CYD17 v Minister for Immigration

[2018] FCCA 217

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYD17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 217

Catchwords:
MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority considered all claims by applicant.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5L, 36(2)(a), 36(2)(aa), 46A, 473CA, 473CC, 473DB, 473DC, 473DD

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 236 FCR 593

BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169

Applicant: CYD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 618 of 2017

Judgment of: Judge Jarrett

Hearing date: 24 November 2017

Date of Last Submission: 24 November 2017

Delivered at: Brisbane

Delivered on: 31 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Karp

Solicitors for the Applicant: Fisher Dore Lawyers

Counsel for the First Respondent: Ms Wheatley

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. A writ of certiorari issue, quashing the decision of the Second Respondent dated 15 June, 2017;

2. A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law;

3. The First Respondent pay the Applicant’s costs of and incidental to the application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 618 of 2017

CYD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks review of a decision of the second respondent that affirmed a decision of a delegate of the first respondent to refuse him a Safe Haven Enterprise (subclass 790) visa.  A Safe Haven Enterprise visa is a type of protection visa.

2. The focus of the application is the second respondent’s consideration of the applicant’s claim to fear persecution as a returnee to Afghanistan from the west.  The applicant argues that the second respondent did not properly discharge its review function because, he says, it did not give proper consideration to the delegate’s view that returnees to Afghanistan from western countries faced a similar level of risk to others in that country who are associated with support for the government or the international community.  The evidence before the second respondent, it is said, indicated that such persons were at significant risk in Afghanistan.

3. The first respondent opposes the application. The second respondent entered a submitting appearance.  Both parties have filed written submissions of considerable assistance.

Background

1. The applicant was born in Afghanistan and arrived in Australia as an unlawful maritime arrival on 14 December, 2012.  He was found by the second respondent to be an Afghan national of Hazara ethnicity and Shia Muslim religion, as he had claimed to be.

2. Because the applicant was an unlawful maritime arrival he was prevented from lodging an application for a Protection visa pursuant to s.46A(1) of the Migration Act 1958 (Cth) unless the first respondent permitted him to do so pursuant to s.46A(2) of the Act. On 29 March, 2016 the first respondent gave the applicant the requisite permission and invited the applicant to apply for either a Temporary Protection (subclass 785) visa or Safe Haven Enterprise (subclass 790) visa. On 26 May, 2016 the applicant applied for Safe Haven Enterprise (subclass 790) visa. For his application to succeed, the first respondent needed to be satisfied that the applicant was a refugee for the purposes of the Migration Act 1958 (Cth).

3. On 1 September, 2016 a delegate of the first respondent interviewed the applicant.  The applicant’s claims for protection were stated in his application form, in his interview with the delegate and in submissions lodged in support of his application by his migration agent.  Those claims were that:

   a)he was born in a village in Uruzgan Province;

   b)when he was one and a half years old his family was attacked by the Taliban and his house was bombed, leaving him with scars on his face and a disfigured right hand;

   c)when he was between three and four years of age his father was murdered by the Taliban. The Taliban also confiscated his family owned land;

   d)under increased threat from the Taliban the family moved to Nili District in Daikundi Province and stayed with the applicant’s uncle and his family;

   e)he was the only male child of his parents and he has now reached maturity, which according to Afghan tradition means he is considered the family head;

   f)the Taliban would construe his presence in Afghanistan should he return there as a claim for repossession of the family land; and

   g)on the basis of those matters and his ethnicity and religion, given the Taliban’s historical enmity with Hazaras and Shias, and because he would be a returnee from a western country, he feared that he would be subjected to persecution should he be returned to Afghanistan.

4. On 25 November, 2016 a delegate of the first respondent refused to grant the applicant the visa.  The delegate found that:

   a)the applicant was likely to no longer be of interest to those who had confiscated his family land;

   b)he did not have a well-founded fear of persecution by reason of his race or religion in his new home area;

   c)he could reach his family home safely by a combination of air and road travel;

   d)he did not have a well-founded fear of persecution by reason of him being a returned asylum seeker.

5. The delegate’s decision was a “fast track reviewable decision” for the purposes of Part 7AA of the Migration Act. Section 473CA of the Act required the delegate’s decision to be referred to the second respondent for review. That referral occurred on 29 November, 2016.

