DPA18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 845
•13 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DPA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 845
File number(s): SYG 1907 of 2018 Judgment of: JUDGE OBRADOVIC Date of judgment: 13 October 2023 Catchwords: MIGRATION – JUDICIAL REVIEW – Safe Haven Enterprise Visa – Extension of time granted – Whether the applicant held a well-founded fear of persecution – Legally unreasonable – Whether applicant could relocate – Application dismissed Legislation: Migration Act 1958 (Cth) ss.36(2)(a), 36(2)(aa), 36(2A), 36(2B), 477(2) Cases cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33
Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707
AGE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 668
AWG18 v Minister for Home Affairs [2020] FCA 744
BIG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 223
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 456
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Minister for Immigration v MZZGD [2014] FCCA 60
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Navato v Minister for Home Affairs [2019] FCAFC 135
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
SZATV v Minister for Immigration and Citizenship [2007] HCA 40
Wang v Australian Securities and Investments Commission [2019] FCA 1178
Division: Division 2 General Federal Law Number of paragraphs: 95 Date of last submission/s: 16 February 2023 Date of hearing: 2 February 2023 Place: Parramatta Counsel for the Applicant: Ms T. Baw Solicitor for the Applicant: Kah Lawyers Counsel for the Respondents: Ms N. Gollan Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 1907 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DPA18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTRUAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
13 OCTOBER 2023
THE COURT ORDERS THAT:
1.Pursuant to section 477(2) of the Migration Act 1958 (Cth), the time for seeking judicial review of the decision of the second respondent dated 23 March 2018 be extended up to and including 10 July 2018.
2.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The Further Amended Application for judicial review filed 9 February 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are the Reasons for Judgment for the Application filed 10 July 2018, and amended by the Further Amended Application filed 9 February 2023, seeking judicial review of the Immigration Assessment Authority’s (“the Authority”) decision to refuse a Safe Haven Enterprise Visa (“SHEV”) dated 23 March 2018. The Authority’s decision affirmed the decision dated 26 May 2017 of a delegate (“the delegate”) of the then Minister for Home Affairs, the first respondent.
The Originating Application filed 10 July 2018 was out of time. The applicant sought an extension of time pursuant to s.477 of the Migration Act 1958 (Cth). At the hearing it was brought to the attention of the Court that, despite the Originating Application and the Further Amended Application seeking an extension of time, orders were made by consent on 2 December 2022 extending the time for seeking judicial review up to and including 9 July 2018. The Court however notes that the original application was lodged for filing after hours on 9 July 2018 and as such filed on 10 July 2018. Consequently, the Court will make a further order herein extending the time for filing until 10 July 2018.
In summary, the two grounds for review are:
(a)Ground 1, that the Authority failed to assess whether the applicant had a well-founded fear of persecution in Mazar-e-Sharif as required by law; and
(b)Ground 2, that the Authority failed to assess whether the applicant could relocate to Mazar-e-Sharif, and/or in the alternative, that the Authority was legally unreasonable in its assessment of whether the applicant could reasonably relocate to Mazar-e-Sharif.
BACKGROUND
The applicant was born 31 December 1988 and is presently 34 years of age. He is an Afghan citizen of Hazara ethnicity of the Shia faith.
He is married with a son. His wife and son currently live in Kabul with the maternal family.
The applicant was born in Qarabagh District, Ghazni Province, Afghanistan, and he lived there until the age of 14 or 15 when he moved to Kabul to complete his schooling. He then moved back to Qarabagh between 2010 and 2013.
He had a shop in Qarabagh and travelled between Qarabagh and Ghazni City. While travelling between these locations the applicant had problems with the Taliban where they demanded the applicant to fight with them against the Afghan government and foreign forces.
The applicant arrived in Australia in early 2013 as an unauthorised maritime arrival and was held initially at Christmas Island Immigration Detention Centre.
On 17 August 2016, the applicant applied for a Temporary Protection Visa (“TPA”).
On 16 May 2017, the applicant was interviewed, following which he withdrew his TPV application and applied for a SHEV on 23 May 2017.
The delegate refused the application for a SHEV on 26 May 2017. The delegate’s decision was referred to the Authority for fast track review under Part 7AA of the Act.
On 23 March 2018, the Authority affirmed the delegate’s decision not to grant a SHEV.
THE AUTHORITY’S DECISION
For simplicity, the Authority summarised the applicant’s claim for protection as follows:[1]
•He is a Hazara Shia citizen of Afghanistan born in 1988 in Zarsang Jangalak, Qarabagh district, Ghazni province, Afghanistan.
•He was Born and raised in Qarabagh district.
