Dpi18 v Minister for Immigration - [2020] FCCA 1805

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPI18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1805

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – principal claim relating to a property dispute – applicant disbelieved in part and applicant’s other fears found not to be well-founded – applicant’s immediate family resident in Pakistan – Authority failing to consider the risk on the roads to Pakistan – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 5J, 36

Cases cited:

CRI028 v Republic of Nauru [2018] HCA 24

Minister for Immigration v Li [2013] HCA 18

Applicant:

DPI18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1922 of 2018

Judgment of:

Judge Driver

Hearing date:

2 July 2020

Delivered at:

Sydney

Delivered on:

17 August 2020

REPRESENTATION

Counsel for the Applicant:

Mr S Tully

Solicitors for the Applicant:

Ryburn Solicitors

Counsel for the Respondents:

Mr P Knowles

Solicitors for the Respondents:

Mills Oakley

ORDERS

The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 6 June 2018 into this Court, for the purpose of quashing it.
A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1922 of 2018

DPI18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 6 June 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the applicant’s written submissions filed on 19 June 2020.
The applicant, a national of Afghanistan, claimed to have been born in a named district (home district) in Ghazni province.[1] His immediate family was listed as being located in Quetta, Pakistan.[2] On 11 May 2016, he was invited to apply for a protection visa.
[1] Court Book (CB) 1
[2] CB 2; see also at CB 74; CB 75 at [4]
On 16 June 2016, the applicant lodged an application for a temporary protection (subclass 785) visa (protection visa) with the Minister’s Department.[3] He identified his ethnicity as Hazara and religion as Shia Muslim.[4] The applicant indicated that he was in contact with his family in Pakistan by telephone once every 2-3 days.[5]
[3] CB 12
[4] CB 30
[5] CB 34
The applicant was unable to provide a passport.[6] He claimed to have departed Afghanistan illegally and without any genuine travel document or visa for entry into Australia.[7] He used a false Pakistani passport which was taken from him by a people smuggler.[8]
[6] CB 49, 56
[7] CB 35
[8] CB 36, 57; see also CB 78-79 at [24]
In a statement of claims accompanying his protection visa application dated 11 June 2016,[9] the applicant claimed to have been born in his home district in Afghanistan before fleeing with his family to Quetta, Pakistan in 2000 when aged about 8.[10] The applicant claimed to fear persecution from the Taliban and other terrorist groups by reason of his race and religion as a Hazara Shia. Subsequently he also claimed to fear persecution as a member of a particular social group, being failed asylum seekers returning from the west. Before he left Afghanistan for Pakistan, the Taliban had taken control of his area and was torturing and killing Hazara Shias.[11] Life in Quetta was also unsafe and uncertain. In 2002, a man, S,[12] was given permission by his father to live in the family home in his home district until they returned to Afghanistan.[13] In 2012, when the applicant’s father wanted to return the family to Afghanistan, S refused to vacate the premises.[14] S indicated that, if the applicant’s father returned to Afghanistan to reclaim the house, S would report to the Taliban that the applicant’s father was a government employee or worked for the United States in Afghanistan.[15] The applicant’s father was upset about these threats and became more serious about returning to Afghanistan. The applicant felt he had to flee Pakistan but could not go back to Afghanistan because he was a Hazara Shia and “the threats we had received from [S]”.[16] If he was returned to Afghanistan, the applicant feared that “[S] would report me to the Taliban and he will tell everything to the Taliban about me, my background and my time in Australia”.[17] He also feared that S might have given personal information to the Taliban such as his name, photo and other sensitive information,[18] thereby putting him at risk of harm. The applicant was certain that, should he return to Afghanistan, S would have or will provide his personal details to the Taliban and, using this information, the Taliban could easily identity and harm him.[19]
[9] CB 75-79
[10] at [8]
[11] at [9]
[12] the name has been anonymised
[13] at [13]
[14] at [14]
[15] at [15]
[16] CB 77 at [16]
[17] CB 78 at [19]
[18] CB 78 at [19]
[19] CB 78 at [21]
