DEA18 v Minister for Home Affairs
[2019] FCCA 2550
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEA18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2550 |
| Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether applicant claimed to fear harm as a result of residency in Kabul – whether IAA erred in failing to assess the risk of harm in Kabul was greater than the population generally – jurisdictional error established – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 473CB, 473DD |
| Cases cited: BCX16 v Minister for Immigration & Border Protection [2019] FCA 465 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 SZRLK v Minister for Immigration & Anor [2012] FMCA 1155 |
| Applicant: | DEA18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 73 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 25 June 2019 |
| Date of Last Submission: | 25 June 2019 |
| Delivered at: | Perth |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R S Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 12 February 2019.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 73 of 2019
| DEA18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 12 February 2019.
The IAA’s decision affirmed a decision of a delegate of the first respondent, then the Minister for Immigration & Border Protection (the “Minister”) to refuse to grant the applicant a Safe Haven Enterprise visa (the “visa”).
This proceeding is brought pursuant to s.476 Migration Act 1958 (Cth) (the “Act”). In order to obtain relief in this Court, the applicant must establish that the IAA has fallen into jurisdictional error.
Background
The applicant’s written submissions filed 13 June 2019 (at [2]-[7]) and the Minister’s written submissions filed 20 June 2019 (at [2]-[13]) both contained a detailed summary of the background to this matter. Nothing in these two sets of submissions differed or was disputed. The Court has reviewed the 251 page Court Book (“CB”) and is satisfied that the summaries provided are accurate. The Court adopts these submissions as its own. They provide as follows.
The applicant is a Shia Muslim Afghan citizen of Hazara ethnicity (CB 36-80).
The applicant first arrived in Australia in 1999. He was granted a temporary protection visa in 2000 which allowed him to stay in Australia until 2003 (CB 111). He then applied for a permanent protection visa in 2003, but departed Australia in 2004 (CB 111). That visa was refused in late 2004. The applicant then lodged an offshore application for a protection visa, which was also refused in 2005 (CB 223 at [2]).
In November 2012, the applicant arrived in Australia at Christmas Island as an unauthorised maritime arrival (CB 12 and 108).
On 5 January 2017, the applicant was notified that the Minister had “lifted the bar” under s.46A(2) of the Act (CB 33). The applicant then applied for the visa relevant to these proceedings on 27 January 2017 (CB 36-80).
The applicant’s claims (discussed further below as relevant to his review grounds before this Court) were summarised by the IAA at [19]-[22] in its decision. At [19], the IAA noted that due to the applicant’s earlier protection visa applications and his past period of residence in Australia, there were multiple sets of claims before the IAA. The applicant’s protection claims the subject of the application made on 27 January 2017 related to events that he says occurred between his departure from Australia in 2004 and his return in October 2012 (the “2017 claims”). The IAA noted that, upon examination, much of the 2017 claims actually relate to a fear of persecution in Pakistan. However, the applicant also cited two previous sets of claims which he provided to Australian authorities in 1999 (the “1999 claims”), and 2003 (the “2003 claims”) when he first resided in Australia
The 1999 claims were then summarised as follows:
• He is an Afghan citizen of Hazara ethnicity and an adherent of the Shia faith, who was born in Kabul, Afghanistan.
• After the Taliban took control of Afghanistan in 1996, they conducted a number of attacks against Hazara throughout the country, including in went to Balkh Province, and Bamyan Province, formerly Hazara strongholds.
• After the Taliban took control of Afghanistan in 1996, they conducted a number of attacks against Hazara throughout the country, including in Balkh Province, and Bamyan Province, formerly Hazara strongholds. The Taliban were unable to gain control of the northern parts of Afghanistan. They blamed Hazara. The Taliban began confiscating weapons from Hazara throughout. Many members of the Hazara community were accused of being members of the Hezb-e-Wahdat, a Hazara militia. Hazara families who did not hand over weapons or pay bribes the Taliban would have a male member of the family arrested. The Taliban distributed Sunni books to Hazara communities and encouraged them to convert to the Sunni branch of Islam. Many Hazara were forcibly recruited by the Taliban. Many were killed, including the applicant’s uncle and his family.
• After many Hazaras moved to Kabul the Taliban began searching homes of Hazaras in Kabul. Fearing harm, the applicant, and many Hazara men decided to depart Afghanistan and came to Australia.
• He is unable to return to Afghanistan as he will be arrested, imprisoned, tortured and executed by the Taliban, because he is a Hazara and Shia.
(CB 228 at [20])
The applicant’s 2003 claims were then summarised as follows:
• He is an Afghan citizen of Hazara ethnicity and an adherent of the Shia faith, who was born in Kabul, Afghanistan. He was born in 1964, not 1957 as previously recorded by the Department. When he 12 years of age his family moved to East Kabul. He started working as an auto electrician from around the age of 12.
• He completed one and half years of military service in Kabul when he was approximately 22 years of age. Around the age of 24 he and his family, Parwan Province so his brothers could avoid military service. He and his family lived in Parwan Province for around five years before return to his family home in, East Kabul. After returning, he opened an auto repair shop in Kabul and later, • a second branch of the shop. He had two employees. He was married, and has four children.
• His brothers and cousins were involved with the pro-Hazara Hezb-e-Wahdat party. His cousins were killed fighting the Taliban for Hezb-e-Wahdat. His father also provided support to Hezb-e-Wahdat by providing them food and cigarettes. His father’s support was denounced to the Taliban. As a consequence, his father was killed by the Taliban in 1996. He himself provided some assistance to Hezb-e-Wahdat by repairing cars owned by members of the group.
• There was frequent fighting in the area he resided. Before 1996, the area he resided was controlled by the Tajik community. A Tajik by the name of Ahmed Shah Masoud, was the head of the Northern Alliance and he created many problems in his area with Hazara community. The Northern Alliance continually pressured him to join their group. He was frequently forced to repair cars owned by members of the Northern Alliance. The Northern Alliance was suspicious of his family as they often took food to the Hezbe- Wahdat base. The applicant declined to join the Northern Alliance.
• In 1996, when the Taliban took control of Afghanistan, they took control of many Hazara areas including the area he lived. The applicant was often forced to conduct auto electrical work for the Taliban without payment. He could not refuse to carry out the work or the Taliban would have killed him. The applicant’s uncle was killed by the Taliban in Mazar-e-Sharif around this time.
