason, or part of the reason, for it affirming the delegate's decision under review. The Applicant was requested to comment on the country information and to provide information '… as to why it would not be reasonable for you to relocate to any other areas of Afghanistan apart from those places you claim will suffer harm' by 25 August 2016.
The Applicant's legal representative provided a response (Court Book 215 - 224) on 25 August 2016. On 6 September 2016, the Authority affirmed the decision not to grant the Applicant the visa.
The Applicant filed an Application and an affidavit in support in this Court on 6 October 2016. At that time, the Applicant was unrepresented.
The Applicant filed written outline of submissions on 6 February 2020. He also filed an Amended Application on 7 February 2020 and an affidavit from his solicitor, Natalia Paliy affirmed 21 February 2020. The Minister filed written submissions on 24 February 2020.
THE APPLICATION IN A CASE
The Applicant filed an Application in a Case dated 28 February 2020. In that application, the Applicant sought leave to file and serve a Further Amended Application. The Further Amended Application raised a proposed fourth ground of review. The proposed fourth ground of review sought to raise an argument that was, at the time of hearing, the subject of an appeal before a Full Court of the Federal Court of Australia in BXT17 v Minister for Home Affairs and Anor (VID 692/2019) ('BXT17').
At the hearing, I proceeded to hear arguments in relation to those grounds in the Amended Application that the Applicant continued to press (Grounds 1 and 2). The question of whether the Applicant had leave to file and serve the Further Amended Application was to be determined by the Court concurrently with judgment in respect of Grounds 1 and 2 of the Amended Application. Further, if leave were granted to file and serve the Further Amended Application, the Court was to proceed to deal with proposed Ground 4 in the Further Amended Application. Subsequent to the hearing, I became aware the appeal hearing in BXT17 had occurred and I indicated to the parties I would await the outcome of that matter prior to issuing judgment.
Judgment in BXT17 was ultimately delivered by the Full Court on 12 February 2021, BXT17 v Minister for Home Affairs [2021] FCAFC 9. The Full Court dismissed the appeal by the appellant in that matter. Consequent upon the decision of the Full Court, the parties agreed that the Applicant's proposed Ground Four contained within the Further Amended Application must fail given the Applicant's circumstances were indistinguishable from the appellant in BXT17.
The principal reason the Applicant sought leave to file and serve the Further Amended Application was to raise proposed Ground 4. It is apparent now that there is no merit to what is contained within proposed Ground 4. Accordingly, leave to file and serve the Further Amended Application is refused and the Application in a Case is dismissed.
THE GROUNDS OF REVIEW
At the hearing of the matter, the Applicant indicated that Ground 3 of the Grounds of Review in the Amended Application was not pressed.
Grounds 1 and 2 of the Grounds of Review take issue, generally, with the Authority's decision concerning the reasonableness of the Applicant relocating to Kabul. I consider further the relevant principles below.
Principles relating to relocation
As it related to the criterion for the grant of a protection visa in the former section 32(2)(a) of the Migration Act 1958 ('Act'), the relocation principle calls for an assessment of whether it was 'reasonable, in the sense of practicable, for [a person] to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution': SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 ('SZATV').
There are two components to this process. It was restated by a Full Court of the Federal Court of Australia in AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457 ('AHK16') at [3] as follows:
The first concerns an assessment of the risk of harm, and the level of harm, which a person might face in those parts of her or his country to which she or he might be expected to return; and the second concerns whether it is reasonable, in the sense of practicable, to expect a person to return to a particular place if it has been assessed as one where she or he does not have a well-founded fear of persecution.
Insofar as the complementary protection scheme set out in section 36(2)(aa) of the Act is concerned, there will not 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': section 36(2B)(a) of the Act. In this way, it is accepted, and I understood the parties before me to agree, that the relocation principle articulated in cases such as SZATV and AHK16 is introduced into the complementary protection scheme operating under the Act.
An assessment of the reasonableness of relocation requires an assessment of what is practicable for an applicant: SZATV at [24]. The assessment is fact intensive. An applicant's objections to relocation form the framework for the analysis: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at 439, [124].
There was debate before me as to the extent to which a decision maker is required to look beyond an applicant's objections to relocation. Ultimately, I regard it as unnecessary to resolve those issues in light of the fact that the Applicant abandoned Ground 3 of the grounds of review, and in light of the manner in which I have ultimately dealt with Grounds 1 and 2 below.