Together with the applicant’s protection visa application and statement of claims, the applicant’s agent provided country information.[20] In particular, individuals which have potential risk profiles included individuals associated with, or perceived as supportive of, the Afghan government and the international community, including the international military forces[21] and individuals who were perceived as “westernized”.[22] Land disputes were common in Afghanistan and frequently turned violent.[23] The applicant’s Taskera was also provided.[24]
[20] CB 81-221
[21] CB 139
[22] CB 146
[23] CB 182
[24] CB 238
On 30 May 2017, the applicant was invited to attend a departmental interview[25] which was rescheduled.[26] Certain information was requested following that interview.[27]
[25] CB 243
[26] CB 253
[27] CB 255
In post-interview submissions dated 12 July 2017,[28] the applicant’s agent relevantly contended that, when the available country information concerning land disputes in Afghanistan was added to the applicant’s assertions about S’s violence and greed, the applicant claimed to have a well-founded fear of persecution on account of his membership of a particular social group of land owners, land owners involved in land disputes or similar.[29] Country information concerning the safety of road travel in Ghazni province was also provided.[30] On 20 July 2017, additional country information was provided,[31] which included the conditions for Afghans located in Quetta.[32] More country information was provided on 24 July 2017[33] and again on 2 August 2017.[34]
[28] CB 262-288
[29] CB 266 at [23]
[30] CB 274-276
[31] CB 294-400
[32] CB 361-363
[33] CB 401-415
[34] CB 416-484
On 14 August 2017, the delegate refused to grant a protection visa to the applicant.[35] In brief reasoning, the delegate did not accept that the applicant originated as he claimed or that his family incurred threats from a man named S who had seized their family home. The delegate found that the applicant had contrived this claim in an attempt to enhance his claims for protection.[36] Instead, the applicant was found to be a member of the Shia Hazara community originating from Quetta, Pakistan who could safely return to Kabul which the delegate found to be the applicant’s home area.[37]
[35] CB 486-507
[36] CB 495
[37] CB 496-497
On 17 August 2017, the applicant was automatically referred to the Authority.[38]
[38] CB 509
On 14 November 2017, the applicant’s agent made submissions addressing country information to the Authority.[39] On 23 January 2018, the agent made further submissions.[40] The agent submitted that the applicant was not questioned about the threats S made to his family and that the delegate did not discuss this claim with the applicant[41] (a point noted by the Authority in its reasons for decision at [39]). On 29 March 2018, further recent country information was provided by the applicant’s agent to the Authority, including the security situation in Ghazni province and travel on surrounding roads.[42] On 23 April 2018, the applicant’s agent again provided country information relevantly concerning the risks of road travel between Kabul and the Hazarajat.[43] On 2 May 2018, the agent provided country information addressing, among other things, the risks of road travel.[44]
[39] CB 531-540
[40] CB 542-561
[41] CB 545
[42] CB 571-583 at 574-575
[43] CB 588-592
[44] CB 594-598
On 6 June 2018, the Authority affirmed the decision not to grant the applicant a protection visa.[45] In its reasons for decision, the Authority first identified the information and particularly the country information that was before it.[46] It then summarised the applicant’s claims for protection at [16]. Among other conclusions, the Authority concluded at [41] that, whether the claim was characterised in terms of a property dispute or membership of a particular social group, it was not satisfied that the applicant faced any chance of harm from S, the Taliban or any person or group in connection with his family’s former property in his home district, or any dispute in relation to that property. According to the Authority, there was only a remote and not a real chance of the applicant facing serious harm in his home district.[47] The Authority also found that there was only a remote and not a real chance of the applicant facing serious harm on the roads in and around his home area on the basis of his religious, ethnic and/or related profile.[48] Ultimately, the Authority concluded at [71] that the applicant did not meet the requirements of the definition of refugee and that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Afghanistan, there was a real risk that the applicant would suffer significant harm.[49]
[45] CB 605-625
[46] CB 606-608at [2]-[15]
[47] eg CB 615 at [50]
[48] CB 617 at [54]
[49] CB 621 at [78]

