DFE16 v Minister for Immigration & Border Protection
[2017] FCCA 308
•10 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DFE16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 308 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal fell into jurisdictional error concerning the applicants relocation upon return to Afghanistan – whether the Tribunal did not properly consider the applicant’s well-founded fear of persecution in Afghanistan within the meaning of s.5J(1) of the Migration Act 1958 (Cth) – reasonable relocation does not arise under s.5J(1) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5(J)(1), 5M, 36(2), 36(2B), Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: Januzi v Secretary of State for the Home Department [2006] 2 AC 426 Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45 SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at [124]; [2009] FCAFC 46 Articles and other material cited: Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 |
| Applicant: | DFE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2949 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 31 January 2017 |
| Date of Last Submission: | 31 January 2017 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2949 of 2016
| DFE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant is a citizen of Afghanistan who fled that country with his family when he was a child and went to live in Pakistan. He entered Australia on 15 November 2008 as the holder of a Partner (Provisional) (Class UF) (Subclass 309) visa.
On 17 June 2013 the applicant was assessed by ASIO[1] as being a security risk in light of allegations that he was involved in people smuggling. As a consequence, the applicant’s visa was cancelled on 19 June 2013 and he was taken into immigration detention where he remains.
[1] Australian Security Intelligence Organisation.
On 30 April 2015 the applicant applied for a protection visa on the basis that he feared he would be harmed by the Taliban or ISIS[2] in Afghanistan because he was a Shia Hazara and because of the time that he had spent in Australia. He also claimed that he may be harmed as a result of the inadvertent disclosure of some of his personal information while he was in detention.
[2] Also known as ISIL, Islamic State or Daesh.
In order for the applicant to be granted a protection visa, the Minister (and, on review, the Tribunal) had to be satisfied of one of two things:
i)That the applicant was a non-citizen in Australia in respect of whom Australia has protection obligations because the person is a refugee: Migration Act 1958 (Cth) sub-s.36(2)(a) (the “refugee criterion”); and
ii)that the applicant was a non-citizen in Australia in respect of whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: sub-s.36(2)(aa) (the “complementary protection criterion”).
On 15 June 2016 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Administrative Appeals Tribunal for review of that decision.
On 21 September 2016 the Tribunal affirmed the decision of the delegate. The Tribunal was not satisfied that the applicant was a refugee because there was not a real chance of persecution in all areas of Afghanistan, in particular in Mazar-e Sharif. The Tribunal was not satisfied that the applicant met the complementary protection criterion because it considered that it would be reasonable for the applicant to relocate to Mazar-e Sharif, a city in the north of Afghanistan, and that there would not be a real risk that he would suffer significant harm there.
Consideration
The applicant seeks judicial review of the Tribunal’s decision. He contends that the Tribunal fell into jurisdictional error in its consideration of whether it was reasonable for the applicant to relocate to Mazar-e Sharif in Afghanistan, that being relevant to whether the applicant had a well-founded fear of persecution in Afghanistan within the meaning of s.5J(1) of the Act. In particular, the applicant argues that the Tribunal failed to consider whether it would be reasonable to relocate in view of the level of insecurity in Mazar-e Sharif and surrounding areas, in combination with other personal factors including: his lack of traditional support networks, his unfamiliarity with that city and with Afghanistan and his back injury. He also argues that the Tribunal failed to take into account factors which were specifically raised in a report from the UNHCR[3].
[3] United Nations High Commissioner for Refugees.
The ground, as pleaded, must fail because the question of reasonable relocation does not arise under s.5J(1) of the Act, which relates to the refugee criterion. However, even if the argument were addressed to the complementary protection criterion, the Tribunal did not err in considering the issue of relocation. It took into account all of the material and factors relating to that issue that were before it including the UNHCR report.
In order to understand why the application must be dismissed on the broader basis mentioned in [8] above, it will be necessary to have regard to the claims made by the applicant and the findings made by the Tribunal in respect of those claims. First, however, it is necessary to explain why the ground, as framed, must fail.
Question of reasonable relocation
In order for a non-citizen to be granted a protection visa, he or she must make a valid application for that visa and the Minister must be satisfied that he or she satisfies the criteria for the grant of the visa. The relevant criteria are found in s.36 of the Act. That section has undergone a number of amendments including, most recently by operation of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (“Amending Act”).
