DPV18 v Minister For Home Affairs & Anor

[2019] FCCA 2762

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPV18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2762

Catchwords:
MIGRATION – Judicial review – applicant is a Shia Hazara from Afghanistan – arrived in Australia as an irregular maritime arrival – safe haven enterprise visa refused by delegate – Immigration Assessment Authority affirmed decision – harm as a result of ethnicity – risk profile associated with family history – discrimination – asylum seeker returnee from a western country  – vulnerable to harm – complimentary protection provisions – new information – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.7AA, 424A, 473CB, 473DC, 473DE, Part 7aa.

Cases cited:

ASB17 v Minister for Home Affairs [2019] FCAFC 38

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

DOP17 v Minister for Immigration and Border Protection [2019] FCA 129

DPI17 v Minister for Home Affairs [2019] FCAFC 43

DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157

MILGEA v Che Guang Xiang (unreported, Federal Court of Australia), Jenkinson, Spender and Lee JJ, 12 August 1994

Minister for Immigration and Border Protection vCRY16 [2017] FCAFC 210

Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32

Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
SCAT v MIMIA (2004) 76 ALD 625

Applicant: DPV18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: LNG 43 of 2018

Judgment of: Judge Riethmuller

Hearing date: 26 July 2019

Date of Last Submission: 26 July 2019

Delivered at: Melbourne

Delivered on: 26 September 2019

REPRESENTATION

Counsel for the Applicant: Mr Savu

Solicitors for the Applicant: Refugee Legal Service Tas Inc

Counsel for the Respondents: Mr Rogers

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 13 June 2018.

2. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.

3. The First Respondent pay the Applicant’s costs fixed in the sum of the $7467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne

LNG 43 of 2018

DPV18

Applicant

And

Minister For Home Affairs

First Respondent

Immigration Assessment Authority

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a Shia Hazara from Afghanistan who arrived in Australia on 19 July 2013 as an irregular maritime arrival. On or about 16 December 2016 the applicant applied for a Safe Haven Enterprise visa which was refused by the delegate on 16 August 2017. The delegate’s decision was subsequently referred to the Immigration Assessment Authority (‘IAA’), which on 13 June 2018 affirmed the delegate’s decision not to grant the applicant a protection visa.

2. On 12 July 2018 the applicant filed an application in this court for judicial review of the decision by the IAA. An amended application was filed on 11 July 2019 in which the applicant amended the initial two grounds of appeal and instead included an updated five grounds.

The applicant’s claims.

1. The applicant’s claims for protection are summarised at paragraph [10] of the IAA’s decision as follows:

   ·He was born in 1995. He is a Shia Hazara from a village in Behsud district, Maidan Wardak province in Afghanistan. He spent his whole life living in this village.

   ·He left Afghanistan because his father was killed and his own life was in danger. When he was around 14 or 15 years old, he was at school when a neighbour came to pick him up and told him that his father had been injured. When he arrived at his home, he saw that his father had been killed from bullet wounds to his chest.

   ·His mother and neighbours told him that his father was killed by Kuchi Nomads. His father had been killed while travelling to take food to Hazaras who were protecting the village from the Kuchi. A couple of other Hazaras from their village had been killed in the weeks before his father's death.

   ·His mother passed away around six months to a year after his father. His mother had been sick for quite some time before she passed away.

   ·After his mother's death, the applicant's father's best friend, Reza, let the applicant stay with him and his family. He lived with them until the conflict with the Kuchi had become too dangerous. The conflict was getting worse every year, with more Hazaras dying. The applicant decided to leave Afghanistan because he constantly felt that he would be next to die and there was nobody to protect him.

   ·Reza helped him leave Afghanistan. He travelled to Kabul with the applicant and helped him to obtain a passport and make arrangements with his agent. After he left, Reza moved his family to Kabul.

   ·The applicant fears that if he is forced to return to Afghanistan he will be killed by the Taliban, Kuchi, and/or Islamic state. The land disputes in his home area are still happening. He is sure the Kuchi will kill him and he would not have anyone to protect him. There is no way that he can return to live safely in that area.

   ·The Taliban will also seriously harm the applicant because he is a Hazara and Shia. The Taliban say that Shia are not true Muslims and that the Shias are a minority, so there is no place for them in Afghanistan.  The applicant also fears Islamic State, who have attacked the Shia Hazara population in Kabul and other parts of Afghanistan. As a Shia, he fears he will be killed by Islamic State if he goes back to Afghanistan.

