Dax18 v Minister for Home Affairs - [2018] FCCA 3230

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAX18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3230

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s findings of reasonableness of relocation where legally unreasonable – whether the Authority failed to consider the practicability of the applicant’s relocation – whether the Authority failed to consider integers of the applicant’s claims – whether it was legally unreasonable for the Authority not to exercise its powers under s 473DC of the Act – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 476

Applicant:

DAX18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1631 of 2018

Judgment of:

Judge Street

Hearing date:

8 November 2018

Date of Last Submission:

8 November 2018

Delivered at:

Sydney

Delivered on:

8 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr I Chatterjee

Solicitors for the Applicant:

D'Ambra Murphy Lawyers

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Grant leave to the applicant to rely upon the amended application dated 8 November 2018 initialled and dated by the Court and the Court dispenses with the filing of an electronic copy of the same.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 8 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1631 of 2018

DAX18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 11 May 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 6 December 2012. The applicant was found to be a Shia Hazara from the Jaghori district in the province of Ghazni. The applicant claimed to fear harm arising from the murder of one of his brothers, and fears that the families of those arrested for the murder will take revenge on him. The applicant also claimed to fear harm as a Shia Hazara, both generally and at the hands of the Taliban. The applicant fears harm as a returned asylum seeker who spent time in the West and who has sought education; who is going to be targeted by criminals for ransom and from generalised violence.
On 17 November 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
On 23 November 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to provide new information and submissions.
The applicant did provide new information and submissions dated 12 December 2017, which were referred to in the Authority's reasons. Those submissions expressly addressed relocation first to Kabul, and then relocation in respect of Mazar-e-Sharif and Herat. The submissions extended to dealing with the applicant's personal circumstances; asserting that the applicant had no family or connections in either Mazar-e-Sharif or Herat, and also asserting that the applicant would not be able to find employment, and would be exposed to cruel and degrading treatment.
The submission addressed country information in relation to Mazar-e-Sharif, asserting that the place is not safe and asserting that the applicant would not be able to safely and lawfully access Mazar-e-Sharif, and putting submissions in relation to relocation and referring to country information in respect of shelter, essential services, livelihood opportunities, and availability of support mechanisms. The submission asserted that the applicant's ability to obtain shelter, employment and essential services, including in Herat and Mazar-e-Sharif, is dire. The submissions addressed problems with employment and housing admissions both in Herat and Mazar-e-Sharif. A request was made in the submissions for the Authority to exercise any power under s 473DC of the Act.
The Authority, in its reasons, identified the background to the visa application and had regard to the information provided by the Secretary under s 473CB of the Act. The Authority referred to the submissions and referred to the delegate considering relocation in relation to Kabul, and noted that the submission refers to and makes argument in relation to relocation generally, as well as reasonableness in relation to relocation to Kabul, Mazar-e-Sharif, and Herat. The Authority noted the submission refers to country information. The Authority noted the submission also refers to the applicant's personal circumstances, and the Authority had regard to the same in relation to relocation and reasonableness.
The Authority identified the applicant's claims to fear harm. The Authority referred to the fact that the applicant was born and raised in Jaghori, and found that the applicant's parents and remaining siblings have relocated to Kabul. It was in that context that the Authority acknowledged that he has extended family in Jaghori but that his immediate family is no longer there. The Authority found the applicant has not claimed that he would have to, or want to, return to Jaghori if he returns to Afghanistan.
A statutory declaration by the applicant referred to the fact that if he were to relocate to Kabul he would still have to travel back to “see my family in Jaghori.” It is apparent that the applicant's family was now in Kabul. The Authority's reasons do not reflect the misunderstanding of the applicant's claims and evidence, nor did the Authority's reasons in relation to paragraph 19 reflect any failure, apparent or real, to have an active and intellectual engagement with the applicant's claims and evidence. I do not accept that there is an error, as asserted by Mr Chatterjee of counsel for the applicant, in relation to the Authority's reasons in relation to not having claimed, “I will have to go back to Jaghori” if he returns to Afghanistan. On a fair reading that was a reference to Jaghori itself rather than to return to see his family. I do not accept that there is any error as contended by the applicant. Further, I find that any error as alleged in that regard is immaterial.
The Authority was satisfied that the applicant faces a real chance of persecution on the basis of being a Shia and a Hazara if he returns to Kabul. The Authority noted that s 5J(1)(c) of the Act requires the real chance of persecution relates to all areas of a receiving country. The Authority was not satisfied the applicant faced a real chance of serious harm in the city of Mazar-e-Sharif as a Shia, a Harara, and/or because of generalised violence, or in accessing the city.
The Authority referred to Mazar-e-Sharif being the capital of the province of Balkh, which is in the north of Afghanistan. The Authority referred to country information describing Mazar-e-Sharif as one of the safest cities in Afghanistan. The Authority referred to having considered the country information in relation to individual incidents, also in terms of the context of the overall and developing situation. The Authority did not accept that Mazar-e-Sharif has seen any deterioration in the situation faced by Shias and Hazaras. The Authority found the information indicates previous attacks were sporadic. The Authority found the country information indicates that there have not been incidents, including criminal incidents, targeted at any particular ethnic or religious group.
The Authority accepted the situation in Afghanistan was fluid, and referred to having considered that the majority of incidents occurred in and around Kabul, and did not lead the Authority to conclude there is a real chance the security situation in Mazar-e-Sharif will deteriorate in the foreseeable future either generally or for Hazaras or Hazara Shias in particular. The Authority expressly referred to taking into account the applicant's submissions at interview that he continued to practice his religion. Having regard to all the information and evidence, the Authority was satisfied the applicant will not face a real chance of harm arising from his religion or ethnicity in Mazar-e-Sharif.
The Authority referred to having considered whether the applicant may face a real chance of suffering harm because of generalised violence in Mazar-e-Sharif. The Authority was satisfied that the chance of civilians, including Hazaras and Shias, who have no profiles or association with the government or the military, such as the applicant, in being caught up in generalised violence is objectively remote and therefore not a real chance.
The Authority turned to the issue of the applicant being able to access Mazar-e-Sharif and took into account country information and was satisfied that the amount of time that the applicant would have to spend in Kabul transiting would be brief and restricted to the Kabul Airport, and would only be for a period of time to arrange transit to Mazar-e-Sharif. The Authority also noted that there is country information that indicated Mazar-e-Sharif is accessible by air from Kabul Airport, with two domestic flights per day, and that the road from Mazar-e-Sharif airport to the city is patrolled regularly and is assessed to be generally safe.
The Authority referred to the applicant's evidence about his father's income and his father now working in Kabul and maintaining the family farm with the assistance of a relative. The applicant indicated that he had been working as a bricklayer in Australia. There is no suggestion the applicant would be unable to pay the air ticket. The Authority was satisfied the applicant has access to finances and would be able to finance an air ticket from Kabul to Mazar-e-Sharif. The Authority was satisfied the applicant would not face a real chance of harm accessing Mazar-e-Sharif.