•He had his own grocery shop in Qarabagh and also sold construction materials. He travelled often to Ghazni city to buy stock for his shop and sell yoghurt. These were always dangerous trip because the Taliban would stop him on the road demanding that he should join them to fight the Afghan government and foreign troops.
•On one occasion the Taliban took about eight Shia Hazaras by force while they were travelling from Qarabagh to Ghazni city. They ordered them to join them in fighting the Afghan government and foreign troops and two of them were killed while the rest escaped Afghanistan. He was more vulnerable to being taken by the Taliban because he used to own a shop in Qarabagh as they were unrelenting in their threats to kill him if he continued to refuse their order.
•When he realised the Taliban were not going to give up he decided to sell his shop and save his life. He fled Afghanistan. He could not have moved within Afghanistan because the Taliban have informers/spies and influences throughout the country. There is widespread poverty in Afghanistan and people desperate for money become spies.
•He fears being harmed (seriously physically abused, killed or subjected to an extraordinary level of discrimination that will threaten his ability to subsist or otherwise being significantly harmed) by the Taliban, Daesh and other Sunni insurgent groups for his imputed political opposition to them in refusing to join them and fight against the Afghan government and foreign troops, for being Hazara Shia, and for being a returnee from Australia/a western country who will be accused of being an infidel.
•The government is too weak to protect him; they are unable to protect themselves. Also, the decision makers are mostly Pashtuns who discriminate against the Hazaras.
[1] CB:235-6.
When making its decision, the Authority had regard to the material provided under s.473CB of the Act, a post interview submission provided on behalf of the applicant, and a submission from the applicant dated 21 June 2017 (“June submissions”) which the Authority viewed as consisting predominantly of an argument rather than “information”.[2]
[2] CB:234[3]-[4].
The Authority also considered whether parts of the June submissions constituted “new information”. In relation to the country information that the June submissions claimed was outdated, the Authority was not satisfied that the information could not have been provided to the delegate, and that it was not apparent to the Authority how it would constitute personal information as opposed to general country information. As there was no engagement with s.473DD(b) of the Act, the Authority was not satisfied and was prevented from considering it.[3]
[3] CB:234[5].
The June submissions also referenced a news report which post-dated the delegate’s decision. Despite there having been no engagement with s.473DD(b), the Authority took a pragmatic approach and was satisfied that the information could not have been provided to the delegate. The contents of the report documented an Islamic State attack on a Shia mosque in Kabul. This was provided in direct response to the delegate’s finding of the low risk of such an event happening to Hazara Shias in Kabul in the reasonably foreseeable future and that the applicant would be harmed. The Authority considered there were exceptional circumstances to consider this new information on the basis it emphasised that the risk was present at the time of the decision.[4]
[4] CB:235[6].
The Authority also obtained new information about the classes of persons of which the applicant was a member. Taking into account the fluidity of the situation in Afghanistan and that the information obtained was dated after the delegate’s decision, the Authority was satisfied that there were exceptional circumstances to justify considering the new information.[5]
[5] CB:235[7].
Refugee Assessment
As part of its decision the Authority considered whether there was a “well-founded fear of persecution” under s.5J of the Act. The Authority set out the components involved under s5J, including:[6]
•the person fears persecution and there is a real chance that the person would be persecuted
•the real chance of persecution relates to all areas of the receiving country
•the persecution involves serious harm and systematic and discriminatory conduct
•the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion
•the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and
•the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.
[6] CB:236[10].
The Authority accepted the applicant’s stated identity and that he had strong ties to Qarabagh. The Authority accepted that this was an area that he may return to and re-establish himself. However, the Authority was also satisfied that the applicant had strong ties in Kabul and accepted that he may return and re-establish himself in Kabul. In this sense, the Authority accepted that the applicant had two home areas, Qarabagh district in Ghazni and Kabul.[7]
[7] CB:237[12]-[13].
In relation to Qarabagh, the Authority found that it was undisputed that security in Ghazni Province was volatile and accepted that insurgents had a high presence in Qarabagh.[8] The Authority was satisfied that there had not been any recent cases of directed attacks on civilians, and as such, was not satisfied that ordinary civilians in Qarabagh faced a real chance of being harmed as a result of the fighting.[9]
[8] CB:238[18].
[9] CB:239[20].
Regarding the applicant’s personal circumstances, the Authority accepted that he was the subject of attempted recruitment by the Taliban and that he was threatened. However, the Authority found that the Taliban’s interest in the applicant was opportunistic. If the applicant was to return to Ghazni, the Authority considered that the applicant would come to the attention of the local people, including Pashtuns and the Taliban. Accordingly, the Authority was satisfied that there was a chance that the applicant would come to the attention of, and be identified by, the local Taliban. When taking account of him being a Hazara Shia, a returnee from the west, and being a person known to and refusing to join the Taliban, the Authority accepted “there is a small but nonetheless real chance that these factors cumulatively will lead him to be seriously harmed by the Taliban in his local area.”[10]
[10] CB:239[24].