   ·If the applicant returns to Afghanistan he will be alone. He does not have any family in Afghanistan at all. He will not be able to survive. He would not be able to find or afford accommodation, and without a job to earn an income he would have no way of getting food to survive. He fears that he will die if he goes back.

The IAA’s findings:

1. In considering the information and submissions provided by the applicant, the IAA made findings on what aspects of that material constituted new information in accordance with section 473cb of the Migration Act 1958 (Cth) (‘the Act’): see paragraphs [3] to [9] of the decision.

2. The IAA went on to consider the applicant’s claims in detail. It found the applicant’s statements to be consistent and accepted that the applicant would return to his home area in the Behsud District of Afghanistan. The IAA considered the country information in relation to attacks in this area but did not accept that applicant’s claims that ‘his home village had been completely abandoned’: see paragraph [20].

3. The IAA considered the applicant’s claim that he would be harmed as a result of his ethnicity if he returned to Afghanistan and a need for the applicant to travel. While the IAA accepted the applicant would need to travel and there had been a number of incidents on the roads to Kabul, in considering the country information, the IAA found ‘there is only a remote chance of the applicant being targeted on the roads for reasons relating to his ethnic or religious profile’: see paragraph [27].

4. The IAA accepted the applicant’s father was killed and the circumstances of his death, but was not satisfied the applicant ‘shares a risk profile from his father’s history’: see paragraph [29]. The IAA found the chance of the applicant being harmed or abducted on his journey home to be ‘remote’ and that given his lack of ties outside this village, he would not have any reason to travel frequently on such roads.

5. The IAA went on to consider the applicant’s profile (accepting the applicant is a Shia Hazara (at paragraph [35])) and the conflict between the Hazaras and the Kuchi Nomads. The IAA considered the country information and concluded at paragraph [39] that:

   39. Based on the information before me, I am not satisfied that Shia Hazaras are being systematically targeted for harm (including through parallel justice structures), and/or that security incidents involving Shia Hazaras are occurring at a scale or frequency such that I consider the applicant would face a real chance or risk of serious or significant harm from the Taliban or other AGEs/insurgent groups on the basis of his religious, ethnic, and/or related profile, such as an imputed political opinion or profile affiliated with or supportive of the government or the international community.

6. The IAA considered whether the Applicant would face discrimination on the basis of his ethnic profile (at [40] to [45]), but found:

   46. Weighing everything before me, I find there is not a real chance of the applicant facing harm from the Taliban, ISKP or any other AGE, group or person, within his home region in Maidan Wardak, for reasons of his religion, ethnic or related profile, including any actual or imputed political opinion related to the government or international community. I consider his fears on this basis are not well founded.

7. The IAA considered the applicant’s claims as an asylum seeker and returnee from a western country (at [48] to [51]). The IAA accepted the applicant will face difficulties and challenges, but was not satisfied ‘he would be vulnerable to harm on this basis’: see [55].

8. The IAA ultimately concluded:

   55. On a separate and independent basis, having regard to the information before me, I am satisfied that any remote chance of harm the applicant may face in relation to generalised or insurgent violence in Maidan Wardak (or elsewhere in the country) would also not be for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion, but rather a consequence of the ongoing insurgency as it impacts Maidan Wardak and the country overall. Accordingly, in terms of the remote chance of the applicant being harmed in generalised violence, I also find that s.5j(l)(a) and 5j(4)(a) are not satisfied.

   56. In terms of his individual circumstances, I accept  he would be returning to  an area  where  he has limited or no family or tribal support, however I also give  weight  to  the fact  that  he  would be returning to an area where he spent almost 18 years of his  life  and  he  would  have significant familiarity. As a person from that area, and with a family from that area, I expect he has some connections to that area, such as tribal links, notwithstanding his claims to the contrary. Based on the information provided in the submissions, I  accept  there  will  be  significant challenges  for the applicant  given the  economic  and overall situation  in the  country. I also accept that he has experienced trauma in the past and has been depressed.  However, the applicant has not provided me with evidence to suggest that his mental health is such that he would be unable to return to his home area and find work. The applicant has worked and studied in his period in Australia. He has developed his language and IT skills, and while I acknowledge the submissions about the challenges even for persons with those skillsets, I consider these nevertheless are advantages for the applicant. In my assessment, I consider the applicant would be able to find work or open a store as his family did in the past. I consider he will be able to find accommodation and access to services. I am sympathetic to the applicant's position, but consideration of his return to his home area is not a relocation assessment. When having regard to all of his circumstances, I am not satisfied that the applicant's individual circumstances are such that he is at a chance or risk on return of significant economic hardship, that he would be unable to subsist, or otherwise face a real chance of serious harm.

