DCD16 v Minister for Immigration

[2017] FCCA 1303

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCD16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1303

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a safe haven enterprise visa – applicants claiming a fear of harm in Afghanistan – whether decision of Authority was illogical, irrational and unreasonable – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2B), 46A(1), 5J(1)(c), 65, 195A(2), 473CA

Cases cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Sandhu & Anor v Minister for Immigration and Border Protection & Anor [2015] FCCA 711
SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404

Applicant: DCD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 974 of 2016

Judgment of: Judge Jarrett

Hearing date: 2 June 2017

Date of Last Submission: 2 June 2017

Delivered at: Brisbane

Delivered on: 20 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Jones

Solicitors for the Applicant: HopgoodGanim Lawyers

Counsel for the First Respondent: Mr McGlade

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 27 February, 2017 be dismissed; and

2. The applicant pay the first respondent’s costs of and incidental to the amended application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 974 of 2016

DCD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applies for judicial review of a decision of the Immigration Assessment Authority.  The applicant applied for a Safe Haven Enterprise (Subclass 790) visa.  That application was rejected by a delegate of the first respondent.  Whilst the Authority determined that the applicant faced a real chance of significant harm on a number of bases if he returned to the province of his birth in Afghanistan, the Authority was of the view that the applicant would not be exposed to such a risk of harm if he were to relocate to the town of Kabul in the western part of Afghanistan and that it was reasonable in the circumstances for the applicant to relocate there. On that basis, the Authority affirmed the delegate’s decision to refuse the visa.

2. In this application, the applicant challenges the Authority’s relocation finding, but only insofar as that finding related to the Authority’s conclusion that the applicant did not meet the complementary protection criteria.

3. The applicant’s primary argument is that the Authority’s decision was illogical, irrational and unreasonable because there was certain evidence before the Authority which supported the applicant’s position that:

   a)he faced a real chance of harm if he were to go to Kabul; and

   b)it would be unreasonable for him to relocate to Kabul having regard to his personal circumstances and the economic climate in Kabul.

4. The first respondent, however, argues that:

   a)unreasonableness has no application here because the Authority’s decision did not involve the exercise of a discretion; and

   b)in relation to the applicant’s illogicality and irrationality contention:

   i)the applicant largely provides no explanation as to why such findings were illogically or irrationally reached. All the applicant does is point to evidence which he says supported the Authority reaching a contrary finding in respect of the issue of relocation. The applicant’s complaint truly is one about the merits of the Authority’s decision and is impermissible; and

   ii)in any event the Authority considered the evidence before it but formed the view (having regard to other evidence) that the applicant was not at real risk of harm if he were to relocate to Kabul and it was reasonable for him to do so – a finding clearly open that was neither illogical or irrational.

Background

1. The applicant is a national of Afghanistan.  He arrived as an unauthorised maritime arrival on 23 September, 2012.  He was placed into immigration detention.

2. On 16 January, 2013 the Minister personally exercised his powers under s.195A(2) of the Migration Act 1958 (Cth) and granted a temporary visa to the applicant. Consequently the applicant was released from immigration detention.

3. On 2 September, 2015 the Minister exercised his power to lift the s.46A(1) bar to permit the applicant to apply for either a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa.

4. On 27 April, 2016 the applicant applied for a Safe Haven Enterprise (Subclass 790) visa. A Safe Haven Enterprise visa is a temporary protection visa that is valid for five years. To obtain that visa, the applicant needed to establish (among other things) that at the time of the decision he met the refugee or complementary protection criteria in ss.36(2)(a) or 36(2)(aa) of the Act.

5. On 15 July, 2016 a delegate of the first respondent refused the visa. Because the delegate’s decision was a “fast track decision” it had to be referred to the Authority for review. On 18 July, 2016 the Minister referred the delegate’s decision to the Authority in accordance with s.473CA of the Act.

6. On 16 September, 2016 the Authority affirmed the delegate’s decision.

7. On 14 October, 2016 the applicant applied to this Court for orders quashing the Authority’s decision and for the issue of a writ of mandamus, directed to the Authority, requiring it to re-make its decision according to law.

The Authority’s Decision

1. To satisfy the relevant visa criteria, the applicant needed to establish that he was within either the “refugee” criteria in s.36(2)(a) of the Act or the “complementary protection” criteria in s.36(2)(aa) of the Act.