Prior to the amendments brought about by the Amending Act, the refugee criterion applied to a person who was a refugee within the meaning of Art.1 of the Convention[4]: NAGV & NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161 at 176 [42]; [2005] HCA 6. The relevant part of that definition is in Art.1A(2) which provides:
[4] Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967.
A.For the purposes of the present Convention, the term “refugee” shall apply to any person who:
…
(2)…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Subsequent to its amendment by the Amending Act the refugee criterion, as stated in sub-s.36(2)(a) of the Act, applies to:
a)A non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
The word “refugee” is now defined in s.5H of the Act which relevantly provides:
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
…
(Emphasis in original)
That definition reflects Art.1A(2) of the Convention. However, the meaning of “refugee” is qualified in ss.5J to 5M which were also introduced by the Amending Act. Of particular importance to the issues in this case are the qualifications in s.5J and, in particular, s.5J(1) of the Act which provides:
Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
(Emphasis in original)
That provision imposes three cumulative requirements in order for a person to have a “well-founded fear of persecution” within the meaning of sub-s.5H(1)(a). This means that if the Minister is not satisfied that any one of those requirements is met in respect of an applicant for a protection visa, that applicant does not have a well-founded fear of persecution, is not a refugee, and so cannot satisfy the refugee criterion.
The third requirement resembles one aspect of Art.1A(2) of the Convention commonly referred to as the relocation principle. That principle is that if a person could relocate to a place within his or her own country where he or she could have no well-founded fear of persecution, and where he or she could reasonably be expected to relocate, then he or she is not a refugee: SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18; [2007] HCA 40 (“SZATV”).
The applicant argues that the Tribunal did not properly apply that principle. The first question is whether the principle still applies to the refugee criterion. It was common ground that the relevant form of the Act was that as amended by the Amending Act. For that reason, it is necessary to construe the provisions which now inform the refugee criterion and in particular, the third requirement in s.5J(1).
The third requirement in s.5J(1) resembles the relocation principle because they both require there to be a place within the country of nationality where there is no real chance of persecution. However, the relocation principle also requires that it be reasonable to expect the applicant to relocate to that place whereas, on its face, there is no such requirement in s.5J(1). Before turning to further analysis of s.5J(1), it is important to note the way in which the relocation principle arises in the context of Art.1A(2).
In SZATV, the plurality stated at [19], that the principle found its place in the Convention definition of refugee by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 440:
“The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.”
In Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45 (“SZSCA”) Gageler J explained, at [40]:
Underlying the principle is a purposive understanding of the causative connection connoted by the words “owing to” within the context of the Convention. The purposive understanding is that a person is not in need of the protection of the international community, for which the Convention provides, outside the country of his or her nationality if it would be reasonable for the person to return to a region within that country where the person would be safe from persecution.
Returning to the text of the Act, it is apparent from the terms of s.5H(1) that, absent s.5J, the relocation principle would operate because those terms include the causative element, “owing to”. However, a person will not be outside his or her country of nationality if he or she has no well-founded fear of persecution. For that reason, it is necessary to consider the qualification of that phrase in s.5J(1). The plain terms of that section do not include any reference to reasonableness or, in particular, any question of any reasonable expectation about relocation. Rather, it operates on the single factum of there being a real chance of persecution in “all areas” of the country.
The absence of any reference to reasonableness or relocation appears to be a deliberate choice. It appears that the amendment was intended to alter the principle of relocation as it applied to refugees. That intention is also supported by the heading to the part of the Amending Act by which the section was introduced:
“Clarifying Australia’s international law obligations”
It is also supported by the Explanatory Memorandum circulated by the authority of the Minister with the relevant Bill which relevantly explained, at 10-11:
It is the Government’s intention that this statutory implementation of the ‘internal relocation’ principle not encompass a ‘reasonableness’ test which assesses whether it is reasonable for an asylum seeker to relocate to another area of the receiving country. Australian case law has broadened the scope of the ‘reasonableness’ test to take into account the practical realities of relocation. Decision makers are currently required to consider information that is additional to protection considerations under Article 1A(2) of the Refugees Convention such as diminishment in quality of life or potential financial hardship. In the Government’s view, these considerations are inconsistent with the basic principle that protection ought be offered by the international community only in the absence of protection within all areas of a receiving country.
The applicant argued that the principle still arose from the definition of “refugee” in s.5H(1). He based this argument on the following statement by Black CJ in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 442:
… notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.
