DCJ16 v Minister for Immigration

[2018] FCCA 1141

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCJ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1141

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the findings of the Immigration Assessment Authority were open to it – whether the findings of the Immigration Assessment Authority were illogical, irrational or unreasonable – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 473BA, 473BC, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 474, 476
Migration Regulations 1994 (Cth), reg.2.01, sch.1

Treaties:

Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art.1A.
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Re Minster for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30

Applicant: DCJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2859 of 2016

Judgment of: Judge Emmett

Hearing date: 2 May 2018

Date of Last Submission: 2 May 2018

Delivered at: Sydney

Delivered on: 22 May 2018

REPRESENTATION

Solicitors for the Applicant: Mr Stephen Hodges
(Stephen Hodges Solicitor)

Solicitors for the Respondents: Ms Katherine Hooper
(HWL Ebsworth Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2859 of 2016

DCJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) dated 29 September 2016, dismissing an application for review by the Authority of a decision of a delegate of the first respondent (“the Delegate”), made on 13 July 2016, refusing the applicant a Safe Haven Enterprise (Class XE) visa (“SHEV”).

2. The applicant is a citizen of Afghanistan of Shia Muslim faith and Hazara ethnicity, who fears harm from the Taliban in Afghanistan.

Background

1. The applicant arrived in Australia on 17 November 2012 as an Unauthorised Maritime Arrival, having travelled from Afghanistan via India, Malaysia and Indonesia.

2. On 26 January 2016, the applicant lodged an application for a SHEV with the Department of Immigration and Border Protection.

3. On 13 July 2016, the Delegate refused the applicant’s application for a SHEV.

4. On 14 July 2016, the Delegate’s decision refusing the applicant a SHEV was referred to the Authority.

5. On 21 September 2016, the Authority handed down its decision affirming the decision of the Delegate not to grant a SHEV.

6. On 19 October 2016, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Safe Haven Enterprise (Class XE) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Part 7AA of the Act provides for a limited form of review of certain decisions. Under Part 7AA, s.473BA of the Act provides as follows:

   “Simplified outline of this Part

   This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.

   Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.

   Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.

   …”

8. Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.

9. Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

12. Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:

    “Material to be provided to Immigration Assessment Authority

    (1)  The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

    (a)  a statement that:

    (i)  sets out the findings of fact made by the person who made the decision; and

    (ii)  refers to the evidence on which those findings were based; and

    (iii)  gives the reasons for the decision;

    (b)  material provided by the referred applicant to the person making the decision before the decision was made;

    (c)  any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

    (d)  the following details:

    (i)  the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

    (ii)  the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iii)  the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iv)  if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

    (v)  if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

    (2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”

13. Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.

14. The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:

    “Exhaustive statement of natural justice hearing rule

    (1)  This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

    (2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”

15. Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.

16. Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:

    “Getting new information

    (1)  Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:

    (a)  were not before the Minister when the Minister made the decision under section 65; and

    (b)  the Authority considers may be relevant.

    (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

    (3)  Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a)  in writing; or

    (b)  at an interview, whether conducted in person, by telephone or in any other way.”

    Section 473DD of the Act provides as follows:

    “Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

The applicant’s application for a SHEV

1. The applicant provided a statement in support of his SHEV application in which he stated:

   i)He is an Afghan citizen of Hazara ethnicity and Shia Muslim faith. He was born in Ghazni province.

   ii)He left Afghanistan to escape persecution by the Taliban.

   iii)During his studies at the University of Ghazni, he was harassed and threatened by the Taliban on his way to and from school. He observed the Taliban plant mines on the roads.

   iv)In around February 2012, during the holiday break after his first year at University, he was detained and tortured by the Taliban.

   v)He had been appointed by his village to represent them in the “National Solidarity Project” (“NSP”). This was a government-funded project that helped support village development, including building a community hall, drilling a well for drinking water, and bridge constructions. The applicant had to travel to Ghazni city to buy construction materials and then convey them to his village. On one of these trips he was stopped by the Taliban. The Taliban demanded he cease working for the government or they would persecute him.

   vi)He continued to work for the project because it was important to his village.

