DEA18 v Minster for Immigration, Citizenship, Migrant Services & Multicultural Affairs - [2021] FCCA 553

FEDERAL CIRCUIT COURT OF AUSTRALIA
DEA18 v Minster for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 553

File number(s): PEG 19 of 2020

Judgment of: JUDGE KENDALL

Date of judgment: 23 March 2021

Catchwords: MIGRATION – Safe Haven visa – decision of the immigration Assessment Authority – whether the IAA failed to consider claim in complementary protection assessment – no jurisdictional error – application dismissed.

Legislation: Migration Act 1958 (Cth), Pt 7AA, ss 5, 5J, 36, 46A, 473CA, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB

Cases cited:
Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210

Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33

Number of paragraphs: 118

Date of hearing: 8 March 2021

Place: Perth

Counsel for the Applicant: Mr M Guo

Solicitor for the Applicant: Estrin Saul Lawyers

Counsel for the First Respondent: Ms S J Oliver

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Sparke Helmore Lawyers
ORDERS

PEG 19 of 2020

BETWEEN:
DEA18

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

23 MARCH 2021

THE COURT ORDERS THAT:
1.The application be dismissed.

REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION

The applicant is a citizen of Afghanistan. He entered Australia in 1999 when he was granted a Temporary Protection visa (CB 111). The applicant then left Australia on 3 February 2004. He briefly returned to Afghanistan and then relocated to Pakistan. He remained in Pakistan until he returned to Australia in November 2012 as an unauthorised maritime arrival (Court Book (“CB”) 108).
On 5 January 2017, the first respondent (the “Minister”) lifted the bar under s 46A(2) of the Migration Act 1958 (Cth) (the “Act”) and invited the applicant to apply for a Protection visa (CB 33-34).
On 25 January 2017, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (the “visa”) (CB 35-80). The applicant summarised his claims for protection as follows (CB 78):
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.
On 27 April 2017, the applicant attended an interview before a delegate of the Minister (CB 90-91). On 22 May 2017, the applicant provided further documents to the delegate (CB 92-104).
On 24 July 2017, the delegate refused to grant the applicant the visa (CB 105-130). The delegate was not satisfied that the applicant faced a real chance or a real risk of serious or significant harm if he returned to Afghanistan.
On 27 July 2017, the applicant’s application was referred to the Immigration Assessment Authority (the “IAA”) pursuant to s 473CA of the Act (CB 131-137).
On 17 August 2017, the applicant provided a statutory declaration containing “evidence as to the ongoing attacks against Hazaras and Shias” (CB 147-148).
On 22 January 2018, the applicant’s migration agent sent written submissions and further information to the IAA (CB 149-175).
On 15 May 2018, the IAA affirmed the delegate’s decision (CB 179-198). The IAA found that the applicant could relocate to Mazar-e-Sharif where he would not face a real chance or a real risk of harm.
On 10 December 2018, this Court made orders by consent remitting the matter to the IAA for rehearing (CB 199-200). The orders noted that the IAA had fallen into an error of the sort identified in Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210 as it should have considered whether to exercise the power in s 473DC(3) of the Act to get “new information”.
On 7 January 2019, the applicant was advised by the IAA that his case was being reconsidered and that he should “act quickly” (CB 204-205).
On 29 January 2019, the applicant’s migration lawyer forwarded written submissions and new information to the IAA (CB 206-218).
On 12 February 2019, the IAA again affirmed the delegate’s decision (CB 222-246).
On 13 September 2019, this Court again remitted the matter to the IAA for reconsideration (CB 247-248). The Court found that the IAA had fallen into jurisdictional error by failing to assess one of the applicant’s claims.
On 15 October 2019, the applicant was advised that the IAA was again considering his application (CB 251-251).
On 23 October 2019, the applicant’s migration lawyer provided further written submissions and country information to the IAA (CB 258-969).
On 1 November 2019, the IAA emailed the applicant’s migration lawyer as follows (CB 970-975):
On 22 January 2018, the applicant’s previous representative provided, inter alia, a four page submission in connection with the applicant’s initial IAA review (IAA17/03225). On 30 January 2019, you provided, inter alia, a five page submission in connection with the applicant’s second IAA review (IAA19/06207), following remittal by the court. On 23 October 2019, you provided, inter alia, an additional five page submission in connection with the applicant’s current IAA review (IAA19/07323), following a further remittal by the court.
The Practice Direction for Applicants, Representatives and Authorised Recipients (the Practice Direction) issued by the President of the AAT (the President) allows for an up to five page written submission as to why your client disagrees with the Department’s decision and any claim or matter overlooked by the Department.
The submissions of 22 January 2018, 30 January 2019 and 23 October 2019, together exceed the five page limit provided for in the Practice Direction. The President has issued this Practice Direction in recognition of the fast-track nature of the limited review conducted by the IAA. Any written submission provided to the IAA should comply with the Practice Direction.
The IAA will allow you until 6 November 2019 to advise which of these submissions, not exceeding five pages, that you wish to rely upon in relation to the matter currently under review.
On 1 November 2019, the applicant’s migration lawyer responded and asked that the IAA “have regard to all the information which it is required to consider through the operation of Part 7AA of the Migration Act 1958 (Cth).” (CB 976-977).
On 20 November 2019, the IAA invited the applicant to attend an interview (CB 980-981). The applicant attended that interview on 29 November 2019.
On 18 December 2019, the IAA again affirmed the delegate’s decision not to grant the applicant the visa (CB 985-1017).
On 21 January 2020, the applicant applied for judicial review of the IAA’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error.
IAA’S DECISION
It is not disputed that the applicant satisfies the criteria in s 5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material known as the “review material”. This includes:
(a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
(b)material provided by the “referred applicant” to the delegate before a decision was made;
(c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
(d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” - defined as information that was not before the delegate and that the IAA considers “may be relevant”: the Act, s 473DC(1). Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s 473DD of the Act which provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s decision in relation to this matter is 33 pages long and spans 147 paragraphs. Four pages extract the relevant legislative provisions. Those provisions are summarised at [86]-[87] and [135]-[136] of the IAA’s decision.
The IAA began by summarising the procedural history of the matter. It outlined the basis of the delegate’s decision and then summarised the first IAA’s decision and the second IAA’s decision (at [1]-[3]).
The IAA confirmed that it had had regard to the material referred pursuant to s 473CB of the Act (at [4]).
The IAA then summarised the materials that had been provided by the applicant in the first review by the IAA, the second review by the IAA and the third review by the IAA (at [6]-[8]). The IAA noted that it had written to the applicant’s migration lawyer enquiring about the submissions previously filed (at [9]). It noted that the applicant’s migration lawyer’s response did not explain why a longer submission was necessary or appropriate in the circumstances of this matter (at [10]).
The IAA continued:
11. On 29 November 2019, I interviewed the applicant (the IAA interview). At that interview I sought clarification from the representative about the length of the submissions and noncompliance with the Practice Direction. Based on that discussion, I accept the representative did not intend to provide non-compliant submissions, and that the multiple submissions arose out of the complexity of this case’s history. I asked the representative whether she would prefer the most recent submission to be the prevailing submission in this matter, but Ms Faulkner expressed some concern that the most recent submission built on the previous submission of January 2019, and that she was concerned that preferring one submission over the other might leave some argument missed. Considering the complex history of this matter, what I am satisfied was an unintentional non-compliance with the Practice Direction, and not wanting to create further complication or delay in this matter, I advised the applicant that notwithstanding the non-compliance, in this particular case I intended to exercise my discretion and consider the submissions in total. I also explained that I would still need to weigh the new information provided in those submissions against the requirements in s.473DD, and clarified that I was not seeking further submissions in this matter. No indications were given that the applicant intended to make any further submissions. The representative and I did discuss the IAA having regard to information about environmental issues in Afghanistan (e.g. drought, flood) and its impact in terms of relocation. There may have been some confusion between the IAA and the representative as to whether they intended to provide new country information on these topics, but I note no further submissions or country information were provided post IAA Interview. In any event, the new information I have obtained refers to these matters, and I have had regard to them, to the extent they are relevant.
The IAA then considered the “new information” that had been provided. Relevantly, the IAA:
(a)accepted that the new country information post-dated the delegate’s decision and therefore satisfied s 473DD(b)(i) of the Act (at [12]);
(b)noted that the more recent country information “overtook” the applicant’s statutory declaration (which summarised country information) and concluded that there were no exceptional circumstances to justify the consideration of the statutory declaration (at [13]);
(c)noted that in the first review, supporting country information was provided and that that country information post-dated the delegate’s decision (at [15]). The IAA also noted that the first IAA had obtained new country information (at [16]);
(d)referred to the new information provided to the second IAA which, while pre-dating the delegate’s decision, was “information which could not practically have been provided to the Delegate”. The IAA explained that the submission in relation to this information was that the new information was provided in response to the specific lack of data identified by the delegate in her decision (which therefore could not have been provided prior to the decision being made) (at [16]);
(e)noted that the second IAA did not accept any of the new country information provided in the submission relating to the second review because the information had not been provided in the manner required by the Practice Direction (at [17]);
(f)stated that the applicant’s lawyer had provided full copies of the new information to the IAA (at [18]). The IAA noted that four (not two) of the reports pre-dated the delegate’s decision (at [19]);
(g)found that, to the extent that any reports post-dated the delegate’s decision, they met the requirements of s 473DD(b)(i) of the Act (at [22]);
(h)determined that to the extent country information was cited in the submissions provided to the second IAA, as those citations were not provided in full they were not considered. However, the IAA noted that many of the cited reports in the second submission were provided in the third submission (and were therefore before the IAA) (at [21]);
(i)found that the country information which pre-dated the delegate’s decision did not meet s 473DD(b)(ii). The IAA did not accept the applicant’s submission that the information could not “practically” have been provided. Accordingly, s 473DD(b) was not met and the IAA did not consider the information that pre-dated the delegate’s decision (at [22]); and
(j)noted that, in relation to the information that pre-dated the delegate’s decision, more recent country information that post-dated the delegate’s decision was provided which built upon the material covered in the older reports. Accordingly, the IAA was also not satisfied that exceptional circumstances existed (at [22]).
The IAA then considered whether the information which it had found met s 473DD(b) of the Act also met s 473DD(a) of the Act. The IAA noted the applicant’s submission (at [23]) and accepted that the matter had a complex history, considerable time has passed since the delegate’s decision and the security assessments had evolved in ways material to the applicant’s profile (at [24]). The IAA noted that some of the news articles provided by the applicant overlapped with the DFAT reports. However, they were nonetheless useful (at [25]). The IAA concluded that there were exceptional circumstances to justify considering the information as the information was “critical to a full assessment” of the applicant’s claims (at [26]).
In relation to the applicant’s interview with the IAA, the IAA determined:
27. As noted above, this matter has a complex history. The first IAA review was remitted by consent by order of the Federal Circuit Court. While the issue of relocation was discussed at the visa interview, the matter was remitted on the basis that the IAA should have considered whether to obtain further information from the applicant on the issue of his potential relocation to Mazar-e-Sharif, under s.473DC of the Act. The second IAA review did not turn on the issue of relocation, however in undertaking my assessment of the evidence in this matter, I considered the issue of relocation may arise. I also considered there were a number of discrepancies in the applicant’s claims and evidence that I wanted to seek further information about. On 20 November 2019, I invited the applicant to an interview before the IAA to provide new information. That interview took place on 29 November 2019, with the assistance of an interpreter in the Hazaragi language. I am satisfied the information provided by the applicant is credible personal information (in the sense contemplated by s.473DD(b)(ii)) which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims. Equally, to the extent the applicant’s claims were not explored at the visa interview (in terms of both concerns with his evidence and a more expansive discussion of relocation), I am also satisfied the information was not, and could not have been, provided to the Minister before the delegate made the decision. I note the orders of the Court in the first IAA review, and the applicant’s request for an interview in relation to his claims. I have weighed all the circumstances, and I am satisfied there are exceptional circumstances to justify considering the new information provided in the course of that interview.
The IAA noted that in his visa application the applicant claimed that a group in Pakistan wanted to arrest him because he had been in Australia and thought he was an infidel. The applicant claimed in the interview with the delegate that on return to Afghanistan he would be targeted on the basis of his profile from having lived in the west and that he would be seen as an infidel, a spy or a Christian. In the second submission, it was said that the applicant claimed that he will face serious and significant harm due to the fact that he will be a returnee from a western country and/or a westernised returnee (at [28]-[29]). The second IAA considered this to be “new information”. However, the IAA considered that the substance of the claim was “effectively the same” (at [30]).
The IAA then explained that the applicant had more recently expanded on his claims relating to the situation for residents of Kabul (at [31]). The applicant was asked to provide further information about this at the interview (at [32]). The IAA was satisfied that this information met s 473DD(b) (at [33]). It considered the variance and evolution in the claims was explained by the time that had passed. Accordingly, the IAA was satisfied that there were exceptional circumstances to justify considering such (at [34]).