2. To meet the “refugee” criteria in s.36(2)(a) of the Act the applicant must have a “well-founded fear of persecution”. However, by virtue of s.5J(1)(c) of the Act, a person is only taken to have a “well-founded fear of persecution” if “the real chance of persecution relates to all areas of a receiving country”. That is to say, if there is an area in the receiving country where the applicant could live and there was no real chance of persecution in the sense used in the Migration Act, the person will not satisfy s.36(2)(a) of the Act.

3. To meet the complementary protection criteria in s.36(2)(aa) of the Act, s.36(2B)(a) of the Act provides:

   (2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm…

4. It will be observed that for s.36(2B)(a) of the Act to be engaged it is necessary that the decision maker make relevant findings of fact including that it was reasonable for the non-citizen to relocate. That involves matters of assessment and judgment for the decision-maker.

The applicant’s claims and the Authority’s decision

1. The applicant made a number of claims before the Authority which, in part, the Authority accepted.  For instance, the Authority accepted that if the applicant returned to his town of origin he would be exposed to a real risk of significant harm at the hands of:

   a)a local commander or his affiliates in connection with a historical land dispute between his father and the local commander;

   b)anti-government elements who would likely perceive him as a failed asylum seeker/returnee from the west and consequently harm him; and

   c)the Taliban, Daesh and other Sunni extremists who, due to his Hazara ethnicity and Shia religion, would likely harm him.

2. However, the Authority was of the view that if the applicant relocated to Kabul there was no real chance of being harmed by those people or agents. 

3. The Authority reached that view for two reasons.  First, the applicant had resided in Kabul for approximately two years without coming to the notice of the local commander or his associates.  Second, the country information indicated that the situation in Kabul for Shia Harazas, as well as failed asylum seekers from western countries was considerably different to the situation in the applicant’s town of origin.   The Authority concluded that the applicant faced no real risk of being harmed on any basis if he were to return to Kabul.

4. The Authority considered the reasonableness of the applicant relocating to Kabul and said (footnotes omitted):

   59. UNCHR 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 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. The financial situation of Kabul residents and their employment opportunities are also reportedly worsening.

   60. The applicant is a young able bodied male of working age who has experience working as a tiler and labourer in the construction industry. He is unmarried and has no children. He resided in Kabul for approximately two years prior to his arrival in Australia and established networks there although he had spent over 10 years of his life outside of Afghanistan. Although he does not have formal education he has gained some proficiency in English. The applicant has demonstrated resilience in travelling and living in Iran, Pakistan and now Australia and does not present with any health problems or other specified vulnerabilities identified by UNHCR requiring durable support. Whilst I accept that living conditions in Kabul would not be without difficulties, and he may face challenges in re-establishing himself, particularly as he has not lived in Kabul for over 4 years and no longer has no [sic] family links there, the applicant has other links in Kabul and a familiarity with the city which would assist in sourcing 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.  Taking into account the applicant’s personal circumstances I find it reasonable for the applicant to relocate to Kabul.

5. The Authority affirmed the delegate’s decision.

The amended application and the proposed ground of review

1. The applicant has filed an amended application in which the following ground is specified:

   1. The Second Respondent fell into jurisdictional error by making a decision that was manifestly ‘illogical, irrational or unreasonable’.

   Particulars

   a. The Applicant is a member of a particular social group identifiable as a young, unskilled, Hazara man who is Shia Musli[m], with imputed pro-western political options as a returnee.

   b. The Applicant is vulnerable because the Applicant would lack traditional extended family and/or tribal financial support, if the Applicant is to be internally relocated to live in Kabul, a place the Applicant lived for two years, for some four years ago.

   c. There is no evidence before the Second Respondent during the two year period that the Applicant lived in Kabul, that the Applicant was able to establish supportive networks or links.

   d. The Second Respondent had evidence before it that there is a significant displaced population already living in Kabul, resulting in:

   i. a lack of employment opportunities, which is worsening;

   ii. approximately 70% of the population live in informal settlements which are poorly located and underserved; and

   iii. there has been an increase of security incidents and people associated with the government or the international community are at a significantly higher risk of being targeted by insurgents.

   e. The Second Respondent’s decision that the Applicant could relocate to Kabul, per paragraphs 59 and 60 of the Second Respondent’s reason for decision, is unreasonable.