6. On 8 December, 2016, the applicant’s representative sent written submissions to the second respondent which contained information that had not been provided to the delegate.  The information was about a cousin of the applicant being assaulted and threatened by the Taliban in 2011.  The agent’s submission was that the applicant did not know about that incident until after the delegate’s decision because his mother did not tell him as he was young and had experienced trauma in the past.

7. Section 473DD of the Migration Act proscribes the circumstances in which the second respondent can receive and consider new information for the purposes of a review.  The phrase new information is defined in the s.473DC(1) to mean any documents or information that:

   a)were not before the Minister when the Minister made the primary visa decision; and

   b)the second respondent considers may be relevant.

8. Subsection 473DC(1) gives the second respondent a discretion to get new information, and it may do so by inviting a person (which no doubt would include the applicant) to give new information. However, s.473DC(2) makes it clear that the second respondent is under no duty to get, request or accept any new information.

9. The proscription in s.473DD prohibits the second respondent from considering any new information unless the second respondent is satisfied that there are exceptional circumstances to justify considering the new information and the applicant satisfies the second respondent that the new information:

   a)was not, and could not have been, provided to the first respondent before the Minister made the primary visa decision; or

   b)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims.

10. Whilst the second respondent appeared to accept, at least implicitly, that the information that the applicant wished to put before it was new information for the purposes of the Act, it was not satisfied that the information was not, and could not have been, provided to the first respondent before his delegate made the primary visa decision.  Nor was the second respondent satisfied that the information was credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. The second respondent was not satisfied there were exceptional circumstances to justify consideration of the information.

11. The second respondent found that the information that the applicant wished to place before it was a recent contrivance and did not come within s.473DD of the Act and therefore the second respondent was not permitted to consider it.

12. On 15 June, 2017 the second respondent notified the applicant of its decision to affirm the delegate’s decision to refuse the visa.  In its reasons for decision, the second respondent accepted that there has been deterioration in the security situation in Afghanistan and that the Taliban “controls” significant areas in the country.  However, it was not satisfied that the security deterioration, or the Taliban’s continued strength in the country, changed the assessment of risk to a Hazara Shia person with the applicant’s “profile”.

13. The second respondent’s reasons reveal that it had regard to DFAT information which assessed that people from all ethnic groups are at risk of violence from insurgent groups, but no particular group is systematically targeted solely on the basis of ethnicity or religion.  It considered that there was no clear indication of any escalation in other serious harm or other persecutory conduct towards Hazara Shia or other religious and ethnic minorities, either by the Taliban or any other insurgent group.

14. The second respondent noted that the claims made by the applicant related to events that occurred when he was one year of age and later when he was 3 or 4, and accordingly, the applicant and his family had faced no issues in nearly 15 years.  The second respondent was not satisfied, given the absence of any contact or threat from the Taliban or Pashtuns in the 15 years the applicant was in Afghanistan and the several years that have followed since his departure, that they would have any knowledge of or interest in his departure or return, let alone construe his return as a threat to repossess his family’s land.  It gave weight to the fact that the applicant has taken no steps and made no overtures to seek repossession of his family’s land prior to departing Afghanistan and found that he has not, and would not, seek to reclaim the land on return to Afghanistan.  The second respondent found that the Taliban would have no knowledge or interest in him.

15. The second respondent accepted that there have been attacks on schools in Afghanistan, however was not satisfied that being a student carries a risk profile in itself, or that there is any real chance of the applicant being targeted for harm or discrimination for this reason, in particular within his home area. The second respondent had regard to DFAT information which provided that the security situation in Hazara majority areas tended to be better than that in other parts of Afghanistan.

16. While the second respondent accepted that the applicant may face some societal or official discrimination in major cities like Kabul, it found, having regard to the country information before it, that such discrimination would be low level and infrequent.  Further, it found that as the applicant would be returning to a Hazara dominant province, the risk of discrimination on the basis of his ethnicity or religion was likely to be remote.

17. The second respondent found that the people that are at risk from insurgents are those associated with the government, the military, the media and the international community.  It was satisfied the applicant had no such profile, or proximity to those with such a profile. 