The IAA then referred to the applicant’s claims as they arose from his 1999 statement, his 2003 statement, his statement accompanying the visa application in 2017 and his evidence at the interview with the delegate (at [35]-[39]).
The IAA expressed concerns with the applicant’s evidence as it related to his identity, his past claims and his claimed profile on return to Afghanistan (at [40]). The IAA noted that the applicant’s documentary, written and oral evidence lacked consistency in relation to his name, age, residence (in Afghanistan or Pakistan), place of origin, his military service and his family background (at [41]).
In relation to his name, the IAA noted that the applicant had provided two different names. The IAA highlighted the discrepancies in the applicant’s evidence to the delegate about why he provided two different names (at [42]). The IAA then referred to the applicant’s evidence for the discrepancy in the interview before the IAA (noting that this evidence differed from his previous responses) (at [43]).
In relation to his birth year and place of birth and his residential history, the IAA determined that the evidence had varied. The IAA noted the differing evidence before it (which included references to 1957, 1964 and 1975) (at [44]-[45]). The IAA then explained that it had asked questions of the applicant about where he had lived and his residency in Pakistan (at [46]-[50]).
The IAA continued:
51. At the IAA interview, the applicant claimed for the first time that he left Pakistan after four years because the conditions there got worse. He claimed he lived in Torkham in Afghanistan for four years, near Nangarhar and bordering Pakistan. He claimed he travelled back and forth between Torkham and Pakistan. I noted in the IAA interview that this differed from his earlier evidence. At this point, I observed the applicant appeared upset, and I suggested a short break. On resuming the interview, the applicant said that he is taking tablets for his anxiety, he said he is very confused with time and dates.
52. As I suggested to the applicant at the IAA interview, I accept that his recollection of dates, periods of residence and other aspects of his history may not be accurate, and I would weigh his situation, including the limited relevance of dates in Afghan culture, and his contentions about his anxiety and health. However, the depth and extent of the discrepancies in his evidence about his age, place of origin, his history of residence in Afghanistan and Pakistan, are substantial and numerous.
53. I consider the variation in his name is not of itself a significant factor that goes against his evidence. I accept naming conventions vary across cultures, and I consider it plausible he may have had difficulty having a Pakistani Mullah accept his Afghan name. However, in relation to his other evidence, I have serious concerns. His contradictory evidence about his birth year cannot simply be attributed to interpreting error. He has provided clearly inconsistent evidence about where he has lived, both in his time in Afghanistan and Pakistan. He has also provided shifting evidence about the location of his family. Even his documentary evidence is difficult to reconcile with his claims. His Pakistan Proof of Residence card providing further uncertainty, by indicating a district and province he did not claim to have been from or have ever lived.
54. I note other discrepancies in his evidence. I asked the applicant about his military service at the IAA interview. He said he did not complete his military service. I sought to clarify his evidence, but he said that if he had completed his military service, he would have told the IAA. I put to the applicant that in his 2003 statement, he said he commenced his military service in Kabul when he was approximately 22 years of age. The duration of his service was said to be 1.5 years. I put this discrepancy to the applicant. The applicant said he did not say that. He did not do military service, otherwise he would have said that.
55. There has also been some variation in his wife’s name across time, but I consider this may plausibly be explained in the same way as his own name, and of itself, I do not consider to be of any great significance. However, I am concerned about her date of birth and place of origin. In his 2003 statement, he indicates his wife was born in 1968. In the translation of his marriage certificate, it appears they were married in 1985 and his wife’s birth year is listed as 1962, and there is some indication that she (and her witness/attorney) are also from Parwan. In his 2017 statement, he indicates his wife was born in 1962. In his visa application, the applicant also provided a copy of his wife’s Proof of Registration card from Pakistan. It states she was born in 1973. It also states she is from Maydan Shahr in Wardak Province. The evidence about his wife’s identity is almost as vexed as his own.
56. Ultimately, I consider the inconsistencies and contradictions in his evidence about his identity are too numerous and significant to attribute to cultural factors, the time that has passed, the limits of memory, his limited education, his anxiety/health concerns, or any other basis. I am not satisfied the applicant has been reliable or credible about his identity, his family background, his age, his place of origin, or his history of residence in Afghanistan and Pakistan. I consider these concerns also inform other aspects of his claims and evidence.
The IAA then considered the applicant’s claims relating to his and his family’s profile in Afghanistan. The IAA outlined in detail the claims that had been made in this regard in the 1999 statement, the 2003 statement, the statement accompanying the visa application and at the interview with the IAA (at [57]-[68]).
The IAA then stated:
69. Having regard to the numerous inconsistencies in his evidence, I consider the claims made in 2003 and 2017 are not credible and I do not accept them. I do not accept the applicant, his brothers or father were involved with Wahdat. I do not accept his cousin was killed. I do not accept the applicant had any engagement or connection with the Northern Alliance. I do not accept that members of the Northern Alliance, the Taliban or any other person or group threatened the applicant, or took his property in Kabul.
70. Given my myriad concerns with his evidence, and his credibility and reliability as a witness, I have considerable doubts about almost all aspects of the applicant’s identity and claims. However, I also consider he spoke coherently about his life in Kabul (in a general sense). His evidence, at least in this regard, gave the impression that he was an Afghan who had lived in Kabul and I accept that is the case. He spoke confidently of Kabul and its surrounds. He also spoke Hazaragi and discussed his faith without concern. In the circumstances, I am satisfied he is a Shia Hazara from Afghanistan, as he claims.
71. Accepting that, and the timing of his initial departure from the country, I consider his 1999 statement likely reveals a true account. That the applicant was a Shia Hazara living in Kabul during the ascendancy of the Taliban. I accept the risks to Shia Hazaras in the late 1990s from the Taliban were significant. In that context, I accept the applicant and his family left Kabul sometime in 1999 and travelled to Pakistan because of the risks to them on the basis of their ethnic and religious profile. Having regard to historical country information at the time, I am prepared to accept that one of his uncles was killed by the Taliban during this time. However, I find this would have been due to insecurity and their ethnic and religious profile, not any higher profile. I am prepared to accept his father is deceased, but given my concerns with the applicant’s evidence, I am not satisfied he was killed by the Taliban.
72. I accept that the applicant then travelled to Australia, where he was granted a temporary protection visa. His status in 2003 and 2004 in Australia is not clear on the information before me, and I neglected to clarify this in the IAA interview, but I accept his advice in his 2017 visa application that the 2003 statement was made in the context of his application to renew that visa to stay in Australia, and that he continued to rely on those statements.
73. At that point, given the significant shift in the security environment in Afghanistan by that time, I consider the applicant decided to raise new claims related to Wahdat, the Northern Alliance, his and his family’s involvement with these groups, the murder of his father and other family members, and later the loss of his property in Kabul to a member of the Taliban. I consider these claims are not genuine, and were designed to add to his profile to enable him to stay in Australia. For the reasons given above, I do not accept these claims.
The IAA then considered the applicant’s claims as they related to the situation in Pakistan. The IAA noted that these claims arose from the 2017 statement accompanying the applicant’s visa application and that, again, the evidence was inconsistent and contradictory (at [74]). The IAA detailed the evidence and varying accounts provided in the applicant’s statement, the interview with the delegate and the interview with the IAA (at [75]-[80]).
The IAA then concluded:
81. I have again weighed the applicant’s circumstances, including the time that has passed, the limits of memory, his limited education and his claimed anxiety and health issues. I again do not consider those factors explain the significant contradictions in his evidence. I find this is a further instance in which the applicant’s claims cannot be believed. I am prepared to accept the applicant returned to Pakistan in 2004 to be with his sick wife, however I am not satisfied she was being threatened (at that time) or that the applicant was ever threatened by any person or group during his time there, beyond the general insecurity faced by other Afghans, Shias and Hazaras living in Pakistan during this time. I consider these claims are not credible, and I do not accept they occurred, nor do I accept the applicant’s claims relating to his claimed period living and working in Pakistan, or any profile arising from his time in Australia.