Illogicality, irrationality and unreasonableness

1. The applicant seeks to challenge certain factual findings made by the Authority on the basis of illogicality, irrationality and unreasonableness.  The first respondent argues that unreasonableness is not a ground of judicial review applicable in this case because legal unreasonableness is limited to discretionary decisions and the Authority’s decision did not involve the exercise of any discretion.

2. The first respondent’s argument is correct as far as it goes, but it does not, I think, come to grips with the real point of the applicant’s argument, namely that the Authority’s decision was unreasonable because it relied upon subsidiary findings of fact that were either not supported by any evidence or were not otherwise open to the Authority to make.  The illogicality or irrationality in the Authority’s subsidiary fact finding and reasoning meant that its conclusion on the relevant jurisdictional fact – its satisfaction that the applicant had a well-founded fear of persecution – was itself unreasonable.  The approach of the first respondent’s submissions does not, with respect, appreciate the particular way in which the applicant’s submissions seek to suggest that the Authority’s decision was unreasonable.  That is understandable because the applicant’s submissions are not articulated as clearly as they might be on this point.

3. Unreasonableness in the sense described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 has no part to play in decision making with respect to the grant of a visa under the Migration Act. That is so because, generally speaking, there is no discretion given to the Minister to grant or withhold the grant of a visa under the Act. Section 65 of the Act provided at the time of the Authority’s decision (and continues to provide):

   65  Decision to grant or refuse to grant visa

   (1)  Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

   (a)  if satisfied that:

   (i)  the health criteria for it (if any) have been satisfied; and

   (ii)  the other criteria for it prescribed by this Act or the regulations have been satisfied; and

   (iii)  the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

   (iv)  any amount of visa application charge payable in relation to the application has been paid;

   is to grant the visa; or

   (b)  if not so satisfied, is to refuse to grant the visa.

4. It is clear that upon the Minister (by his delegate usually) being satisfied of the matters prescribed in s.65(1)(a) of the Act, the visa must be granted. Whether a criterion prescribed by the Act or the Regulations for the grant of a particular visa has been satisfied is a question of fact for the relevant decision maker to determine. No occasion for the exercise of any discretion to grant the visa for which application has been made arises at any point of that process: SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [7].

5. However, as Minister for Immigration and Citizenship v Li [2013] HCA 18 demonstrates, in the administrative process of considering an application for a visa (and in that particular case on an application for review by a migration review tribunal) the decision maker may have certain discretionary powers that might be exercised for the purposes of the visa application. In Li the discretionary power in question was the power to adjourn the review to a later date to allow the applicant to furnish more information. The power to adjourn was clearly a discretionary power and it attracted the Wednesbury principles of unreasonableness.  As Judge Emmet pointed out in Sandhu & Anor v Minister for Immigration and Border Protection & Anor [2015] FCCA 711:

   44.    In Li, French CJ referred to FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 in support of the proposition that extended discretionary power is to be ascertained by reference to the scope and purpose of the statutory enactment. French CJ, in considering Associated Provincial Picture House Ltd v Wensbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 stated that reasonableness may be taken to encompass “unreasonableness from which an undisclosed underlying error may be inferred.” At [28], French CJ stated as follows:

   “28. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense…

   30. The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence… a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves.”

   (emphasis added)

But the terms “unreasonable” and “unreasonableness” are also used in a way unconnected with Wednesbury unreasonableness.  They can be used to describe a factual decision arrived at through reliance upon illogical or irrational fact finding in relation to subsidiary facts, or illogical or irrational reasoning.  The position is explained by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516:

49.    There may be circumstances where illogicality or irrationality in the decision making process may constitute or justify a finding of an underlying jurisdictional error. A Tribunal that employs irrational or illogical reasoning, or makes irrational findings of fact not based on probative material, is likely to be in breach of the implied requirement that it act reasonably in exercising its statutory review powers and jurisdiction.  A decision based on, or flowing from, irrational and illogical reasoning or factual findings is likely to be legally unreasonable and beyond power.