• The Taliban searched homes in Kabul for weapons held by Hazara. Many Hazara were forced to fight for the Taliban. He was recognised due to his previous auto work for the Taliban and was not recruited.
• He fled Afghanistan in 1999 after he received a letter from the Northern Alliance which said that if he did not stop helping the Hezb-e-Wahdat, he and his family would be killed. A person he knew was killed by the Northern Alliance for refusing to join the group.
• Even though the Taliban are no longer in control of Afghanistan, it is still not safe for him to return to Afghanistan. Former Taliban commanders still live in his area of Kabul. Many members of the Northern Alliance were Ministers in the newly formed Afghan Government. They would know he had refused to join the Northern alliance and he may face harm as a result.
• Tajiks and Pashtuns are the two ethnic groups currently in control of where he used to live. His life would be in danger from Pashtuns as he is a Hazara and a Shia. There is no one in the government who can protect and keep Hazaras safe.
(CB 225-229 at [21])
The applicant’s 2017 claims were then summarised as follows:
• His family home and land was taken over by the Taliban after he left Kabul. The person who now occupies his house and land used to work for the Taliban and is now working for the government.
• After his departure from Australia in 2004, he briefly returned to Afghanistan, before settling in Pakistan with his family. While in Pakistan, he principally sold air-conditioning and car parts in a self-managed business.
• While living in Pakistan, he returned frequently to Afghanistan to visit his family in Kabul. When the applicant returned to Kabul in 2004 and 2009 he was warned not to pursue the return of his land and house otherwise he and his family would be killed. As a result, his mother and brother who live in Kabul are always moving from one place to another.
• He says that around 2011 people in Pakistan became aware of his time spent previously in Australia. He was denounced to a Pakistani Islamist group who harassed and threatened him. They attempted to detain him. He feared they would kill him. His employer received a threatening letter which he believes was sent by ISIS or by the Taliban.
• He reiterates that his previous claims that his father, uncle, and cousins were killed by the Taliban due to their being Hazara Shia.
• He fears to return for all the reasons outlined above.
• He fears that if he returned to Afghanistan now, after spending so much time in Australia he would be thought of as an infidel, a spy or a Christian.
• He fears that throughout the whole of Afghanistan including being arrested and murdered at the hands of the Taliban or ISIS or members of the Northern Alliance on the basis of his religion and ethnicity.
(CB 229-230 at [22])
On 21 July 2017, the delegate refused the applicant’s visa application (CB 108-126). The delegate observed that the majority of the claims raised in the visa application related to reasons why the applicant was unable or unwilling to return to Pakistan; however; as the applicant’s country of reference was Afghanistan, the claims raised in relation to Pakistan would not be considered (CB 112).
On 27 July 2017, the matter was referred to the IAA (CB 131-132).
On 17 August 2017, the applicant provided a further statement to the IAA. On 22 January 2018, he provided further country information and written submissions (CB 149-175).
On 15 May 2018, the IAA affirmed the delegate’s decision not to grant the applicant the visa he was seeking (CB 176-198). The applicant then lodged an application in this Court for judicial review. On 10 December 2018, the matter was remitted to the IAA by consent on the basis that the IAA had erred by failing to consider whether to “get information” on the issue of the reasonableness of relocation to Mazar-e-Sharif in circumstances where the issue had not been canvassed by the delegate (CB 199-200).
On 7 January 2019, the applicant was notified that the IAA would reconsider his case (CB 202-205). On 29 January 2019, the applicant provided further submissions to the IAA (CB 209-218).
On 12 February 2019, the IAA affirmed the delegate’s decision to refuse to grant the visa (CB 219-246). That decision is the subject of this judgment.
The IAA’s Decision
As noted, the application before this Court relates to a decision of the IAA dated 12 February 2019. That decision is 25 pages in length and contains 79 paragraphs. The IAA extensively references various sources (CB 226 at fn.5).
The Minister’s submissions at [15]-[18] provided a summary of the key parts of the IAA’s decision. That summary is accurate and the Court adopts it as its own. But for some minor amendments, that summary provides as follows.
At [1]-[3] the IAA provided an outline of the “somewhat unusual” history of this matter. It confirmed that as its task was to conduct a “de novo” review, it was not bound by the delegate’s decision or the previous IAA decision and would consider the applicant’s claims “afresh”.
At [4]-[18], the IAA extensively detailed what information it had before it. It noted as follows:
a)it had regard to the material given by the Secretary under s.473CB (CB 223 at [4]);
b)both the 2017 Department of Foreign Affairs and Trade (“DFAT”) Country Information Report Afghanistan and the 2017 DFAT Thematic Report: Hazaras in Afghanistan were “new information” that met the requirements of s.473DD of the Act and were considered (CB 224 at [5]);
c)a statement provided to the IAA in 2017 about the applicant’s name and identity was not new information and was therefore considered (CB 224 at [6]);
d)at CB 224 at [7], the IAA determined as follows:
7. The 2017 Statement also provided some new information about the applicant’s former residence in Kabul and its location relative to a bomb blast at the German embassy in May 2017 (he was said to have lived 500m away). The bombing of the embassy had been cited by the delegate in the s.65 decision and is not new information. However, the applicant’s claim that he had lived 500m away from the embassy is new since previously he had only asserted to have been born, and resided in Kabul for most of his life. The relevance of this information to his claims now is not entirely apparent to me, since in the statement the applicant advises that he has not lived in this location since 1996. Furthermore, I note that on his own evidence, the applicant has mostly lived outside Afghanistan since 1999 (see below for details). I also note that the bombing referred too had occurred approximately two months before the date of the s.65 decision but was not mentioned prior to the date of the decision despite the applicant being informed by the delegate that further information could be provided until a decision was made. The 2017 Statement advances argument that the delegate has relied upon out of date information, but it does not seem to have occurred to the applicant (or his representative) that this might equally apply to the new claim being advanced. The applicant has not indicated that he would return to this location in Kabul where he lived before 1996 or any other factor that might suggest it was relevant to his claims now other than to indicate that there is a general level of violence in Kabul. On the whole, I am not persuaded that the new information about the location of the applicant’s residence in 1996, relative to a bomb blast which occurred in 2017 is material to his claims for protection in anything but the most general way. I am not satisfied that there are exceptional circumstances to justify the consideration of this new claim.
e)to the extent that the submissions provided in 2018 argued against the findings of the delegate, the IAA considered these (CB 224-225 at [8]-[9]);
f)it did not consider there were exceptional circumstances to consider seven new articles provided in 2018 (CB 225 at [10]);
g)it declined to invite the applicant to an interview as was requested by his migration agents (CB 225 at [12]), noting:
i)it did not consider that a new claim raised in submissions provided in 2019 relating to the applicants change in “worldview” met any of the sub-paragraphs of s.473DD(b) (CB 226 at [13]-[14]); and
ii)the applicant had had a number of “meaningful opportunities” to put forward his case; and
h)it declined to accept the extensive new country information that was summarised in the 2019 submissions, further noting that this information was not provided in a form in accordance with the practice direction (CB 226-227 at [15]-[18]).