That statement focuses on the existence of a “well-founded fear of persecution” as the rationale for the relocation principle rather than the causative element arising from the words “owing to”. To that extent, the reasoning of the Chief Justice has been overtaken by later authority. In any event, the principle considered in that decision focused, as it continued to do in later cases, on the practical realities of the putative refugee and the reasonableness of any expectation that he or she relocate to a safe area within the relevant country. Those elements do not appear expressly in the current form of the legislation and, as I have said, were deliberately omitted.
For those reasons, the ordinary and plain words of s.5J indicate that the “internal relocation principle” as explained in authorities such as SZATV and SZSCA no longer has any operation in respect of the refugee criterion. Those words appear to me to be intractable and there is nothing in either the structure or the purpose of the Act to suggest a different outcome. As the applicant’s sole ground of review is addressed to that criterion, it must be rejected and the application dismissed.
However, the matter was argued on a broader basis than the ground as it appeared in the further amended application and focus was also given to the question of whether the Tribunal properly considered the complementary protection criterion. For that reason, although it is not strictly necessary to do so, I will explain why the broader argument would also fail.
Consideration of complementary protection criterion
There was no issue that the relocation principle applies to the complementary protection criterion by operation of s.36(2B) of the Act which relevantly provides:
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
…
As this provision reflects the internal relocation principle that arises from the definition in Art.1A(2) of the Convention, it is to be understood in light of the authorities concerning that principle. Those authorities establish that the question of reasonableness must be assessed having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to the area in question. The particular circumstances that must be considered are determined by the facts and claims raised by that applicant in connection with his or her application for a protection visa.
The applicant claimed protection on the basis that he was a Shia Hazara and would be captured, tortured and killed by the Taliban or ISIS in Afghanistan. He claimed that he would be unable to hide his ethnicity and religion, was not familiar with Afghanistan and had no support network to rely on.
The applicant claimed that the risk of harm would be increased because of a number of matters:
i)he would be identified as a foreigner;
ii)his personal information had been released by the Immigration Department while he was in detention;
iii)his accent had changed from living in Australia for so long;
iv)his attempts to challenge an adverse ASIO assessment were widely publicised; and
v)he featured in a video dedicated to collective prayer of Australian Shi’ites which was available on YouTube.
In respect of possible relocation, the applicant first claimed that there was no safe place in Afghanistan for Shia Hazaras. He also claimed that he did not speak Pashtu, did not have marketable skills, had health problems (a bad back) which caused him to stop working and he had not lived in Afghanistan since childhood.
On 15 June 2016 a delegate of the Minister made a decision to refuse the applicant a protection visa. The delegate found that there were at least two safe areas in Afghanistan to which the applicant could return: his native Jaghori district of Ghazni Province, and Kabul. The delegate found that it would be unlikely that the applicant would return to Jaghori but found that, as Kabul was safe, the applicant did not meet the refugee criterion. The delegate found that the applicant did not satisfy the complementary protection criterion because he would be safe in Kabul and Jaghori, would have effective support mechanisms there and be able to re-establish himself financially.
The applicant applied to the Tribunal for review of the delegate’s decision. In written submissions sent to the Tribunal on 17 August 2016 the applicant addressed the issue of safety in Kabul at some length. One matter relied on by the applicant was an opinion by a European specialist on the Hazara, Professor Monsutti, that if “someone returns to Afghanistan, he or she could not live outside his or her traditional or family area.”
On 25 August 2016 the applicant attended a hearing conducted by the Tribunal. At that hearing the Tribunal raised the possibility of relocation to Mazar-e-Sharif.
After the hearing the applicant sent further submissions to the Tribunal in which he addressed the question of relocation to Mazar-e-Sharif. He accepted that, at face value, the centre of that city was relatively safe; however, he argued that the security did not extend very far beyond the city. He referred to various information including information to the effect that there had been a marked increase in insurgent activity since 2011, security related incidents on the roads were reported, and that civilians had been caught in the crossfire. He also stated that there had been a number of reports of violence in the city and that, with the increasing spread of the Taliban influence all over Afghanistan, the safety of the Balkh province (of which Mazar-e-Sharif is the largest city) could not be guaranteed.
In summary he argued that he would have little hope of survival in Mazar-e Sharif, as an isolated Hazara with no family or community links, with an inevitable reputation as a person who had lived in a Western country for many years and who had adopted Western ways, with all the marks of foreignness and facing the likelihood of accusations of apostasy, spying and anti-Afghanistan sympathies.
