DCN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 552
•8 July 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
DCN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 552
File number(s): MLG 1686 of 2018 Judgment of: JUDGE RILEY Date of judgment: 8 July 2022 Catchwords: MIGRATION – Safe Haven Enterprise visa – Hazara Shia from Afghanistan – decision by delegate of the Minister – applicant having made a prior application for protection in the UK – whether the delegate misunderstood the law in determining that the applicant is an excluded fast track review applicant – whether the delegate was obliged to give the applicant particulars of fingerprint reports – whether the delegate made findings without evidence or that were illogical or irrational. Legislation: Migration Act 1958 ss.5(1), 57 Cases cited: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; (2018) 353 ALR 600; (2018) 92 ALJR 481; [2018] HCA 16
SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; (2007) 235 ALR 609; (2007) 81 ALJR 1190; [2007] HCA 26
Division Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 3 March 2022 Place: Melbourne Counsel for the applicant: Julian Murphy Solicitor for the applicant: Victoria Legal Aid Counsel for the respondent: Julia Lucas Solicitor for the respondent: The Australian Government Solicitor ORDERS
MLG 1686 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DCN18
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.The decision of the delegate of the respondent made on 23 May 2018 be set aside.
2.The matter be remitted to the respondent for determination according to law.
3.The respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This is an application for review of a decision made by a delegate of the Minister (“the delegate”) not to grant the applicant a Safe Haven Enterprise visa (“SHEV”). The applicant is a Hazara Shia from Afghanistan. He arrived in Australia as an unauthorised maritime arrival.
The delegate’s decision has not been reviewed by the Immigration Assessment Authority. The matter came directly to this court because the delegate determined that the applicant is an excluded fast track review applicant. If the delegate had not made that determination, the delegate’s decision would have been reviewed by the Immigration Assessment Authority.
BACKGROUND
In his written submissions filed on 3 February 2022, the applicant provided the following background to this matter:
Life in Afghanistan and Pakistan
5Approximately 1 January 1986, the Applicant was born in Jaghori, Ghazni province, Afghanistan (CB 187). He is a Shia Hazara (CB 75, 77).
6In 1994, when the Applicant was about 8 or 9 years old, he left Afghanistan (CB 75). He travelled to Pakistan with his mother after his father and brother were killed in a bomb blast, which the Applicant suspected was Taliban orchestrated (CB 75, 77).
7About 2½ years after the Applicant and his mother arrived in Pakistan, his mother died (CB 78).
8In 2003, the Applicant’s cousin ‘Jarwit’ was killed by Lashkar-e-Jhangavi in Pakistan (CB 78).
Failed asylum application in United Kingdom
9In 2004, the Applicant travelled through Europe to the United Kingdom (UK) to seek asylum (CB 78–9).
10Between 2004 and 2009, the Applicant resided in the UK while his asylum application was being processed (CB 76).
11The Applicant’s application for asylum was unsuccessful, apparently because his identity could not be established (as to which, see below discussion of ground 3).
12Shortly before the Applicant departed the UK, a friend of his (another Shia Hazara man from Afghanistan) had his asylum claim refused and returned to Afghanistan, only to have ‘his throat cut and was killed by Taliban at a road block in Afghanistan on his way to Pakistan because he was Hazara Shia and had a UK document on him’ (CB 75, see also 80).
Return to Afghanistan then Pakistan
13In February 2009, after his unsuccessful asylum application in the UK, the Applicant returned to Afghanistan (CB 166). The Applicant initially stayed in Kabul until his uncle picked him up and drove him to Hazaratown in Pakistan (CB 79).
14 In May 2009, the Applicant was married (CB 80, 157).
15About a year after the Applicant arrived in Pakistan from the UK, his uncle was killed in a targeted attack in Hazaratown in Pakistan (CB 75, 81).
16In 2010, the Applicant went back to Afghanistan for about 5 days to apply for his Taskira and drivers’ licence (CB 80).