The IAA then summarised the applicant’s claims for protection noting those raised in 1999, 2003 and 2017 (CB 227-230 at [19]-[22]). These appear at [10]-[12] above.
The IAA then referred to a number of discrepancies in documents and the applicant’s accounts of his identity and did not accept that he was entirely truthful about the information he had provided to Australian authorities. However, the IAA ultimately accepted that the applicant was an Afghan citizen of Hazara ethnicity and an adherent of the Shia religion whose receiving country would be Afghanistan (CB 230-231 at [23]-[29]).
In considering the applicant’s claims, the IAA identified, and was troubled by, inconsistencies between the applicant’s various statements relating to his protection claims. In light of the inconsistencies in the various aspects of the applicant’s evidence, the IAA:
a)found that the applicant was never of any personal interest to the Northern Alliance (CB 233 at [38]), Taliban (CB 234 at [42]), ISIS (CB 235-236 at [50]) or any other group in Afghanistan (or Pakistan) (CB 235-236 at [50] and CB 236-237 at [55]);
b)did not accept that he was involved in any land dispute (CB 231-232 at [31] and CB 236-237 at [55]);
c)whilst willing to accept that the applicant’s uncle had been killed and that he had cousins who fought for Hazb-e-Wahdat and were killed in combat, was not persuaded that the applicant was telling the truth about his brothers’ or his father’s involvement with Hazb-e-Wahdat or about the circumstances of his father’s death (CB 233 at [39] and CB 234 at [44]);
d)did not accept that the inconsistencies in the applicant’s various accounts was the result of translation errors, or fears he had about his interpreter, or routine failures of memory, or a combination of these reasons (CB 236 at [51]);
e)found that the applicant was willing to substantially alter his account of events where he thinks it will advance his chances of obtaining a visa (CB 232-233 at [37]-[38]); and
f)found that the applicant’s many conflicting accounts were demonstrative of a deliberate, long-term campaign of deception by him in order to enhance his chances of obtaining a visa in Australia (CB 236 at [51]).
Overall, the IAA expressed significant doubts about the applicant’s principal claims for protection and rejected them, in most part, on the basis of doubts surrounding his credibility generally.
The IAA went on to consider whether the applicant would face harm if returned to Afghanistan by reason of his ethnicity (as a Hazara) and religion (as a Shia Muslim). The IAA also considered whether the applicant would be subjected to a risk of harm due to generalised violence experienced in Afghanistan or because he would be perceived to be an infidel, a spy or a Christian due to his attempts to claim asylum in Australia (CB 237 at [55]).
In considering the applicant’s risk of harm as a Shia Hazara, the IAA accepted that the applicant’s distinctive visual appearance would allow him to be identified as a Hazara (CB 237 at [57]). Based on country information (CB 237-238 at [56] and [58]-[60]) and the applicant’s personal circumstances (including his decision to return to live in Kabul in 2011 and 2012), the IAA was satisfied that the applicant would not face a real chance of harm in Kabul from the Taliban, ISIS or any other group on the basis of being a Hazara Shia (CB 238 at [61]). Paragraph 61 provides in full:
61. Country information before me that insurgent groups, including the Taliban and ISKP retain the capability to conduct large-scale attacks in Kabul. It is also clear that Hazara have been targeted in the past. Nevertheless, I observe that the applicant, on his own evidence, returned to Kabul himself on multiple occasions between 2004 an his return to Australia, and had actually chosen to live in Kabul in 2011 and 2012. He has not put forward any accounts of facing persecution or harm in Kabul during these periods because of his ethnicity or his religion. Kabul is a large urban conurbation with between three to five million inhabitants. More than a million Hazara Shia are said to live in in Kabul making up roughly half of the population. I accept that if he returns to Kabul he would return as an identifiable Hazara who continued to practise his Shia faith and that some Hazara Shia have been targeted in the recent past, though this is infrequent. However, given the sheer size and diversity of Kabul I am not satisfied that he would face a real chance of harm, including serious harm, in Kabul from the Taliban, ISIS or any other group on the basis of being a Hazara Shia in Kabul.
In relation to the applicant’s risk of harm as a failed asylum seeker and his time in the west, again having regard to country information (CB 238-239 at [63]-[64]) as well as the applicant’s circumstances (including that he has never spoken out against anti-Government elements and does not does not have any particular political profile), the IAA found that the risk of harm to the applicant due to his employment profile as a salesman or mechanic was remote (CB 239 at [65]).
The IAA also stated that there was no evidence that the applicant’s current circumstances were known to anybody outside of his immediate family (CB 240 at [66]) and did not accept that the applicant would behave in a way that would identify him as having returned from the west (CB 240 at [66]). Noting the large amount of returnees to Afghanistan, as well as the absence of any previous harm, the IAA was satisfied that the applicant faced only a remote chance of harm on the basis of having returned from a western country (CB 240 at [67]).
The IAA also found that the applicant did not have any direct links to the Afghan government or international donors and had not been of interest to anti-government elements at the time of his departure. The IAA was not satisfied that the applicant would be of any interest now or otherwise be distinguishable or face harm as a result of his long absence from Afghanistan (CB 240 at [68]).
The IAA was not satisfied that there was a real chance that the applicant, a Hazara Shia who has spent extended periods outside of Afghanistan, would be imputed to be a spy, or an infidel, or a Christian, or to have been ‘westernised’, or that he would be imputed with pro-Government opinion or would face any harm arising from these issues (CB 240 at [69]).