The IAA then provided a “summary of findings” as follows:
82. I have accepted the applicant’s claims from his 1999 statement without concern. I am satisfied the applicant is a national of Afghanistan, and Shia Hazara. I accept that he and his family were at risk from the Taliban on the basis of their profiles as Shia Hazaras, and that they left the country in or around 1999. I accept the applicant had an uncle killed by the Taliban in Mazar-e-Sharif in the late 1990s.
83. The applicant has not satisfied me and I do not accept he was ever asked to join or threatened by the Northern Alliance, nor do I accept he has ever been at threat or has any profile with any members of this group. I am not satisfied and do not accept the applicant, his father or brothers were ever involved in any way with Wahdat. Given his age, I accept his father may be deceased, but I am not satisfied and do not accept he was killed by the Taliban, whether in supporting Wahdat or otherwise. It is not implausible the applicant had extended relatives active during the war (including with Wahdat), but I am not satisfied the applicant has any adverse profile in connection with that group. The applicant has not satisfied me and I do not accept that he ever assisted the Taliban at his shop, or that the applicant has any specific profile with the Taliban, including his claim that they dispossessed him of his property in Kabul. I am not satisfied the applicant has ever been directly threatened by the Taliban.
84. I accept the applicant lived and worked in Pakistan for some period between 2004 and 2012. The applicant has not satisfied me and I do not accept he was ever directly identified, threatened or harmed by any person or armed group (including Islamic State or the Taliban) during his time in Pakistan, whether because of his religion, ethnicity, status as an Afghan, or on the basis of his profile from having lived in the west (Australia).
85. I accept the applicant, his wife and family were living in Pakistan in or around 2004. I accept the applicant was working between Pakistan and Afghanistan at that time. It is not clear from his evidence when they left Pakistan and returned to live in Kabul. However, I accept that the applicant left Afghanistan/Pakistan to come to Australia in 2012, and sometime after 2012, his family returned to live in Kabul. I find that his mother, wife, brother and children live in a residence in Kabul. On the evidence before me, I do not consider the applicant and his family have any right to return and reside in Pakistan. The applicant has not satisfied me that they are at any direct threat, or that they have been forced to hide or change residence in Kabul.
The IAA then considered the applicants claims as they related to the applicant being a Shia Hazara. Relevantly, the IAA:
(a)accepted that the applicant was at risk from the Taliban in the late 1990’s when he first left Afghanistan (at [89]);
(b)noted that the information before the IAA indicated that Shia Hazaras had not had a risk profile in connection with the Taliban for quite some time and that the applicant’s response to a question in this regard was that he did not know the current situation (at [90]);
(c)accepted that the Taliban remains engaged in an insurgency against the Afghan Government and security forces and other high profile groups but was not satisfied that the Taliban was currently targeting Shias or Hazaras. On the basis of the country information and the applicant’s lack of any other profile, the IAA found that there was no real chance of the applicant facing harm from the Taliban on the basis of his ethnic and religious profile (at [91]);
(d)summarised country information relating to Hazaras being targeted on Afghan roads (at [92]), attacks against Shias and Hazaras (at [94]-[97]) and the Islamic State (at [98]-[99]);
(e)noted that the assessment of whether the applicant would face a real chance of harm in Kabul was confined to an assessment of the chance of the applicant being injured or killed in a high casualty attack orchestrated by Islamic State within Kabul (at [99]); and
(f)accepted that the information indicated that Shias faces a credible threat in the form of sectarian attacks orchestrated by Islamic State and noted that Shias face higher risks particularly when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. However, the IAA found that this did not necessarily indicate that Shias face a real chance of serious harm within Kabul and determined that any assessment in this regard must be considered in the context of the other data and analysis (at [100]).
The IAA concluded:
101. When considering the security assessments and data in these reports, specifically the lower number of sectarian attacks in Kabul through 2019, and the limited reach of ISKP outside of Nangarhar, I find that ISKP is a credible, but confined threat to Shia Hazaras living in Kabul. While I accept there are risks, I am not satisfied the applicant would face a real chance of harm for reasons of his ethnic and religious profile from ISKP if he were to return to live and work in Kabul. I also consider any remote chance of harm would be further reduced by the relative stability of his situation on return to Kabul. In this regard I give weight to the fact that the applicant would be returning to an area where he has a long history and would be known, where it appears he would have access to stable accommodation and where his family have continued to live and work. I accept these are areas that have been impacted by attacks, but I consider these circumstances would help him avoid the vulnerabilities of other returnees to Kabul, who do not have support networks, and who may be forced into more insecure accommodation or employment situations.
…
104. I accept the chance or risk of harm to Shias from ISKP cannot be ruled out entirely, indeed I expect that was the intention behind DFAT’s somewhat global assessment in its latest report, however when weighing the totality of the available data and analysis before me, I am not satisfied there is more than a remote chance of the applicant facing harm in Kabul as a Shia Hazara, whether from ISKP, the Taliban or any other person or group, now or in the reasonably foreseeable future. It follows that I am not satisfied there is a real chance of the applicant facing serious harm on the basis of his religious and ethnic profile.
The IAA then considered the risk of discrimination on the basis of the applicant’s ethnicity and religion. The IAA referred to country information in this regard (at [102]) but was not satisfied that any discrimination was at a level that would threaten the applicant’s capacity to subsist or otherwise constitute or amount to serious harm. The IAA determined that the applicant would not be prevented from finding work, accommodation or access to services. The IAA also found that the applicant would be returning to a Hazara majority area within Kabul (and, more specifically, an area where he has a history, family and defined accommodation). Accordingly, the IAA determined that that there was no real chance of the applicant facing discrimination amounting to serious harm (at [103]).
The IAA then detailed the applicant’s claims and evidence in relation to his fear of harm arising from the fact that he had been in Australia (at [105]-[108]). The IAA accepted that the applicant had adapted to life in Australia, that he had worked in Australia and that his views had broadened. However, the IAA was not satisfied that the applicant had demonstrated that his profile or his appearance had shifted to the point that he would be vulnerable or at risk on return to Afghanistan on the basis that he had been ‘westernised’. While the IAA was satisfied that the applicant held certain views, the IAA considered that those views were “low level” in the context of Hazaras generally and would not bring him within any risk profile. Accordingly, he would not face a real chance of harm because of these views (at [109]).
The IAA determined that the applicant’s profile and links to the west were genuine but “low-level” (at [110]). The IAA was satisfied that the applicant would continue to attend mosque and would not be regarded as a Christian or infidel. He would also return to his home area where he has family and tribal links. This, the IAA determined, would mitigate against the potential for him to be seen as an outsider or imputed with an adverse profile (at [111]). It was also noted that there were few recent reports of persons being targeted for harm in Afghanistan due to having travelled in or lived in Europe, holding Western ID documents, or adopting ideas that are seen to be ‘un-Afghan’, ‘Western’ or ‘European’ (at [112]).
The IAA concluded:
113. Having regard to all the circumstances, I consider the chance or risk of harm to the applicant based on his time in the west (Australia), as a returnee or asylum seeker, on the basis that he is westernised, or any actual or imputed profile arising from these factors (e.g. that he would be seen as an infidel, Christian, or on some other basis) would be remote. When viewed in the context of reports from DFAT (and the IOM) and the UNHCR about the thousands and tens of thousands of returnees to Afghanistan from the west, Iran and Pakistan, I consider his profile, and the potential for him to be harmed on the basis of that profile, would be reduced even further, particularly in an ever growing Kabul. Considering the analysis before me, in particular EASO’s specific analysis on these risk profiles,31 and my assessment above of the applicant’s limited profile, I am not satisfied he would face a real chance of harm in Afghanistan for these reasons, whether from the Taliban, ISKP, or any other person or group. For clarity, as I do not accept he would face a real chance of harm for these reasons, I do not accept he would need to modify his views to avoid harm on the basis of this profile.