17 On 21 June 2011, the Applicant’s daughter was born (CB 152).
18In August or September 2012, the Applicant left Pakistan to come to Australia (CB 81).
Arrival in Australia and visa application
19 On 26 November 2012, the Applicant arrived in Christmas Island (CB 82).
20On 21 January 2013, the Applicant participated in an entry interview (CB 12–27).
21 On 6 July 2016, the Applicant applied for a SHEV (CB 30 – 72).
22On 4 May 2017, the Applicant participated in an interview at the Department offices in Hobart (delegate interview).
23 On 23 May 2018, the delegate: (CB 201–14)
23.1refused the Applicant’s visa application on the basis that the Applicant did not satisfy the criteria in ss 36(2)(a) or (aa) of the Act; and
23.2decided that the Applicant fell into paragraph (a)(iii) of the definition of ‘excluded fast track review applicant’ in s 5(1) of the Act on the basis that he ‘has made a claim for protection in a country other than Australia that was refused by that country’.
(footnotes omitted)
THE APPLICANT’S CLAIMS
The delegate summarised the applicant’s claims at Part 4 of his decision dated 23 May 2018 as follows:
•He is a Hazara, Shia from Afghanistan. For protection, he left his village in Afghanistan with his mother when he was about eight or nine years old and they travelled to Pakistan to live with his uncle in Hazara town, Quetta, Pakistan.
•His father had a timber truck, one day when his father and brother were travelling in the truck from Kabul to Herat, the truck was blown up on the road and his father and brother died.
•His mother and him were at risk living alone and could not take care of themselves because his mother was sick and it was hard to get food. They lived in fear because the Taliban were killing Hazara Shia. They are not sure however it was probably the Taliban who set the bomb that killed his father and brother. There were many Taliban and the roads are not safe and his mother feared he would be killed like his father and brother. Then his uncle who lived in Hazara town in Quetta came to get them and took them to his home.
•He claims that he shared accommodation with a friend in the United Kingdom (UK) who was a Hazara Shia and also had a UK protection application refused and later returned to Afghanistan where he was killed by the Taliban in a road block while on his way to Pakistan. The appllcant (sic) claims that his friend was killed by the Taliban because he was a Hazara Shia and he had a UK document. He fears that he will be killed by the Taliban for being in the UK.
•Because of being a Hazara and Shia his family has suffered not just the death of his father and brother but also the death of his first cousin in a targeted killing in Pakistan and the death of his uncle also from a targeted killing in Pakistan. His wife has also been injured in a bomb blast in Hazara town in Pakistan after he arrived to Australia.
Claims during PV interview
3.As stated under the applicant's claims for protection, he stated that his father and his brother was killed in a bomb blast while traveling in their truck. He stated that they could have been killed by the Taliban or any other extremist group. He stated that after his father's death there was no one to take care of his family therefore he went to Pakistan along with his mother to live with his uncle.
4.The applicant claims that he left Afghanistan as an eight year old therefore he would face problems in adapting culturally if he were to return to Afghanistan. He claims that the security situation for Hazaras in Afghanistan is worsening and he could be easily targeted based on his facial features therefore he will not be in a position to travel freely.
5.The applicant claims that since he has lived in the UK and Australia for many years, his Hazaragi is mixed with some English words therefore if he is caught by the Taliban, they would find him to be from a western country therefore he would face problems.
6.The applicant also claims that the government does not have control and the general security situation is worsening and people die therefore he would not be safe in Afghanistan.
MATERIAL RELIED UPON
The applicant relied upon:
(a)the court book filed on 2 October 2019 (exhibit 1);
(b)the affidavit affirmed by Walid Babakarkhil on 3 February 2022;
(c)the supplementary court book filed on 3 February 2022 (exhibit 2);
(d)the affidavit affirmed by Walid Babakarkhil on 9 February 2022; and
(e)the applicant’s written submissions filed on 3 February 2022.