The Authority referred to the applicant's claim to fear harm as a person who is seeking education. This is, clearly, an expressed reference to the applicant's statutory declaration that refers to the applicant seeking education in paragraph 33. The Authority referred to the applicant fearing similar harm to his brothers as a student, and referred to country information. The access to education is reported to be better in Balkh than in other provinces and Mazar-e-Sharif, together with Kabul, having the highest percentage of households sending children to school, although that is not reflected in households outside Mazar-e-Sharif city. The Authority found the information does not indicate that there have been any attacks on schools or students in Mazar-e-Sharif, and the Authority took into account that the applicant will not have to travel through Taliban controlled areas if he is attending university or similar courses in Mazar-e-Sharif. Accordingly, the Authority was satisfied the applicant does not face a real chance of harm as a person seeking education in Mazar-e-Sharif.
The Authority referred to the applicant claiming to fear harm as a returned asylum seeker who has spent time in the West. The Authority referred to country information. The Authority noted that the applicant has not claimed that he has any physical characteristics, speech mannerism, carriage or dress style which would identify him as a returned asylum seeker or someone who has spent time in the West. The Authority accepted that the applicant was identifiable as a Hazara, but found there is nothing in the material to indicate that he is otherwise identifiable as a returned asylum seeker who has spent time in the West. The Authority considered a particular incident involving the applicant being struck for having long hair to be a one-off incident. The Authority did not consider this incident indicates that the applicant has any particular profile that increases a risk of harm if he returned to Afghanistan. The Authority was satisfied the applicant will not be identified as a returnee from the West, or a returned asylum seeker who spent time in the West. The Authority was satisfied the applicant does not face a real chance of harm for this reason.
The Authority referred to the applicant's claim to fear harm because he could be abducted and because he could be targeted by criminals for ransom. The Authority referred to the applicant's family owning some land. The Authority noted that the applicant has not claimed that any person or group has approached him or a member of his family, or shown any adverse interest in them for this reason, either while they were living on the property in Jaghori or since they moved to Kabul. The Authority noted the applicant has not claimed that the abductions and deaths of his brothers were linked in any way to the family's perceived wealth. The Authority noted that the applicant has not claimed that the applicant's uncle, who currently looks after the property in Jaghori, or any other relations have been targeted or suffered harm, or adverse interest because of any perception of wealth. The Authority found this claim to be speculative.
The Authority referred to the applicant being able to safely access Mazar-e-Sharif by air and will not travel on the roads between Kabul and Mazar-e-Sharif. The Authority referred to country information in relation to abductions. The Authority noted that those occurred on persons travelling on other roads. The Authority noted the reports do not refer to similar incidents in Mazar-e-Sharif which, from the information recorded, has not suffered recent abductions of either Shia Hazaras or returnees from the West for any reason, including ransom. The Authority was satisfied the applicant would be able to access Mazar-e-Sharif without passing through Taliban controlled areas, or areas with a high risk of activity of kidnapping generally. The Authority found the applicant's fear of abduction and/or kidnapping was not well-founded.
The Authority found the applicant does not face a real chance of persecution in Mazar-e-Sharif for any reason, including on a cumulative assessment of his claims. The Authority found the applicant does not meet the requirements of a refugee in s 5H(1) of the Act and does not meet the criteria under s 36(2)(a) of the Act.
In those circumstances, the Authority turned to consider whether the applicant met the requirements of complementary protection. The Authority referred to its finding that the applicant does not face a real chance of harm in Mazar-e-Sharif because of his ethnicity or religion, as a person seeking education, from general violence, for any reason arising from the death of S, from abduction or kidnapping for ransom, or for being a returned asylum seeker who has spent time in the West. The Authority also noted that it found the applicant does not face a real chance of harm accessing Mazar-e-Sharif.
The Authority referred to country information, including a 2016 report by the United Nations High Commissioner for Refugees, in relation to relocation and the considerations that should be taken into account. The Authority also referred to DFAT country information and other country information in relation to Mazar-e-Sharif.
The Authority noted casual labourers are reported to be finding less work and receiving stagnant or lower wages, and also reported to be at a disadvantage relative to those who are known in the community and can make use of family social networks to find work. The Authority also noted that about only 15 percent of inhabitants in Mazar-e-Sharif live above the poverty line, and that the city has the largest proportion of income earners who earn only an irregular income. The Authority came to the conclusion food availability is not a problem.
The Authority referred to other country information in relation to returnees to Afghanistan. The Authority noted the applicant did not make any submission to the delegate in relation to his specific personal circumstances and relocation. I do not regard the statutory declaration and the paragraphs under the heading ‘Why I think relocation to another area in my country would still befall me to the same harm’ as inconsistent with what the Authority has said. Paragraphs 40 to 43 of the applicant’s statutory declaration is as follows:
40. Even if I were to relocate to Kabul I would still have to travel back to see my family in Babah Jaghori. We can't sell the land. I am required to attend to my own village for example for funerals.
41. Targeting killings of Hazaras through terrorist attacks in Kabul are increasing. The Taliban would target me in particular as a Hazara person who is seeking an education. It would be unsafe for me to travel anywhere in Afghanistan due to the risk of being targeted as a Hazara, or as a person who could be kidnapped for ransom.
42. If I obtain a placement for training in medicine I will have to travel for my training and work and it will be even more dangerous as an easily identifiable Hazara person.
43. It is not safe for me to live anywhere in Afghanistan.
In the applicant’s statutory declaration under a heading ‘Psychological Impacts’, it refers to the applicant having received support from counsellors in relation to the trauma his family has suffered. That was not a reference in relation to a fear of harm in relation to relocation. The Authority referred to the submission made to the Authority in relation to general country information in respect of relocation, including accessing shelter, essential services and livelihood opportunities, as well as traditional support. The Authority noted that the submission refers to groups needing to be assessed to be willing and able to provide support, and the Authority noted that it identified some exceptions to that last requirement.
The Authority found the applicant does not have any immediate family, tribal network or existing community support networks in Mazar-e-Sharif. The Authority however found there is a sizeable Hazara Shia population, and took into account that the applicant speaks Hazaragi and was brought up in a Hazara family until he left in 2012. The Authority was satisfied the applicant speaks the language and knows the local and general customs, including those observed among Shia Hazaras. Having regard to those factors, the Authority was satisfied that while there will be difficulties for the applicant, the information and his circumstances do not indicate that he will unable to enter the Hazara community in Mazar-e-Sharif.
The Authority referred the applicant being of a young age, and being a single, able-bodied male of working age speaking Hazaragi and having been educated to year 9 and having completed up to year 12 in Australia, and the Authority referred to the applicant having worked in Afghanistan on the family farm and in Australia as a bricklayer. The Authority found the applicant had demonstrated resilience in travelling to Australia, completing his education and obtaining work here. The Authority considered that the applicant's education and work experiences will assist him to find employment or to access further education in Mazar-e-Sharif.
The Authority was satisfied that in Mazar-e-Sharif, the applicant, as a single male, would normally be able to earn a livelihood and have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. The Authority took into account country information that indicates underemployment is common. The Authority also took into account that the applicant's father has stable employment, as well as an income from farming and has previously supported two other sons while they were studying. The Authority noted that the applicant has not claimed he has not been able to rely upon his father for some assistance if necessary.