The applicant then submitted an expert opinion concerning the security situation in Afghanistan and specifically, Mazar-e Sharif.
In its decision the Tribunal dealt with relocation in two parts. First, in respect of the refugee criterion, it dealt with the issue of whether the applicant would be safe in Mazar-e Sharif and could safely access that city. Secondly, in connection with the complementary protection criterion, it dealt with the reasonableness of any such relocation.
The Tribunal stated at [37], that it was satisfied that the applicant did not face a real chance of persecution in Mazar-e Sharif and in the following paragraphs, gave its reasons for that conclusion. First it considered the applicant’s written submissions, the expert’s opinion and country information in relation to the general security situation in Afghanistan, and the situation of the Hazara Shias: [38] – [58]. At [50] and [51] of its decision the Tribunal referred to an attack by an element of Islamic State in Kabul which took place in July 2016 but found, at [52] there was no persuasive evidence before the Tribunal to suggest that Daesh had targeted Shias or Hazaras in Mazar-e Sharif or that Mazar-e Sharif was vulnerable to such attacks.
At [53] the Tribunal addressed the submission that there was spreading violence in Afghanistan and that Mazar-e Sharif would not be spared. It found that the total of the country information before it did not support the view that Mazar-e Sharif was at risk of violence or imminent deterioration in the general security situation and found the claim to be highly speculative.
At [55] the Tribunal stated that there was no credible or persuasive information before it to suggest that Hazaras in Mazar-e Sharif had been harmed or are at risk of harm by Tajiks or other ethnic groups there.
The Tribunal accepted that there had been a number of security incidents on roads involving Hazaras. However, the Tribunal noted that there were only very occasional incidents on the road to and from Mazar-e Sharif. It explained in its reasons that, as there were no reported incidents of Hazara Shia or people with the same background as the applicant being kidnapped on that road, it was satisfied that the applicant would be able to safely access Mazar-e Sharif. The Tribunal further held that, in any event, the air route from Kabul to Mazar-e Sharif provided a further opportunity for the applicant to safely access that city.
The second aspect of relocation was dealt with by the Tribunal in the course of its consideration of the complementary protection criterion. The Tribunal considered the question of reasonableness of relocation by reference to the applicant’s circumstances at [103] to [109] of its reasons.
First, the Tribunal noted that the applicant was young and resilient and that he had been able to work and run a business in Australia. It noted the applicant’s submission about the economic circumstances in Kabul and that access to economic opportunities in Afghanistan was dependent on personal networks: [103].
After referring to country information concerning poverty in Afghanistan, the Tribunal noted that the applicant was young and literate and that while he would face economic challenges faced by many others in Mazar-e Sharif, his past experiences showed that he had acquired skills and a number of fields which would no doubt assist him in his quest to find the means to support himself upon return: [105].
The Tribunal then referred to the applicant’s submission concerning his absence from Afghanistan, his lack of links to, and connections, in the country as well as to the different language, habits and customs and lack of local knowledge. It expressly referred to a number of documents relied upon by the applicant emphasising the importance of links to family and social networks, including members of the same ethnic community, in the area of prospective relocation in finding long-term shelter and employment: [106].
Next, the Tribunal noted that the applicant had had a back injury when he first came to Australia but added that he had not claimed that he had any particular ailment or disability that would prevent him from finding and engaging in any form of employment in Afghanistan: [107]. It noted that the UNHCR guidelines identify persons with the applicant’s characteristics as having the potential to relocate without external supports or to reside in Mazar-e Sharif without the support networks referred to. In light of that, the Tribunal considered the applicant could subsist without the family network structure discussed by the UNHCR and that it was reasonable to infer that the importance of family, tribal or ethnic links would be more acute in rural areas as opposed to a large city like Mazar-e Sharif. It noted that the applicant would have a relatively large population of Hazaras living in Mazar-e Sharif amongst whom he could seek to integrate into, including finding work and accommodation. It noted that as the applicant was a man of working age, he would be better placed to succeed in that respect than others.
Finally, the Tribunal acknowledged that the applicant had never been to Mazar-e Sharif and had no family there. It accepted that the situation would be very strange at first and he would find it challenging to acclimatise to the environment, given that he had not resided in the country since he was a child. However, given that the applicant had skills and abilities that he could use to support himself, the Tribunal considered that he would be able to subsist and support himself in Afghanistan.