The current proceedings

These proceedings began with a show cause application filed on 11 July 2018. There is one ground in that application with particulars:
1.The IAA failed to comply with s 473DB(1) of the Migration Act 1958 (Cth) (the Act) or otherwise committed jurisdictional error.
Particulars 1A
(a)    In its reasons for decision, the IAA:
(i)     found that the applicant could return to his home area in … (eg at [41], [56], [77]); and
(ii)    considered that the applicant did not face a real chance of harm … from [S] because the IAA considered “the only real context in which the applicant may have had a confrontation with [S], would have been if he approached [S] directly in relation to his father's property" and "[t]here has been no claim to that effect" (at [37]).
(b)The IAA failed to consider evidence contained in the review material before it that [S] lived in the applicant's family home ….
(c)Further or in the alternative, the IAA misunderstood its task by establishing a hypothetical threshold which the applicant first had to satisfy before a particular claim was accepted, instead of considering the applicant's claims as made.
Particulars 1B
(a)    In its reasons for decision, the IAA found that:
(i)     it would be reasonable for the applicant to remain in [his home district] or travel infrequently outside that area (at [53], [74]); and
(ii)    the applicant would be returning to his home area where he had the support of family (at [65]).
(b)The IAA failed to consider evidence contained in the review material before it that the applicant's family resided in Quetta, Pakistan.
(c)Further or in the alternative, the IAA failed to consider s SJ (3) of the Act.
(d)Further or in the alternative, the IAA's finding was unreasonable in the sense described in Minister for Immigration and Citizenship v Li [2013] HCA 18.
Particulars 1C
(a)The review material contained evidence that the applicant no longer had a valid passport.
(b)The IAA failed to consider this material before it when determining whether it was satisfied that the criteria for the grant of a protection visa were met.
Particular 1C was not pressed.
The only evidence I have before me is the court book filed on 28 August 2018.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial on 2 July 2020. I have been assisted by those submissions.

Consideration

Ground 1A – did the Authority err in considering the applicant’s claim about his family home?

As articulated in the application, Particular 1A alleges that the Authority:
a)failed to consider evidence that S lived in the applicant’s family home in his home district – Particular 1A(b); and
b)misunderstood its task by “establishing a hypothetical threshold which the applicant first had to satisfy before a particular claim was accepted, instead of considering the applicant’s claims as made” – Particular 1A(c).
In its reasons for decision, the Authority noted at [16] and [31] the applicant’s claim that a man named S had been given permission by his father to live in the family home in his home district until the family returned from Pakistan. The Authority noted at [16] and [32] that, in 2012, the applicant’s family decided to return to the home district in Afghanistan. However, S refused to vacate the house and threatened the applicant’s father that false allegations would be made against him and reported to the Taliban. The applicant’s father became more serious about returning to Afghanistan but died before doing so in 2015.[50] The Authority noted at [33] the applicant’s fear that S would provide personal information about the applicant to the Taliban, thereby putting him at risk.
[50] CB 612 at [32]
The Authority in its reasons for decision concluded at [36] that the applicant’s claim to be personally at threat from S or that S had the capacity to actualise the threats made against the applicant’s father to be vague and unconvincing. The Authority considered at [37] that there was no real prospect that S would recognise the applicant. It reasoned that S would have no knowledge of the applicant’s return and had not threatened the applicant directly. The Authority stated at [37] that “the only real context in which he may have had a confrontation with [S], would have been if he had approached [S] directly in relation to his father’s property” and “[t]here has been no claim to that effect”. The Authority considered at [39] that the applicant had the opportunity during his visa interview to articulate his fear and threat from S, such that his failure to do so suggested that he did not have a subjective fear on this basis. In its view, the applicant had not satisfied the Authority that “he would seek to agitate that property dispute, or that he would be at any chance or risk of harm if he did”.[51]