In considering the risk of harm from general violence, the IAA found that country information suggested that violent incidents are prevalent in Kabul but that the essential and significant reason for such generalised violence would not be for one or more of the reasons referred to in s.5J(1) of the Act (CB 240-241 at [70]-[71]). Paragraph 71 provides in full:
71. I have found that the applicant would return to Afghanistan unaffiliated with the Afghan Government, the Security forces or the international donor community. He would return as a civilian. I have found above the does not have a profile of interest to any anti-government elements he claims to fear harm from including the Taliban, ISIS/ISKP or other groups such as the Northern Alliance. Nevertheless, the evidence suggests that violent incidents are prevalent in Kabul and are principally directed at Government and other targets and do result in the loss of civilian lives, however, even if in these circumstances the risk to the applicant is a real one, the risks faced by the applicant from the general level of violence in Afghanistan would be, by definition, random and unrelated to his profile, or his wider claims for protection. The essential and significant reasons for such generalised violence, while personally difficult for the applicant, would not be for one or more of the five reasons referred to in s s.5J(1) of the Act.
In considering the applicant’s claims under the complementary protection criteria, the IAA found that whilst factors indicated that there was some possibility that the applicant might be arbitrarily deprived of his life if returned to Afghanistan due to the general level of violence in that country, even if that risk could be considered a real chance, such risk would affect the population of Afghanistan generally and not the applicant personally (CB 242 at [77]).
The IAA relied on its anterior findings to conclude that the applicant did not face a real risk of harm arising from his ethnicity, religion, time spent in Australia or a combination of those factors (CB 242 at [78]).
The IAA concluded that the applicant did not meet the criterion for a protection visa.
Proceedings in this Court
The applicant filed his judicial review application on 22 February 2019. At that time he was unrepresented. The applicant obtained legal representation shortly prior to the hearing before this Court.
By leave, the applicant filed an amended application on 20 June 2019. That judicial review application contained one ground of review as follows:
The Immigration Assessment Authority (Authority) failed to consider whether the risk faced by the Applicant as a resident of Kabul was the same risk faced by the general population of Afghanistan.
Particulars
1. The Authority found that ‘violent incidents are prevalent in Kabul and are principally directed at Government and other targets and do result in the loss of civilian lives’, but that the ‘risks faced by the applicant from the general level of violence in Afghanistan would be, by definition, random and unrelated to his profile, or his wider claims for protection’: CB 241 [71].
2. When assessing the Applicant’s claims under the complementary protection provisions, the Authority found that the ‘general level of violence in Afghanistan is high’ but that it affected ‘the population of Afghanistan generally, not the applicant personally’: CB 242 [77].
3.In circumstances where the Authority did not make any finding about the risk of harm from generalised violence in Kabul compared to Afghanistan generally, there was no basis to conclude that the risk faced by the Applicant was not a real risk by reason of s.36(2B)(c) of the Act.
The applicant filed written submissions in support of this ground on 13 June 2019. The Minister responded to the amended application in written submissions filed 20 June 2019.
The applicant was represented by Mr Jahnke. The Minister was represented by Ms Oliver of Counsel. The Court thanks both lawyers for the very high quality of their written and oral submissions.
The matter came on for final hearing on 25 June 2019.
Relevance of BCX16 to this Matter
Much of the discussion relevant to this matter referenced the decision of Charlesworth J in BCX16 v Minister for Immigration & Border Protection [2019] FCA 465 (“BCX16”). As such, it is helpful to summarise that decision in some detail.
BCX16 provides an extensive overview of s.36 of the Act.
The relevant parts of s.36 of the Act are as follows:
…
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa)a non‑citizen in Australia (other than a non‑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;
…
(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; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
In some circumstances, the IAA will be entitled to rely upon the findings in respect of the refugee criterion to similarly find that an applicant does not meet the complementary protection criterion.
It has been said that where the IAA, after considering the applicant’s claims in respect of the refugee criterion, makes findings that leave open that there may be a risk of harm albeit not for a Convention reason, it must consider that finding against the complementary protection criterion: SZRLK v Minister for Immigration & Anor [2012] FMCA 1155 at [44]. While the IAA may reject certain claims or matters under the Refugee Convention (s.36(2)(a)), if the reasons for that rejection are specific to the Convention (i.e., if the IAA rejected a claim of harm on the basis that it did not extend to Shias) the IAA must still address the claim under the complementary protection criterion: BCX16 at [28].
In BCX16, the applicant claimed that he had a well-founded fear of persecution on the basis of his imputed political opinion. He also claimed that there was a real risk of significant harm if returned to Kabul because of the deteriorating security situation: BCX16 at [12]-[13].
The first ground of appeal in BCX16 is the same as that which is presented to this Court in this case.
The Tribunal in BCX16 found as follows:
a)there was a real chance that the applicant had a well-founded fear of persecution in Kabul for reason of, or combination of, his personal attributes and circumstances;
b)while the country information indicated that there were terrorist acts and elevated levels of generalised violence in Kabul, the Tribunal was satisfied that there was less than a real chance that the applicant would be harmed in a terrorist act or in an act of generalised violence in Kabul;
c)in respect of the complementary protection provision, for the same reasons given under the Refugee Convention assessment concerning the security situation, the applicant would not be specifically targeted for harm for reason of his personal circumstances by the Taliban or other insurgent group;
d)there was a high level of violence in Kabul and the civilian population across Afghanistan, including Kabul, had been subjected to violence and there have been a number of civilian casualties caught up in attacks;
e)terrorist attacks do occur in Kabul from time to time; however; this was a risk that is faced by the population generally, and “not by the applicant personally in this generalised violence context in that city”; and
f)no particular attribute of the applicant would lead him to face a risk of differential treatment on his return. Further, the level of generalised violence in Afghanistan is not so elevated that the applicant faces a real risk of significant harm as defined in the Act.
In assessing the Tribunal’s decision, Justice Charlesworth found that the claims or facts that the applicant in BCX16 alleged did not “wholly coincide” – that is, they were not the same for both the refugee and complementary protection provisions: BCX16 at [24]. The applicant did not rely on his status as a resident of the city of Kabul in his claims to fear persecution. The applicant did, however, “rely on his place of residency as a personal circumstance that caused him to face a real risk of significant harm that was not the same as that faced by the population of Afghanistan generally”: BCX16 at [24].
At [28], Justice Charlesworth rejected the submission that the Tribunal was intellectually engaging with the appellant’s claim that there was a real risk that he would suffer significant harm by reason of being caught up in sectarian violence as a non-targeted citizen of a city where there was, as the Tribunal had found, “an elevated level of generalised violence”. Instead, it was found that the Tribunal had confined the “personal circumstances” of the applicant to his claims made in respect of the refugee criterion: BCX16 at [28].