In relation to Kabul, the Authority accepted that the applicant was a Hazara Shia and that he considered himself to be religious. The Authority considered the Islamic State Khorasan Province (“ISKP”) to be a credible threat to Hazara Shias in Kabul and accepted that, despite increased joint international and Afghan military operations aimed at removing the group, it has a small operational presence in Kabul with demonstrated capacity and willingness to carry out multiple/mass casualty attacks against Shias. Accordingly, the Authority accepted that “the chance the applicant being seriously harmed/killed as a Hazara and practicing Shia in Kabul is more than remote and therefore real.”[11]
[11] CB:241[29].
Under the Act, the real chance of prosecution must relate to all areas of the receiving country. The delegate found that the applicant could safely relocate to not only Kabul but also Mazar-e-Sharif city in the northern province of Balkh. The Authority was satisfied that the applicant and their representative were on notice that relocation to either or both cities were live issues and accordingly, considered whether the applicant could relocate to Mazar-e-Sharif.
The Authority was “not satisfied that the applicant faces a real chance of harm in Mazar-e-Sharif.”[12] In summary, the Authority:
[12] CB:241[31].
(a)Was not satisfied that the Taliban had an adverse interest in the applicant stemming from his encounters with them, and was not satisfied that the applicant faced a real chance of being harmed in relation to his refusal to join the Taliban, his lie to the Taliban, or his fleeing soon afterwards;
(b)Did not accept that the applicant faced a real chance of harm for an anti-Taliban opinion;
(c)Was not satisfied that the applicant would face discrimination from the government or authorities that would amount to serious harm;
(d)Referred to the Department of Foreign Affairs and Trade’s (“DFAT”) explanation that ethnic, tribal and familial connection played an important role in daily life in Afghanistan, and that this commonly manifested itself in nepotism or the giving of positive favour of one’s own particular ethnic or religious group above Hazaras rather than being present in the form of negative discrimination. The Authority accepted that this manifested itself “inter alia, in hiring decisions”;[13]
(e)Was satisfied that the applicant would be able to find work and access the basic necessities in Mazar-e-Sharif;
(f)Was not satisfied the applicant’s capacity to subsist would be threatened, and found that any discrimination would be low-level, infrequent, and not amount to serious harm of any kind;[14]
(g)Was satisfied that he would be returning to his country with knowledge and personal experience of Afghan culture and strong familiarity with Afghanistan, and did not accept he would have lost his knowledge and practice of Afghan culture during his time in the west;
(h)Was “not satisfied that any foreign or western mannerisms the applicant may have acquired would be more than minimal and would put him at risk of harm”;[15]
(i)Was not satisfied that the applicant was of interest to the Taliban or any insurgent group or individual on account of any reason, including anti-Taliban, pro-government or pro-western opinion;
(j)Was “not satisfied that the applicant faces a real chance of harm on account of being a failed asylum seeker or returnee who has lived outside Afghanistan, including in a western country and is identifiably Hazara – nor for being an infidel or for any related opinion or profile”;[16]
(k)Was satisfied that he could take reasonable steps to modify his behaviour to avoid, what the Authority considered to be, an already remote chance of persecution because of his residence and claim for asylum in the west; and
(l)Was not satisfied that the applicant would face a real risk of significant harm either through targeted or generalised harm or criminality during the brief time in Kabul if transiting through to Mazar-e-Sharif. The Authority found that the chance was remote and therefore not real.
[13] CB:244[45].
[14] CB:244[46].
[15] CB:245[49].
[16] CB:245[51].
Accordingly, the Authority was satisfied that the applicant does not face a real chance of suffering serious harm in Mazar-e-Sharif, and was not satisfied that the applicant’s fear of persecution was well founded. The Authority concluded that the applicant did not meet the requirements for the definition of “refugee” in s.5H(1) and did not meet s.36(2)(a) of the Act.
Complementary Protection Assessment
The Authority also considered whether there was a real risk of significant harm under s.36(2A) of the Act. The Authority summarised the consideration of when a person will suffer “significant harm” as when:[17]
•the person will be arbitrarily deprived of his or her life
•the death penalty will be carried out on the person
•the person will be subject to torture
•the person will be subjected to cruel or inhuman treatment or punishment, or
•the person will be subject to degrading treatment or punishment.
[17] CB:248[63].