The Minister relied upon:
(a)the court book filed on 2 October 2019 (exhibit 1);
(b)the affidavit affirmed by Edward Lysander Rogers on 24 February 2022; and
(c)the Minister’s written submissions filed on 24 February 2022.
Neither of the deponents of affidavits was cross-examined. I accept their evidence.
THE STRUCTURE OF THE REASONS FOR JUDGMENT
Grounds 3 and 4 in the amended application filed on 3 February 2022 seek to impugn the delegate’s decision on the basis that his determination that the applicant was an excluded fast track review applicant was affected by jurisdictional error. I will deal with these grounds first because, if either of them is upheld, it would be arguable that I do not have jurisdiction to deal with the remaining grounds.
GROUND 3
The third ground of review in the application filed on 14 June 2018 and amended on 3 March 2022 (“the application”) is:
In purporting to perform the statutory task required by the Act – in particular, in assessing whether the Applicant was an ‘excluded fast track review Applicant’ within paragraph (a)(iii) of the definition of that term in s 5(1) of the Act – the delegate exceeded his jurisdiction by misunderstanding the law.
Particulars
(i)Section 5(1) of the Act relevantly defines an ‘excluded fast track review applicant’ as a fast track review applicant who, in the opinion of the Minister, ‘has made a claim for protection in a country other than Australia that was refused by that country’.
(ii)The delegate misunderstood that provision to apply to a person who has applied for the equivalent of a protection visa and had that application refused for any reason (including reasons unconnected to the substantive basis of the protection claims).
(iii)Properly understood, however, the provision refers to a person who has been found not to meet the substantive criteria for protection at international law.
It was common ground that, prior to the applicant lodging his application for a SHEV in Australia, the applicant had sought and been refused protection in the United Kingdom. The delegate relied on paragraph (a)(iii) of the definition of excluded fast track review applicant in s.5(1) of the Migration Act 1958 (“the Act”) to conclude that the applicant is an excluded fast track review applicant. Paragraph (a)(iii) of that definition provides that:
excluded fast track review applicant means a fast track applicant:
(a) who, in the opinion of the Minister:
...
(iii)has made a claim for protection in a country other than Australia that was refused by that country;
...
However, the applicant drew a distinction between making a claim for protection, as mentioned in paragraph (a)(iii) of the definition of excluded fast track review applicant, and making an application for protection, as mentioned in paragraph (aa) of the definition of excluded fast track review applicant. Paragraph (aa) of that definition provides that:
excluded fast track review applicant means a fast track applicant:
…
(aa)who makes a claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application, if, in the opinion of the Minister, the claim is manifestly unfounded because, without limiting what is a manifestly unfounded claim, the claim: (emphasis added)
(i)has no plausible or credible basis; or
(ii)if the claim is based on conditions, events or circumstances in a particular country—is not able to be substantiated by any objective evidence; or
(iii)is made for the sole purpose of delaying or frustrating the fast track applicant’s removal from Australia;
...
Relying on the principle that, where legislation uses two different words, they must be construed as having two different meanings, the applicant argued that a claim for protection was different from an application for protection.
The applicant argued that a claim was a substantive matter, and an application was a technical or procedural matter. He said that the legislative intent of paragraph (a)(iii) of the definition of excluded fast track applicant was to exclude applicants whose claims for protection had been substantively assessed and rejected, not applicants whose claims for protection had been rejected on technical or procedural grounds.
The applicant argued that his claim for protection in the UK was not refused, because his application for protection in the UK was refused on technical or procedural grounds. More particularly, the applicant argued that his application for protection in the UK was rejected because he did not have a Taskera, and the authorities were unable to ascertain his identity.