9. The IAA considered the complimentary protection provisions and was ‘satisfied there is no risk the applicant's individual circumstances would lead him to be subjected to cruel or inhuman treatment or punishment, or degrading treatment or punishment, or any other type of significant harm’: see [64].

Grounds of Application

1. The applicant relies on an amended application for judicial review filed on 10 July 2019, which contains five grounds, detailed below, although only the first was the subject of oral submissions.

Ground One:

1. Ground 1 is framed as follows:

   The IAA failed to put before the Applicant material, or its substance, that the IAA knew of and considered may bear upon whether to accept the Applicant’s claims and has thus denied him procedural fairness.

2. The applicant’s ground is based upon the IAA’s use of two Reports on Afghanistan. The applicant had made submissions in writing to the IAA on 11 September 2017. The IAA referred to the two reports in footnote one, which appears in paragraph [9] as follows:

   [9]    In undertaking this assessment, I have obtained new country information, specifically reporting on the risks to Shia Hazaras in Afghanistan, including on the roads, and the security assessment for persons returning from the west. This analysis relates to the specific classes of profile group the applicant falls within, and I again consider it critical to have regard to up to date analysis about these risks profiles, in particular given the fluid security situation in the country, and also the age of some of the reports cited in the delegate’s decision. I am satisfied there are exceptional circumstances to justify consideration of this updated information.¹

   […]

   [Footnote] 1.     EASO, “Afghanistan: Individuals targeted under societal and legal norms” December 2017 CISEDB50AD7870; EASO, “Afghanistan: Individuals targeted by armed actors in the conflict” dated 12 December 2017, CISEDB50AD7868.

3. These reports were published 3 months after the written submissions were made on behalf of the applicant and therefore were not available to the applicant at the time the submissions were made. 

4. The applicant also refers to what is described as a further report relied upon by the IAA at paragraph [49] of the decision, with respect to correspondence from an agency described as ‘IOM’, however, this is footnoted as being within the European Asylum Support Office (‘EASO’) reports mentioned above (see footnote 26 to paragraph [49]).

5. It is not suggested that the applicant was provided with an opportunity to comment upon the reports. It is also clear that the reports were extensively relied upon by the IAA (appearing numerous times in the footnotes to the decision, although unhelpfully without pinpoint references).

6. The applicant’s written outline relies heavily upon the decision in Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189. This case concerned an Independent Merits Reviewer proceeding (under different provisions of the Act). The first issue concerned relevant country information which had not been provided to SZQKB’s advisors, resulting in a breach of the rules of procedural fairness. The case is of no assistance in the present proceedings because rules relating to procedural fairness are exhaustively defined in the relevant provisions that govern hearings before the IAA: see part 7aa of the Act and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 at [99]. That notwithstanding, the substantive complaint of the applicant remains to be that the IAA did not provide him with an opportunity to respond to the contents of the two reports published three months after his submissions had been lodged with the IAA.

7. At the hearing of this matter Counsel for the applicant developed a complex argument based upon the operation of s.473de of the Act, submitting (T2.39 and following):

   Ground 1 can be condensed to this, your Honour: the court will have to determine whether the three new reports which the second respondent obtained and was satisfied there were exceptional circumstances to justify consideration of this updated information, this is referred to our written submissions on pages 4 and 5 and is attached in the applicant’s list of documents. And it’s highlighted by the respondents. The respondents state that it’s expressly accepted from the obligation in section 473de(1) which are (1) is to explain to the referred applicant why the new information is relevant to the review and (2) to invite the referred applicant orally or in writing to give comments on the new information that’s in writing or at an interview whether conducted in person, by telephone or in any other way as claimed by the respondent or, your Honour, whether these three new reports don’t fall within the ambit of section 473de(3) therefore invoking the obligation in section 473de(1) which are to explain to the referred applicant why the new information is relevant to the review and invite the referred applicant orally or in writing to give comments on the new information that’s in writing or at an interview whether conducted in person, by telephone or in any other way as claimed by the applicant. 