Ground 1
The first ground of review in the Amended Application is as follows:
The Immigration Assessment Authority's (Authority) decision is affected by jurisdictional error as the Authority failed to consider the applicant's objection to relocation - or a matter arising from the material - that it was not reasonable for the applicant to relocate to Kabul having regard to the discrimination the applicant would face being a returnee from a western country.
Particulars
a. The Authority accepted that the applicant would be at real risk of significant harm pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act) in his home area, Khoshi.
b. The Authority found pursuant to s 36(2B)(a) of the Act that the applicant could reasonably relocate to Kabul to avoid significant harm.
c. The applicant's representative argued the applicant was at greater risk of harm in Kabul as a returnee from a western country.
d. The Authority accepted at [28] of its reasons that returnees from the west are treated with suspicion.
e. The Authority failed to consider in its analysis of relocation (see [38]-[40] of its reasons) the impact of discrimination on the applicant's capacity to relocate, and in particular the likelihood he could obtain employment and accommodation in Kabul.
Under this ground, the Applicant takes issue with the reasons of the Authority that are set out at paragraphs [38]-[40]. Those paragraphs are as follows:
[38]I have therefore considered whether it is reasonable for the applicant to relocate to Kabul on return. The applicant's representative submits that the applicant has no extended family or tribal links in Kabul, as his immediate family are currently living in Pakistan. The applicant would be vulnerable to exploitation and harm as he would have no access to accommodation or a support network; as the oldest male member of his family he would not be afforded financial support from his family to enable him to subsist in Afghanistan, nor would he be able to provide for his family; he has limited work experience and no formal education and it would be difficult to obtain services and employment as unemployment is very high and without connections or a network he would find it difficult to subsist. The applicant's representative cites the UNHCR guidelines and excerpts from Professor Maley in relation to the reasonableness of relocation.
[39] 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. I have had regard to the representative's submissions based on the UNHCR recommendations for considering the reasonableness of relocation. I also note that UNHCR advises that the only exceptions for the requirement of external support are single able bodied men and married couples of working age without identified specific vulnerabilities. Such persons may in certain circumstances be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective Government control. 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. However the financial situation of Kabul residents and their employment opportunities are also reportedly worsening.
[40]The applicant is an able bodied male of working age. He is unmarried and has no children. Although I accept that he may feel obligated to provide financial support to his mother and siblings, I note that the applicant stated at interview that his mother provided for the family after his father's death and after his departure from Afghanistan she continued to manage the family land. Although his family have now moved to Pakistan there is no further information in respect to their circumstances in Pakistan. He has completed education to Year 8 level, is literate in Dari, and he has gained a basic knowledge of English in Australia. The applicant has limited work experience in farming and is working as a forklift driver in Australia. He has demonstrated resilience in travelling from Afghanistan to Australia as an 19 year old and does not present with any health problems or other specified vulnerabilities identified by UNHCR as requiring durable support. Whilst I accept that living conditions in Kabul would not be without difficulties and he may face challenges in establishing himself, particularly as he has no family links in Kabul which he would be able to utilise, I am not satisfied that the applicant would be unable to obtain accommodation or employment. Although unemployment and underemployment is common reportedly due to the influx of returnees and internally displaced people which has put pressure on the local labour market, Kabul offers a greater range of employment opportunities particularly in the service sector, including in small businesses and in the construction industry. Although the applicant is not currently involved in these industries he has demonstrated resourcefulness in his ability to adapt and acquire new skills, a quality which would assist him in establishing himself on return to Kabul. Taking into account the applicant's personal circumstances I find it reasonable for the applicant to relocate to Kabul. (footnotes omitted)
The Minister submits that the ground of review cannot be made out for three reasons. First, the Applicant did not raise such a claim in opposition to the reasonableness of relocation. Second, even if it is to be accepted that the Applicant made a claim, it was a claim that was properly considered by the Authority. Third, even if the Court does not accept either of the foregoing propositions, it should accept that any failure by the Authority to refer to this matter does not amount to jurisdictional error because the Authority should be understood to have found that the risk was so small that it could be excluded on further consideration.
The first issue is whether the claims now advanced were raised in opposition to the reasonableness of relocation.