   vii)Around March 2012 he was stopped for a second time on his way back from Ghazni city. The Taliban detained him for eight nights in a dark room with his hands tied to his back. During this time the Taliban took photographs of him. Elders in the applicant’s village negotiated with the Taliban and paid a bribe for his release. The Taliban warned him that next time, they would not hesitate to kill him.

   viii)He became very scared as the Taliban do not take lightly those who fail to heed their warnings. He knew it was not safe in Afghanistan anymore and fled to Australia for safety.

   ix)The Taliban has his photo and he will be recognised because the Taliban are everywhere in Afghanistan.

   x)He will also be subjected to serious harm and intimidation in Afghanistan due to his Shia faith and Hazara ethnicity by Taliban insurgents.

   xi)It is not possible to receive any help or protection from the Afghan government or within the community because the Taliban do as they please.

   xii)There is no safe place in Afghanistan because the Taliban have a wide network of spies and informants, and he would eventually be located.

   xiii)The Taliban are targeting returnees from Western countries because they are suspicious of how they may influence the local population with Western ideas.

The Delegate’s decision

1. On 10 May 2016, the applicant attended an interview with the Delegate.

2. At interview, the applicant claimed that since his departure from Afghanistan his family had received a stamped letter from the Taliban. He provided a copy of the letter with an accredited translation.

3. The Authority considered the information provided by the applicant at interview with the Delegate. The Authority found that the letter produced by the applicant at interview which indicated that the applicant had escaped custody and been threatened with death, purportedly sent by the Taliban, was not credible.

4. The Delegate considered the applicant’s claims regarding past harm suffered by the Taliban, and noted that on his arrival to Christmas Island, the applicant did not mention being abducted by the Taliban due to his participation in the NSP. The Delegate found that as the applicant’s abduction by the Taliban is allegedly his principal reason for departing Afghanistan, it would be reasonable to expect the applicant to provide such evidence on first entering the country where refuge was sought. The Delegate noted that when this was put to the applicant for comment at hearing, he responded that he was asked to answer questions briefly.

5. The Delegate did not accept that the applicant was abducted and detained by the Taliban for a period of eight days or had his photo taken by the Taliban. In light of these findings, the Delegate also did not accept that the applicant hid in a hotel room due to his fear of the Taliban for four months while residing in Kabul, prior to his departure from Afghanistan.

6. The Delegate did not accept the applicant’s chance of being subject to serious harm was remote or insubstantial, or that the applicant faced a real chance of suffering serious harm amounting to persecution, individually or cumulatively, on account of his race, religion or imputed political opinion, if he returned to Ghazni province.

7. Having considered the applicant’s claims, his profile and relevant country information cumulatively, the Delegate was not satisfied that the applicant faced a real chance of persecution in all areas of Afghanistan. The Delegate found that there was not a real chance that the applicant would be targeted by the Taliban or any other insurgent groups in Kabul for a Convention related reason.

8. The Delegate further considered, under s.36(2B)(a) of the Act, if it would be reasonable for the applicant to relocate to an area where there would not be a real risk, namely Kabul. The Delegate considered the applicant’s personal circumstances, previous life experience, age, and status as a single, able-bodied man, and was satisfied that it would be reasonable, in the sense of practicable, for the applicant to relocate to Kabul.

9. On 13 July 2016, the Delegate refused the applicant’s application for a SHEV on the basis that the applicant is not a person to whom Australia has protection obligations under either under the Convention criterion in s.36(2)(a) or the alternative criterion of s.36(2)(aa) of the Act.

The Authority’s review and decision

1. On 14 July 2016, the Delegate’s decision refusing the applicant a SHEV was referred to the Authority.

2. The Authority noted that since the Delegate’s decision, several media reports had been published regarding a large scale bomb attack in Kabul in July 2016 which targeted Hazaras. The Authority accepted that those reports constituted new information that was not and could not have been provided prior to the Delegate’s decision. The Authority found that the reports suggested a significant spike in violence against Hazaras that may affect an assessment of whether the applicant faces harm in the reasonably foreseeable future. The Authority was satisfied that there were exceptional circumstances to justify considering the new information.

3. On 11 August 2016, the Authority wrote to the applicant, inviting him to comment on information that may be relevant to his case because it might lead the Authority to conclude that future attacks on Kabul’s Shia population are likely to be infrequent and not to such an extent as to pose a real chance or risk of harm to him.