1. The starting point for this argument is section 473de of the Act, which is in the following terms:

   Certain new information must be given to referred applicant

   (1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

   (a)  give to the referred applicant particulars of any new information, but only if the new information:

   (i)     has been, or is to be, considered by the Authority under section 473DD; and

   (ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

   (b)    explain to the referred applicant why the new information is relevant to the review; and

   (c)  invite the referred applicant, orally or in writing, to give comments on the new information:

   (i) in writing; or

   (ii) at an interview, whether conducted in person, by telephone or in any other way.

   (2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

   (3)    Subsection (1) does not apply to new information that:

   (a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

   (b)    is non-disclosable information; or

   (c)     is prescribed by regulation for the purposes of this paragraph.

2. The obligations in section 473de(1) do not apply to information that falls within the categories set out in section 473de(3). In this case the argument centres upon whether the country reports are ‘just about a class of persons of which the referred applicant is a member’. The applicant argues that the reports’ ‘terms of reference’ make no reference to Hazaras, and thus, the reports are not about a class of which the applicant is a member.

3. Interestingly, the legislature enacted this provision using different words to those used in section 424a(3)(a), which provides:

   Information and invitation given in writing by Tribunal

   […]

   (3)  This section does not apply to information:

   (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; …

4. The key point of difference between the two provisions is that the earlier provision covers not only classes of which the applicant is a member, but also classes of which another person is a member. Clearly the ambit of the version in section 473de(3)(a) is intended to be more narrow than the ambit of the provision in section 424a of the Act. The earlier provision contemplates that the exception would operate with respect to classes that are relevant to the decision but do not contain the applicant as a member. Presumably the legislature limited the width of this exception in section 473de (as compared to section 424a) due to the significant limitations upon the hearing process in the IAA as part of the scheme of Part 7aa.

1. Both reports are entitled ‘Afghanistan’. The first of the two reports (the Armed Actors Report) focuses upon the Taliban and does discuss risks to Hazaras, who are specifically referred to in the terms of reference in Appendix II of the report. As a result this report appears to fall within the exception in that it is about Hazaras, to the extent that they are a class targeted by the Taliban.

2. The second report (Individuals Targeted) does not mention Hazaras in the Terms of Reference. The terms of reference indicate a broad review of Afghan society to identify those at risk for a wide variety of reasons.  Importantly, whilst Hazaras are not identified in the terms of reference or introduction, the report does refer to and discuss Hazara people at various points, for example at pages 21, 29, 31, 35, 50, 75, 84, 94 and 95. 

3. The information in these country reports appears to fall within the scope of section 473de(3)(a), both on the basis that the content deals with Afghanis generally, and with Hazaras more specifically. As a result there is no obligation upon the IAA to carry out the steps set out in section 473de(1). Thus, there is no breach of this provision.

4. The second way in which the issues raised by the applicant may give rise to a ground for judicial review (as raised in oral submissions), results from a consideration of the operation of section 473dc of the Act, which provides an option for the IAA to invite a person to provide new information, stating:

   Getting new information

   (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:

   (a)    were not before the Minister when the Minister made the decision under section 65; and

   (b)    the Authority considers may be relevant.

   (2)   The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

   (3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)    in writing; or

   (b)   at an interview, whether conducted in person, by telephone or in any other way.

5. The fact that the information may have come to the IAA by a different path (which did not contain a similar discretion to seek information from the applicant), does not limit the ambit of, nor the requirement to, consider the exercise of the powers within section 473dc: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [49].

6. The operation of this provision was considered in Minister for Immigration and Border Protection vCRY16 [2017] FCAFC 210 where the Full Court said:

   79.    It is necessary to give full weight to the requirements of s 473db which, subject to Pt 7aa, require the Authority to review a fast track reviewable decision referred to it under s.473ca by considering the review material, as defined in s.473cb, without accepting or requesting new information and without interviewing the referred applicant. However it is clear that s.473db is “[s]ubject to this Part” and the Part includes s.473dc.

   […]

   81.    We do not accept the Minister’s submission that where there is a new situation in the referred applicant’s country of nationality, or if new information were obtained that meant there was a complete change of circumstances in the referred applicant’s country of nationality after the delegate’s decision, there was no obligation on the Authority to consider whether to bring it to the referred applicant’s attention.  …

7. The circumstances in this case appear to fall within those contemplated in paragraph [81] of the decision in CRY16 (quoted above).

8. In this case there was new country information that was not published until after the applicant had made submissions to the IAA. That information was not available to the applicant prior to making his submissions. The information was considered to be of such importance that the IAA considered that there were ‘exceptional circumstances’ justifying consideration of the information. It was described as ‘crucial’ to have regard to this most recent information: see paragraph [9] of the judgment. These country reports were relied upon extensively by the IAA in the reasons for decision, referenced on many occasions. 