The Authority was satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Afghanistan, the applicant would face a real risk of significant harm if he returned to Kabul or Qarabagh. However, s.36(2B) provides that there is taken not to be a real risk of suffering significant harm if it would be reasonable for the person to relocate inside the country to where there would not be a real risk. The Authority:
(a)Was not satisfied the applicant would face discrimination or other mistreatment arising from specific circumstances or vulnerabilities that would lead to the applicant being subject to acts or omissions constituting significant harm in Mazar-e-Sharif;
(b)Was satisfied that the applicant would not be targeted by the Taliban for any reason in Mazar-e-Sharif on the basis of his refusal to join the Taliban and his actions in relation to this;
(c)Was satisfied there was no real chance of the applicant facing serious harm in Mazar-e-Sharif on the basis of his profile as a Hazara Shia returnee from the west who had lived much of his life outside of Afghanistan and had sought asylum; and
(d)Found there was no real chance the applicant would suffer serious harm from violence targeted against him or from generalised violence or criminality in Mazar-e-Sharif, nor in the course of accessing the city.
The Authority also considered the applicant’s personal circumstances and whether it was reasonable for the applicant to relocate to Mazar-e-Sharif. In particular, the Authority noted that:[18]
[T]he applicant and his representative have addressed issues relevant to relocation in terms of both Kabul and Mazar-e-Sharif and I have considered their evidence and submissions which focused both on the applicant’s safety and their concerns over his ability to find accommodation and employment and to subsist in this context and without any familial links or social connections.
[18] CB:249[71].
The Authority accepted that there are emotional and economic challenges for the applicant, as well as high unemployment and under employment in Afghanistan, that would make relocating to Mazar-e-Sharif difficult. However, the Authority found the applicant “is able bodied and of working age. There is a Hazara community and the applicant has demonstrated that he is resourceful and resilient and has successfully lived apart from his family and settled in unfamiliar places.”[19] The Authority concluded:[20]
I have considered that the applicant’s family are in Kabul and Qarabagh. I have given careful consideration to this and I acknowledge that a further separation from his family in the short to medium term would be difficult, but I do not accept that it would be unreasonable. I find he could establish himself in Mazar-e-Sharif and that once settled, he and his family could discuss the possibility of and/or make arrangements for his family to join him.”
[19] CB:250[75].
[20] CB:250[76].
The Authority was satisfied that relocation to Mazar-e-Sharif was reasonable in the applicant’s circumstances. Accordingly, the Authority was satisfied there were no substantial grounds for believing that, as a necessary and foreseeable consequence of returning to Afghanistan, there was a real risk that the applicant could suffer significant harm. Therefore, the applicant did not meet the requirements under s.36(2)(aa) of the Act.
GROUNDS OF JUDICIAL REVIEW
The applicant moves on the Further Amended Application filed 9 February 2023.
Ground 1 – Failure to Assess Well-Founded Fear of Persecution
The applicant alleges that the Authority failed to assess whether the applicant had a well-founded fear of persecution in Mazar-e-Sharif as required by law.
The applicant relies on two particulars in support of Ground 1:
(a)Firstly, that the Authority failed to consider material country information before it which was inconsistent with its conclusions that “the applicant will be able to find work and access the basic necessities in Mazar-e-Sharif”;[21] and
(b)Secondly, that the Authority had no probative evidence to make the finding that the applicant would be able to find work in Mazar-e-Sharif because the country information was about employment in Afghanistan generally, not about employment specifically in relation to Mazar-e-Sharif. Further or in the alternative, that it was legally unreasonable for the Authority to make a finding on that basis.
[21] CB:244[46].
Ground 2 – Reasonableness of Relocation
The applicant alleges that the Authority failed to assess whether the applicant could reasonably relocate to Mazar-e-Sharif, and/or in the alternative, that the Authority was legally unreasonable in its assessment of whether the applicant could reasonably relocate to Mazar-e-Sharif.
The applicant relies on four particulars in support of Ground 2:[22]
(a)That the Authority was in error when concluding that, although the applicant would face challenges, the applicant could reasonably relocate to Mazar-e-Sharif;
(b)The finding that the applicant could establish himself in Mazar-e-Sharif and make arrangements for his family to join him was legally unreasonable;
(c)The finding that the country information did not support the assertion that Hazara Shias or returnees were denied, or were otherwise unable to obtain, employment or services without connections was legally unreasonable; and
(d)That it was legally unreasonable for the Authority to find that, as the applicant had found employment in other parts of Afghanistan and Australia in the past, he could find employment in Mazar-e-Sharif.
[22] Further Amended Application filed 9 February 2023, 5-6.
DETERMINATION
It is important to look carefully at the Further Amended Application and to understand the actual grounds of judicial review which the applicant relies upon.