18. Having regard to all of the information before it, the second respondent found that there was not a real chance of the applicant being seriously harmed by the Taliban or Pashtuns, or any other insurgent groups, whether specifically in relation to his family’s history in his home region or for reasons relating to his religion, ethnicity or other profile.

19. Additionally, the second respondent was not satisfied that the applicant would be targeted by reason of his status as an asylum seeker who had spent time in a western country.  Having regard to DFAT information it accepted that there are occasional reports of returnees alleging that they have been kidnapped or otherwise targeted on the basis of having spent time in a western country.  However, the material demonstrated that DFAT also assessed that, in general, returnees from western countries are not specifically targeted on the basis that they are returnees from the west or because they may have sought asylum.   The second respondent considered that country information indicated that Hazara Shia returnees, including those from the west, who are not directly associated with the government or the international community, did not face a higher level of risk upon return than those from other ethnic groups.  For those reasons the second respondent found the risk of the applicant being seriously harmed or discriminated against to be remote.

20. The second respondent was not satisfied that the applicant met the requirements of the definition of refugee in s.5H(l) or the requirements of s.36(2)(a) or s.36(2)(aa) of the Act.

Grounds of review

1. By his amended application filed on 26 September, 2017 the applicant sets out three ground of review as follows:

   1. The IAA failed to comply with s. 473DB(l) of the Migration Act by failing to consider review material provided to the Authority under section 473CB of that Act.

   Particulars

   (a) Failure to consider material cited in the delegate’s decision to the effect that “Returnees from western countries ... face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community.”

   (b) Failure to consider whether that level of risk is sufficient to engender a well founded fear of persecution for a reason stated in s. 5J(l)(a) of the Migration Act, or a real risk of serious harm within s. 36(2)(aa) of the Migration Act.

   2. The IAA otherwise failed to conduct its review pursuant to s. 473CC of the Migration Act according to law.

   Particulars

   (a) Failure to consider material cited in the delegate’s decision to the effect that “Returnees from western countries ... face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community.”

   (b) Failure to consider whether that level of risk is sufficient to engender a well founded fear of persecution for a reason stated ins. 5J(l)(a) of the Migration Act, or a real risk of serious harm within s. 36(2)(aa) of the Migration Act.

   3. The IAA failed to consider a claim, or an integer of a claim, that clearly arose on the material and evidence before it.

   Particulars

   (a) That the applicant, as a returnee from a western country who faced a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community, had a well founded fear of persecution for a reason stated in s.5J(1)(a) of the Migration Act or a real risk of serious harm within s.36(2)(aa) of the Migration Act..

2. As explained in the written and oral submissions of counsel for the applicant, however, the focus of the applicant’s grounds of review is upon the second respondent’s treatment of one issue, namely the alleged danger to the applicant as a returnee from a western country.  The submissions highlight that the second respondent was required to consider the statement of reasons provided by the delegate and the material provided by the Secretary to the second respondent.  He submits that the second respondent failed to give proper consideration to that material and thereby failed to carry out the review it was obliged to undertake.  The applicant argues that had proper consideration been given to that material it would have been apparent to the second respondent that the applicant had a claim available to him that as a returnee from a western country he faced a high risk of violence.  He says that risk of violence had nothing to do with him being a failed asylum seeker and everything to do with him simply being a returnee from a western country. 

3. To understand the argument, it is first necessary to record that in his decision, the first respondent’s delegate identified a particular social group relevant to the applicant, namely “failed asylum seekers returning from a western country”. The delegate determined that by reason of s.5L of the Migration Act the applicant was to be treated as a member of that particular social group. In respect of that identified social group, the delegate recorded that:

   DFAT assesses that returnees from western countries are not specifically targeted on the basis of being failed asylum seekers, but face a similar level of risk to others who are associated with support for the government or international community.