Emphasis was placed on the Tribunal’s finding that a terrorist attack in Kabul was a risk “faced by the population generally, not by the applicant personally in this generalised violence context in that city”.
At [34], Her Honour stated as follows:
The Tribunal did make an assessment of the likelihood that the appellant would be personally targeted in the generalised violence in Kabul, and concluded that he would not be. But that finding was not determinative of the whole of the appellant’s claim. It was necessary to consider whether the appellant’s residency in Kabul was, of itself, a circumstance that exposed him to a real risk of significant harm as a non-targeted citizen who may be caught up in the attacks. If the answer to that question was “no” then there would, as I have said, be no reason to consider the application of s 36(2B)(c) at all. If the answer was “yes”, then it was the risk so identified that fell to be considered under s 36(2B)(c).
In explaining how s.36(2B)(c) of the Act should be construed and applied, the following is of note in relation to her Honour’s findings in BCX16:
a)read in the context of s.36(2B)(a), a risk being faced by a non-citizen personally as described in s.36(2B)(c) may include a risk faced by a person because of the circumstance that he or she resides in an area of a country. A risk a person is exposed to because of their residence in a specific area of the country is a risk that is faced by the person personally, notwithstanding that other persons residing in the same area are exposed to the same risk: BCX16 at [37];
b)it is erroneous to construe s.36(2B)(c) on the basis that a person would not be exposed to a risk personally if the risk was one that other persons in the same area of a country were exposed to the same degree: BCX16 at [38];
c)where the risk faced by a person is the same as is faced by the general population of the whole of the country, the personal circumstance of residency in any one particular area of the exposure to risk is not because of the particular residency: BCX16 at [39];
d)section 36(2B)(c) is a composite phrase founded upon an assumption that a risk faced by the population of the country generally is a risk that is not faced personally by any one of its citizens: BCX16 at [39]; and
e)what is required is an assessment of whether an individual faced a real risk of significant harm in light of their status as a resident of a particular area or city. It is that risk (in the particular city) that must be the subject matter of consideration under s.36(2B)(c) against the population generally: BCX16 at [40].
It was concluded in BCX16 that the Tribunal did not perform the comparative task required by s.36(2B)(c) of the Act and had thus committed a jurisdictional error.
Applicant’s Submissions
The applicant’s written submissions can be summarised as follows:
a)when assessing the applicant’s claims for protection under the refugee criterion, the IAA found at [71] that ‘violent incidents are prevalent in Kabul… and do result in the loss of civilian lives’, but that these risks faced by the applicant from the general level of violence in Afghanistan would be, by definition, random and unrelated to his profile, or his wider claims for protection. Yet, when assessing the applicant’s claims (at [77] under the complementary protection provisions), the IAA did not revisit its own finding that ‘violent incidents are prevalent in Kabul’. Rather, the IAA only considered the general level in Afghanistan as a whole;
b)relevantly, the IAA made no finding that the risk of harm brought about by generalised violence was not ‘real’. Instead, the IAA deferred to the exclusionary provision in s.36(2B)(c) which prescribes that there is taken not to be a real risk an applicant will suffer significant harm if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’;
c)in BCX16 it was observed that where an applicant raises a claim for protection based on the risk brought about by generalised violence in an especially violent home area, the IAA’s task is to compare the risk faced by residents of the especially violent area with the risk faced by the general population outside the violent home area;
d)after finding that “violent incidents are prevalent in Kabul… and do result in the loss of civilian lives”, the IAA was required to:
i)determine whether the risk brought about by generalised violence in Kabul was considered ‘real’; and
ii)if so, compare the real risk of harm faced by residents of Kabul with the risk of generalised violence faced by the Afghan population outside Kabul to determine whether ‘the real risk is one faced by the population generally and is not faced by the applicant personally’; and
e)the IAA failed to consider whether the applicant faced a real risk of significant harm in Kabul as a result of generalised violence. In doing so, the IAA failed to carry out the comparative task set out in BCX16.
At hearing, the applicant advance the following submissions:
a)the applicant’s complaint in this case is that in the context of generalised violence in Afghanistan, specifically Kabul, the IAA failed to make the appropriate assessment between whether the risk faced by him as a resident of Kabul was the same as the risk faced by the population of Afghanistan generally;
b)there are two steps relevant to the process of excluding someone from the scope of complimentary protection under s.36(2B)(c) of the Act;
c)the first step is for the decision-maker to determine whether or not the risk brought about by generalised violence in the especially dangerous city is real. Secondly, if it is seen as real the decision-maker must then compare that real risk of harm in the dangerous city (here, Kabul) with the risks of generalised violence faced by people outside the city and determine whether or not it is the same risk;
d)put simply, where a claim for complimentary protection is made by someone arguing a generalised violence claim (like the applicant in this case), the IAA must compare the risk faced by residents of Kabul with the risk faced by residents outside Kabul. Here, the IAA did not appropriately carry out the comparative task;
e)the IAA made a number of findings about Kabul at [70] (in relation to its refugee assessment) and makes findings that violent incidents are prevalent in Kabul, that they do result in the loss of civilian life, that there is a spike in the frequency of attacks in Kabul and that ISIS has the capability to carry out large scale attacks in Kabul. Having made that finding, it was then incumbent on the IAA to undertake the comparative task discussed in BCX16;
f)when one looks at the complementary protection assessment made by the IAA it is not clear whether or not the applicant would face a real risk of harm in Kabul as it is not addressed and there is no determinative finding that says the applicant would not face a real risk of harm from generalised violence in Kabul;
g)the only claim that is not dealt with and is left lingering is the claim of generalised violence in Kabul;
h)it is not correct to compare the situation faced by Kabuli residents with other Kabuli residents. The test is to compare people in Kabul with people outside Kabul;
i)it is incumbent upon the IAA to deal with the issue of him being a Kabuli resident. All of the evidence that the applicant put forward in relation to his fear of harm related to Kabul. He never mentioned a claim or a type of harm that existed outside Kabul;
j)the way that the applicant has put his claim to fear harm forward, coupled with the fact that the IAA makes a number of findings that it is especially dangerous in Kabul, clearly puts forward an argument that the situation in Kabul is different from that outside of Kabul;
k)the IAA’s findings were that Kabul is especially dangerous. This made it necessary for the IAA to compare the situation of persons in the city and outside of the city;
l)focusing on the phrase “by virtue of his status” as used in BCX16, this clearly refers to something that was not expressly raised but is something that a decision-maker looking at the applicant’s personal circumstances should consider, and make a comparison of, before excluding the applicant under s.36(2B)(c) of the Act;
m)in this case, it is unclear whether the risk is the same for people in Kabul and people outside of Kabul as the IAA has not addressed this. It has simply taken a “big picture approach” and looked at the risk faced by all people in Afghanistan;
n)the first Immigration Assessment Authority decision-maker (the remitted decision) found that the applicant would face a risk of significant harm in Kabul by ISIS. Hence, the previous Immigration Assessment Authority, in effect, made the relevant claim to fear harm in Kabul specifically for the applicant.