[51] CB 613 at [40]
The applicant submits that the Authority had narrowly or erroneously characterised the claimed threats from S arising from his occupation of the family’s home. As described above, the threats made by S were not only exclusively directed to the applicant’s father. Nor were they limited to the applicant’s family’s position as a home or landowner involved in a dispute with S. The threats were made against the applicant personally, and extended to S informing the Taliban about personal information particular to the applicant.
The statutory task for the Authority was to consider those substantial, clearly articulated arguments made by the applicant as well as those which clearly or squarely arose from the materials before it.[52] The applicant submits that the Authority had, in effect, posited a hypothetical scenario or threshold which the applicant was required to meet before considering his claims, rather than assessing the claims the applicant had actually made. In order to assess his claims, the Authority is said to have required the applicant to have claimed to have approached S directly about his father’s property, and thereafter the Authority decided to disbelieve his claims because there had been no claim made to that effect. The threat made by S was not limited to agitating the property dispute. The applicant stated that he was certain that, “should he return to Afghanistan”, S would have or will provide his personal details to the Taliban and, using this information, the Taliban could easily identity and harm him.[53] The applicant contends that by mischaracterising his claims, the Authority failed to deal with a substantial, clearly articulated argument made by him.
[52] eg NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [58]
[53] statement of claims dated 11 June 2016, commencing at CB 75 at [21]
The Authority at [40] considered it not to be implausible that the applicant’s father and S were involved a land dispute. It was also prepared to consider at [35] claims which arose on the facts, such as whether the applicant feared persecution as a member of a particular social group, being home owners or land owners who were involved in a land dispute. However, the applicant had not satisfied the Authority at [40] that S had the capacity or intention to actualise those threats against his father “or his family”. The Authority reasoned that the applicant had not satisfied it that he had ever personally been or ever would be threatened by S in relation to this property. The Authority was not satisfied that S was connected to the Taliban, that S would make allegations about his profile to the Taliban or that the Taliban would take any interest in the applicant. The applicant contends that, having regard to the pathway of its reasoning, however, it is apparent that these conclusions flowed from a predisposition that there was “only [one] real context” in which a confrontation between S and the applicant could have occurred.
In the context of its complementary protection assessment, the Authority reiterated at [74] its finding that there was no real chance of the applicant being seriously harmed for reasons related to his father’s property dispute with S (and any related profile including as a landowner or person involved in a land dispute).
The Authority found that the applicant could return to his home district.[54] It also found that the applicant did not face a real chance of harm in his home district from S. The Authority appears to have accepted the applicant’s evidence contained in the review material before it that S lived in the applicant’s family home, but makes no clear finding about what the applicant (or S) would do on the applicant’s return, or whether the applicant would seek to re-assert his family’s interest in the property as had been foreshadowed by the applicant’s father. The applicant submits that, if the Authority was unreasonably expecting the applicant to in effect abandon his family’s interest in land situated in his home district, the area to which it expected the applicant to return in Afghanistan, then it could have so expressly found. The hypothetical which the Authority itself posited, that the applicant would confront S in relation to the family property, could eventuate. Because the Authority did not turn its mind to that circumstance, the applicant submits that his claims had not been properly considered.
[54] eg CB 613 at [41], CB 617 at [56], CB 621 at [77]