4. To support that statement, the delegate drew upon a particular DFAT report, namely DFAT Country Information Report Afghanistan, 18 September 2015 which, at page 23, said (my emphasis):

   5.21 DFAT is aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country. While this Country Information Report does not make a judgement on the veracity of individual cases, in general DFAT assesses that returnees from western countries are not specifically targeted on the basis of their being failed asylum-seekers. As noted above, people who are identifiable as being associated with foreign (particularly western) countries may be targeted by insurgent groups such as the Taliban. Returnees from western countries, however, face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community. People in this situation often take measures to conceal their association, such as not travelling with documents or symbols that may link them to the Afghan government, the international community based in Afghanistan or western countries. DFAT assesses that returnees from western countries who maintain a low profile such as by taking steps to conceal their association with the country from which they have returned do not face a significantly higher risk of violence or discrimination than do other people in Afghanistan with a similar ethnic and religious profile.   

5. That passages demonstrates that:

   a)returnees from western countries are not specifically targeted on the basis of their being failed asylum-seekers;

   b)however, people who are identifiable as being associated with western countries may be targeted by insurgent groups such as the Taliban;

   c)returnees from western countries face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community;

   d)people in this situation (ie, people in Afghanistan who are associated with support for the government or the international community) often take measures to conceal their association, such as not travelling with documents or symbols that may link them to the Afghan government, the international community based in Afghanistan or western countries; and

   e)returnees from western countries who maintain a low profile such as by taking steps to conceal their association with the country from which they have returned do not face a significantly higher risk of violence or discrimination than do other people in Afghanistan with a similar ethnic and religious profile to that of the applicant.

1. It is necessary to set out some passages from the second respondent’s decision.  Under the heading “Well-founded fear of persecution” the second respondent said (my emphasis, errors in the original):

   26.    I accept the submissions that there has been a deterioration in the security situation in the country overall, in part due to a draw down in international forces, and that the Taliban “controls” significant areas in the country.⁴ However, the information before me does not suggest that the security deterioration, or the Taliban’s continued strength in the country, changes the assessment of risk to a Hazara Shia with the applicant’s low profile. DFAT assesses that people from all ethnic groups are at risk of violence from insurgent groups, but no particular group is systematically targeted solely on the basis of ethnicity or religion. Outside of the confined threat posed by Islamic State, and the limited reports of Hazara Shias being targetted (sic) on the roads in and around the Hazarajat, there is no other clear indication in the country information of any escalation in other serious harm or other persecutory conduct towards Hazara Shia and other religious and ethnic minorities, whether by the Taliban or any other insurgent group. Instead, the country information before me indicates the persons and groups that remain most at risk from insurgents are those associated with the government, the military, the media and the international community.⁵ I am satisfied the applicant has no such profile, or proximity to those with such a profile, even when accounting for his past and potentially future status as a student. While I accept there have been attacks on schools in the country, on the basis of the information before me, I am not satisfied that being a student carries a risk profile in itself, or that there is any real chance of him being targetted (sic) for harm or discrimination for this reason, in particular within his home area.

   (my emphasis)

2. Footnote 5 referred to, amongst other material, the 18 September, 2015 DFAT report upon which the delegate had drawn and to which I have referred above.

3. The paragraph just extracted from the second respondent’s reasons demonstrates that the second respondent did not appreciate that irrespective of association with the government, the military, the media or the international community, returnees from the west, by reason of that fact alone, face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community.

4. Soon after, in its reasons for its decision the second respondent records (my emphasis):

   32. I have further considered the risk to the applicant on the roads in and out of his home area.  DFAT assesses that criminals and insurgents on the roads tend to target people who appear wealthy or are associated with the government or the international community in attacks that can include kidnapping for ransom.  There is nothing before me to suggest the applicant is or would be perceived to be wealthy, or that he would be imputed as linked to the government or international community.  DFAT assesses that people from all ethnic groups are vulnerable to these attacks and it can be difficult to ascertain the motivation for attacks, and to separate criminal attacks from insurgent activity.⁹ …

   33. Weighing all the information before me, I find there is no real chance of the applicant being seriously harmed on the basis of his religion, ethnicity or any other profile. I accept there is a level of insecurity in [XXX] Province, as there is in all areas of Afghanistan, however given the country information before me indicates the relative security of the province, and his lack of any adverse profile, I am satisfied there is no real chance of him being harmed in generalised/insurgent or criminally motivated violence in [XXX], particularly within his home area of [XXX].  I also accept there are risks on the roads, but weighing all the information before me, I am satisfied that in travelling to, and then within his province, the chance that he would be seriously harmed on the roads is remote.