The first ground relates to an alleged failure by the Authority to assess whether the applicant had a well-founded fear of persecution. This is said to have been done by, firstly, failing to consider relevant material and, secondly, by reaching a conclusion in respect of which there was no evidence, such that this was legally unreasonable.
What is not apparent from the applicant’s submissions (written, oral and supplementary) is how the particulars alleged give rise to a failure to assess the well-founded fear of persecution. Even though, for reasons which are explained below, the applicant has not established that the Authority failed to consider relevant material or that it came to a legally unreasonable finding (with no evidence), even if such matters had been established, the applicant has failed to show the nexus between the particulars and the alleged failure to assess at law.
Furthermore, there appears to be a conflation of the two grounds (failure to assess whether a well-founded fear of persecution cf. reasonableness of relocation) in the way the applicant has argued his case.
Ground 1(a) - Failure to consider material
The applicant alleges that:
1.The Second Respondent (IAA) failed to assess whether the applicant had a well-founded fear of persecution in Mazar-e-Sharif as required by law.
(a) The IAA failed to consider material country information before it that was inconsistent with its conclusions that “the applicant will be able to find work and access the basic necessities in Mazar-e-Sharif at D[46]…
The crux of the applicant’s argument centres around the report from the European Union: European Asylum Support Office (“EASO Report”),[23] which the Authority acknowledged the receipt of by way of a footnote reference.[24] The applicant argues that the EASO Report was not considered by the Authority even though it was referred to in the footnotes.
[23] Affidavit of Michael Kah filed 10 November 2022, annexure A.
[24] CB:235[7] n3.
The applicant argues that, by failing to consider the EASO Report, the Authority overlooked country information directly relevant to assessing the reasonableness of relocation to Mazar-e-Sharif, and that passages from the EASO Report were central to the applicant’s integer of his claim that family connections were critical to finding employment and shelter in Mazar-e-Sharif.[25]
[25] Applicant’s Outline of Submissions filed 19 January 2023, [29].
It is not in dispute that the Authority identified the EASO Report as new information relevant to the applicant, and that it was specifically referred to in the footnotes to the Authority’s reasons.
It is further not in dispute that the Authority did not cite or quote the particular passages from the EASO Report now relied upon by the applicant and said to be going to an integer of the applicant’s claim, namely his inability to find accommodation and employment to subsist in Mazar-e-Sharif without any familial links or social connections.
The obligation to consider a matter requires the decision maker to bring his/her mind to bear upon the matter and to engage in an active intellectual process directed at that matter.[26] As stated by the Full Court of the Federal Court:[27]
[T]he determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case.
[26] BIG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 223 at [31] (“BIG17”).
[27] Navato v Minister for Home Affairs [2019] FCAFC 135 at [89].
Furthermore, the reasons of the Authority “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.[28] The Authority was not obliged to comment on every item of material before it to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.[29]
[28] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [30] quoting Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 456 at [22].
[29] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14] (“NAHI”).
While the Authority did not expressly cite the paragraphs from the EASO Report highlighted by the applicant, it is clear from [45] and [46] of the Authority’s decision that the Authority considered the applicant’s lack of family connections in Mazar-e-Sharif for his obtaining employment, and the high unemployment in Mazar-e-Sharif in light of the applicant’s specific characteristics.
There is nothing in the passages of the EASO Report, which the applicant relies upon, which is particularly different to the summary of the situation in Mazar-e-Sharif, which the Authority found to exist, in terms of difficulties for a person with no family or personal links there. The Authority accepted that the applicant would face a difficult situation upon return.
The conclusions which the Authority reached as to country information not supporting a finding that Hazara Shias or returnees from abroad are denied or are otherwise unable to obtain employment or access services, even when returning without connections, is consistent with the passages of the EASO Report relied upon by the applicant, which refers to the difficulties someone such as the applicant might face.
It is correct that the Authority did not make express reference to anything specific in the EASO Report, however, this does not of itself mean that the report was not considered or that it was overlooked.
The applicant urges the Court to accept that like in AWG18 v Minister for Home Affairs:[30]
Whilst it is true that a failure to refer to … or mention any of the matters emphasised in the text of those reports (kind of harm; place of harm), urged upon the decision-maker, does not, of itself, mean that the reports were ignored or overlooked, the decision in question here falls unto that class of case where an inference arises that if the three reports and the emphasised passages from them had been considered, one could expect that the matter would have been referred to in the decision even if it were then rejected…
[30] [2020] FCA 744 at [138] (“AWG18”); see also Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [52].
In circumstances where the Authority expressly referred to the EASO Report as part of the country information it considered, albeit the Authority did not specifically quote from the report, and where the matters referred to by the applicant in the EASO Report were considered at large by the Authority but without specific reference to the report, the applicant has not established that the Authority failed to consider the EASO Report as alleged.