4. On 24 August 2016, the applicant responded to the invitation to comment. The applicant stated that irrespective of the information in the reports referred to by the Authority, the current threats to Shia Hazaras throughout Afghanistan stem from the ease with which suicide bombings can be conducted. The applicant claimed that Shia Hazaras are not only being systemically discriminated against by the Taliban, Kochis and other Sunni insurgents, but also by Islamic State (“Daesh”).

5. The Authority considered the applicant’s explanation at interview with the Delegate as to why the applicant did not mention his claimed detention and torture by the Taliban at his entry interview. The Authority did not accept the applicant’s response that he had been asked to provide short answers. The Authority noted that at the entry interview, the applicant had been able to articulate in detail about his subjective fear of the prevailing security situation and the placing of land mines by the Taliban.

1. The Authority considered that given the significance of the applicant’s later claim to have been stopped twice by the Taliban and detained and tortured on the second occasion, the applicant would be expected to have identified this information when asked why he left Afghanistan. Given the applicant’s failure to do so, the Authority did not find plausible his claim to have been detained and tortured by the Taliban in 2012 because of his involvement in the NSP.

2. Further, the Authority did not accept that the applicant is of any ongoing interest to the Taliban, and found that he does not face a real chance of persecution from the Taliban due to any involvement in the NSP.

3. The Authority considered country information regarding the treatment of Hazaras in Afghanistan and accepted that as a member of a visibly distinct ethnic group, the applicant would be readily identifiable as Hazara if he returned to Ghazni province.

4. The Authority also considered country information regarding the security situation in Afghanistan and accepted that the situation is uncertain in parts of Afghanistan, and that road travel in provincial Afghanistan can be dangerous.

5. The Authority further considered country information regarding the security situation in Ghazni province. The Authority found that the security situation appears to have deteriorated since the beginning of 2014. Based on its consideration of this country information, the Authority accepted that the applicant would face a real chance of being killed by the Taliban due to his Hazara ethnicity if he returns to Ghazni province and his home district of Jaghatu.

6. However, the Authority was not satisfied, that there is a real chance the applicant will face serious harm in Afghanistan’s capital city, Kabul.

7. The Authority did not accept the applicant’s claim that nowhere in Afghanistan is safe for relocation. The Authority noted that estimates of the Hazara population in Kabul range from 40-50 per cent of the city’s population, making Hazaras the largest ethnic group in Kabul. The Authority referred to relevant country information which indicated that commercial opportunities are available in Kabul, and that Shia Hazaras in Kabul are not subject to harassment or discrimination amounting to persecution.

8. The Authority accepted that attacks upon the Shia Hazara community in Kabul have occurred in the last decade, the most recent being in July 2016. However, the Authority found, that available evidence indicated that while Daesh may have the capacity to undertake attacks on Kabul’s Shia population, this is not indicative of an escalation in targeted, sustained future attacks. On the available evidence, the Authority was not satisfied that Kabul’s security situation is such that an ordinary Shia Hazara, with no particular profile of interest, like the applicant, will face a real chance of harm from Daesh or any other group, now or in the reasonably foreseeable future.

9. The Authority also did not accept that the applicant would be at risk of harm if returned to Afghanistan due to his status as a failed asylum seeker returning from the West who speaks English. The Authority found that there was no evidence of Shia Hazara returnees from western countries being harmed by insurgents in Kabul such as the Taliban, Al Qaeda, or Daesh. The Authority noted that there are no reports available indicating that attacks similar to those reported on the roads between Kabul and Hazara-populated areas have occurred in Kabul itself.

10. The Authority was not satisfied that there is a real chance that the applicant will face persecution upon return to Kabul on account of any of the claimed reasons, individually or cumulatively, and found the applicant’s fear of persecution is not well-founded.

11. The Authority noted that s.36(2B) of the Act provides that there is taken not to be a real risk that a persons will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm. Having concluded that the applicant does not face a real chance of harm in Kabul, the Authority considered whether it would be reasonable for the applicant to relocate to Kabul.

12. The Authority found that the applicant is an able bodied young man who has demonstrated resilience in travelling through India, Malaysia and Indonesia and then on to Australia. The Authority noted that he has lived away from his family for an extended period of time in Afghanistan, as well as in Australia.