The IAA then referred to the “related claim” of the applicant being perceived as “wealthy” because he would be a returnee from the West (at [114]). Having referred to country information (at [115]), the IAA determined that it was not satisfied that there was any clear indication that targeting on the basis of wealth or perceived wealth was widespread or that there was a real chance that this would occur. The IAA considered that the applicant – who was experienced and has a long history in Afghanistan, who was not obviously Westernised (in terms of language or appearance), who would be returning to his family and household and who would continue to practice as a Shia Muslim – did not face a real chance of harm on the basis of perceived wealth (at [116]).
In relation to the claim that the applicant would be imputed with a profile connected to the government or international community as a result of him being a Shia Hazara (at [117]), the IAA (referring to country information (at [118]-[119])) noted that the information did not suggest that Hazaras were being targeted on the basis of their religious or ethnic profile. Rather, those with actual profiles related to the government or international community were being targeted (at [120]). The IAA was not satisfied that such a profile is imputed to persons on the basis of their ethnicity or religion and, as such, the chance of the applicant being targeted for harm was remote (at [121]).
The IAA then considered the applicant’s claims arising from insecurity and violence in Kabul (at [122]). It again summarised the country information (at [123]-[124]). Noting that it had found that the applicant would not face harm on the basis of his religion and ethnicity, the IAA considered other profiles which had an elevated risk of harm in Kabul. It noted that the applicant did not have any connection or association with these profiles. Nor would he do so on return (at [125]).
The IAA accepted that there are dangers to ordinary low profile civilians living in Kabul. However, the IAA did not consider that the level, scope or frequency of generalised of criminal violence presented anything more than a remote chance of harm as a civilian (at [126]). The IAA determined that the applicant would have the support of his family and would not have any “vulnerabilities”. When this was assessed with the applicant’s lack of profile, the IAA determined that the applicant would face no more than a remote chance of serious harm from generalised or criminal violence in Kabul (at [127]).
The IAA further noted that while it accepted that the situation in Kabul was serious, it did not accept that the applicant would be targeted because he is a resident of Kabul. Rather, any risks were a consequence of the ongoing insurgency and general insecurity in Kabul and throughout the country. Accordingly, in terms of the remote chance of the applicant being harmed in generalised, insurgent and criminal violence within Kabul or Afghanistan, the IAA found that that ss 5J(1)(a) and 5J(4)(a) would not be satisfied (at [128]).
The IAA then noted that the applicant had made a number of other submissions. This included concerns about pollution, unemployment, health and access to services (at [129]). The IAA determined that the applicant’s immediate family (who he would return to in Kabul) would “buffer and mitigate against any challenges” he might face (at [130]). The IAA accepted that the issues in Kabul were “serious” but was not satisfied that the economic, social, health and environmental concerns involve systematic and discriminatory conduct (at [131]). Any chance of harm the applicant faced from these were consequences of the compromised security, social and economic situation in Afghanistan and the impact of a nearly two decade insurgency. Again, the IAA determined, these were issues faced by the population of Afghanistan generally. Accordingly, ss 5J(1)(a) and 5J(4)(a) of the Act were not satisfied (at [132]). While sympathetic, the IAA found that these matters did not constitute persecution (at [133]).
Overall, the IAA found that the applicant did not meet s 36(2)(a) of the Act (at [134]).
In relation to the complementary protection criterion, the IAA noted that, while it accepted that the applicant may face some discrimination on return to Afghanistan as a Shia Hazara, it was not satisfied that this would amount to significant harm or that there was any real risk of the applicant facing such discrimination (at [137]). For the same reasons as those stated in relation to the Refugee Convention, the IAA was not satisfied that there were substantial grounds for believing that the applicant would face a real risk of significant harm if he returned to and/or lived in Kabul (at [138]).
In relation to concerns about security, crime, the environment, employment, accommodation, health and disease and access to services (water and medication), the IAA determined that these challenges were faced by the population of Afghanistan generally. The IAA accepted that there would be significant challenges for the applicant but that these challenges were direct or indirect consequences of the compromised security, social and economic situation in Afghanistan and the impact of a nearly two decade war (at [139]). Accordingly, there was no intention to cause severe pain or suffering, extreme humiliation, or cause pain or suffering that is cruel or inhuman in nature. Nor, it was determined, would the circumstances constitute torture, or result in the applicant being arbitrarily deprived of his life (at [140]).
The IAA continued:
Qualifications to the real risk threshold
141. Section 36(2B) provides that there is taken not to be a real risk that a person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm.
142. A key aspect of the IAA interview related to the issue of relocation. As discussed at the IAA interview, it was first necessary to consider the question of whether the applicant would face a real chance or risk of serious or significant harm in Kabul, and other areas within Afghanistan. Having not accepted there is a real chance or risk of serious or significant harm for the applicant if he returned to live and work in Kabul, it is not necessary to consider the issue of relocation to Herat or Mazar-e-Sharif. However, I have had regard to the applicant’s contentions and submissions, to the extent that they are relevant to this review.
143. Had the question of relocation arisen in this matter, which I do not accept it does on the basis of the current assessment, I would also conclude that it would be reasonable for the applicant to relocate to an area of the country (such as Herat or Mazar-e-Sharif) where there would not be a real risk that he will suffer significant harm.
144. While not necessary to conclude upon given my other findings, in terms of generalised and criminal violence in the country, I am satisfied these risks are present throughout the country, not just for residents in Kabul. While the numbers in Kabul are obviously higher than elsewhere (with the exception perhaps of the less populous Nangarhar), I consider that criminal and generalised (insurgent violence) is reported throughout the country and impacts Afghans from a range of backgrounds, in a range of ways. Even traditionally safe areas such as Mazar-e-Sharif, are no longer immune from violence. I consider this is also true of the other considerations raised and assessed above in terms of environmental concerns, and the challenges relating to employment, accommodation, health and disease, and access to services.
145. While I accept there are risks, I am also satisfied the risks are faced by the population of the country generally and not faced by the applicant personally, and as such under s.36(2B)(c) there would also be taken not to be a real risk that the applicant will suffer significant harm in Afghanistan for these reasons.
146. Again, I am sympathetic to the applicant’s situation. When he first came to Australia, I am satisfied he was assessed as being owed protection. Because of circumstances outside his control, he had to return to Pakistan to care for his wife. In the years that followed, the security assessments shifted considerably within Afghanistan, and that is reflected in the analysis above. I accept he does not wish to return to Afghanistan, and the prospect is likely daunting for him, particularly given the challenges evident in the country. I also appreciate that this more recent process has taken some toll on him, as was evident during this IAA interview. However, I am not satisfied his fears are well founded, or that there is a real risk that the applicant will suffer significant harm on return to Afghanistan.
The IAA was not satisfied that the applicant met s 36(2)(aa) of the Act (at [147]).
On the basis of the above, the IAA affirmed the decision not to grant the applicant the visa.
PROCEEDINGS IN THIS COURT
The applicant filed an amended application on 25 January 2021. That application pleads a single ground of review as follows:
1. The Immigration Assessment Authority (IAA) erred by constructively failing to assess the Applicant’s complementary protection claim. The IAA did not give sufficient weight to the evidence of the persecution I would face if returned to Afghanistan.
Particulars
a. The Applicant raised the complementary protection claim of fear of ‘significant harm in Kabul die [sic] to the elevated risk of violence faced by residents of that city’, including ‘from criminal elements – including murder, kidnapping, assault and extortion – due to the fact that he is a resident of Kabul’.
b. The IAA made no assessment of the risk from non-insurgent violence, and also said at [144] that it was ‘not necessary’ to do so. In the premises, the IAA did not make any lawful finding that the complementary protection claim carried less than a real risk.