50.    As was made clear by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647–648 [130]–[132], however, not every lapse in logic in the decision-making process will result in jurisdictional error. If particular findings or reasoning on the way to the decision-maker’s ultimate conclusion and decision are challenged on the basis of illogicality or irrationality, jurisdictional error will not be made out unless it is shown that the findings could not have been made, or the reasoning could not have been employed, by a reasonable or rational decision-maker. At 648 [131] their Honours said:

“What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

51.    Crennan and Bell JJ found that the impugned finding or reasoning by the Tribunal was not illogical or irrational because on the probative evidence before the Tribunal a logical or rational decision-maker could have come to the same conclusion. Heydon J, who was the other member of the majority in SZMDS, also found that the Tribunal’s reasoning was not illogical because it was a matter about which reasonable minds might differ: the “difference was one of degree, impression and empirical judgment” (at 632 [78]). Gummow ACJ and Kiefel J dissented. They found that the Tribunal’s reasoning was illogical. Their Honours nevertheless emphasised that the “critical question” whether a determination of the Tribunal is irrational, illogical and not based on findings or inferences of facts supported by logical grounds “should not receive an affirmative answer that is lightly given” (at 625 [40]).

52.    As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22–23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

53.    The Minister submitted that a decision of the Tribunal can only be overturned on the basis of illogicality or irrationality if it is shown that the end result is one which no logical or rational decision-maker could arrive at. The submission appeared to be that, where a decision is challenged on the basis of illogicality or irrationality, the reviewing court should decide for itself whether the end result was irrational on the materials that were before the decision-maker, as opposed to whether the decision-maker’s reasoning was illogical or irrational. This was said to flow from the judgment of Crennan and Bell JJ in SZMDS.

54.    The Minister’s submission in that regard is rejected. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137–138 [151]–[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]–[62].

55.    Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137–138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598–599 [83]–[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]–[67].

56.    An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455–456 [14]–[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

1. The principles reflected in that passage were approved by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [60]).

2. It is in this sense that I think the applicant in this case advances his case of unreasonableness.  He seeks to challenge two aspects of the Authority’s decision, namely:

   a)the finding that it was reasonable for the applicant to relocate to Kabul; and

   b)the finding that there was not a real chance of the applicant facing harm if he were to relocate to Kabul.

3. As to the finding that it was reasonable for the applicant to relocate to Kabul, the applicant argues that it was illogical or irrational given that:

   a)there was no evidence before the Authority that, during the two year period that the applicant lived in Kabul, he was able to establish supportive networks or links;

   b)the applicant would lack “traditional extended family and/or tribal financial support” if he had to relocate to Kabul; and

   c)there was evidence before the Authority that:

   i)there was a lack of employment opportunities in Kabul (which was worsening); and

   ii)approximately 70% of the population lived in informal settlements which were poorly located and underserved.

4. Wrapped up in that contention is an assertion that the Authority found that:

   a)the applicant was able to establish supportive networks or links  during his time in Kabul and that finding was made without any evidence to support it; and

   b)the applicant would not lack “traditional extended family and/or tribal financial support” if he had to relocate to Kabul.

5. Neither of those assertions can be made out.  The Authority did not find that the applicant had been able to establish supportive networks or links during his time in Kabul.  The finding was that in the two-year period the applicant was in Kabul he had “established networks” there.  The Authority did not go so far as the applicant would suggest in his submissions that it had found that he had established “supportive networks or links”.  But, by definition almost, a network, in the context in which the Authority was considering the matter, could be assumed to be a supportive network.  Having regard to the Authority’s reasons at [60] the obvious networks it was referring to were those the applicant had acquired through work and securing accommodation in the two years he lived in Kabul.  The tribunal’s finding that the applicant had established networks was plainly open given the evidence before it that the applicant lived, studied and worked in Kabul for a two-year period.

6. I accept the first respondent’s submissions that it also seems apparent that the “networks” the Authority was referring to also encompassed those networks mentioned by the delegate – which included friends the applicant had made during his time living in Kabul.  That finding was supported by the evidence before the Authority.

7. As to the second assertion, the Authority’s reasoning in relation to relocation does not rely upon any finding that the applicant would receive any financial support from his family.  The applicant never raised the contention that relocation to Kabul was unreasonable because he would lack “traditional extended family and/or tribal financial support” there.  Accordingly, the Authority was under no obligation to consider that matter and it made no findings about it. 