I prefer the Minister’s submissions on this claim.
The applicant’s written submissions do not address the first aspect of the complaint in relation the failure to consider evidence. In any event, that contention is bound to fail. The Authority expressly referred to the fact that the applicant claimed that the property that came to be occupied by S was the former home of the applicant’s family.[55]
[55] CB 611 at [31] and [41]
As to the second complaint, it is apparent from the applicant’s submissions[56] that the applicant’s complaint refers to the reasoning of the Authority at [37][57] and specifically its finding that the only context in which a confrontation with S might arise would have been if the applicant confronted him directly, but that the applicant had made no claim to the effect that he would confront S. This is said to be the erection of a hypothetical requirement rather than a consideration of the claims actually made.
[56] CB 613 at [17] and [20]
[57] CB 612
In order to analyse this complaint, it is necessary to analyse the Authority’s reasoning in context. Specifically:
a)the Authority set out an accurate summary of the claims to fear S that were made in the visa application;[58]
b)the Authority stated that the applicant did not advance any specific claims to fear S during his visa interview other than some reference to his overnight trip to his home district to obtain a Taskera;[59]
c)the Authority acknowledged the occurrence of land disputes in Afghanistan, but found the claim that the applicant was personally at risk of harm from S, and the contention that S had any “capacity to actualise the threats made to the Applicant’s father”, to be “vague and unconvincing”.[60]
d)in the context of considering the applicant’s overnight visit to his home district to obtain his Taskera, the Authority held:[61]
There is no indication that the Applicant ever met [S]. Even if he had met [S], I consider there to be no real prospect of [S]recognising the Applicant, who is now around 26 years old. Perhaps more significantly, [S] would have no knowledge of the applicant’s return to Afghanistan to obtain a taskera, would not recognise him, and it appears he has never threatened the applicant directly. I consider the only real context in which he may have had a confrontation with [S] would have been if he approached [S] directly in relation to his father’s property. There has been no claim to that effect. I find it implausible that he at all considered himself threatened from [S]or the Taliban on his return to [his home district] to obtain a taskera. I consider this a strong indication that he was exaggerating or fabricating his claim that he is personally at threat from [S] or the Taliban.
e)separately, the Authority found that the applicant did not claim title to the land, he did not indicate an intention to reclaim the land, and the Authority was “not persuaded he would seek to recover his father’s land, assuming that the property dispute between his father and [S] even occurred”;[62]
f)the Authority held that the failure of the applicant to detail the threat from S in his visa interview was a “strong indication” that he has “no subjective fear on that basis”;[63]
g)the Authority ultimately was not satisfied that S had any connection with the Taliban, or that S would make allegations about the applicant to the Taliban, or that S had either the capacity or the intention to realise any threat made, or that the Taliban or S would have any motivation to target the applicant.[64]
[58] CB 612 at [32]-[33]
[59] CB 612 at [34]
[60] CB 612 at [36]
[61] CB 612 at [37]
[62] CB 613 at [38]
[63] CB 613 at [39]
[64] CB 613 at [40]-[41]
Understood in context, the Authority’s reasoning at [37] does not create a hypothetical standard which required “the applicant to have claimed to have approached [S] directly about his father’s property”. The reasoning at [37] is limited in that it considers the claim that the applicant feared harm on his overnight trip. The Authority found this was implausible because S had not met the applicant, S did not know the applicant was returning to his home district, and would not recognise the applicant. It is in this context that the Authority hypothesised that the only way in which harm could have resulted would have been if the applicant directly confronted S at the property, but there was no evidence this had occurred. Because of that absence of evidence, the Authority did not accept as plausible that the applicant considered himself at risk during his previous visit to his home district. That reasoning is rational and was open to the Authority.
The applicant also contends that the Authority made “no clear finding about what the applicant (or S) would do on the applicant’s return, or whether the applicant would seek to re-assert his family’s interest in the property as had been foreshadowed by the applicant’s father”. This is not the case. The Authority made an express finding that it was not persuaded the applicant would seek to recover the father’s land.[65] The applicant had not claimed otherwise, and it was for the applicant to articulate the claims he wished to make.[66] There was no hypothetical threshold imposed by the Authority; rather the Authority considered and rejected the claims that were actually made.
[65] CB 613 at [38]; see also the reference at [40]
[66] Migration Act, s.5AAA
Separately, in submissions but not in the application itself, the applicant contends that the claim in relation to S was “narrowly and erroneously characterised” because the Authority failed to consider the claim that S made threats against the applicant personally, including a threat of providing personal information to the Taliban. That complaint is unfounded. The Authority specifically referred to the claim that S made threats personal to the applicant.[67] The Authority expressly considered and rejected those claims. The Authority found that S was not connected to the Taliban and the applicant has not satisfied the Authority that the applicant was personally at threat, or that S would make allegations regarding the applicant’s “profile” to the Taliban.[68]