The Applicant initially filed with the Department written submissions in support of his application. Those submissions are dated 24 May 2016 and relevantly commence at Court Book 154. In those submissions, the Applicant:
(a)submitted that returnees from the West face a level of risk similar to other groups in Afghanistan who are associated with support for the Afghanistan government or the international community (Court Book 157);
(b)submitted, under the heading of the submission entitled 'Persecution arising from membership of a particular social group' that failed asylum seekers and returnees from the West can be distinguished from society at large, and that he feared harm upon returning as he fled to a Western country (Court Book 159-60);
(c)submitted under the section of the submission entitled 'Relocation' that (Court Book 173):
The Applicant's support networks in other areas of Afghanistan are limited. The Applicant has no family support network in Kabul nor does he have any property in Kabul to allow him to attempt to subsist there. The Applicant was only previously able to obtain work through family ties. Given these matters, we submit that without adequate support networks the applicant would find it impossible to subsist and would be at risk of exploitation and harm in Kabul. Various reputable sources outlined above clearly indicate that meaningful and strong support networks are required for an individual to subsist without undue hardship in Kabul. Further, we note the applicant is required to support his family given the passing of his father. In particular, we note that country information indicates the chance the applicant would face harm would be exacerbated by the fact he is returning from a Western Country. (emphasis added)
The Applicant also filed written submissions prior to the review conducted by the Authority (Court Book 215 and following). In that document, inter alia, the Applicant:
(a)submitted 'Further, we note that NGOs involved in the reintegration of returnees report challenges that young people in particular face, including feelings of alienation from the wider community, especially in urban areas, as well as discrimination' (Court Book 219);
(b)submitted in the circumstances, including those set out above, it 'would not be reasonable to expect' him to relocate (Court Book 219);
(c)included an extract from the UNHCR Guidelines (Court Book 221) in support of his submission that it would not be reasonable for him to relocate to Kabul. The relevant paragraph is set out below. The text which is in bold was highlighted by the Applicant in his submission:
The extent to which applicants are able to rely on family networks in the proposed area of relocation also has to be considered in light of the reported stigma and discrimination against those who return to Afghanistan after spending time abroad. Where the proposed area of relocation is an urban area where the applicant has no access to preidentified accommodation and livelihood options, and where he or she cannot reasonably be expected to be able to fall back on meaningful support networks, the applicant would likely find him- or herself in a situation comparable to that of other urban IDPs. (emphasis in original)
When the above matters are considered, I find the Applicant's claim, that it was not reasonable for him to relocate to Kabul having regard to the discrimination he would face being a returnee from a Western country, and the likelihood of him obtaining employment and accommodation, was raised by him or, alternatively, arose from the materials.
The next issue is whether, the claims having been made, were considered by the Authority. The Applicant submits that the analysis of the Authority, particularly as set out at paragraphs [38] to [40] of its reasons are, inter alia, silent on the impact of discrimination on the reasonableness of relocation. The Applicant urges the Court to infer that the issue of discrimination against returnees was not considered because, among other things:
(a)the issue was key to the assessment of the Authority in respect of relocation;
(b)the Authority considered the submission in relation to the refugee assessment at paragraph [28] of its reasons, but not in relation to relocation; and
(c)the summary by the Authority of the Applicant's submissions in relation to relocation at paragraph [38] of its reasons is fulsome but omits to mention the Applicant's status as a returnee.
I have considered closely the proposition that the claim of discrimination was not considered by the Authority. The first matter to note is what the Authority set out at paragraphs [27] - [28] of its reasons, which is reproduced below:
[27]DFAT advises that many Afghans travel abroad to Iran, Pakistan, Europe or other western countries to seek employment or educational opportunities. As Afghanistan's largest urban centre, Kabul provides the most viable option for many people for internal relocation and resettlement in Afghanistan. This applies to those displaced by conflict and natural disasters, economic migrants and returnees to Afghanistan. Returnees from western countries are almost exclusively returned to Kabul where because of Kabul's size and diversity, returnees are unlikely to be discriminated against or subject to violence on the basis of ethnicity or religion. I have noted UNHCR's statement that individuals who are perceived to have adopted values or appearances associated with Western countries, are targeted due to their imputed support for the government and international community by AGEs [Anti-government elements]. The UNHCR has relied on the findings of a couple of studies by advocacy groups indicating young returnees from the West may be viewed with suspicion and in a small minority of cases as a source of extortion. However there is no indication that they were targeted by AGEs in Kabul on the basis of being Western.