c. The error could not be rendered immaterial by finding at [145] that the risk was excluded under s 36(2B)(c), because the IAA found at [144] that the risk in Kabul was ‘obviously higher than elsewhere’. The finding was an error of the kind in BCX16 v Minister for Immigration and Border Protection (2019) 164 ALD 313; [2019] FCA 465.
d. Nor could the error be rendered immaterial by the relocation finding at [142]- [143] because those paragraphs are a deficient assessment of the reasonableness of relocation.
The materials before the Court include the judicial review application dated 25 January 2021, a Court Book numbering 1017 pages (marked as Exhibit 1), an outline of submissions filed by the applicant on 25 January 2021 and an outline of submissions filed by the Minister on 2 February 2021.
At the hearing, the applicant was represented by Mr Guo of Counsel. The Minister was represented by Ms Oliver of Counsel. The Court thanks Mr Guo and Ms Oliver for their considerable assistance with this matter.
SUBMISSIONS
The Court does not normally extract the parties’ written submissions in full. In this matter, however, the written submissions were comprehensive and the issues canvassed are complex, both factually and jurisprudentially. In the circumstances, it is preferable to provide the submissions in full.
Relevantly, the applicant’s written submissions provide:
2. There is one ground raised in the Applicant’s amended application dated 25 January 2021. That ground concerns only one of the several protection claims which the Applicant advanced, and so it is sufficient in this proceeding to note just that claim: that the Applicant faced a real risk of ‘significant harm in Kabul due to the elevated risk of violence faced by residents of that city’, including ‘from criminal elements – including murder, kidnapping, assault and extortion – due to the fact that he is a resident of Kabul’.
3. It is clear that in referring to ‘significant harm’ rather than ‘serious harm’, the Applicant advanced this as a complementary protection rather than statutory refugee claim. It is also plain that he was referring to the risk from criminals generally, and not just insurgents or sectarian actors.
4. Amongst other things, the Applicant referred to:
a. DFAT reports that despite the introduction of security checkpoints, ‘Kabul remains a particularly significant target for suicide and complex attacks against both civilian and non-civilian targets carried out by AGEs’ and ‘violent attacks within the city are common’;
b. The data of the United Nations Assistance Mission in Afghanistan (UNAMA) for 2018 which shows that civilian casualties in Kabul are the highest in Afghanistan, and that civilians residing in Kabul face a disproportionate risk of harm compared to civilians in other cities of Afghanistan;
c. DFAT data for 2019 (being the last full year immediately prior to the claim being made) showing Kabul continues to have one of the highest civilian casualty rates;
d. Agence France-Press reporting that officials and residents of Kabul ‘say crime is surging in Kabul, where police are already pushed to their limits attempting to prevent insurgent attacks by the Taliban and other insurgent groups including Islamic State’;
e. The Overseas Security Advisory Council concluding that criminal activity in Kabul ‘is widespread’ ranging from transnational organised crime through to ‘lower-level street crimes’ but that criminals were ‘prone to use deadly force against victims’.
THE APPLICATION
5. The error that is the subject of the originating application can be succinctly stated: that the IAA constructively failed to assess the claim, because when it purported to do so, it did so on an incomplete analysis of the risk of harm.
6. In the context of assessing statutory refugee claims, at [122]-[128] of the IAA’s reasons, the IAA purported to assess a claim about ‘generalised and criminal violence’, which it also described as ‘insecurity and criminal violence’. In these paragraphs, the IAA referred to 1866 civilian casualties reported in 2018 by UNAMA, which covered ‘only abduction incidents perpetrated by parties to the [sectarian] conflict’. The IAA also said that it was ‘difficult to ascertain the motivation for attacks, and to separate criminal attacks from insurgent activity connected to the [sectarian] conflict’: [124].
7. It is unclear why the IAA thought it material to comment on this difficulty, given that the claim was in respect of all forms of violence, and not just violence from insurgents, or violence from non-insurgent criminals. That is to say, the Applicant’s claim did not call for the apportionment of the risk of violence as between insurgents and non-insurgents. But it is plain that the IAA nevertheless, for whatever reason it considered appropriate, focussed on attempting to apportion (or to the use the IAA’s own language, ‘separate’: [124]) the violence between that arising from ‘insurgent activity connected to the conflict’ and general non-insurgent violence.
8. It is significant that the IAA continued at [125] to only focus on some and not all of the actors from whom harm was feared, referring to ‘profile’ and how only certain ‘profiles’ of persons are at real chance of serious harm. Clearly, and as this Court has seen on countless occasions, this ‘profile’-based analysis was addressing the common argument of real chance of serious harm by reason of ethnicity, religion, or imputed or actual connection to the Afghan ‘government or international community, NGOs, the security forces, education and the media’. The ‘profile’ point and the natural read of the language at [125] did not engage with the part of the claim relating to non-insurgent violence, although nor would a ‘profile’ argument be naturally expected to, the argument having been put that non-insurgent violence was not targeted at any particular religious or ethnic ‘profile’.
9. It is also significant that at [126], the IAA said that the risk of violence is less than a ‘remote chance of harm’. Despite the more expansive language at [126] referring to ‘generalised or criminal violence’, it is clear from the paragraphs of analysis that preceded it, that the whole of the analysis was, in fact and substance, confined to insurgent violence, and did not also include an analysis of non-insurgent violence.
10. That is, the reading that should be given to the assessment at [122]-[128] is that the IAA found that there was less than a real chance of harm due to insurgent violence. Non-insurgent violence, or ‘generalised’ violence, ie violence not due to a convention reason, was not addressed in these paragraphs. That is the natural reading because, of course, it was correct that non-insurgent (ie ‘generalised’) violence did not need to be addressed in these paragraphs, since by its nature, the risk of non-insurgent violence is a risk that applies to everyone, and not ‘for the essential and significant reasons of race, religion, nationality, membership of a particular social group or political opinion’: cf s 5J(1)(a). Indeed the IAA recognised as much at [128].
11. This analysis gives appropriate regard to the well-worn statement that reasons should not be read too finely, whilst acknowledging that such statements also do not mean that doubt as to the meaning of reasons is to automatically be resolved in the decision-maker’s favour.
12. The IAA’s analysis as summarised above may be accepted for what it is, and in and of itself, being an analysis in respect of the statutory refugee criteria, is not erroneous. However, it does not follow that the same analysis adequately disposes of the claim when viewed in the context of the complementary protection criteria.
13. Following from the above analysis, and even accepting that refugee findings may sometimes be lawfully imported into a complementary protection analysis, it is significant that in the IAA’s actual analysis of complementary protection, the IAA said as to the relevant claim, that it was ‘not necessary to conclude upon given [its] other findings’: [144]. Nowhere else in the entire complementary protection assessment ([135]-[147]) is there any reference to anything approximating the claim. Even the reading most generous to the IAA makes it clear that at [144] the IAA adopted its reasoning at [122]-[128] and did no more in relation to the relevant claim. Paragraph 138 confirms that at most, by its reference to ‘profile factors’, only the insurgent part of the relevant claim was imported into the complementary protection assessment.
14. In other words, the full bounds of the Applicant’s complementary protection claim went unassessed. It was one thing to say that there was less than a real chance (and thus real risk) of violence due to insurgents, but the IAA saying that it was ‘not necessary to conclude upon’ the non-insurgent part of the claim left that part of the claim unassessed.
15.The error is not rendered immaterial by the purported finding at [144]-[145] about the applicability of s 36(2B)(c). This is because the reasoning in these paragraphs begins with the IAA’s findings that the risk of harm due to generalised and criminal violence ‘in Kabul [is] obviously higher than elsewhere’. That differential finding (Kabul vis-à-vis the rest of the country) meant that s 36(2B)(c) could not apply: BCX16 v Minister for Immigration and Border Protection (2019) 164 ALD 313; [2019] FCA 465.
16. Nor is the error rendered immaterial by the purported finding at [142]-[143] that the Applicant could reasonably relocate to a city other than Kabul, since those paragraphs are a manifestly deficient analysis of the reasonableness of relocation: see eg MZANX v Minister for Immigration and Border Protection [2017] FCA 307, MZACX v Minister for Immigration and Border Protection [2016] FCA 1212.