5. And then (again, my emphasis):

   38. In terms of his claims to fear harm as a person who sought asylum in Australia or spent time in the west, DFAT states it is aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country, confirming reports of incidents in the Hazarajat, which I accept and have had regard to. However, DFAT also assesses that, in general, returnees from western countries are not specifically targeted on the basis that they are returnees from the west or because they may have sought asylum.  Those reports also indicate that Hazara Shia returnees, including those from the west, who are not directly associated with the government or the international community, do not face a higher level of risk upon return than returnees to Afghanistan from other ethnic groups.¹⁸  Considering [XXX] is a Hazara-dominated area, given his lack of other adverse profile or proximity to anyone with such a profile, and having regard to the above country information about the comparative security in the province, I find the chance or risk of the applicant being seriously harmed or discriminated against for these reasons to be remote.

6. Footnote 18 referred to DFAT Country Information Report - Afghanistan, 18 September, 2015, DFAT Thematic Report: Hazaras in Afghanistan, 8 February, 2016 and UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 19 April 2016.  The first two reports are in evidence before me.  The third is not.  The statement in the second respondent’s reasons (extracted above) that “Hazara Shia returnees, including those from the west, who are not directly associated with the government or the international community, do not face a higher level of risk upon return than returnees to Afghanistan from other ethnic groups” begs the question: “What is the level of risk faced by returnees to Afghanistan from ethnic groups other than Hazara Shia Muslims?”

7. The answer to that question is supplied by the passage from the first report reference by the second respondent, specifically at paragraph 5.21 which I have extracted above at [29]. The risk is a high risk of violence because returnees face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community.

8. The second respondent’s decision does not reveal that the decision maker appreciated the link that exists on the material before both the delegate and the second respondent between the risk faced by those in Afghanistan who were associated with support for the government or the international community and the risk faced by a returnee from a western country.  The comparison of risk made in the first DFAT report between the two groups of people was both a qualitative and a quantitative comparison.  Qualitatively, the risk was said to be the same – a returnee from the West (failed asylum seeker or not) face the same type of risk as a person within Afghanistan who was associated with support for the government or the international community.  That risk was said to be a risk of violence or discrimination.  Quantitatively, the risk was said to be “similar”. The risk faced by a returnee from the west was described in that report as “a higher risk of violence or discrimination” than faced by “other people in Afghanistan with a similar ethnic and religious profile”. 

9. Clearly, the first DFAT report identifies the risk faced by those associated with support for the government or the international community as the yardstick by which to measure the risk faced by a returnee from a western country.  The comparison was seemingly appropriate because in the first report DFAT identified that a returnee would be perceived as having links to the west.  That is irrespective of whether the returnee was a failed asylum seeker.

10. The delegate specifically recognised that when the delegate said:

    DFAT assessed that returnees from western countries are not specifically targeted on the basis of being failed asylum seekers but face a similar level of risk to others who are associated with support for the government or international community.

11. Earlier, at page 11 of the delegate’s reasons, the delegate identified the quality of the risk faced by those associated with the government or international community:

    Country information before the Department indicates that people with particular profiles are at a significantly higher risk of being targeted. DFAT assesses that individuals working for, supporting or associated with the government and/or the international community are at high risk of violence perpetrated by anti-government elements. While ethnicity and religion are unlikely to be primary motivations for attacks on government workers, in some cases these issues may be contributing factors.³⁸

12. To support that conclusion, the delegate drew on the first DFAT report at paragraph 3.38 which was in the same terms as the delegate’s reasons.

13. The applicant argues that the second respondent did not understand that to be exposed to the same level of risk as that faced by a person associated with the Afghanistan government or the international community the applicant did not, in fact, have to be associated with the government or the international community or be identified as a failed asylum seeker.  He argues that the second respondent did not appreciate that it was enough that he was a returnee from a western country.  On the material before both the delegate and the second respondent, his exposure was to a “high risk of violence perpetrated by anti-government elements” and that should have been, but was not considered by the second respondent.

14. The first respondent submits that the second respondent’s findings were open to it and that it applied the correct legal principles and gave consideration to the applicant’s claims.   The first respondent submits that the second respondent took into consideration the delegate’s decision and appropriately “reviewed” the decision.  The submissions for the first respondent take me to what is submitted to be express references within the second respondent’s decision to the delegate’s decision in paragraphs 8, paragraph 14, and 36.