Ground 1B – travel on roads

[67] CB 612 at [33]

[68] CB 613 at [40]

Applicant’s contentions

In its reasons for decision, the Authority noted at [16] the applicant’s claim that his family started to live in Quetta, Pakistan after departing Afghanistan. The Authority described at [22] the applicant’s interview with the delegate, wherein the applicant claimed that all of his family, including his mother, siblings and fiancée, lived in Quetta. The applicant said that he had no family ties or friends or acquaintances in Afghanistan, but that his fiancée’s family was in his home district. The Authority considered at [24] that money transfers made by the applicant were sent to a person in Kabul and his fiancée’s family in his home district. It concluded at [25] that the majority of the money transfers were made to persons in Quetta who shared the same names as his brothers, “which is consistent with his claims in relation to the movement and current residence of his family members”. It was clear to the Authority at [27] that the applicant had a mixture of family and friends in both Afghanistan and Pakistan, which lent support to the fact that the applicant was an Afghan national whose immediate family continued to reside in Pakistan.
The Authority accepted at [51] that the applicant would need to travel on roads where there had been security incidents in past years, including against Hazaras. It gave weight at [52] to the decline in the number of incidents on the roads on recent years, particularly the lack of recent incidents or abductions in the applicant’s home province. In assessing the chance of harm to the applicant on the roads, the Authority gave weight at [53] to his lack of an adverse profile and the infrequency with which he would need to travel on dangerous routes into the Hazarajat (eg Kabul to his home district) and out of the Hazarajat (eg Kabul and Mazar-e-Sharif). The applicant’s evidence was that he had no family or friends in Kabul and few motivations to travel there. The Authority did not accept at [53] that the applicant would need to travel out of his home district to work and travel to Kabul or Ghazni city would be infrequent. Importantly, the Authority considered at [53] that the applicant had few ties outside his home district, his fiancée’s family lived there and “it would be reasonable for the applicant to remain in his home area, or travel infrequently outside of that area”.
The Authority observed at [65] of its reasons for decision that the applicant would be returning to his home area where he had the support of family and friends. However, this statement is not wholly accurate because, on the factual findings which appeared to have been made by the Authority, the applicant’s immediate family remained in Quetta and only his fiancée’s family remained in his home district.
In the context of its complementary protection assessment, the Authority repeated at [74] its finding that the applicant could safely access his home district and that it was reasonable for him to remain there and/or travel infrequently outside of this area.
The Authority appears to have accepted that the applicant’s immediate family resided in Quetta, Pakistan.[69] When considering the possible reasons why the applicant may wish to travel from his home district if returned there, the Authority considered, for example, employment and medical treatment, but did not consider whether the applicant would attempt to travel to Quetta to see his family. There was no consideration of whether the applicant’s immediate family intended to return to his home district to be with him, or whether the applicant would be willing to travel to see them. Indeed, the applicant submits that the whereabouts of his family appears to be overlooked because the Authority considered at [53] that the applicant “has few other ties outside of [his home district]”. If so, then the Authority has failed to fulfil its statutory task of considering the review material, namely by overlooking probative evidence which is relevant to its decision: that the applicant’s immediate family resided in Quetta, Pakistan.
[69] eg CB 611 at [27]
It is not apparent or implicit in its reasons whether the Authority is assuming a permanent separation between the applicant and his immediate family for the reasonably foreseeable future. The circumstances are said to be analogous to relocation, where reasonableness is considered in the sense of what is “practicable”. That assessment is said to depend upon an applicant’s particular circumstances and the impact of relocation upon them. The practical realities include a person’s family situation.[70] Although relocation was not found to be necessary in the present case, the reasonableness of the applicant’s return to his home district was put in issue in the present review because the Authority considered at [53] that “it would be reasonable for the applicant to remain in his home area, or travel infrequently outside of that area”.
[70] eg CRI028 v Republic of Nauru [2018] HCA 24 at [25]-[26] per Gordon and Edelman JJ
The applicant contends that the Authority finding, that it would be reasonable for the applicant to remain in his home area or travel infrequently outside of that area, was unreasonable in the sense described in Minister for Immigration v Li.[71] The Authority required the applicant to return to the place where he was born but left at age 8, and where his fiancée’s family was located but not his fiancée or immediate family members. Whether the family home remained in his home district, or that the applicant was able to access it, was not the subject of clear findings by the Authority. It also appears that applicant seemed to know individuals located in Kabul and Mazar-e-Sharif.[72] The applicant submits that, in the context of assessing whether the applicant faced a real chance of persecution on the roads in and around his home district, all of these factors ought to have been considered by the Authority when determining whether it was reasonable for the applicant to remain in his home district or travel infrequently outside it. The applicant contends that, if the Authority considered it reasonable to expect that the applicant would not wish to travel outside his home district to see his immediate family in Quetta, then it ought to have expressly so found. The absence of reference in the pertinent context to the applicant’s family’s location in Quetta suggests it was unreasonably omitted from any weighing process conducted by the Authority.
[71] [2013] HCA 18
[72] CB 610 at [24]
Finally, when assessing the risk of road travel to the applicant, the Authority considered that it would be reasonable for the applicant to remain in his home area or travel infrequently outside of that area. The reasonableness of remaining or infrequent travel suggests that the Authority may have had in mind s.5J(3) of the Migration Act, that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution. Although unclear, the applicant submits that it appears that the Authority considers it reasonable for the applicant to modify his behaviour in the sense contemplated by that provision. If so, the Authority is said to have failed to properly apply that provision, including considering whether the reasonable step of remaining in the applicant’s home district or infrequent travel would qualify as an impermissible modification under s.5J(3)(a)-(c).