[28]I note that despite evidence of western influence in clothing, music and food in urban areas and particularly in Kabul, Afghanistan remains very conservative. However, while there is evidence that returnees may face difficulties in reintegration and may be treated with suspicion at a community level due to their extensive absence, and loss of contact with their families there is no evidence to indicate that returnees are targeted in Kabul by insurgents or that the applicant would be targeted on return to Kabul as a returnee with an imputed pro-Western political opinion. (footnotes omitted)
I make the following observations about paragraph [28] of the reasons of the Authority. First, it is plainly a paragraph that considers difficulties that may be encountered by persons returning to Kabul. Second, while the Authority has not used the word 'discrimination' in the paragraph above, it does refer expressly to the 'difficulties' that may be faced and that returnees 'may be treated with suspicion at a community level due to their extensive absence…'. Those references are broad enough to encompass discrimination that a returnee may face. In this respect, I note that consideration can be given to a matter absent express reference to it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604. Third, the Authority rejects the contention that the Applicant would suffer harm, or more accurately, would be 'targeted' in Kabul.
I did not understand the Applicant to contend that paragraph [28] of the reasons of the Authority did not deal with relocation and discrimination suffered by returnees from a Western country. Rather, the Applicant sought to rely on the fact that paragraph [28] above is to be found in that section of the reasons where the Authority considers whether the Applicant is a refugee, but that similar reasoning or references are not to be found when the Authority comes to assess the reasonableness of relocation under section 36(2B)(a) of the Act. That contention re-focuses attention on what the Authority did at paragraphs [38] – [40] of its reasons.
At paragraph [40] of its reasons, the Authority states as follows:
Whilst I accept that living conditions in Kabul would not be without difficulties and he may face challenges in establishing himself, particularly as he has no family links in Kabul which he would be able to utilise, I am not satisfied that the applicant would be unable to obtain accommodation or employment.
It can be seen that in paragraph [40], the Authority has made plain reference to the 'difficulties' and 'challenges' that the Applicant may face in Kabul. There is no reason to read these words narrowly so as to exclude difficulties arising from discrimination, particularly when that subject matter has been addressed in paragraph [28] of the reasons of the Authority. In my view, those references, fairly read, impliedly encompass the matters contained within paragraph [28] of the reasons of the Authority.
The Applicant submitted, inter alia, that the issue of discrimination raised by Ground 1 was 'potentially relevant' to a key issue in relation to relocation, being the Applicant's capacity to obtain employment and accommodation. It is to be observed that the Authority in paragraph [40] has addressed the question of, and made a finding as to, whether the Applicant is able to obtain employment and accommodation in Kabul. I consider that finding to be sufficiently broad to cover the concern raised by the Applicant, particularly in circumstances where that concern is put no more highly than 'potential' relevance.
There is one further matter which I regard as of some significance in relation to the matters set out above. At paragraph [38] of the reasons, the Authority refers to the Applicant's representative citing 'the UNHCR guidelines and excerpts from Professor Maley in relation to the reasonableness of relocation'. The UNHCR Guidelines are contained within a submission of the Applicant set out at Court Book 221. I have extracted part of Court Book 221 earlier in these reasons that contains the UNHCR Guidelines. It can be seen from that extract, and from the reference in paragraph [38] of the reasons, that the Authority was cognisant and had in mind the discrimination the Applicant claimed he would face when it reached its conclusions in paragraphs [37] – [40].
For the above reasons, in my view, the Authority did not fail to consider in its analysis of relocation, the impact of discrimination the Applicant would face as a returnee from the West on the Applicant's capacity to relocate, or on the likelihood of him obtaining employment or accommodation in Kabul.
In the event I am found to be wrong in relation to the conclusion expressed above, I would nevertheless make a finding that any failure by the Authority to refer to discrimination the Applicant may face as a result of being a returnee from a Western country is not jurisdictional error.
In paragraph [36] of its reasons, the Authority stated as follows:
I have found that there is not a real chance that the applicant will face serious harm in Kabul due to his imputed political opinion as a returnee from the West, as a Tajik Shia or due to his father's previous employment. As the 'real risk' test imposes the same standard as the 'real chance' test, for the reasons stated above I am also not satisfied that there is a real risk of the applicant suffering significant harm on the return to Kabul for those reasons.