The Authority referred to the public university as well as technical training centres, and took into account the applicant's level of education achieved in Afghanistan and Australia, as well as the financial circumstances of his family noted by the Authority, and was satisfied the applicant would be able to access or complete higher education in Mazar-e-Sharif should he wish to do so.
The Authority acknowledged the applicant would be separated from his family if he relocates to Mazar-e-Sharif. The Authority also took into account the applicant has been separated from his family since 2012. The Authority took into account information that it is relatively safe to fly between Mazar-e-Sharif and Kabul. The Authority found that there is nothing in the material, including the applicant's submissions to the Authority, that indicates that the applicant or his family would not be able to visit if he was to relocate to another part of Afghanistan. In those circumstances the Authority was not satisfied that any further separation from family is unreasonable.
The Authority was satisfied that Mazar-e-Sharif is under the effective control of the Afghan government, and that there is nothing in the information to lead the Authority to conclude that the situation in Mazar-e-Sharif will deteriorate in the reasonably foreseeable future. The Authority was satisfied the applicant does not face a risk of significant harm in Mazar-e-Sharif, taking into account the overall circumstances in the foreseeable livelihood and security situation in Mazar-e-Sharif more broadly, including the overall situation of generalised violence in Mazar-e-Sharif and security situation in Afghanistan in nearby bordering provinces.
The Authority was satisfied that relocation to Mazar-e-Sharif is reasonable in the applicant's circumstances and that, as such, under s 36(2B)(a) of the Act, is taken not to be a real risk that the applicant will suffer significant harm in Afghanistan.
The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Afghanistan from Australia, there is a real risk that the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