Minister’s contentions

The Minister submits that the contention that the Authority overlooked the location of the applicant’s family is not made out. The Authority expressly referred to the applicant’s submissions regarding travel by road and airlines.[73] The Authority also acknowledged and accepted the claim that the applicant’s family lived in Quetta.[74] In its specific finding on this issue, the Authority referred to the residence of the applicant’s fiancée’s family in the applicant’s home district.[75] This reference by implication establishes that the Authority appreciated that the fiancée herself did not reside in the applicant’s home district. In these circumstances, no inference arises that the Authority overlooked or failed to consider the location of the applicant’s family.
[73] CB 607 at [8] and 608 at [15]
[74] CB 608 at [16] – second dot-point; CB 610 at [22], [25]; CB 611 at [27]
[75] CB 616 at [53]
The Authority’s reasoning on this issue must also be considered in the context of its finding that there has been a significant decline in road related incidents in recent years.[76] That finding directly led to the finding that there would be no real risk if the applicant were to travel infrequently. The Minister contends that such infrequent travel is not inconsistent with visiting his family in Quetta.
[76] CB 616 at [52]
The Minister submits that in any event, the relevant risk was the risk faced by the applicant upon return to the receiving country, in this case Afghanistan.[77] The Authority, having considered harm on the road in the applicant’s home area and Afghanistan more generally was not obliged to consider harm arising on the road from Afghanistan to Quetta because it is not a risk protected by s.36(2)(a) (when read with s.5J) or s.36(2)(aa) of the Migration Act.
[77] Migration Act, s.5J(1)(b); s.36(2)(aa)
The Minister also submits that, to the extent it is alleged that the Authority failed to apply s.5J of the Migration Act, that claim has no merit. This is because the Authority’s findings at [53] was primarily based on what it found the applicant would in fact do, as opposed to what modifications to his behaviour he might reasonably be expected to make.
The Minister submits that, in any event, the Authority in the final sentence of [53][78] found that it would be reasonable for the applicant to remain in his home area, or travel infrequently outside it. This should be understood as a finding under s.5J. The applicant’s contention that consideration needed to be given to the matters in s.5J(3) is without merit. Those matters could not possibly apply in the context of a restriction on travel beyond the applicant’s home district and the applicant made no claim to the contrary.
[78] CB 616-617

Resolution

Particular 1B alleges that the Authority failed to consider evidence, or failed to consider the application of s.5J of the Migration Act, or engaged in an unreasonable chain of reasoning. The challenge focuses on the Authority’s finding that the risk of harm faced by the applicant in travelling on the roads did not amount to a real risk because the applicant would only need to travel outside his home district infrequently.[79] However it is framed, the crux of the applicant’s complaint is an allegation that the Authority failed to consider that the applicant’s fiancée and immediate family lived in Quetta in Pakistan and did not consider that the applicant may need or want to travel by road to see them.
[79] CB 616 at [53], and 621 at [74]
This particular has been made out. First, the applicant expressly claimed that his immediate family, including his siblings and fiancée lived in Quetta and that he would want to visit them. While the claim was a new one, the Authority at [15] agreed to consider it.[80]
[80] CB 608
Secondly, at [22][81] the Authority recognised the applicant’s claim that his family all reside in Quetta including his mother and siblings. This was not disputed by the Authority. Thirdly, the Authority considered the risk of travel on the roads to and from the applicant’s home district, in particular to Kabul but found at [53] that the applicant’s family and tribal connections were to his home town in Afghanistan. It stated that the applicant had few other ties outside his home town and that the family of his fiancée lived there. It was on this basis that the Authority concluded that the applicant would only infrequently have to travel outside his home area.
[81] CB 610
There was no express consideration of the claim that the applicant would want to visit his immediate family in Quetta. While I accept that the Authority did not need to consider the risk of harm to the applicant in Pakistan should he go to Quetta to visit his family, I do not accept that this absolved the Authority from any need to consider the risk on the Afghan roads to the border.
The applicant had submitted that air travel internally in Afghanistan was unsafe so it could be reasonably assumed that the applicant would have attempted to travel by road.
Counsel for the Minister conceded in oral argument that there is no authority supporting his proposition that the Authority did not need to consider the risk to the applicant on the roads in Afghanistan en route to Quetta because the risk to a person intending to leave the country is not a risk protected by s.36(2)(a) of the Migration Act. I do not accept that proposition.
It was open to the Authority to reason that the applicant could modify his behaviour by either not visiting his family in Quetta or doing so infrequently. The Minister’s submissions raise that prospect in relation to the final sentence of the Authority’s reasons at [53]. Counsel for the Minister conceded, however, that that was not a complete answer because the reasonableness of the modification of the behaviour needed to be considered. It was not. Neither am I willing to infer a consideration of modification of behaviour in relation to the applicant visiting his family.
In my view, the Authority constructively failed to exercise its jurisdiction on review by not considering the applicant’s claim that he was at risk on the roads in Afghanistan in travelling to visit his immediate family in Quetta, Pakistan. He should receive the relief he seeks.

Conclusion

The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will make orders in the nature of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 17 August 2020