The applicant also relied on departmental policy, which was noted by the delegate at paragraph 55 of his reasons for decision, in the following terms:
… Departmental policy states that an applicant will be considered an excluded fast track review applicant if their claims were ‘both fully assessed and refused in accordance with the relevant asylum framework in that country’, and that ‘this will be the case regardless of the time that may have passed or any differences in the protection claims or circumstances that were considered by that third country’. …
The Minister accepted that departmental policy gave “the flavour” that substantive assessment was required to satisfy paragraph (a)(iii) of the definition of excluded fast track review applicant. However, the Minister argued that, to the extent that it did so, the departmental policy was wrong. The Minister argued that a substantive assessment was not required. Moreover, the Minister argued that failing to establish identity was not a mere technicality, such as failing to attach a required document. Rather, the Minister argued that establishing identity was a part of the substantive assessment of the case.
Additionally, the Minister argued that the material before the court, although limited, did show that the UK had substantively assessed the applicant’s claims, even leaving aside the identity question. The Minister relied on paragraphs 15 and 17 of the delegate’s decision, where he noted that:
15.…He stated that his application for asylum was refused in 2005 one year after he went to the UK because he could not provide them with proof of his identity and they did not trust his story…
…
17.The applicant claims that his application for refugee status in the UK was refused because he lacked identity documents and has not provided evidence to substantiate his claim…
(emphasis added)
These conclusions appear to have been based on the following exchange during the delegate’s interview with the applicant, the transcript of which is contained in annexure 1 of Mr Babakarkhil’s affidavit affirmed on 9 February 2022:
Q94. So what happened to your application? What happened?
AThen the outcome of the application was - the first thing was they couldn’t confirm my identity properly. The second thing they say was I wasn’t provided enough information and they said that they were not able to track me because they thought like maybe I'm making or anything like that and I couldn’t provide further documents. That’s why they rejected my application.
On a fair reading, I consider that the words, “I wasn’t provided enough information” mean “I didn’t provide enough information”, and the words, “maybe I’m making” mean “maybe I’m making things up”. In total, I consider that the effect of the applicant’s words was that his application for protection was rejected by the UK because:
(a)the decision maker could not be satisfied of the applicant’s identity;
(b)the applicant did not provide sufficient information to satisfy the decision maker of his claims;
(c)the decision maker doubted, or was not satisfied of, the applicant’s credibility; and
(d)the applicant’s claims were not supported by relevant documents.
That is, the applicant, by his own statements to the delegate, conceded that his claims were substantively assessed. It is simply not the case, as the applicant contended, that his application in the UK was refused on the narrow ground that his identity could not be established. Consequently, it is not necessary to determine whether identity is a technical issue that would be insufficient to meet the definition of excluded fast track review applicant in paragraph (a)(iii) of the definition of that term. I am satisfied that the applicant did meet that definition, and that the delegate did not materially misunderstand the law. This ground is not made out.
GROUND 4
The fourth ground of review in the application is:
In purporting to perform the statutory task required by the Act – in particular, in assessing whether the Applicant was an ‘excluded fast track review Applicant’ within the definition of that term in s 5(1) of the Act – the delegate exceeded his jurisdiction by failing to comply with s 57 of the Act.
Particulars
(i)Section 57 required that, in respect of information that ‘would be the reason, or part of the reason … for deciding that an applicant is an excluded fast track review applicant’, the delegate give the Applicant particulars of the information, ensure the Applicant understood why it was relevant and invite the applicant to comment on the information.
(ii)Here, the delegate had before them evidence that was not provided by the Applicant, namely, a ‘Fingerprint Match Report’ from the ‘Identity Resolution Centre Five Country Conference’ (fingerprint match report) which showed that the Applicant had been fingerprinted on 9 April 2004 at East Midlands Airport and on 29 April 2004 at ‘Midlands Enforcement Unit’, the reason for both fingerprints being stated as ‘asylum claim’.
(iii)The fingerprint match report would have been part of the reason for deciding that the Applicant was an excluded fast track review applicant.
(iv)The delegate did not give the Applicant particulars of the fingerprint match report, ensure the Applicant understood why it was relevant or invite the Applicant to comment on it.