9. The facts of CRY16 were unusual, in that they concerned a decision being made on grounds that were not at issue before the delegate, nor the subject of submissions to the IAA. However, the facts of CRY16 do not represent a closed class of cases. For example, in another decision, where the finding of the delegate relied heavily upon observations of the evidence being given (and the IAA chose to reject those findings without inviting the applicant to appear) legal unreasonableness was also established: see DPI17 v Minister for Home Affairs [2019] FCAFC 43 (involving findings relating to claims of rape).

10. Where the material and issues remain the same (before the delegate and IAA) different reasoning by the IAA does not demonstrate that it is legally unreasonable that the IAA did not to invite further information: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 and DOP17 v Minister for Immigration and Border Protection [2019] FCA 129. Similarly, where letters and submissions were overlooked by the delegate, but were the subject of submission to and consideration by, the IAA, it was not legally unreasonable to fail to invite the applicant to a hearing: see ASB17 v Minister for Home Affairs [2019] FCAFC 38. In DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157 issues about the quality of interpretation before the delegate (which were the subject of submission to the IAA), did not necessitate a further oral hearing before the IAA.

11. In this case the substantive issues before the IAA were not new (as they were in CRY16), however, ‘crucial’ new information that was sufficient to show ‘exceptional circumstances’ justifying its reception by the IAA was not available to the applicant at the time of making submissions.  Whilst the IAA was not required to provide information about a ‘class of persons’ to the applicant, the reality is that such information is publically available and thus, accessible by an applicant who carefully researches their case. In the circumstances here the applicant could never have considered the relevant information as it was simply not published at the time of the submissions being made. 

12. Whilst there are many footnotes that reference the EASO reports, many rely upon the reports as more recent confirmation of material contained in other reports that were published before the submissions by the applicant. Where the more recent information is used for this purpose (confirmation of previous reports) it is difficult to conclude that the IAA declining to exercise its powers to seek further information could be categorised as legally unreasonable.

13. In two areas, the IAA relied entirely upon the EASO reports:

    a)The IAA came to the view, based upon the EASO reports, that ‘there is only a remote chance of the applicant being targeted on the roads’: at paragraph [27]. This is in contrast to the finding of the delegate that ‘the applicant may face a real chance of persecution as a Hazara in returning to Beshud district from Kabul’: at Court Book paragraph [158]; and

    b)The IAA made findings, relying upon the EASO reports to the effect that ‘the Taliban does not target the Hazara population, and currently considers the targeting of Hazaras a ‘red line’’ (at paragraph [37]). However, this was not an issue determined by the delegate, as the delegate only considered the safety of the applicant on the basis of a relocation to Kabul, having accepted that he would be at risk in his home area.

14. In the circumstances of this case the IAA has made findings contrary to the findings of the delegate, based upon information that only became available after the applicant had made his submissions to the IAA.  Not surprisingly, given that the material led to findings that were contrary to those of the delegate, the information was sufficiently important for the IAA to describe it as ‘crucial’ and conclude that it formed the basis of ‘exceptional circumstances’ justifying its consideration (see paragraph [9] of the reasons).

15. In these circumstances it is difficult to avoid the conclusion that it was legally unreasonable not to have also sought information from the applicant with respect to this new information, particularly given that the discretion under section 473dc is not even so constrained as to require ‘exceptional circumstances’.

16. As a result I find that ground 1 is made out.

Other Grounds

1. The balance of the grounds were not formally abandoned, but were not the subject of any oral submissions. In light of the findings with respect to ground 1 it is sufficient to conclude that the grounds should be rejected for the reasons set out in the outline of argument provided by Counsel for the Minister. 

Ground Two

1. Ground 2 is in the following terms:

   The IAA made an error of law in that it misapplied the real chance test in section 5 of the Migration Act.

2. The IAA found that applicant was likely to resettle in his home district Maidan Wardak, which is between Kabul and the Behsud district in Afghanistan. It was accepted that these roads have been areas of security incidents in past years, including violent incidents involving Hazaras, who are more likely to be selected for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped in these areas. The IAA found that whilst there have been abduction incidents involving Hazaras on the roads in 2014 and 2015, more recently there has been a decline in such incidents. In substance the applicant appears to be arguing that it was not open to the IAA to conclude that there is not a real risk of harm to the applicant. It does not appear that the IAA misunderstood the test, but rather, that the applicant seeks to review the outcome on the merits. On the material before the IAA it appears that the determination was open to the IAA, even if other outcomes were also available on the evidence.