Minister’s Submissions
The Minister’s written submissions were as follows:
a)the findings on the complementary protection criteria must be read in the context of the reasons as a whole, particularly having regard to the reasons given by the IAA for rejecting the applicant’s claim to have a well-founded fear of persecution for a Convention reason;
b)in the present case, the issue of risk of harm arising from generalised violence was addressed by the IAA in the context of its consideration of the refugee criteria and the complementary protection criteria;
c)unlike the position in BCX16, in the present case the facts in relation to each of the relevant criteria wholly overlapped (in BCX16, the facts alleged in support of each alternate criterion did not wholly coincide (at [24]));
d)in the present case, the applicant claimed to fear harm if returned to “Afghanistan”, rather than specifically claiming a risk of significant harm in the Kabul area. For example:
i)in his statutory declaration, the applicant stated, “I cannot return to Afghanistan” (CB 4 at [14]);
ii)in his statement dated 14 January 2003 (CB 7-11), the applicant stated, “Even though the Taliban no longer control Afghanistan, it is still not safe for the Hazara people in Afghanistan” (CB 11 at [47]); and
iii)in his statement of protection claims submitted with his visa application (CB 73-78), the applicant stated:
0. “I believe that if I go back to Afghanistan it is only a matter of time before the group finds me and kills me because I’m Hazara and a Shia Muslim. …. There is no place that is safe to live in Afghanistan for Hazaras and Shia Muslims. …” (CB 78 at [42]);
1. “I am unable to relocate to another area of Afghanistan because my risk of harm extends throughout the whole country” (CB 78 at [45]);
2. “ISIS and the Taliban are in all parts of the country” (CB 78 at [46]); and
3. “In summary, I fear harm throughout the whole of Afghanistan including being arrested and murdered at the hands of the Taliban or ISIS or members of the Northern Alliance on the basis of my religion and ethnicity. I have personally been threatened by my feared persecutors. I cannot rely on the protection of the Afghani state and cannot safely relocate anywhere else in Afghanistan” (CB 78 at [48]);
e)the applicant did not claim that he faced a greater risk of harm vis-a-vis the general populace of Afghanistan by reason of the circumstance that he would, if returned to Afghanistan, reside in Kabul;
f)a claim (or its essential/component integers) is generally only required to be considered where it is the subject of a “substantial, clearly articulated argument relying on established facts”, or where a claim (although unarticulated) “clearly emerges”, is “squarely raised” or is “plain” on the materials before the decision-maker. A finding to such an effect is not one that will be made lightly and the fact that a claim “might” be seen to arise on the materials is not enough; and
g)in the present case, where no claim was clearly made or clearly emerged on the materials before the IAA that the applicant faced a greater risk of harm in Kabul vis-a-vis the general populace of Afghanistan, there is no error of the kind identified in BCX16 at [39].
In oral submissions the Minister submitted:
a)when regard is had to the applicant’s claims, the claims have a connection to Kabul purely because the applicant was residing there. None of the claims expressly assert any sort of fear by virtue of simply living and being a resident of Kabul and no such claim clearly emerges or is squarely raised on the claims and materials that were put forward;
b)the IAA rejected all of the principal claims made by the applicant and then went on to consider whether or not he met the refugee and the complementary protection criteria. The IAA, in doing so, does refer to risk of harm in Kabul and the prevalence of violent incidences in Kabul and makes findings at [61] and [71]. At [61], albeit in the context of the refugee assessment, the IAA there clearly makes findings that there is no risk of significant harm in Kabul;
c)that finding (at [61]) is entirely open to the IAA to make because of the fact that there was no specific claim advanced that the applicant feared harm as a resident of Kabul in any greater capacity than being a citizen of Afghanistan generally;
d)the risk of harm asserted by the applicant consistently is throughout the whole of Afghanistan arising from a fear of the Taliban. There is no direct link or nexus between Kabul and the risk of harm. The fear of harm asserted is in relation to the Taliban, and those claims were rejected and there was nothing left in the sense of a claim specifically to fear harm in Kabul;
e)there is a clear distinction in the IAA’s reasoning around significant harm and the complementary protection criterion which is consistent with the different tests and language. There not being a direct claim of risk of harm connected to the residents of Kabul alone, the IAA (in the complementary protection assessment) has gone on to consider the risk of harm across all of Afghanistan which is entirely consistent with what claims were made; and
f)not a lot of weight can be put on the fact that the earlier Immigration Assessment Authority made certain findings and that that ought to have given rise to an inferred claim that the IAA had to consider as the IAA was not bound by the previous decision and was conducting the review afresh.
Consideration
Was the claim made?
The Minister’s position before this Court was that the claim to suffer harm from generalised violence in Kabul was not raised and that the way in which the applicant’s claims were put did not give rise to the need for the IAA to consider that argument/issue. Rather, the claims were framed such that the risk of generalised harm or violence in Kabul was no higher than the risk of harm in Afghanistan.
In BCX16, the applicant expressly claimed that there was a real risk that he would suffer significant harm if returned to Kabul (the city in which he resided) because of the deteriorating security situation (at [13]).
It is not disputed that no express claim of this sort was made by the applicant in this case.
But does the claim arise clearly on the material?