Section 57 of the Act provides that:
(1)In this section, relevant information means information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or part of the reason:
(i)for refusing to grant a visa; or
(ii)for deciding that the applicant is an excluded fast track review applicant; and
(b)is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
Note: Excluded fast track review applicant is defined in subsection 5(1).
(2) The Minister must:
(a)give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c)invite the applicant to comment on it.
(emphasis added)
The applicant conceded that the delegate did not, in fact, rely on the fingerprint reports to form the view that the applicant was an excluded fast track applicant. However, the applicant argued, the delegate could have relied on the fingerprint reports as part of the reason for determining that the applicant was an excluded fast track review applicant. That is because the fingerprint reports said that the reason for the fingerprinting was an asylum claim. The applicant argued that the fingerprint reports, in combination with a document that the applicant provided to the delegate, being a document that the UK Immigration Department provided to the applicant to enable him to fly from the UK to Afghanistan, could have been the reason for deciding that the applicant was an excluded fast track review applicant.
The applicant argued that it was immaterial that the delegate did not in fact rely on the fingerprint reports, because the obligation under s.57 of the Act arises in advance of the actual decision, and is independent of the eventual reasoning: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; (2007) 235 ALR 609; (2007) 81 ALJR 1190; [2007] HCA 26 at [17]. That was confirmed in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; (2018) 353 ALR 600; (2018) 92 ALJR 481; [2018] HCA 16 at [9], where the High Court went on to say:
… the information must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for [deciding that the review applicant is an excluded fast track review applicant].
The applicant’s argument depends upon the relevant information being that the applicant had been fingerprinted in the UK for the purposes of an asylum application. However, that information was subsumed by the information that the applicant gave to the delegate that he had applied for protection in the UK and his application was rejected. It was that information, which was provided by the applicant, that led the delegate to conclude that the applicant was an excluded fast track review applicant.
As the authorities in this area establish, the information that a decision maker is required to provide to an applicant is the gravamen of the information, not the particular documents that contain that information, or chapter and verse of the information. In the present case, the gravamen of the information in the fingerprint reports (that the applicant had applied for asylum in the UK) was provided by the applicant himself to the delegate. The delegate was under no obligation to provide to the applicant details of documents that merely confirmed what the applicant had told the delegate.
Alternatively, if the delegate had been obliged to provide details of the fingerprint reports to the applicant, the delegate’s failure to do so was not a material error. That is because the applicant gave information to the delegate to substantially the same effect. This ground is not made out.
GROUND 1
The first ground of review in the application is:
In purporting to perform the statutory task required by the Migration Act 1958 (Cth) (Act) – in particular, in assessing the complementary protection criterion in s 36(2)(aa) of the Act – the delegate exceeded his jurisdiction by making a finding that was based on no evidence or that was illogical or irrational
Particulars
(i)The finding impugned by this ground is that ‘the applicant has the option of seeking assistance from his known associates or his tribal leaders if he were to relocate to Kabul’.
(ii) The impugned finding appears at paragraph 48 of the delegate’s reasons.
(iii)To the extent that the impugned finding related to ‘tribal leaders’, it was based on no evidence – there not being any evidence that leaders of the Applicant’s tribe were living in Kabul or that, if they were, he could seek assistance from them.
(iv)To the extent that the impugned finding related to ‘known associates’, it was illogical or irrational – the evidence not establishing that the Applicant had known associates in Kabul at the time of decision, that he would in the reasonably foreseeable future, or that, if he did, he could seek assistance from them.
Paragraph 48 of the delegate’s reasons for decision is as follows:
As the capital and largest urban centre, Kabul provides the most viable option for internal relocation and resettlement for most Afghans, including Hazaras. Given the considerable growth of Kabul's population since 2001, many Hazaras are likely to have members of their extended family resident in Kabul who can assist with their relocation. However, the cost of living is higher in Kabul than elsewhere in the country, there are considerable strains on infrastructure and services, and Kabul regularly experiences serious security incidents, including attacks directly targeting the Shi'a community. Members of all ethnicities reside in Kabul, but tend to live within their own communities. I am aware that the applicant claims that he does not have any connections or family members in Kabul however I notice that in 2010 he managed to travel to Kabul and obtain his Taskera and driving licence through known contacts. I consider that the applicant has the option of seeking assistance from his known associates or his tribal leaders if he were to relocate to Kabul. Kabul has an international airport and I consider that the applicant will not have problem gaining safe and legal access to Kabul if he were to return to Afghanistan.