The Minister’s written submissions, in turn, provide as follows (some references omitted):
32In the First Respondent’s submission, the Authority actively engaged with the relevant claim made by the Applicant and made findings as were necessary and as were open to the Authority on the material before it.
33Where a claim is made by a visa applicant, the decision-maker is required to consider the claim by engaging in an active intellectual process directly addressing the claim. It may be inferred that a decision-maker has failed to consider a claim if it does not mention it in its reasons.
34However, a finding that a decision-maker ‘has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof’.
35In the present case, the Authority:
35.1Identified the relevant claim as having been made by the Applicant (CB 991, [31]-[34]);
35.2Considered the Applicant’s claims to be at risk of harm on the basis of his religion and ethnicity, including considering country information as to the risk faced by Shia Hazaras in Afghanistan and Kabul (CB 1002-1004, [89]-[101]). The Authority concluded that it was not satisfied that the Applicant would face a real chance of harm for reasons of his ethnic and religious profile (CB 1004, [101]), or that there was more than a remote chance of the Applicant facing harm in Kabul as a Shia Hazara, whether from the ISKP, the Taliban or any other person or group, now or in the reasonably foreseeable future (CB 1005, [104]);
35.3Considered the Applicant’s claim that he was at risk of the threat of kidnap or extortion because of his time in the west and because he may be seen as having money (CB 1005, [106]; CB 1007, [114]). The Authority concluded that the Applicant would not face a real chance of harm on the basis he has been ‘westernised’ and/or because holds more progressive views (CB 1006, [109]). The Authority also considered country information as to whether returnees and persons considered westernised were being targeted upon their return to Afghanistan (CB 1007, [112]), but concluded that any chance or risk of harm to the Applicant based on his time in the west, as a returnee or asylum seeker, on the basis of being westernised, or any actual or imputed profile arising from these factors, would be remote (CB 1007, [112]). The Authority did not accept that the Applicant would face a real chance of harm for these reasons, whether from the Taliban, ISKP, or any other person or group (CB 1007, [113]);
35.4Considered further, and separately, the Applicant’s claim to fear harm on the basis he would be seen as wealthy and targeted on that basis (CB 1007, [114]). The Authority considered country information as to kidnappings and extortion, which it noted EASO advised had become an increasingly widespread form of criminality in major cities in Afghanistan (CB 1007, [115]). The Authority was not satisfied that the Applicant would face a real chance of harm for these reasons (CB 1008, [116]);
35.5Considered the Applicant’s claim about insecurity and criminal violence in Kabul and Afghanistan, and the threat to the Applicant as a resident of Kabul (CB 1009, [122]-[126]; see also CB 1010, [129]). The Authority had regard to country information as to criminality in Afghanistan, including country information reports submitted by the Applicant (CB 1009, [124]). The Authority accepted the Applicant’s submission that crime continues to grow, and DFAT’s assessment hat crime (particularly abductions) are likely underreported (CB 1009, [125]). The Authority concluded (CB 1010, [126]):
I accept there are dangers to ordinary low profile civilians living in Kabul and throughout Afghanistan, however I do not consider the country information before me indicates that generalised or criminal violence is at such a level, scope or frequency, that the applicant would face anything more than a remote chance of harm as a civilian if he returned to live in Kabul.
35.6Considered, further to its consideration of the risk of criminal violence, the Applicant’s concerns from the growing impact of crime in a more general sense (CB 1010, [130]). The Authority concluded (CB 1010-1011, [131]-[133]):
…I am not satisfied the economic, social, health, environmental and other concerns identified in the applicant’s submissions involve systemic and discriminatory conduct, or that it would amount to persecution.
I am satisfied that any chance of harm the applicant may face in this regard would not be for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion. Instead, I consider these issues are consequences of the compromised security, social and economic situation in Afghanistan and the impact of nearly two decades of insurgency. I consider these are issues faced by the population of Afghanistan generally and impact Afghans throughout the country. It follows that I find s.5J(1)(a) and 5J(4)(a) would not be satisfied.
I am sympathetic to the applicant and the challenging situation he would face on return to Kabul and Afghanistan, but I am not satisfied these matters constitute persecution in any relevant sense.
35.7In relation to the complementary protection criteria, considered “other factors raised by the applicant about his return to Kabul, in terms of security, crime” and other concerns, and found that these challenges are faced by the population of Afghanistan generally (CB 1012, [139]). The Authority further said (CB 1012, [139]-[140]):
…I do not discount that the impact of these matters may be significant for the applicant. He focussed several times during the IAA interview on the difficulties he would experience in returning to live in Afghanistan. I accept there will be significant challenges, however I again find that the many issues facing Afghans are direct or indirect consequences of the compromised security, social and economic situation in Afghanistan and the impact of a nearly two decade war.
In the context of this assessment, I am not satisfied that there is any intention to cause severe pain and suffering, extreme humiliation, or cause pain or suffering that is cruel or inhuman in nature, nor do I consider the circumstances would constitute torture, or result in the applicant being arbitrarily deprived of his life. In relation to the other considerations, I am not satisfied there is a real risk of the applicant facing significant harm as defined.
36The above summary indicates that the Authority actively engaged with and gave genuine consideration to the relevant claim made by the Applicant. In considering the relevant claim in the context of the complementary protection criteria, the Authority concluded that any risk of harm arising from criminal activity in Kabul did not fall within the definition of “significant harm” in section 36(2A) (see CB 1012, [139]- [140]). That finding was open to the Authority for the reasons it gave.
37Having found that the harm in relation to the relevant claim was not “significant harm” as defined, it was unnecessary for the Authority to consider or make a finding as to whether the Applicant faced a real risk in relation to that harm (as observed by the Authority at CB 1012, [144]).
38The Applicant’s submissions at [13] and [14] ignore the findings at CB 1012, [139]- [140], that the risk of harm arising from the “other factors raised by the applicant about his return to Kabul, in terms of security, crime” do not fall within the definition of “significant harm”. The reference to “other factors” must be a reference to the Authority’s earlier discussion relating to the relevant claim at CB 1009, [122]-[126], CB 1010, [129] and CB 1010-1011, [130]-[133], and to the discussion of risk of harm from generalised violence at CB 1009, [122]-[126]; see also CB 1010, [129].
39In all the circumstances, the ground of review cannot succeed.
40As the Applicant has failed to discharge his onus of establishing jurisdictional error in the Authority’s decision, the application for review must be dismissed.
CONSIDERATION
The “claim” which the applicant says was not assessed properly arises from the following passages of the applicant’s submissions to the IAA (CB 264-265):
Real risk of significant harm as a resident of Kabul
10.The Applicant fears that in addition to facing a real chance of serious and significant harm due to his religion, ethnicity and perceived political opinion in both his home town of Kabul and throughout Afghanistan, he also faces a further real risk of significant harm in Kabul due to the elevated risk of violence faced by residents of that city. DFAT reports that despite the introduction of security checkpoints: ‘Kabul remains a particularly significant target for suicide and complex attacks against both civilian and non-civilian targets carried out by AGEs’ and ‘violent attacks within the city are common.’ UNAMA’s data for 2018 shows that civilian casualties in Kabul are the highest in Afghanistan, and highlights the disproportionate risk to residents of Kabul: ‘UNAMA continued to document the disproportionate and extreme harm to residents of Kabul city from suicide and complex attacks. Out of 65 suicide and complex attacks across the country in 2018, 28 incidents occurred in Kabul city causing 1,686 casualties (554 deaths and 1,132 injuries), a five per cent increase in the number of casualties from 2017. The attacks perpetrated in Kabul mainly targeted civilians.’ Suicide and complex attacks are the leading cause of civilian casualties in the Afghan conflict, thus it is clear that civilians residing in Kabul face a disproportionate risk of harm compared to civilians in other cities of Afghanistan. DFAT reports data that indicates that civilian casualties in 2018 were highest in Kabul and Nangarhar, and that in 2019 Kabul continues to have one of the highest civilian casualty rates.
…
13.The Applicant also fears that he faces an additional real risk of significant harm from criminal elements – including murder, kidnapping, assault and extortion – due to the fact that he is a resident of Kabul. Agence France-Presse Kabul reports both officials and residents of Kabul ‘say crime is surging in Kabul, where police are already pushed to their limits attempting to prevent insurgent attacks by the Taliban and other insurgent groups including Islamic State’. The OSAC advises that: ‘There is a serious risk from crime in Kabul. Criminal activity is widespread and includes operations of several local, regional, and international… organized criminal syndicates. Transnational organized crime (related to the drug trade) remains a serious problem. Criminal activity extends into lower-level street crimes (e.g. theft, home invasion, assault). Criminals typically work in groups and are prone to use deadly force against victims.’ DFAT reports that kidnapping is particularly a problem in ‘large cities such as Kabul’, citing UNAMA’s comments: ‘UNAMA also noted continued abductions by illegal armed groups and criminal gangs, particularly in large cities such as Kabul, which are under-reported. While UNAMA does not systematically document abductions that are not carried out by parties to the conflict, it regularly received reports of such incidents’. The Applicant fears that he faces a real risk of being the victim of criminal violence, threats and extortion due to his residence in Kabul in isolation or in combination with his status as a Hazara, a Shia, a returnee, and/or a perceived supporter of the Afghan government/international community.
Recommendation
14.For all of the above reasons the IAA should remit the decision for reconsideration with a direction that the Applicant is refugee within the meaning of s 5H(1) of the Act or that when the Applicant’s claims are considered in the aggregate, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to a receiving country, there is a real risk he will suffer significant harm.