It can be seen from the paragraph above that the Authority made a finding that there is not a real chance that the Applicant would face serious harm in Kabul on the basis of, among other things, his imputed political opinion as a returnee from the West. That is a finding of some significance. It needs to be considered alongside the findings at paragraphs [27] - [28] of the reasons of the Authority (set out earlier in these reasons), and in particular, the finding that there is no evidence to indicate returnees are targeted on the basis of being Western. The reference to 'targeting' or 'being targeted' is properly to be considered as being a reference to conduct that extends beyond physical harm. Of course, in paragraph [28], the Authority also referred to other matters, such as returnees facing difficulty and being treated with suspicion. When all of this is considered, in my view, paragraph [28] is properly to be read as including a reference to the claims in relation to discrimination as a returnee.
The findings in paragraphs [27] - [28] are then picked up in paragraph [36] of the reasons of the Authority. This gives rise to the following. If I am wrong in my earlier conclusions, the alternative reading of the reasons of the Authority is that the Authority should be properly understood to have made a finding that any risk identified was so small that it could be excluded from consideration in the paragraphs that follow paragraph [36] of the reasons. It was implicit in the Authority's conclusion in paragraph [36] that any consideration of the issue of discrimination could not, and did not, militate against relocation.
When the above matters are taken into account, I do not draw the inference that the Applicant invites me to draw. I am satisfied that the Applicant's claims in respect of discrimination as raised under Ground 1 were considered and dealt with by the Authority. For all of the above reasons, I dismiss Ground 1 of the grounds of review.
Ground 2
The second ground of review in the Amended Application is as follows:
The Authority's decision is affected by jurisdictional error as the Authority asked itself the wrong question in not considering the risk of harm falling below the "real risk" threshold in assessing the reasonableness of the applicant relocating to Kabul.
Particulars
a. The applicant repeats particulars (a) - (b) of ground 1.
b. The Authority accepted that there was some risk of harm to Shi'a Muslims and civilians in Kabul, but the applicant did not face a "real risk of significant harm" in Kabul sufficient to satisfy s 36(2)(aa) of the Migration Act 1958 (Cth)
c. The Authority failed to consider the risk of harm to the applicant as a civilian and Shi'a Muslim - albeit lower than a real risk - in its consideration of the reasonableness of relocation under the Act.'
In respect of this ground, the Applicant makes the following submissions:
(a)the Authority left open the possibility that the Applicant faced a level of risk less than a 'real risk' of harm in Kabul when one has regard to paragraphs [24] and [37] of the reasons;
(b)the Authority did not consider at all in its reasons at paragraphs [38] - [40] the risk or security situation referred to in paragraph (a) above;
(c)the Court should draw the inference that the Authority therefore failed to consider the risk of harm to the Applicant (being a level of risk less than 'real risk') when it came to consider the reasonableness of relocation under the Act;
(d)a failure to consider whether a remote risk of harm in a safe area renders a particular relocation unreasonable may amount jurisdictional error MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 (Kenny J).
In summary, the Minister contended as follows. First, the claim now being advanced by the Applicant was not advanced previously and does not arise from the materials. Second, if it is accepted that the claim was advanced, the Authority nevertheless considered the claim. Third, even if the Authority failed to have regard to the risk of harm, such an error could only amount to an error within jurisdiction in the circumstances of the present case.
A review of the material in the Court Book and the reasons of the Authority discloses the following:
(a)in his written submission to the Department, the Applicant drew attention to country information that indicated 'the chance the applicant would face harm would be exacerbated by the fact he is returning from a Western country' (Court Book at 173). Further, the Applicant also submitted that it would not be reasonable for him to relocate because he 'would be at risk of serious harm in Kabul for reason of his religion, imputed political opinion and membership of a particular social group' and that given a recent attack in Kabul, he 'would still be at risk of harm upon relocation' (Court Book 174);
(b)in his written submissions to the Authority, the Applicant submitted that there is 'nowhere in Afghanistan where he can live safely' (Court Book 218); 'he would not be durably safe upon relocation' and that 'it would not be reasonable to expect [him] to relocate' (Court Book 219); and
(c)in his written submission to the Authority, he relied upon information from Professor Maley that it is not safe for Shia Muslims in Kabul (Court Book 222 - 224).