8. The Authority determined that it was reasonable for the applicant to relocate to Kabul having regard to:

   a)the applicant being a young able bodied male of working age who had work experience as a tiler and labourer in the construction industry;

   b)the applicant having links in Kabul and a familiarity with the city;

   c)the applicant having previously been able to secure employment and accommodation in Kabul;

   d)the evidence that Kabul offered a greater range of employment opportunities in the sector the applicant had skills and experience in (construction); and

   e)the UNHCR guidelines which indicated that persons in a similar position to the applicant had better prospects of subsisting without external support.

9. The Authority took into account country information about the generally reduced employment opportunities in Kabul and that approximately 70% of the population lived in informal settlements which were poorly located and underserved.  The Authority’s reasons show that it was mindful of the fact that, in relocating, the applicant would face challenges in re-establishing himself and that the living conditions in Kabul “would not be without difficulties”.

10. The Authority concluded that while the applicant would no doubt face some difficulties in relocating to Kabul, in all the circumstances it was reasonable for him to do so.  It took into account, however, that the applicant was within a group or class of people, identified in the material from the UNHCR that was before the Authority, for whom life in Kabul was less likely to present significant difficulty as had been.  It said:

    60. ….whilst I accept that living conditions in Kabul would not be without difficulties, and he may face challenges in re-establishing himself, particularly as he has not lived in Kabul for over 4 years and no longer has no family links there, the applicant has other links in Kabul and a familiarity with the city which would assist in sourcing accommodation or employment.

11. The reasonableness of relocating is a question of fact for a decision-maker which, inherently, requires an evaluative determination involving assessment and judgment.  In this case, the Authority, after considering the material before it and the matters raised by the applicant (including his personal circumstances and the situation in Kabul), made such an evaluative judgment.  That conclusion to which the Authority came on the material before it and the findings that it made were open.  The Authority’s ultimate conclusion and the subsidiary facts found by it along the way to that conclusion were all open on the material before it.  The Authority’s reasons demonstrate no irrationality or illogicality, let alone irrationality or illogicality of such an extreme nature as to justify interference by this Court.

12. In his written submissions, the applicant argues that the Authority’s finding that there was not a real chance of him facing harm if he were to relocate to Kabul was illogical or irrational given that “there has been an increase of security incidents and people associated with the government or the international community are at a significantly higher risk of being targeted by insurgents”.

13. That argument appears to be a reference to the country information that the Authority referred to at [57] of its decision:

    [57]  … Country information indicates that there was a marked increased in security incidents in Kabul in 2015; however DFAT assesses that the primary targets are government institutions, political figures, the Afghan National Defence and Security forces (ANDSF), personnel associated with NATO’s Resolute Support Mission and other coalition forces, other security services, international organisations and diplomatic representatives of some countries…

14. I accept the first respondent’s submission that what is apparent from the authority’s reasons is that the Authority clearly considered that information, however it came to the view that it did not have the consequence of increasing the applicant’s risk should he return to Kabul.  It came to that view because it concluded that the applicant did not have in Kabul a profile to render him being one of the “primary targets” identified in that information.  I accept that finding was plainly open to the Authority.

15. Insofar as the applicant asserts that the Country Information suggested an increased risk for “people associated with the government or the international community”, it is worth noting that the country information clearly limited the risk profile to people:

    a)who had/held particular government roles/positions; and

    b)who were associated with particular international organisations.

    However, the applicant did not fall into either risk category, nor did the country information broadly suggest that any person who might be perceived to have pro-western views fell into such a risk category.

Conclusion

1. The applicant does not attempt to explain how the Authority’s conclusion on the relevant jurisdictional fact was illogical or irrational.  Rather, the applicant merely points to the subsidiary facts and some of the material before the tribunal and argues that the Authority ought to have given greater weight to certain aspects of that material.  That is the very exercise against which Crennan and Bell JJ cautioned at 636 [96] in SZMDS (above).  The deployment of illogicality or irrationality to achieve merits review is impermissible.  That is what the applicant seeks to do in this application.

2. The Authority’s decision was not affected by jurisdictional error.  The application must be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  20 June 2017