The Court considers the applicant to have clearly raised an express claim that the generalised and criminal violence he would face as a resident in Kabul amounts to a real risk of significant harm.
The applicant’s argument is that the IAA, in the context of the complementary protection assessment, did not make any findings on whether the applicant faces a real risk of significant harm due to non-insurgent generalised and criminal violence. Instead, it is argued that the IAA limits its assessment to the following unsatisfactory paragraph:
144. While not necessary to conclude upon given my other findings, in terms of generalised and criminal violence in the country, I am satisfied these risks are present throughout the country, not just for residents in Kabul. While the numbers in Kabul are obviously higher than elsewhere (with the exception perhaps of the less populous Nangarhar), I consider that criminal and generalised (insurgent violence) is reported throughout the country and impacts Afghans from a range of backgrounds, in a range of ways. Even traditionally safe areas such as Mazar-e-Sharif, are no longer immune from violence. I consider this is also true of the other considerations raised and assessed above in terms of environmental concerns, and the challenges relating to employment, accommodation, health and disease, and access to services.
This, the applicant submits, is simply not enough.
The Minister disagrees and notes the IAA’s findings at [139]-[140].
Paragraphs [139]-[140] of the IAA’s decision provide:
139. Finally, I have considered the other factors raised by the applicant about his return to Kabul, in terms of security, crime, environmental concerns, and challenges relating to employment, accommodation, health and disease, and access to services (water and medication), among others. In terms of these issues, I again consider these challenges are faced by the population of Afghanistan generally. I do not discount that the impact of these matters may be significant for the applicant. He focussed several times during the IAA interview on the difficulties he would experience in returning to live in Afghanistan. I accept there will be significant challenges, however I again find that the many issues facing Afghans are direct or indirect consequences of the compromised security, social and economic situation in Afghanistan and the impact of a nearly two decade war.
140. In the context of this assessment, I am not satisfied that there is any intention to cause severe pain or suffering, extreme humiliation, or cause pain or suffering that is cruel or inhuman in nature, nor do I consider the circumstances would constitute torture, or result in the applicant being arbitrarily deprived of his life. In relation to these other considerations, I am not satisfied there is a real risk of the applicant facing significant harm as defined.
The Minister submits that [139] must be read in the context of [122]-[128] (which considers “Generalised and criminal violence”) and, additionally [129]-[132] of the IAA’s decision (which consider “Other Considerations” such as employment, accommodation, health and disease, and access to services). The Minister submits that at [140], the IAA has positively found that the “harm” the applicant claims he faces from general and criminal violence is not “significant harm”. Accordingly, that finding is dispositive of the claim, and on the basis of that finding, the IAA says all that needs to be said when it says (at [144]) that it was “not necessary to conclude upon” the “risk”.
The Court does not entirely accept the Minister’s submission.
The IAA’s assessment at [140] is limited to the “other considerations”. The “other considerations” are addressed by the IAA at [129]-[133] as follows:
129. The applicant has advanced a number of other concerns about his potential return to Kabul and Afghanistan in general. He has highlighted the worsening pollution in Kabul and the impact on the health of residents in the city and the growing impact of crime in a more general sense. The submissions also refer to unemployment, accommodation, health and disease, lack of access to services (e.g. water and medicine), and basic infrastructure.
130. The submission contends the applicant would be unable to survive without links in Kabul, but it is apparent from the above assessment that this is not the case and that he does have a network in Kabul. I am satisfied the entirety of his immediate family is resident in Kabul, and may buffer him against some of the challenges present in the city, or at least help mitigate his vulnerability to these factors.
131. I accept these issues are present in Kabul and they are serious. According to DFAT, Afghanistan ranked 171st out of 187 countries in the most recent UN Human Development Index (2015), and is considered the least developed country in Asia. I accept there are significant challenges in Kabul and throughout Afghanistan. However, I am not satisfied the economic, social, health, environmental and other concerns identified in the applicant's submissions involve systematic and discriminatory conduct, or that it would amount to persecution.
132.I am satisfied that any chance of harm the applicant may face in this regard would not be for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion. Instead, I consider these issues are consequences of the compromised security, social and economic situation in Afghanistan and the impact of a nearly two decade insurgency. I consider these are issues faced by the population of Afghanistan generally and impact Afghans throughout the country. It follows that I find that s.5J(1)(a) and 5J(4)(a) would also not be satisfied.
133. I am sympathetic to the applicant and the challenging situation he would face on return to Kabul and Afghanistan, but I am not satisfied these matters constitute persecution in any relevant sense.
While the other considerations included “the growing impact of crime in a more general sense”, they did not include generalised and criminal violence itself. Context matters. Prior to addressing the “Other considerations”, the IAA considered, separately, “Generalised and criminal violence”. It did so at [122]-[128].
The Court does not accept that a mere reference to “security” and “crime” in [139] encompasses the claim of harm from generalised and criminal violence. It is limited to those matters that are discussed and addressed at [129]-[133]. The lack of any reference to “violence” is critical in the Court’s view. If the IAA were doing what the Minister suggests, the IAA would have expressly referred to “violence” (as it did when addressing the claims at [122]-[128]).
While the Court does not accept that the IAA’s reference to the “other findings” (at [144]) captures the findings at [139]-[140], the Court is nonetheless satisfied that the IAA’s reference at [144] does include/capture its findings at [138].
At [138], the IAA states:
138. In my assessment above, I have not accepted a number of the applicant’s past claims. In terms of the claims and profile factors that I have accepted, I have found there is not a real chance of the applicant facing harm for those reasons. For the same reasons, I am also not satisfied there are substantial grounds for believing that the applicant will face a real risk of significant harm for these reasons if he returns to and/or lives in Kabul.
The reference to “my assessment above” includes a reference to the IAA’s consideration of the “Generalised and criminal violence” at [122]-[128] which provides as follows:
Generalised and criminal violence
122. The applicant has also made submissions about insecurity and criminal violence in Kabul and Afghanistan, and the threat to him as a resident of that city. As evident in the reports before me, including those provided by the applicant, the overall security situation in Afghanistan continues to deteriorate, including within Kabul.
123. In its 2018 Report (published in early 2019), UNAMA documented a total of 1866 civilian casualties (596 deaths, 1270 injuries). The leading causes being suicide/complex attacks, Improvised Explosive Devices (non-suicide) and targeted killings. Those are confronting numbers, but again need to be seen in context of the insurgency, the centrality of Kabul to the insurgency, the size and population of the city, and the applicant’s own risk profile.
124. I have weighed the reports submitted by the applicant about criminality in Kabul and Afghanistan. I also observe DFAT’s advice that UNAMA reports cover only abduction incidents perpetrated by parties to the conflict. They exclude incidents perpetrated by criminals, and by tribal and other groups that do not have a connection to the conflict. I accept it can be difficult to ascertain the motivation for attacks, and to separate criminal attacks from insurgent activity connected to the conflict. There is little concrete data about criminal activities in Kabul and Afghanistan, but I accept the applicant’s submissions that crime continues to grow, and DFAT’s assessment that crime (particularly abductions) are likely underreported.
125. I have assessed the applicant would not face a real chance of harm on the basis of his ethnic and religious profile. Outside of that profile, civilians with elevated risk profiles in Kabul (and indeed throughout Afghanistan) are people associated with the government or international community, NGOs, the security forces, education and the media. The applicant has no connection to these risk profiles, nor do I consider there is any reason to consider he would have any association, perceived association or proximity to persons from these risk profiles on return to Afghanistan. Given his work history and skillset, I do not accept the contention that he would seek to work with the government or the international community.
126. I accept there are dangers to ordinary low profile civilians living in Kabul and throughout Afghanistan, however I do not consider the country information before me indicates that generalised or criminal violence is at such a level, scope or frequency, that the applicant would face anything more than a remote chance of harm as a civilian if he returned to live in Kabul.
127. I note he would be returning to live with his family, in settled accommodation, and I consider it likely he would have the support of his family. He also has significant experience living in Kabul, and I am not satisfied he shares the vulnerabilities of other returnees to the country. Having regard to the applicant’s otherwise limited profile, his personal situation in Kabul, his lack of other vulnerabilities and familiarity with life in Kabul, his lack of proximity to those with other risk profiles in Kabul (and Afghanistan), and weighing all of the information before me, I consider the applicant would face no more than a remote chance, and therefore not a real chance, of serious harm from generalised or criminal violence in Kabul.
128. Additionally, in terms of generalised and criminal violence, while I accept the situation in Kabul is serious, I do not consider he would be targeted because he is a resident of Kabul, as he contends, but rather any risks are a consequence of the ongoing insurgency and general insecurity in Kabul and throughout the country. I find that any remote chance of harm the applicant may face in this regard would not be for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion, Accordingly, in terms of the remote chance of the applicant being harmed in generalised, insurgent and criminal violence within Kabul or Afghanistan, I also find that s.5J(1)(a) and 5J(4)(a) would also not be satisfied.