The materials which were available to the Authority were extensive. The Authority’s approach was open to it.
Ground 1(a) is not made out.
Ground 1(b) - No evidence and Legal Unreasonableness
The applicant alleges that:
1.The Second Respondent (IAA) failed to assess whether the applicant had a well-founded fear of persecution in Mazar-e-Sharif as required by law.
(b)There was no probative evidence for the IAA to find that the applicant will be able to find work in Mazar-e-Sharif (at D[46]), by reference to country information about employment in Afghanistan generally but not specific to Mazar-e-Sharif. Further or in the alternative, it was legally unreasonable for the IAA to make that finding on that basis.
It is well established that a “no evidence” ground will fail if there was any evidence to support a particular factual finding or inference.[31] However, as held by Bromwich J in Wang v Australian Securities and Investments Commission:[32]
The “no evidence” ground is not restricted to circumstances where there is, quite literally, no evidence at all. That is because a finding may constitute an error of law if there was no probative evidence to support it, so as to be no evidence in law at all: see Bruce v Cole (1998) 45 NSWLR 163 at 188-189 per Spigelman CJ (Mason P, Sheller and Powell JJA agreeing). It follows that the no evidence ground of review will not always be defeated by identifying a mere “skerrick” of evidence if it can be shown by the party asserting the “no evidence” ground not to have been also legally probative in making the finding in question.
[31] Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 at [575]; Australian Broadcasting Tribunal v Bond [1990] HCA 33at [94]; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 at [16], [91].
[32] [2019] FCA 1178 at [68].
The Authority found that:
[46] … The applicant is an able bodied male of working age. He has an education, and worked with his uncles’ window/glass pane business while he was studying in Kabul. He later took over his father’s shop and ran the business in Qarabagh which I note involved him developing networks with people in Ghazni city as well as in his local community. In Australia he has been working as a painter. According to DFAT, wholesale and retail trade, manufacturing and construction are among the top five sectors of employment in Afghanistan and the applicant has experience in some of these areas from his work in Kabul, Qarabagh and now in Australia. I am satisfied the applicant will be able to find work and access the basic necessities in Mazar-e-Sharif.
The very report which the applicant submits was not taken into consideration by the Authority (see Ground 1(a) above) contains information pertaining to Mazar-e Sharif’s economy and, in particular, that it includes robust construction and manufacturing sectors. The report further noted that Mazar-e Sharif is an industrial centre with a large number of small and medium enterprises and several large-scale manufacturing enterprises.
While these specific passages in the EASO Report were not specifically referred to in the Authority’s reasons, it cannot be said that there was no evidence before the Authority in respect of the Authority’s finding that the applicant would be able to find work in Mazar-e Sharif. Those findings were based on his previous experience and the type of work which is available in Afghanistan, with the evidence going to the prevalent industries in Mazar-e-Sharif.
In respect of the argument of legal unreasonableness, noting the evidence before the Authority as a whole, it cannot be said that the Authority’s conclusions were illogical, irrational or not founded on any probative evidence for the same reasons as the “no evidence” part-particular is not established.
Lastly, the applicant seems to conflate in his further submissions[33] the argument about the Authority’s findings of the reasonableness of the internal relocation to Mazar-e-Sharif with its findings that the applicant did not have a well-founded fear of persecution which is what Ground 1 argues the Authority failed to assess.
[33] Applicant’s Further Submissions filed 9 February 2023.
The applicant was granted leave to file a Further Amended Application. The applicant will be held to the matters which are contained in that application. It is not appropriate to raise a different and new ground through submissions which is not contained in the application, now twice amended.
Ground 1(b) is not made out.
Grounds 2 – Reasonableness of Relocation
It is well recognised that:[34]
[80][I]nternal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven…
[81]In some circumstances, having regard to the age of the applicant the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable … In each case, the personal circumstances of the applicant… the viability of the propounded place of internal relocation … and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution … will need to be weighed in judging the realism of the hypothesis of internal relocation.
[34] SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [80]-[81].
In summary, in respect of its conclusions as to the reasonableness of internal relocation, the Authority set out the basis of its conclusions and the information upon which such conclusions were based. Such reasons spoke to a consideration of the importance of family or person links, the discrimination which may be faced by the applicant and that there is unemployment and underemployment in Mazar-e-Sharif.
For reasons which are explained below, Ground 2 is not made out.
Ground 2(a) and (c)
The applicant alleges that:
2.The IAA failed to assess whether the applicant could reasonably relocate to Mazar-e-Sharif, and/or further in the alternative, the IAA was legally unreasonable in its assessment of whether the applicant could reasonably relocate to Mazar-e-Sharif.