The applicant’s claims were, relevantly, framed as follows:
a)in his statutory declaration, the applicant stated, “I cannot return to Afghanistan” (CB 4 at [14]);
b)in his statement dated 14 January 2003 (CB 7-11), the applicant stated, “Even though the Taliban no longer control Afghanistan, it is still not safe for the Hazara people in Afghanistan” (CB 11 at [47]); and
c)in his entry interview the applicant stated “Afghanistan is not safe and I fear of persecution. It is a war country.” (CB 31);
d)in his statement of protection claims submitted with his visa application (CB 73-78), the applicant stated:
i)“I believe that if I go back to Afghanistan it is only a matter of time before the group finds me and kills me because I’m Hazara and a Shia Muslim. …. There is no place that is safe to live in Afghanistan for Hazaras and Shia Muslims. …” (CB 78 at [42]);
ii)the Taliban and ISIS have a network throughout Afghanistan so they will be able to find me if I return (CB 78 at [43]);
iii)“I am unable to relocate to another area of Afghanistan because my risk of harm extends throughout the whole country” (CB 78 at [45]);
iv)“ISIS and the Taliban are in all parts of the country” (CB 78 at [46]); and
v)“In summary, I fear harm throughout the whole of Afghanistan including being arrested and murdered at the hands of the Taliban or ISIS or members of the Northern Alliance on the basis of my religion and ethnicity. I have personally been threatened by my feared persecutors. I cannot rely on the protection of the Afghani state and cannot safely relocate anywhere else in Afghanistan” (CB 78 at [48]);
e)in a submission to the first IAA, it was submitted:
i)“continuing attacks on Shia in Kabul and elsewhere, having regard to the fact that virtually all Hazaras are Shia and the great majority of Shia in Afghanistan are Hazaras and that the mosque attacks were Shia Hazara Mosques Not all the attacks in Kabul …occurred at Mosques, but all the attacks would appear to have been in Hazara areas and involved the killing of Hazaras” (CB 151 at [4]); and
ii)there had been at least 3 further reported attacks against Shia in Kabul which have occurred subsequent to the latest DFAT Report (CB 152 at [5]);
f)the previous IAA decision found “there is a more than remote chance of the applicant being harmed in Kabul as a Shia Hazara who practises his religion” (CB 187-188 at [29]); and
g)the submissions to the IAA dated 29 January 2019 stated:
i)“[t]he 18 months which have passed since that decision was made have seen significant changes in the security situation and living conditions in Afghanistan” (CB 209 at [1]); and
ii)under the heading “Real risk of serious and significant harm in Kabul” (CB 210-212 at [7]-[9]):
7. Importantly, DFAT’s most recent assessment of the harm faced by Shias does not contain any geographical qualification – it is expressed as applying to the whole of Afghanistan. In September 2017, DFAT advised that ‘Kabul regularly experiences serious security incidents, including attacks directly targeting the Shi’a community… DFAT reports that: ‘The Afghan government has limited capacity to address security concerns in Kabul. The city is a significant target for suicide and complex attacks against both civilian and non-civilian targets carried out by non-government elements’. Major attacks which have targeted Shia in Kabul since the Delegate’s decision include the following:
…
8. Analysis of the various attacks on Shias and Hazaras since the 23 July 2016 bombing overwhelmingly views the targeting of Shias in Kabul as an escalating trend…
9. On the basis of all the above, the IAA should find that the Applicant as a Shia faces a real risk of significant harm in Kabul (as in the rest of Afghanistan).
It is well established that the IAA is not required to consider a case that is not expressly made or arising clearly on the material: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58], [61] and [68].
Mr Jahnke, for the applicant in this Court, argued that it can be inferred from the above and the other materials before the IAA (which pointed to attacks in Kabul) that a claim that the applicant was at greater risk in Kabul as a result of generalised violence was made (or does, in fact, arise) clearly on all of the materials before and assessed by the IAA.
The Minister countered that, at no time, did the applicant’s claims imply or even suggest that he was claiming that there was a higher risk of harm in Kabul than the rest of Afghanistan. It was said that his claims argued that the level of risk was significant throughout Afghanistan. In particular, the Minister emphasised that the applicant’s claim, as put by his representatives in submissions, was:
…the IAA should find that the Applicant as a Shia faces a real risk of significant harm in Kabul (as in the rest of Afghanistan)
(Emphasis added)
Unsurprisingly, the applicant’s claims were that his risk of harm extended throughout Afghanistan so as to preclude a finding, or suggest, that he could relocate safely.
Here, the express claim clearly was that the applicant claimed to fear harm by reason of his status as a Shia Muslim resident in Kabul. He appears to have placed reliance on his residency for the purpose of supporting his Convention claim. Reliance on his residency in Kabul was not distinguished from his claim of harm on the basis of his religion. Further, the essence of the applicant’s claims was not that his place of residency was a personal circumstance that caused him to face a real risk of significant harm greater than the population of Afghanistan generally. The essence of his claims was that he was at risk throughout Afghanistan.
That does not mean, however, that it cannot be implied from the materials before the IAA that there was a claim that his place of residency was a “personal circumstance” that caused him to face significant harm greater than that of the general population.
The submissions and the other materials that were before the IAA included references to specific violent incidents in Kabul (CB 150-154) that could, arguably, suggest that there was a risk of harm in Kabul corollary to these attacks by virtue of the applicant simply living there.
These matters were specifically referred to in the IAA’s decision. For example, at [60]-[61] the IAA states:
60. I note that in 2016 and 2017 there was a spike in the frequency of attacks in Kabul against targets that are identifiable as Hazara or Shia. Though attacks do continue to occur from time to time, more recent reporting does not suggest this trend is ongoing. This has included attacks against demonstrations conducted by Hazara, and against Shia religious buildings and celebrations. Many Hazara Shia were killed during these attacks. Evidence before me suggests that the Taliban and Islamic State in Khorasan Province (ISKP) are responsible for these attacks. In September 2017 DFAT assessed that these attacks indicate that Shia face attacks by insurgent groups due to their religion. There have been other attacks in Kabul, usually targeting government, security forces and judicial, humanitarian, media and healthcare workers.
61.Country information before me that insurgent groups, including the Taliban and ISKP retain the capability to conduct large-scale attacks in Kabul. It is also clear that Hazara have been targeted in the past. Nevertheless, I observe that the applicant, on his own evidence, returned to Kabul himself on multiple occasions between 2004 an his return to Australia, and had actually chosen to live in Kabul in 2011 and 2012. He has not put forward any accounts of facing persecution or harm in Kabul during these periods because of his ethnicity or his religion. Kabul is a large urban conurbation with between three to five million inhabitants. More than a million Hazara Shia are said to live in in Kabul making up roughly half of the population. I accept that if he returns to Kabul he would return as an identifiable Hazara who continued to practise his Shia faith and that some Hazara Shia have been targeted in the recent past, though this is infrequent. However, given the sheer size and diversity of Kabul I am not satisfied that he would face a real chance of harm, including serious harm, in Kabul from the Taliban, ISIS or any other group on the basis of being a Hazara Shia in Kabul.