13. The Authority accepted that the influx of internally displaced persons and returnees to Kabul has put considerable pressure on its local labour market, but noted that employment growth in the service sector and construction industry over the last decade has been strong. The Authority also noted that the applicant may be able to access tailored reintegration assistance under a 2011 Memorandum of Agreement between the Australian and Afghan governments and the UNHCR on migration and humanitarian cooperation. The Authority further noted that the applicant has tailoring skills which he used while working in a relative’s shop in Afghanistan, and that country information indicates that commercial opportunities are available in Kabul. The Authority concluded that, taking into account the applicant’s personal circumstances, it was reasonable for the applicant to relocate to Kabul.

14. Accordingly, the Authority found that there were no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Afghanistan, there is a real risk that the applicant would suffer significant harm.

15. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Authority affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by his solicitor, Mr Stephen Hodges.

2. Mr Hodges confirmed that the applicant relied only on Grounds 2 and 4 of the Application filed on 19 October 2016 and no longer pressed Grounds 1 or 3. At the hearing, it became apparent that the applicant was relying only on Ground 4. Mr Hodges agreed that was so.

3. Accordingly, Ground 4 is as follows:

   “Ground 4

   The IAA's reasoning is illogical and/or inconsistent with the findings at [24] and [25] that it's decision should be set aside.

   PARTICULARS

   a. The IAA appears to accept, at [24], that Daesh have the capability to undertake attacks on Kabul's Shia population. However, the IAA is of the view that “this is not indicative of an escalation in targeted, sustained or future attack.”

   b. The IAA, at [25], stated:

   “I accept that there have been targeted attacks on Shia Hazaras in Kabul, including the most recent on 23 July 2016. I accept that despite having limited capability in the past, Daesh now has the potential to conduct large scale attacks in Kabul”

   c. At [25], the IAA further states that:

   “Although the recent attack was on a large protest and demonstrates the capacity of Daesh to undertake high-profile attacks in isolated circumstances, it is not indicative of an increased risk to an ordinary Shia Hazara, such as the applicant residing in Kabul.”

   d. Having accepted that there have been targeted attacks on Shia Hazaras in Kabul in recent times, and that Daesh now has the potential to conduct large scale attacks in Kabul as compared to in the past, when Daesh had a limited capacity, the IAA inferred that the applicant would not suffer serious hann in Kabul as he is an ‘ordinary Shia Hazara’.

   e. The IAA's inference at [24] and [25] is infected with jurisdictional error.”

4. The applicant contended that the Authority’s reasoning was illogical or internally inconsistent in relation to findings it made about the applicant’s ability to relocate to Kabul city. The First Respondent contended that the Authority’s findings were open to it for the reasons it gave.

5. The complaint in Ground 4 arose from the Authority’s findings found in paragraphs 24 and 25 of the Authority’s decision record as follows:

   “24. I accept that attacks upon the Shia Hazara community in Kabul have occurred in the recent decade. One of these was the Moharram 2011 bomb attack, which resulted in the death of at least 70 people, many of whom were Shia Hazaras, responsibility for which was claimed by Pakistan-based Lashkar-e Jhangvi. Violence occurred again in February 2014 where there was an attack on a Shia cultural centre in Kabul which killed one security guard. In March 2015, gunmen attacked a Sufi mosque in Kabul, killing 11 worshippers. While DFAT assesses that Sunni-Shia sectarian violence is infrequent in Kabul, a major attack on a large group of Hazaras occurred on 23 July 2016, for which a local insurgent group with allegiance to Daesh claimed responsibility. While this attack demonstrated the ability of Daesh to carry out a large scale attack in Kabul, the available evidence gives no indication that the group is building in strength either in Kabul or across Afghanistan. Relevant analysis suggests that while Daesh may have the capability to undertake attacks on Kabul’s Shia population, this is not indicative of an escalation into targeted, sustained future attacks.