(a)Error in concluding that “although [the applicant] will face challenges” at D[74] it permitted a lawful finding that the applicant could reasonably relocate to Mazar-e-Sharif, despite relevant contradictory country information that was before it that supported the applicant’s claims, including the country information cited in Ground 1.
…
(c)Legally unreasonable in finding that “country information does not support that Hazara Shias, or returnees from abroad are denied or are otherwise unable to obtain employment or access services, even when returning without connection “ at [46] as it is contradicted by country information.
While not so pleaded, the applicant submits that Grounds 2(a) and 2(c) are in the alternative to Ground 1(a), alleging that the Authority fell into jurisdictional error due to legal unreasonableness. The applicant states that they are material to an outcome for the same reasons set out in Ground 1(a) above.
The Authority did consider and assess whether it was reasonable for the applicant to relocate to Mazer-e-Sharif, such discussion and findings being at [65]-[78] of its reasons.
The crux of the applicant’s argument here is that the EASO Report contradicted the findings of the Authority, and had it been considered by the Authority then those findings would not have been made.
For reasons which were explained earlier, the applicant has not established that the Authority failed to consider the EASO Report, and indeed the report is specifically named as part of the country information which the Authority considered.
The EASO Report contains information which goes to the viability of relocation, which the applicant relies upon. Simply because things may be difficult for the applicant when he returns to Mazar-e-Sharif does not mean that a finding that it is reasonable for him to relocate there is legally unreasonable, particularly when the EASO Report itself leaves open the possibility of such relocation. For example, the EASO report notes that 85% of labourers reported being recruited through friends or family – this leaves the possibility of 15% finding employment other than through family or friends. Furthermore, the report states that 15% of inhabitants of Mazar-e-Sharif live above the poverty line. While not very encouraging, it is possible.
The legal threshold for finding that a decision-maker’s reasons are irrational or illogical is very high. The High Court has observed that: [35]
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
[35] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135].
Unreasonableness will be established where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to such a decision.[36]
[36] Minister for Immigration and Citizenship v Li [2013] HCA 18.
The applicant has not met that bar. Grounds 2 (a) and (c) are not made out.
Ground 2(b)
The applicant alleges that:
2.The IAA failed to assess whether the applicant could reasonably relocate to Mazar-e-Sharif, and/or further in the alternative, the IAA was legally unreasonable in its assessment of whether the applicant could reasonably relocate to Mazar-e-Sharif.
(b)Legally unreasonable in finding that the applicant “could establish himself in Mazar-e-Sharif and that once settled, he and his family could discuss the possibility of and/or make arrangements for his family to join him” at [76] despite contradictory evidence before the IAA that the applicant could not reasonably relocate to Mazar-e-Sharif, including that the applicant would have to support not only himself, but also his wife and son.
The applicant submits that the Authority failed to consider the reasonableness of relocation not only for him but also his family, in circumstances where he would have to support both himself and his family. The relevant finding by the Authority was at [76] of its decision, that the applicant could establish himself in Mazar-e-Sharif and, once settled, discuss the possibility and/or arrange for his family to join him.[37]
[37] CB:250[76].
The applicant relies on AGE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[38] in which the Authority had addressed the appellant’s employment, though only as a single person despite having a family he had lived away from for some time. In AGE18, the Court found that it could not be assumed that the Authority’s consideration, of the issue that a person can obtain employment, can be taken to have been an implicit consideration of their ability to support their family:[39]
[36]Where an applicant has dependent family members, it will usually be necessary for a decision-maker to consider whether or not those family members would accompany the applicant to the new “safe” area upon his or her return of in the reasonably foreseeable future. If so, matters such as the availability and adequacy of employment, the ability to support family, housing, education and healthcare in the “safe” area may also be relevant to an assessment of the reasonableness of the applicant relocating.
…
[38]The Authority’s references to the Appellant’s family are not in any way a consideration of his ability to provide for his immediate family upon relocation to Mazar-e-Sharif. … The Authority addressed the Appellant’s employment, but only as a single person. The Appellant had lived away from his family for some time so (as put by Counsel for the Minister) this was not a new development. However, it was a situation the Appellant likely wanted to change. Further, I do not consider there is necessarily a “natural nexus” (as put by the Counsel for the Minister) between a person obtaining employment and their ability to support their family such that the Authority’s consideration of the former issue can be taken to have been an implicit consideration of the latter in the circumstances. Much will depend upon the circumstances of the family and the type of employment.
[38] [2022] FCA 668 (“AGE18”).
[39] AGE18 at [36], [38].