The grounds in the amended application are as follows:
1. The Immigration Assessment Authority's (Authority) finding that relocation to Mazar-e-Sharif is reasonable in the applicant's circumstances was legally unreasonable.
Particulars
a. The Authority found that:
i. the applicant was a single able-bodied male of working age (at 60); and
ii. [i]n Mazar-e-Sharif a single man would normally be able to earn a livelihood and have access to the necessary infrastructure and essential services to sustain himself and meet the basis necessities of life (at 61).
b. However the only evidence before the Authority as to the availability of employment in Mazar-e-Sharif (which the Authority appeared to accept) was to the effect that:
i. Only about 15% of inhabitants of Mazar-e-Sharif live above the poverty line and the city has the largest proportion of income earners who earn only an irregular income (at 56);
ii. [Since the second half of 2015] In Mazar-e-Sharif, casual labourers are reported to be finding less work and receiving stagnant or lower wages, and are also reported to be at a disadvantage relative to those who are known in the community and can make use of family/ social networks to find work (at 54);
iii. Reporting suggests those who have no strong or solid connections cannot find work. […] If nobody suggests a person to a possible employer, that person will end up in the ever-shrinking casual day-labour market, even if they hold a diploma (at 55); and
iv. In general, ethnicity alone is not enough of a solid network to find a job (at 55).
c. Further the evidence before the Authority was that the applicant was receiving treatment for trauma as the result of the deaths of his two brothers in Afghanistan, and two friends on his journey to Australia.
d. The Authority's findings a. i and/ or a. ii above were therefore not available on the evidence and/ or legally unreasonable.
2. The IAA committed jurisdictional error in its determination of the reasonableness and practicability of the applicant's relocating to Mazar-e-Sharif, by failing to consider each integer of the Applicant's objections to relocation:
a. The applicant, if accepted for a placement in medicine, would be required to travel for work and training and would be subject to a risk of violence or harm as a consequence
b. The applicant was receiving treatment for trauma as the result of the deaths of his two brothers in Afghanistan, and two friends on his journey to Australia, and was therefore not an "able-bodied" single man
c. The applicant would have to travel back to his home area of Jaghori as his family had land there, and in addition would be required to attend for family purposes such as funerals
3. The Authority unreasonably failed to exercise or consider the exercise of its powers under section 473DC(3), Migration Act (Cth) 1958 ("the Act") to inform the applicant of issues it considered dispositive of the proceedings.
a. The delegate of the first respondent (“the delegate”) had considered that:
i. the applicant's claims did not give rise to a risk of persecution in Kabul; and
ii. the applicant could relocate to Kabul but had not considered either of these matters in the context of Mazar-e-Sharif;
b. The Authority considered that:
i. the applicant's claims did not give rise to a risk of persecution in Mazar-eSharif; and
ii. the applicant could relocate to Mazar-e-Sharif
c. Such consideration was dispositive of the applicant's claims under, respectively, section 36(2)(a) and 36(2)(b) of the Act;
d. The applicant was not provided with any notice, or an opportunity to comment on these issues;
e. Absent the exercise of the Authority's discretion under section 473DC(3), Migration Act (Cth) 1958, the applicant was statutorily barred from providing the Authority with "new information" in respect of these issues.