(Emphasis added)
Further, under the heading “General Violence”, the IAA reasoned as follows:
70. The applicant also claims to fear harm arising from the general level of violence in Afghanistan. It is uncontroversial to assert that Afghanistan is a violent society with frequent conflict related violence occurring for more than 30 years. A large number of civilian casualties have occurred throughout this period. The Act requires that for a person to be assessed as a refugee they must have a well-founded fear of persecution and the essential and significant reason for the persecution must be for reasons of race, religion, nationality membership of a particular social group or political opinion.
71. I have found that the applicant would return to Afghanistan unaffiliated with the Afghan Government, the Security forces or the international donor community. He would return as a civilian. I have found above the does not have a profile of interest to any anti-government elements he claims to fear harm from including the Taliban, ISIS/ISKP or other groups such as the Northern Alliance. Nevertheless, the evidence suggests that violent incidents are prevalent in Kabul and are principally directed at Government and other targets and do result in the loss of civilian lives, however, even if in these circumstances the risk to the applicant is a real one, the risks faced by the applicant from the general level of violence in Afghanistan would be, by definition, random and unrelated to his profile, or his wider claims for protection. The essential and significant reasons for such generalised violence, while personally difficult for the applicant, would not be for one or more of the five reasons referred to in s s.5J(1) of the Act.
72. I am not satisfied the applicant has a well-founded fear of persecution in Kabul.
The question here is whether, based on those references and matters, it could be implied from the materials, and from the IAA’s own findings, that the applicant might face a serious risk of significant harm by virtue of his circumstance as a resident of Kabul. If so, the IAA was required to undertake an assessment of whether, because of the circumstances of the applicant’s residency in Kabul, he was at a greater risk of harm than the population of Afghanistan generally.
Just as the Court must not use an eye keenly attuned to error in examining the IAA’s decision for jurisdictional error, it also must not “read in” claims when assessing whether a claim has been raised.
With that in mind, the Court here does not accept the Minister’s submissions that the reference in the applicant’s submissions to the IAA in 2019 that the applicant will face harm “in Kabul (as in the rest of Afghanistan)” is a clear indication that the applicant does not fear harm on the basis of being a Kabuli resident.
On the basis of the IAA’s own findings and the submissions made in 2019 that included a statement that “the city is a significant target for suicide and complex attacks against both civilian and non-civilian targets carried out by non-government elements”, the Court is satisfied that the applicant’s residence in Kabul was a circumstance that should, in the context of the IAA’s own reasons and on the evidence before it, have been addressed in relation to the complementary protection criterion.
The Court is not suggesting that the IAA is required to examine, in every circumstance, whether an applicant’s place of residence is a “personal circumstance”. However, in circumstances where, in the context of the IAA’s own findings, it makes a number of references to attacks in a particular area, a continuing capacity for persons or a particular group to carry out attacks in that area specifically and notes that that “civilian casualties” are recorded, then, in that factual situation, the IAA should turn its mind to whether that particular area is at a higher risk than the population of a country generally.
In light of the above, the Court is satisfied that the applicant’s residence in Kabul was a matter that was required to be considered by the IAA when assessing the risk of significant harm.
Did the IAA err?
The Court notes the critical passage at [77] in the IAA’s decision, which reads:
77. The general level of violence in Afghanistan is high. Country information cited above indicates that that Afghanistan is a particularly violent society. Anti-Government insurgent groups continue to fight against the Government and random attacks are frequent throughout the country and civilian deaths are common. These factors indicate that there some possibility that the applicant might be arbitrarily deprived of his life if returned Afghanistan. However, even if these risks can be said to rise to a real chance, they affect the population of Afghanistan generally, not the applicant personally.
(Footnote omitted, without alteration)
The question here is whether the IAA has erred in assessing what the applicant has referred to as the second limb in BCX16 – i.e., a comparison between the real risk of harm faced by residents of Kabul with the risk of generalised violence faced by the Afghan population.
The IAA does state that violent incidents are “prevalent” in Kabul and do result in the loss of civilian lives (CB 241 at [71]). That the IAA so finds suggests that there was material before the IAA to suggest the applicant may face significant harm arising from a violent incident.
In this context, the Court also notes that there was also reference to the capacity of insurgent groups to conduct “large-scale attacks in Kabul” and that the “prevalent” violent incidents do result in loss of civilian life.
The use of the word “prevalent” here suggests that there was indeed a need for the IAA to consider whether the applicant’s residency in Kabul was itself sufficient to expose the applicant to a real risk of significant harm under the complementary protection guarantees.
While the Court’s analysis must not be finely attuned to error, the use of the word prevalent does suggest that the frequency of attacks in Kabul “prevail” over attacks elsewhere. Indeed, the IAA refers to the capacity for attacks in Kabul to be “large-scale”.
But none of this is analysed. As Counsel for the applicant indicated, the IAA leaves the matter “lingering” or “hanging”.
The Court is satisfied that, having itself raised the prevalence of attacks in Kabul on the evidence before it, it was necessary for the IAA to make a finding which addressed this issue within the context of violence in Afghanistan generally.
The IAA’s decision does not disclose that any assessment of the kind described in BCX16 was undertaken.
While attacks can be “frequent” across Afghanistan and civilian deaths are common, if violent incidents are “prevalent” in Kabul (as the IAA states), it impliedly suggests that the risk is higher in Kabul than in other areas.
In circumstances where there is no evident comparison or assessment the Court is not satisfied the IAA has correctly applied s.36(2B)(c) as per the reasoning in BCX16. A claim that harm in Kabul itself arises is evident on the material before the IAA and should have been addressed as such. It was not.
The Court finds that the IAA has made a jurisdictional error. The applicant’s sole ground of review before this Court is, accordingly, upheld.
Conclusion
For the reasons outlined above, the Court find that IAA’s decision to affirm a decision of a delegate of the Minister not to grant the applicant a protection visa is affected by jurisdictional error.
The IAA’s decision is set aside and the matter is remitted to the IAA for determination according to law.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 13 September 2019
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