The applicant’s written submissions (and Mr Guo’s oral submissions to the Court) focussed in detail on why the IAA’s assessment above was restricted to an analysis of insurgent violence (and, as such, not evidence of any conclusions as to the non-insurgent aspects of the applicant’s claims).
The Court disagrees with the applicant’s analysis of [122]-[128] and, in particular, his argument that the IAA only scrutinised “insurgent violence”.
The IAA (at [124]) clearly recognised that there was a difference between “insurgent” violence and “generalised” violence. The IAA was not, as the applicant submits, attempting to “apportion the violence”. Rather, the IAA recognised that the information and data before it was limited in relation to the prevalence of violence that was not “connected to the conflict”. However, the IAA nonetheless accepted that criminal violence was a growing occurrence. Hence, at [124] the IAA accepted that the violence the applicant claimed to fear (generalised and criminal violence) did occur.
The IAA’s discussion of the applicant’s “profile” (at [125]) follows its finding (at [124]) that generalised and criminal violence is a growing issue. In that context it cannot be said that the IAA was only concerned with insurgent groups at [122]-[128].
The applicant’s “profile” was relevant to a consideration of whether he was at risk or chance of harm from generalised and insurgent violence. This is because the applicant himself put this as a claim for consideration. The applicant stated:
…The Applicant fears that he faces a real risk of being the victim of criminal violence, threats and extortion due to his residence in Kabul in isolation or in combination with his status as a Hazara, a Shia, a returnee, and/or a perceived supporter of the Afghan government/international community
At [125], the IAA acknowledges and addresses whether the applicant would be harmed in Kabul “in combination” with one or more of the particular claims he had also made in relation to the Refugee Convention.
At [126], the IAA states:
I accept there are dangers to ordinary low profile civilians living in Kabul and throughout Afghanistan, however I do not consider the country information before me indicates that generalised or criminal violence is at such a level, scope or frequency, that the applicant would face anything more than a remote chance of harm as a civilian if he returned to live in Kabul.
The applicant submits that [126] is, in substance, no more than a summary or a conclusion. The applicant submits that the language of [126] is also expressed in the language of the Refugee criterion wherein it refers to the “remote chance of harm”. Accordingly, it is argued, it does nothing by way of an assessment in the context of the complementary protection criterion.
The Court accepts that [126] is a “conclusion”. However, it is a conclusion in relation to the chance of harm the applicant would face as “an ordinary low profile civilian living in Kabul”. That was the applicant’s claim “in isolation” (which was directed to the complementary protection criterion) and the IAA addressed it accordingly (albeit within the context of the “Refugee Assessment”). The reference to “civilian” is dispositive in the Court’s view. It indicates that the IAA’s conclusion was focussed on the applicant’s chance of harm as a result of his being resident in Kabul.
The “reasoning” that supports the conclusion reached at [126] is found in the paragraph that follows. Relevantly, at [127], the IAA states:
I note he would be returning to live with his family, in settled accommodation, and I consider it likely he would have the support of his family. He also has significant experience living in Kabul, and I am not satisfied he shares the vulnerabilities of other returnees to the country. Having regard to the applicant’s otherwise limited profile, his personal situation in Kabul, his lack of other vulnerabilities and familiarity with life in Kabul, his lack of proximity to those with other risk profiles in Kabul (and Afghanistan), and weighing all of the information before me, I consider the applicant would face no more than a remote chance, and therefore not a real chance, of serious harm from generalised or criminal violence in Kabul.
In oral submissions, Mr Guo stated that [127] was “moving on to an unrelated issue”. The Court disagrees.
Paragraphs [126]-[127] must be read together. Both refer to “generalised and criminal violence in Kabul”. At [127], the IAA explains why the applicant’s personal circumstances (in addition to country information that indicated that generalised or criminal violence was not at such a level, scope or frequency to amount a real chance of harm (at [126])) would mean that the applicant would not face a chance of harm from generalised violence and insurgent violence on the basis of being a civilian in Kabul.
The IAA’s reference at [127] to the applicant’s “limited profile” and lack of proximity to anyone with a “profile” should not be read as implying that the IAA only considered insurgent violence or only confined itself to the Refugee Convention. Had the IAA relied solely on the applicant’s lack of “profile” the Court might find otherwise. But the IAA did not do that here.
The IAA went further and specifically relied upon the fact that the applicant was familiar with Kabul and would not face the same vulnerabilities as other returnees (i.e., he had family support) in coming to its conclusion. It is clear that its’ reason for doing so was to ensure that the IAA properly addressed the applicant’s claim to fear harm from generalised and criminal violence in Kabul because he would reside in Kabul.
At [128], the IAA states:
Additionally, in terms of generalised and criminal violence, while I accept the situation in Kabul is serious, I do not consider he would be targeted because he is a resident of Kabul, as he contends, but rather any risks are a consequence of the ongoing insurgency and general insecurity in Kabul and throughout the country. I find that any remote chance of harm the applicant may face in this regard would not be for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion, Accordingly, in terms of the remote chance of the applicant being harmed in generalised, insurgent and criminal violence within Kabul or Afghanistan, I also find that s.5J(1)(a) and 5J(4)(a) would also not be satisfied.
There is nothing in [128] that suggests that the IAA has confined its assessment to “insurgent violence”. The use of the word “targeted” does not carry any connotation or association with insurgency only.
Accordingly, the Court rejects the applicant’s construction of [122]-[128]. The IAA did address the “generalised” part of the applicant’s claim that he would face harm as a result of “general” and “criminal violence”.
The applicant also argues that the analysis at [122]-[128] is clearly, and solely, directed to an analysis undertaken for the purposes of the Refugee Convention. It cannot be “imported” into the IAA’s assessment of the complementary protection criterion. Hence, the applicant submits, the reference to “profile factors” at [138] supports his argument that the IAA here is simply focussing on whether the applicant was at risk of harm for the “reasons” that he put forward in relation to the Refugee Convention (i.e., his religion, ethnicity and political profile). Hence, it is submitted, the IAA’s conclusion at [138] does not address the claims of generalised and criminal violence in the context of the complementary protection assessment.
The Court disagrees.
Again, at [138] the IAA states:
In my assessment above, I have not accepted a number of the applicant’s past claims. In terms of the claims and profile factors that I have accepted, I have found there is not a real chance of the applicant facing harm for those reasons. For the same reasons, I am also not satisfied there are substantial grounds for believing that the applicant will face a real risk of significant harm for these reasons if he returns to and/or lives in Kabul
The IAA references “claims and profile factors”. At [122], the IAA also expressly writes:
The applicant has also made submissions about insecurity and criminal violence in Kabul and Afghanistan, and the threat to him as a resident of that city.
The applicant’s claim was that he faced a real risk of “significant harm in Kabul due to the elevated risk of violence faced by residents of that city”, including “from criminal elements – including murder, kidnapping, assault and extortion – due to the fact that he is a resident of Kabul”.
While the Court accepts that the claim is advanced using the language of the complementary protection criterion, again, the applicant himself advanced the claim as associated with his “Convention” based claims. The IAA, at [124]-[125], assessed the “overlap” between the Convention based claims and the applicant’s residence in Kabul. The IAA could have stopped there and left the “isolated” part of the claim to its assessment of the complementary protection assessment. Instead, the IAA assessed the claim in isolation (that is, the claim that was advanced in the context of the complementary protection criterion) at [126]-[127].
No error arises in this regard. The IAA’s reasons are to be read as a whole and in context. The applicant himself caused his claim to “overlap” with his Convention claim. That the IAA dealt with the claim as a whole (i.e., his chance of harm in combination with the Convention claims and in isolation) under the heading “Refugee Assessment” does not itself amount to jurisdictional error. The IAA’s reasons at [126]-[127] are clearly directed to the applicant’s claim to fear harm on the basis of his residency in Kabul.
The fact that the claim is addressed under the broader heading of the Refugee Assessment or uses the terms “real chance” and “serious harm” does not suggest that the IAA cannot import the findings at [126]-[127] into its complementary assessment. The standard is the same: Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33 at [246]. This is precisely what the IAA has done at [138]. Its reference to “claims” is a reference to its consideration of the applicant’s claim to face harm from generalised and criminal violence as a resident of Kabul.
This is further supported by [128] wherein the IAA states:
Additionally, in terms of generalised and criminal violence, while I accept the situation in Kabul is serious, I do not consider he would be targeted because he is a resident of Kabul, as he contends, but rather any risks are a consequence of the ongoing insurgency and general insecurity in Kabul and throughout the country. I find that any remote chance of harm the applicant may face in this regard would not be for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion, Accordingly, in terms of the remote chance of the applicant being harmed in generalised, insurgent and criminal violence within Kabul or Afghanistan, I also find that s.5J(1)(a) and 5J(4)(a) would also not be satisfied.
Two findings are of note:
(a)there was only a “remote chance” the applicant would be harmed as a result of the generalised and criminal violence in Kabul; and
(b)the reason for this generalised and criminal violence was because of the ongoing insurgency and general insecurity in Kabul and throughout the country and not for a Convention related reason.
The IAA has positively found that any remote chance of harm was not for a Convention based reason but rather a result of insecurity in Kabul (i.e., the harm that could be experienced fell for consideration under the complementary protection criterion). However, the IAA has positively found that any harm for that reason is “remote”.
It is this finding of any harm “in this regard” being remote which is picked up by [138] when the IAA states that “I have found there is not a real chance of the applicant facing harm for those reasons”. Those “reasons” include the applicant’s claim to face harm from generalised and insurgent violence as a resident in Kabul.
Hence, the IAA’s assessment at [126]-[128] that it was not satisfied that the applicant faced a real chance of serious harm as an ordinary citizen of Kabul due to criminal and insurgent violence in Kabul could be, and was, imported into its finding at [138].
Accordingly, the applicant’s sole ground of review fails.
CONCLUSION
The application for judicial review has failed to identify any jurisdictional error.
The application is, accordingly, dismissed.

I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 23 March 2021

File number(s):	PEG 19 of 2020
Judgment of:	JUDGE KENDALL
Date of judgment:	23 March 2021
Catchwords:	MIGRATION – Safe Haven visa – decision of the immigration Assessment Authority – whether the IAA failed to consider claim in complementary protection assessment – no jurisdictional error – application dismissed.
Legislation:	Migration Act 1958 (Cth), Pt 7AA, ss 5, 5J, 36, 46A, 473CA, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB
Cases cited:	Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210 Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33
Number of paragraphs:	118
Date of hearing:	8 March 2021
Place:	Perth
Counsel for the Applicant:	Mr M Guo
Solicitor for the Applicant:	Estrin Saul Lawyers
Counsel for the First Respondent:	Ms S J Oliver
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Sparke Helmore Lawyers

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	23 MARCH 2021