15. There can be no doubt that the second respondent was aware of and made reference to the delegate’s decision.  So too, the material which formed the basis of the review including the DFAT reports I have referred to above.  But it must appear that the second respondent has reviewed the decision, or carried out its statutory task in the way described in BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169.

16. In my opinion, the second respondent has not done that.  The difficulty with the second respondent’s decision here is that:

    a)the second respondent did not deal with a claim that was raised squarely on the material before it – namely that the applicant was exposed to a high risk of violence perpetrated by anti-government elements because as a returnee from a western country he faced the same risk of harm as someone within Afghanistan who was associated with support for the government or the international community; and

    b)the second respondent only dealt with the applicant’s articulated claim that he was at risk of harm upon return to Afghanistan because he was a failed asylum seeker.

17. As the first respondent points out, the second respondent expressly outlines the applicant’s claim to fear harm on account of being an asylum seeker and having spent some time outside of the country in the west at [13] of the second respondent’s decision:

    He also fears he will be targeted or persecuted in Afghanistan on account of being an asylum seeker, and having spent some time outside of the country in the west. He also raised concerns about his ability to find work in a compromised economy, or survive and stay in Daikundi, and his inability to continue his education because of the Taliban’s presence throughout the country. He fears he will be harmed and discriminated against, as a Hazara Shia and as a student. He also fears other insurgent groups who target Hazara Shias, including Islamic State.

    (my emphasis)

18. The second respondent rejected the applicant’s claims based upon his status as a failed asylum seeker.  However, nowhere does the second respondent deal with the applicant’s claim identified in the above passage that he will be targeted or persecuted in Afghanistan on account only of having spent some time outside of the country in the west.  It might be concluded that inferentially the second respondent has considered but discarded that claim.  In that respect, the applicant draws my attention to Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 where the Court said at [47]:

    47 The inference that the second respondent has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the second respondent’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

19. But here, whilst the second respondent’s reasons are otherwise comprehensive and the issue has at least been identified in [13] of the second respondent’s reasons, given that if the issue was resolved in favour of the applicant it would be dispositive of the review of the delegate’s decision it was necessary to make a finding on that matter.  The second respondent made no finding on that matter.  The second respondent’s finding that the applicant did not have a “profile” sufficient to place him at a greater risk of harm than the general population does not answer the point because the risk identified in the material was extant simply because the applicant was a returnee from the west.   Nor was a finding on that matter subsumed in findings of greater generality that were made by the second respondent (save for the ultimate finding of the second respondent).  Further, a finding by the second respondent on this issue did not depend upon a factual premise which has been rejected.  The only factual premise required – namely that the applicant had been out of Afghanistan and in a western country was uncontroversial.

20. The applicant argues that the second respondent failed to lawfully conduct the review required of it by s.473CC of the Migration Act. He further submits that the second respondent acted in breach of s.473DB by failing to consider the evidence cited in the delegate’s decision, sourced to the DFAT report of 18 September, 2015. The applicant submits that had such consideration been given, it may have found that the applicant faced a real chance of persecution or serious harm so as to come within s.36(2)(a) or s.36(2)(aa) of the Migration Act. However, I do accept those submissions. The second respondent has carried out the review required of it, but on doing has not taken account, or considered, a claim that was raised squarely on the material before it. What the second respondent has not done in the course of the review is to understand the qualitative nature of the risk faced by the applicant as explained in the DFAT country report to which the delegate and the second respondent had regard.

21. I cannot accept the first respondent’s submission that there was no failure by the second respondent to consider a claim or integer of a claim made by the applicant, or which arose upon the material before the second respondent.

Conclusion

1. Notwithstanding that the second respondent had regard to the DFAT reports in relation to the return of failed asylum seekers to Afghanistan, it failed to appreciate that returnees from the west, whether they be failed asylum seekers or not, face a similar risk to other people who are associated with support of the government or the international community.  That risk was described as “a high risk of violence perpetrated by anti-government elements”.  The second respondent gave no consideration to that claim which plainly arose on the material before it.

2. The applicant should have the relief that he claims and his costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  31 January 2018