Ground 1

In relation to ground 1, Mr Chatterjee of counsel submitted that the Authority's finding that it was reasonable for the applicant to relocate to Mazar-e-Sharif was legally unreasonable and/or was not supported by evidence. The Authority's reasons, as summarised above, addressed in detail the applicant's ability to access Mazar-e-Sharif, and the applicant being able to link into the Hazari community in Mazar-e-Sharif, the applicant's ability to obtain some assistance if necessary from his father in Kabul, the applicant’s ability to obtain further education in Mazar-e-Sharif and the ability of the applicant and his family to fly between Mazar-e-Sharif and Kabul.
Mr Chatterjee focussed on the limited percentage of persons above the poverty line identified in the Authority’s reasons, as well as the absence of the applicant’s family in Mazar-e-Sharif. Mr Chatterjee took issue with the Authority’s finding that the applicant was an able-bodied male. The Authority’s reasons refer to the applicant having worked on a farm and having worked as a bricklayer. The finding made by the Authority that the applicant was able-bodied and of working age was a reasonable inference that was open to the Authority on the material before the Authority. The finding that the applicant would be able to earn a livelihood was one which the Authority took into account the applicant’s ability to link into the Hazara community in Mazar-e-Sharif as well as the applicant’s past experience and speaking Hazaragi and being familiar with the customs of a Hazara Shia.
Mr Chatterjee submitted that it was impossible to reconcile the finding that only 15 percent of people earn above the poverty line with a proposition that the applicant would be able to support himself. The Authority’s reasons took into account the country information in relation to the living of a small percentage above the poverty line and the earning of irregular income. The Authority’s reasons, as summarised above, took those matters into account and it was not illogical or irrational for the Authority, taking into account the applicant’s personal circumstances and the country information referred to, to find that it was reasonable for the applicant to relocate to Mazar-e-Sharif. The submissions to the contrary is in substance inviting the Court to engage in merits review.
I reject the proposition that there was no evidence to support the adverse finding by the Authority. The finding was open on the material before the Authority as referred to above. The adverse finding cannot be said to lack an evident and intelligible justification. The Authority gave rational and logical reasons for its adverse finding in relation to the reasonableness of relocation in Kabul as summarised above. Accordingly, no jurisdictional error alleged in ground 1 is made out.