The applicant says that there is nothing to distinguish AGE18 by the facts of this case, that the Authority’s reasons are absence any proper consideration of his family, and that the consideration was material such that it cannot be ruled out that the Authority could have found relocation to Mazar-e-Sharif was not reasonable had it considered the applicant’s ability to support his family (such as the provision of housing, education and healthcare). The applicant submits, as this Court is bound by AGE18, this ground should succeed.
Unlike in AGE18 where the appellant had raised a specific desire to be reunited with his wife and children in the review material, the applicant here has not expressly raised in any review material before the Authority a desire to be reunited with his wife and child. Indeed, the delegate had noted that the applicant had objected to relocating to Kabul, inter alia, as this would put his family in danger if he were to live with them.[40]
[40] CB:183.
In AGE18, the appellant’s family was living illegally in Iran and struggling to support themselves. Here, there was no inference or finding that the applicant’s wife and child would need to relocate to Mazar-e-Sharif. Indeed, his family were living in Afghanistan as citizens of the country and in close proximity to the wife’s family.[41]
[41] CB:182.
Aside from a reference to being a “bread winner” when objecting to being transferred to an offshore processing centre,[42] none of the material before the delegate or the Authority expressly raised the applicant’s need to financially support his wife or child. As such, the present circumstances are distinguishable from AGE18 because the applicant’s need to financially support his wife and son did not sufficiently nor clearly arise from the review material, nor was the applicant’s desire to reunite with them made “tolerably clear from the material itself”.[43]
[42] CB:3.
[43] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15].
The Authority looked at the applicant’s personal circumstances as he raised and advanced them, in deciding whether it was “reasonable, in the sense that it [was] practicable for [him] to relocate” [44] to Mazar-e-Sharif.
[44] Minister for Immigration v MZZGD [2014] FCCA 60 at [36].
The Authority considered the possibility of the applicant reuniting with his family, and came to the vague conclusion that the applicant and his family could “discuss the possibility of and/or make arrangements for his family to join him.”[45] On what basis that conclusion was reached is not entirely clear, however, this was not raised by the applicant either as a ground or a particular of a ground of judicial review.
[45] CB:250[76].
In any event, the applicant did not raise before the Authority or the delegate that it was not reasonable for him to relocate to Mazar-e-Sharif because it was not reasonably practicable for his wife and child to do so.
The Authority considered the claims and circumstances raised by the applicant in assessing whether it was reasonable for him to relocate to Mazar-e-Sharif. The claims raised by the applicant, and before the Authority, did not include a desire to reunite with his wife and child or a contingent need to support them and should not first be raised during judicial review.
Ground 2(b) is not made out.
Ground 2(d)
The applicant alleges that:
2.The IAA failed to assess whether the applicant could reasonably relocate to Mazar-e-Sharif, and/or further in the alternative, the IAA was legally unreasonable in its assessment of whether the applicant could reasonably relocate to Mazar-e-Sharif.
(d)Legally unreasonable in finding at D[46] that as the applicant had found employment: (a) in other parts of Afghanistan in the past, which was through his familial connection, that he could find it in Mazar-e-Sharif, however failing to acknowledge that he had no such connection there; and (b) in Australia which is unlike in Mazar-e-Sharif, in which employment is highly dependent upon ethnic, tribal, familial or social connections.
The applicant says that it was legally unreasonable for the Authority to conclude that he could find employment in Mazar-e-Sharif as he had found employment in Kabul and Australia. The applicant submits that the employment circumstances were not analogous to Mazar-e-Sharif as in Kabul the applicant relied on his uncle, and Australian employment did not depend on family connections. As such, it was legally unreasonable to make analogies reliant on this flawed reasoning and the Authority had overlooked the barrier of family connections to finding employment in Mazar-e-Sharif; information which was provided in the EASO Report.
The applicant misconstrues the findings of the Authority in respect of this particular.
It was not the Authority’s finding that, as he had found employment in other parts of Afghanistan, he could find it in Mazar-e-Sharif.
Indeed, the Authority expressly acknowledged that the applicant “has never lived in Mazar-e-Sharif and he has no family or personal links there”[46] and that the applicant “may be negatively affected by this societal discrimination and nepotism including when seeking employment”.[47]
[46] CB:244[46].
[47] CB:244[46].
The Authority concluded that, because the applicant has previous experience working in particular industries which were among the top sectors of employment in Afghanistan, the Authority was satisfied to find that “the applicant will be able to find work and access the basic necessities in Mazar-e-Sharif”[48] and it is in this context that the Authority’s findings should be understood.
[48] CB:244[46].
Ground 2(d) is not made out.
CONCLUSION
For those reasons, the orders at the forefront of these Reasons for Judgment are made.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 13 October 2023
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