   25. I accept that there have been targeted attacks on Shia Hazaras in Kabul, including the most recent one on 23 July 2016. I accept that despite having limited capability in the past, Daesh now has the potential to conduct large-scale attacks in Kabul. Country information is that common targets for insurgent attacks are government institutions, political figures, the Afghan National Defence and Security Forces, other security forces, foreign missions and international organisations. I find the applicant has no association to these institutions and does not have a particular profile that would make him a target of such attacks. Although the recent attack was on a large protest and demonstrates the capacity of Daesh to undertake high-profile attacks in isolated circumstances, it is not indicative of an increased risk to an ordinary Shia Hazara, such as the applicant, residing in Kabul. On the available evidence I am not satisfied that Kabul’s security situation is such that an ordinary Shia Hazara such as the applicant with no particular profile of interest will face a real chance of harm from Daesh or any other group, now or in the reasonably foreseeable future.”

   (Emphasis added)

6. As argued in oral submissions, the applicant contended the following:

   (i)The Authority’s finding that Daesh has the potential to conduct large scale attacks is directly inconsistent with its finding that there is no indication that the group is building strength either in Kabul or Afghanistan. The applicant submits that this is because building strength naturally presupposes the ability to conduct large scale attacks.

   (ii)Having found that there were major attacks on the Shia Hazara community in Kabul, the effect of that finding is an acceptance that the broader Shia Hazara community in Kabul faces serious harm and the applicant has been found to be an “ordinary Shia Hazara”. In those circumstances, the Authority should have found that the applicant too would face serious harm if he was to return.

   (iii)In finding that Shia Hazaras make up a similar percentage of the total population of Kabul as they do in Ghazni province, it was illogical for the Authority to find that the applicant would not face harm in Kabul, but would face harm in Ghazni province.

(i) The Authority’s finding that Daesh has the potential to conduct large scale attacks is directly inconsistent with its finding that there is no indication that the group is building strength either in Kabul or Afghanistan. The applicant submits that this is because building strength naturally presupposes the ability to conduct large scale attacks.

1. I do not agree with that submission. The Authority makes a specific finding that whilst Daesh may have the capability to undertake attacks on Kabul’s Shia population, this is not indicative of an escalation in targeted, sustained future attacks. In other words, the fact that Daesh has the ability to carry out large scale attacks does not necessarily mean that Daesh is building in strength, with an intention to escalate into targeted, sustained future attacks.

2. I do not accept that those findings are inconsistent. The Authority identifies with specificity the country information to which it has regard in making those findings. It is not inconsistent to find that Daesh has the capability to undertake large scale attacks but is not building strength in Kabul or Afghanistan. Those findings were based on independent country information and were open to the Authority on the evidence and material before it and for the reasons it gave. It is well settled that the country information to which the Authority has regard and the weight it gives that information is a matter for the Authority (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

3. The Authority’s findings are not irrational, illogical or unreasonable or based upon findings or inferences of fact not supported by logical grounds (see Re Minster for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30).

(ii) Having found that there were major attacks on the Shia Hazara community in Kabul, the effect of that finding is an acceptance that the broader Shia Hazara community in Kabul faces serious harm and the applicant has been found to be an “ordinary Shia Hazara”. In those circumstances, the Authority should have found that the applicant too would face serious harm if he was to return.

1. True it is that the Authority accepted that attacks upon the Shia Hazara community in Kabul have occurred in the recent decade. The Authority identified incidents in 2011, 2014, 2015 and 2016. As stated above, the Authority also accepted that Daesh now has the potential to conduct large scale attacks in Kabul. However, the Authority noted that the Department of Foreign Affairs and Trade has assessed that Sunni-Shia sectarian violence is infrequent in Kabul and the Authority identified the country information upon which it relied. The Authority also noted that the attack in July 2016 was a major attack that targeted a large group of Hazaras and for which a local insurgent group with allegiance to Daesh claimed responsibility.

2. The Authority noted that country information indicated that common targets for insurgent attacks are government institutions, political figures, the Afghan National Defence and Security Forces, other security forces, foreign missions and international organisations.

3. The Authority found that the applicant had no association to those institutions and did not have a particular profile that would make him the target of such attacks.

4. The Authority found that the attack in 2016 was on a large protest and demonstrated the capacity of Daesh to undertake high profile attacks in isolated circumstances. However, the Authority found that this was not indicative of an increased risk to an ordinary Shia Hazara, such as the applicant, residing in Kabul.

5. The Authority then concluded that it was not satisfied that Kabul’s security situation was such that an ordinary Shia Hazara, such as the applicant, with no particular profile of interest, faces a real chance of harm from Daesh or any other group, now or in the reasonably foreseeable future.