Ground 2

In relation to ground 2, Mr Chatterjee submitted that the Authority had failed to take into account integers of the applicant’s claim in considering whether it was reasonable and practical for the applicant to relocate. In that regard, Mr Chatterjee identified what was said to be three specific impediments to relocation that it was contended had not been addressed. The first was in relation to the applicant’s pursuit of further education. That was a topic expressly addressed in the Authority’s reasons as referred to above and both in relation to the Refugee Convention and in relation to complimentary protection. The Authority found the applicant could pursue educational opportunities in Mazar-e-Sharif. Accordingly, there was no failure by the Authority to consider this integer.
The second alleged impediment was the travelling to see the applicant’s family in Jaghori. This was in part supported by the paragraph in the statutory declaration that has been referred to above. It was suggested that the Authority had misunderstood the applicant’s evidence or had failed to have a real and genuine engagement with the applicant’s claims and evidence in that regard. It is apparent from the Authority’s reasons, as referred to above, that the Authority twice referred to the fact that the applicant’s family had moved from Jaghori to Kabul. The applicant’s reference to travelling to Jaghori was in the context of seeing his family. In those circumstances, as referred to above, there was no misunderstanding by the Authority of the applicant’s claims and evidence. Further, it is apparent that the Authority considered the issue of the applicant visiting his family, who are now in Kabul, in its reasons as referred to above. There was no failure to take into account the applicant’s claims and evidence in that regard in considering reasonable relocation. Further, there was no failure by the Authority to have a real and meaningful engagement with the applicant’s submissions in this regard. Further, there was no failure to consider this integer.
The third contended specific impediment to relocation was the applicant receiving counselling for trauma. No such claim was advanced as an impediment to relocation in the applicant’s statutory declaration. There was merely a reference to the fact that the applicant had been receiving counselling. I do not regard the reference to counselling as a material matter to which the Authority had to expressly refer in the context of considering relocation or the reasonableness of relocation. Further it is apparent, on the face of the material before the Court, that the Authority considered the applicant’s personal circumstances and made a finding that the applicant was an able-bodied male.
I do not accept that there was any failure by the Authority to have a real and genuine engagement with the applicant’s claims and evidence and/or the applicant’s personal circumstances in relation to the determination of the reasonableness and practicality of relocation. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

In relation to ground 3, Mr Chatterjee submitted that the Authority had engaged in jurisdictional error by failing to consider, under s 473DC of the Act, whether to invite the applicant to put on new information or submissions in circumstances where the delegate had found that the applicant could reasonably relocate to Kabul and where the Authority ultimately made a different finding that the applicant could reasonably relocate to Mazar-e-Sharif. Mr Chatterjee submitted that the applicant had not had an opportunity to put on new information in relation to relocation to Mazar-e-Sharif and that in the circumstances it was legally unreasonable for the Authority to fail to expressly consider whether the applicant should be invited to give new information or to attend an interview in relation to relocation to Mazar-e-Sharif.
The difficulty faced by Mr Chatterjee’s submission in this regard is that the submissions advanced on behalf of the applicant in response to the invitation letter by the Authority expressly addressed the reasonableness of relocation to Mazar-e-Sharif and directly address the applicant’s personal circumstances in relation to relocation to Mazar-e-Sharif. There was no request in the submission for the Authority to consider exercise of its powers under s 473DC of the Act in that regard.
Whilst it may have been preferable for the Authority to expressly explain why the Authority was not exercising the power under s 473DC of the Act in the circumstance of the present case, the Authority’s reasons establish that the Authority took into account that the submission addressed relocation as well as reasonableness and that the submission also addressed the applicant’s personal circumstances and it is apparent that the Authority took the same into account. In those circumstances, the absence of express consideration by the Authority of exercising a power of s 473DC of the Act cannot be said to lack an evident and intelligible justification.
That evident and intelligible justification is that the submissions have already addressed that issue. In those circumstances, it cannot be said that it was legally unreasonable for the Authority to fail to expressly consider in its reasons the exercise of the power s 473DC of the Act. Further, it cannot be said that it was legally unreasonable for the Authority to fail to exercise the power under s 473DC of the Act in circumstances where the applicant’s submissions had addressed the issue of reasonableness of relocation and the applicant’s personal circumstances in relation to relocation to Mazar-e-Sharif. No jurisdictional error as alleged in ground 3 is made out.

Conclusion

Accordingly, the amended application is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 13 December 2018