There are then the paragraphs of the decision of the Authority relied upon by the Applicant. In paragraph [24], the Authority stated:
After consideration of the above, I accept that there have been targeted attacks on Shias in Kabul in the past. The recent attack appears to have been directed specifically against Hazara Shias participating in a protest. I also accept that ISKP/ISIS have demonstrated the potential to undertake occasional further high profile attacks in Kabul against Shias despite having limited influence. However the information before me still raises the question of whether the bombing is indicative of a change in Kabul's security situation to an extent that there is a real chance of serious harm for Shia Tajiks such as the applicant, living in Kabul.
Further, in paragraph [37], the Authority stated that it had 'given consideration to whether there is a real risk of significant harm due to generalised violence in Kabul' and that 'people associated with the government or the international community are at significantly higher risk than ordinary Afghans in Kabul' and finally 'the applicant does not have such a profile' to cause him 'a real risk of… significant harm'.
When the matters above are considered, I am satisfied of the following. First, the claim identified by the Applicant under this ground of review was advanced by him, or alternatively, arose clearly from the material. Second, the Authority accepted that there was some risk of harm to Shia Muslims and civilians in Kabul, for reasons that included exposure to generalised violence.
I turn next to whether the claims were considered by the Authority. The Applicant contends that the reasons given by the Authority at paragraphs [38] - [40] focus on the social and economic challenges, but give no consideration at all to the security situation in Kabul. It is contended by the Applicant that the natural inference to be drawn is that the Authority has failed to consider the matters that the Applicant has identified under this ground of review. The Respondent, in turn, places emphasis on the last sentence of paragraph [40] of the reasons. That sentence reads 'Taking into account the applicant's personal circumstances, I find it reasonable for the applicant to relocate to Kabul'. The Respondent contends that when that sentence is read in the context of the decision, it sufficiently deals with the Applicant's submissions in relation to Ground 2.
A review of the reasons of the Authority discloses the following:
(a)at paragraph [20] of its reasons, the Authority found that 'the Afghan government maintains effective control over Kabul, although insurgent and criminal violence is common. The primary targets for insurgent attacks are government institutions, political figures, Afghan National Defence and Security forces, personnel associated with coalition forces, other security services, international organisations and diplomatic representatives of some countries';
(b)at paragraph [21] of the reasons, the Authority found that there 'is no indication on the information before me that Tajiks in Kabul are targeted on the basis of their ethnicity. The applicant has not been directly associated with any of the groups who are targets for insurgents in Kabul' and 'there is no evidence to indicate that his return to Kabul would bring him to the adverse attention of insurgents in that city';
(c)at paragraph [25], the Authority found that the 'applicant does not have any profile or association with these groups and although he may be identifiable as a Shia Tajik returnee who has lived in a Western country this is not likely to bring him to the attention of insurgents in Kabul'. It is to be noted that in this paragraph of its reasons, the Authority accepted there continued to be security issues in Kabul, but it was not satisfied that the Applicant faced a real chance of serious harm in Kabul;
(d)at paragraph [37] the Authority gave detailed consideration to whether there existed a 'real risk of significant harm due to generalised violence in Kabul'. The Authority considered country information, noted that attacks were still common and that high risk profiles are attached to persons associated with the Afghan government or the international community. The conclusion, however, was that the Applicant did not have a profile and consequently the Authority was 'not satisfied that there is a real risk of him facing significant harm on the basis of the general security situation in Kabul’.
There is also paragraph [38] of the reasons of the Authority in which the Authority expressly refers to the submissions of the Applicant's representatives in relation to 'UNHCR guidelines and excerpts from Professor Maley in relation to the reasonableness of relocation'. As I have noted earlier in these reasons, the UNHCR Guidelines make express reference to discrimination against returnees. It is relevant to note, in relation to this ground, that the extract from Professor Maley quoted at Court Book 221 deals with what might be described as generalised violence and the risks that a returnee may face in Kabul. I am therefore satisfied that the Authority was cognisant of the risks of generalised violence, or the security situation in Kabul, when it came to setting out its reasons and conclusions in paragraphs [38] – [40] of its reasons.
When these matters are considered, I am of the view that when the Authority concluded at paragraph [40] of its reasons that it had taken into account the Applicant's 'personal circumstances' in concluding that it was reasonable for the Applicant to relocate to Kabul, the Authority was referring to, among other things, the risks to the Applicant arising because he faced a risk of harm that was less than the real risk threshold in respect of relocation.
For all of the above reasons, I dismiss Ground 2.
In light of my reasons above, the Amended Application must be dismissed. I will award costs to the Minister in the amount of $7,467.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 1 April 2021
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