6. Again, those findings were open to the Authority on the evidence and material before it and for the reasons it gave.

7. I do not accept that the Authority should have found that the applicant would also face serious harm if he was to relocate to Kabul based on a proper understanding of the findings made by the Authority.

(iii) The finding that Shia Hazaras make up a similar percentage of the total population of Kabul as they do in Ghazni province, it was illogical for the authority to find that the applicant would not face harm in Kabul, but would face harm in Ghazni province.

1. Certainly, the Authority found that Hazaras represented 40% of the population in Ghazni and that Hazaras made up 40-50% of the population in Kabul city.

2. However, the Authority found that, according to country information, Ghazni was one of the most violent provinces in Afghanistan in terms of attacks on defence forces, international forces and civilians. The Authority found that insurgent attacks, community violence and kidnappings were common throughout large parts of the province and that the security situation in Ghazni appeared to have deteriorated since the beginning of 2014.

3. The Authority then stated that based on that country information, it accepted that the applicant would face a real chance of being killed by the Taliban due to his Hazara ethnicity if he returned to Ghazni province and his home district of Jaghatu.

4. However, the Authority found that whilst the situation in some of Afghanistan’s regional provinces remained fluid, abductions and/or executions of Hazaras were not occurring in Kabul.

5. The Authority also referred to country information that indicated that Shia Hazaras were not subject to harassment or discrimination amounting to persecution in Kabul, nor were they were denied access to basic services or unable to earn a livelihood.

6. The Authority referred to country information that indicated that the security situation for Hazaras in Kabul does not differ significantly from that experienced by the general population of Kabul city. The Authority found in Kabul city that no particular group is systematically targeted solely on the basis of their ethnicity.

7. It was for those reasons that the Authority did not accept the applicant’s claim that, as a Hazara, he faces a real risk of harm upon return to Afghanistan wherever he resides.

8. In the circumstances, it is clear that the Authority considered the risk of harm to the applicant in Ghazni province and elsewhere in Afghanistan as compared to the risk to the applicant in Kabul city.

9. Whilst the Authority may have come to a different view and made different findings about the risk of harm to the applicant in Kabul city, the Authority made a clear finding that in relation to Kabul city and the attacks by Daesh, they were in isolated circumstances and were not indicative of an increased risk to an ordinary Shia Hazara, residing in Kabul city, such as the applicant.

10. Otherwise, the Authority rejected the applicant’s claims of being detained and tortured by the Taliban and found the Taliban had no ongoing interest in him as a result of his involvement in the NSP and therefore did not face a real chance of persecution from the Taliban for that reason.

11. The applicant claimed that Shia Hazaras are the main targets of the Taliban and Daesh. The Authority accepted that, historically, Hazaras have been harshly discriminated against and segregated from the rest of Afghan society for a combination of political, ethnic and religious reasons, at least prior to 2001.

12. However, the Authority’s findings in relation to the risk of harm to the applicant in Kabul city were based on its analysis of country information before it. Based on that information it was open to the Authority to find that the isolated attacks in Kabul by Daesh were not indicative of an increased risk to an ordinary Shia Hazara, such as the applicant.

13. It is clear that the Authority gave careful consideration to the risk of harm to the applicant in Kabul city in concluding that there was not a real chance that he would face harm in Kabul city from Daesh or any other group now, or in the reasonably foreseeable future. In Ghazni province, the Authority was satisfied that Shia Hazaras were targeted for their ethnicity, as a result of which the Authority found that the applicant would face a real chance of harm in Ghazni province.

1. In the circumstances, there is no illogicality in the findings of the Authority that, although the percentage of Hazaras is almost the same in Ghazni province as in Kabul city, the applicant remains at risk in Ghazni province but not in Kabul city. The findings of the Authority in relation to its considerations of the risk of the applicant in Kabul city were open to it on the evidence and material before it and for the reasons it gave.

2. Otherwise, the applicant did not challenge the Authority’s consideration and findings in relation to relocation. In any event, there is no apparent error in the manner in which the Authority considered relocation.

3. Accordingly, Ground 4 is not made out.

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant and had regard to all material provided in support, including new information. The Authority identified the independent country information to which it had regard.

2. The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  22 May 2018