The Tribunal concluded that on the basis of the evidence before it, and having regard to the applicant’s circumstances overall, it was satisfied that it would be reasonable for the applicant to relocate to Mazar-e Sharif.
The applicant’s first argument is that, given the evidence before the Tribunal, there was a clear inference that Hazaras in Balkh province have enemies who wish to do them harm and that terrorists can, and have, infiltrated Mazar-e Sharif. He argues that while the Tribunal found that the risk of violence or an imminent deterioration in the security situation and the applicant’s chances of being seriously harmed were remote, it failed to consider whether the violence that had occurred, by itself or taken in combination with other facts, including the challenges facing the applicant in setting up a life in the city, made it unreasonable for the applicant to attempt to settle there.
This argument was based upon the proposition that it may be necessary in some cases for the Tribunal, when considering the issue of relocation, to take into account the possibility of different or lower risks of harm faced by an applicant in the possible place of relocation. In MZACX v Minister for Immigration & Border Protection [2016] FCA 1212 (“MZACX”) Kenny J said, at [35]:
In considering the possibility of relocation within a visa applicant’s country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk, then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is “reasonable”, in the sense of “practicable”, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case.
…
Her Honour explained that issue of risk of harm can arise at both stages of the inquiry into relocation and jurisdictional error may arise where the Tribunal conflates the two stages of the inquiry. Her Honour referred to the decisions of Dodds-Streeton J in MZYQU v Minister for Immigration & Citizenship (2012) 206 FCR 191; [2012] FCA 1032 and Davies J in MZZJY v Minister for Immigration & Border Protection [2014] FCA 1394 as illustrations of such a conflation.
Another way of expressing the error is to say that the Tribunal approached its task on the basis that if it determined the appellant did not have a well-founded fear of persecution in one place that would inevitably make his relocation reasonable: see MZZZA v Minister for Immigration & Border Protection [2015] FCA 594 at [42].
Whether or not the Tribunal will be required to make an assessment of reasonableness by taking into account lower risks of harm will depend, at least in part, on the claims made by the visa applicant as well as the findings made by the Tribunal.
In this case, the applicant’s claims concerning reasonableness and safety in Mazar-e Sharif were essentially based upon the prospect of serious harm such as death, torture and kidnapping as a result of insurgency and terrorist acts. For example, both the applicant and the expert upon whose report he relied referred to an assault by the Taliban in April 2015 upon the provincial prosecutor’s office in Mazar-e Sharif. There is no question that the Tribunal dealt with those claims in determining whether or not there was any risk of harm. Further, unlike the Tribunal in MZACX, the Tribunal here did not limit its findings about safety in Mazar-e Sharif to any particular type of violence. It stated, at [53] “On the available information, the Tribunal is of the view that the chance of the applicant being seriously harmed in Mazar-e Sharif would be remote”.
For those reasons, there was no suggestion of any residual type of harm, or “lower levels of harm” that remained to be considered by the Tribunal in determining the second aspect of relocation.
In my view, in considering the reasonableness of relocation the Tribunal considered all of the circumstances relevant to the applicant and the first ground must be rejected.
The second argument is that the Tribunal failed to consider the UNHCR report. One part of that report dealt with the issue of relocation in Afghanistan. The applicant argues that the Tribunal failed to deal with certain issues raised in the report, namely, the availability of accommodation, potable water and sanitation and the scale of internal displacement.
There is no question that the Tribunal did have regard to the report and, in particular, the aspect of it dealing with relocation. It specifically referred to the report at [106] and [107] of its reasons. Further, it expressly addressed the question of accommodation in Mazar-e-Sharif. Although it did not expressly refer to the question of potable water, sanitation and the scale of internal displacement it did not have to: there was nothing to suggest that those matters might affect the applicant in Mazar-e-Sharif. Importantly, the applicant, whose agents had the UNHCR report and who were able to obtain an expert’s report dealing specifically with relocation in Afghanistan, did not mention those matters. Given that the issue of reasonableness of relocation depends on the framework set by the particular objections raised to relocation (SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at [124]; [2009] FCAFC 46; MZACX at [34]), this means that the Tribunal was not obliged to deal with them expressly.
For those reasons the second argument fails.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 10 March 2017
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