(footnotes omitted)
It is well established that the no evidence ground requires that there be not a skerrick of evidence from which the relevant finding could be inferred, and that the illogicality or irrationality ground requires more than vehement disagreement with the conclusion.
In the present case, the evidence before the delegate included a Department of Foreign Affairs and Trade (“DFAT”) Country Information Report for Afghanistan dated 18 September 2015. The report is annexed to the affidavit of Mr Rogers affirmed on 24 February 2022. It says at paragraphs 3.2 and 3.3 the following:
3.2 In practice, ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan. For the majority of Afghans, including those in major cities such as Kabul but especially in rural areas, kinship is central to identity and acceptance in the community, including for finding shelter and employment. As such, Afghans tend to live in areas where their ethnic group constitutes the local majority. Outside major urban areas, most Afghans live in ethnic-based communities with their own traditions and customs. Even in major cities, Afghans tend to live alongside members of their own ethnic group.
3.3 … Hazaras predominately reside in the central provinces (as well as a large population of Hazaras living in Kabul). …
Additionally, the evidence before the delegate included a DFAT Thematic Report: Hazaras in Afghanistan dated 18 September 2017. The report is annexed to the affidavit of Mr Rogers affirmed on 24 February 2022. It says at paragraph 4.4 the following:
As the capital and largest urban centre, Kabul provides the most viable option for internal relocation and resettlement for most Afghans, including Hazaras. Given the considerable growth of Kabul’s population since 2001, many Hazaras are likely to have members of their extended family resident in Kabul who can assist with their relocation. ...
Finally, there was evidence before the delegate in the form of a DFAT Country Information Report for Afghanistan dated 18 September 2017. The report is annexed to the affidavit of Mr Babakarkhil affirmed on 3 February 2022. It says at paragraph 5.15 the following:
Major cities, particularly Kabul, offer greater opportunities for employment, and are home to communities from virtually all of Afghanistan’s ethnic groups. Traditional extended family and tribal community structures are the main protection and coping mechanism in Afghan society. Afghans rely on these networks for safety, shelter and economic survival. Afghans relocating internally tend to move in large groups comprising a number of families. This approach increases the group’s resilience, but can result in rapid population growth in particular areas with a resultant strain on infrastructure and services. Large numbers of internal migrants live in informal settlements in poor conditions, with high rates of unemployment and under-employment, limited access to water, and a lack of basic infrastructure.
This evidence is entirely general in nature. It says nothing about the particular familial and tribal connections of the applicant himself. He left Afghanistan when he was eight or nine years old. Both of his parents and a brother died when he was a child.
The delegate did not descend to the detail of identifying which Hazara tribe the applicant belonged to, who its leaders might be or whether any of them lived in Kabul. The delegate also said nothing about what tribal connections the particular applicant in this case might have.
The gist of the country information was that Afghan society works through familial and tribal relationships, and those networks are available to Afghans generally. However, the applicant is patently an unusual case, being an orphan who left Afghanistan as a young child. The delegate was obliged to consider the applicant’s personal circumstances, and rely on evidence that applied to him. In my view, this is a case where it can be said that there was not a skerrick of evidence to support the impugned finding.
In relation to the finding regarding known associates, the delegate noted that the applicant had travelled to Afghanistan in 2010 to obtain a Taskera and a driving licence through known contacts. The applicant argued that that trip was of only five days’ duration, and he was given only administrative assistance to obtain documents. He said that that assistance was of a different order of magnitude to obtaining employment and accommodation. The applicant also argued that the unstable situation in Afghanistan meant that the delegate could not infer that contacts who had been available in 2010 would still be available in 2017, being the time of the delegate’s decision.
It seems to me that there is no logical or rational link between a finding that the applicant received basic assistance with documents for a few days in 2010 and a finding that the applicant would receive assistance with long term employment and accommodation in 2017. The gap between the two findings is too great to be filled by an inference.
The errors identified in this ground are material, because if the delegate had looked more closely and rationally at the applicant’s prospects in Kabul, the delegate might not have concluded that the applicant could reasonably relocate there. This ground is made out.
GROUND 2
The second ground of review in the application is:
In purporting to perform the statutory task required by the Act – in particular, in assessing the refugee and complementary protection criteria in s 36(2)(a) and (aa) of the Act – the delegate exceeded his jurisdiction by making an illogical or irrational finding on a critical question of fact.
Particulars
(i)The finding impugned by this ground is that ‘I am satisfied that the applicant would have sufficiently retained his cultural identity and while he claims he mixes some English words I am not satisfied this is to an extent that it places him at risk of harm, or that he would not sufficiently adapt to cultural and linguistic practices upon return’.
(ii)The impugned finding appears at paragraphs 37 and 48 of the delegate’s reasons.
(iii)The impugned finding was illogical or irrational by reason of the fact that it relied upon an ability of the Applicant to ‘adapt’ (that is, to consciously modify) behaviour that was sub-conscious (mixing English words).
Paragraph 48 of the delegate’s decision is set out above. Paragraph 37 is as follows:
While I accept that his facial featured (sic) makes it easy to be identified as a Hazara Shia, I am satisfied that the applicant would have sufficiently retained his cultural identity and while he claims he mixes in some English words I am not satisfied this is to an extent that it places him at risk of harm, or that he would not sufficiently adapt to cultural and linguistic practices upon return. I consider that for the applicant, taking such steps would be reasonable and relatively minor inconveniences. I am satisfied there is nothing in his evidence that suggests he would be unable to, or could not or would not want to take such steps. Accordingly, I am satisfied that if the applicant took these steps to modify his behaviour, it would not conflict with a characteristic that is fundamental to his identity or conscience, or require him to conceal an innate or immutable characteristic, or require him to act in any way or do any of the things contemplated by s.5J(3)(c)(i–vi) of the Act. I am satisfied he could take reasonable steps to modify his behaviour to avoid what I consider to be an already remote chance of persecution for reasons of his residence in Australia, nor his own residence and claims for asylum in the west (Australia and the UK) and any related profile.
The applicant noted that, in paragraph 36 of the delegate’s reasons for decision, the delegate said that the applicant would use English words inadvertently. The relevant passage is as follows:
36.… He also claims that he has been living in Australia for so long that he has English words inter-mixed in his language. If he returns to Afghanistan and inadvertently uses English, he may be accused of working for the US or coming from a Western country and targeted for harm on this basis. DFAT is aware of occasional reports alleging that returnees from western countries have been kidnapped or otherwise targeted based on their having spent time in a western country. …
The applicant argued that it was self-evidently irrational to say that the applicant could consciously modify behaviour that was inadvertent.
In reply, the Minister said that the delegate found that the applicant using some English words in Afghanistan would not place him at risk of harm. That finding was not challenged, and is a complete answer to this ground. The delegate went on to say, perhaps unnecessarily, that the applicant could modify his behaviour and limit his use of English. However, the delegate’s basic point was that the applicant’s use of English, whether deliberate or inadvertent, was not to an extent that would place him at risk of harm. I might not agree with that finding. However, it is not for this court to engage in merits review. This ground is not made out.
CONCLUSION
As one of the applicant’s grounds has been made out, the delegate’s decision will be set aside, and the matter will be remitted to the delegate for redetermination according to law. The Minister will be required to pay the applicant’s costs of the proceeding.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 8 July 2022
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