Ground Three

1. Ground 3 contends:

   The IAA made an error of law in that it misapplied the real chance test in section 5 of the Migration Act, by failing to consider the cumulative risk of harm to the Applicant.

2. This ground effectively argues that the IAA considered the potential risks to the applicant individually, but did not consider the overall risk when one effectively adds together the individual risks, relying upon MILGEA v Che Guang Xiang (unreported, Federal Court of Australia, Jenkinson, Spender and Lee JJ, 12 August 1994 at [17]). However, the IAA did look at the matter cumulative when making findings in paragraph [58] of the decision, specifically stating that it had ‘regard to everything before [the IAA]’. 

3. The applicant also argues that the IAA failed to consider whether such cumulative discriminatory treatment may produce serious psychological harm, relying upon SCAT v MIMIA (2004) 76 ALD 625 at [23] and [25]. In SCAT the potential cause of psychological harm was the children being treated as ‘untouchables’, and although the issue was not as directly articulated as it could have been, it was clearly raised by the evidence, as summarised by the Full Court:

   21.    Further, […] the appellant was entitled to have certain inferences drawn in his favour, as to the implications of what he and his wife were saying. If people are, from an early age, considered by the great majority of the people in the society in which they live to be "dirty", are positively treated as if they are dirty, and if there is otherwise widespread and far reaching discrimination against them, it requires no degree in psychology to accept that this may well be very harmful to mental well-being. In any case, the letter signed by Mr Wilson (as well as Sister Anne Higgins) amounts to a professional opinion on the subject. Both that letter and the observations of Father Monaghan have a force that needs no supplementation.

   (emphasis added)

4. In the present proceedings no case was put that returning of itself was likely to cause serious psychological harm and there is no expert evidence to this effect.  In most cases people have suffered psychological trauma, but that does not mean that the issue must be addressed as an integer in every case.  I am not persuaded that on the material before the IAA such an integer was raised and therefore it did not need to be expressly addressed.

Ground Four

1. Ground 4 is in the following terms:

   Illogical reasoning around the finding of the jurisdictional fact of the risk of a ‘real chance’ or ‘serious harm’ as amounting to jurisdictional error.

2. The applicant argues that it was irrational or illogical for the IAA to accept part of his evidence and rejecting other parts, for example submitting that:

   (a)    IAA finds that the Applicant has provided a consistent account of his background, place of origin, and life in Maidan Wardak. Despite this, the Tribunal elects to disbelieve the Applicant’s account of the abandonment of his home village due to the danger presented from Kuchi nomads;

   (b) The Tribunal acknowledges that there were violent annual clashes in the town, but does not account this as a potential reason for which its inhabitants could flee. This is despite the fact that the Applicant fled his hometown specifically due to ‘annual incursions of the Kuchis who were killing 15-20 people every year; and

   (c) The IAA found that the clashes between Kuchi nomads and Hazara civilians are limited to Hazara farmers, despite then referencing instances of abductions of Hazara civilians by Kuchi nomads. The Applicant’s father was killed by Kuchi nomads despite not working as a farmer or being a landowner.

3. It is not illogical for the IAA to accept part of a person’s evidence and reject part of the evidence. In this case the evidence was found by the IAA to sit uneasily with country information. The findings were open on a reading of the evidence as a whole. In substance this ground appears to seek a merits review and must be dismissed.

Ground Five

1. The final ground contended for, is ground 5 which states:

   The IAA fell into jurisdictional error in that it failed to consider relevant material or a relevant consideration of the claim.

2. There are a number of submissions made under this ground to the effect that the IAA did not consider specific claims. For example, it was submitted that the IAA ‘considered the potential for a real chance of serious harm to the Applicant within his birth province of Maiden Wardak, but not within the Applicant’s village of [Village Name], nor within the Applicant’s specific district.’ However, the IAA clearly considered his circumstances in the area where his family lived (paragraph [20]). The substance of the applicant’s claims was addressed – the village did not need to be named.

3. The applicant alleges that the IAA failed to consider a relevant reports, however, the reports mentioned in submissions were referenced by the IAA in paragraphs [49] and [53], and other relevant country information as identified in the respondent’s submissions. The nature of the information was not such as to required that it be more specifically addressed. This ground appears to be seeking merits review.

Conclusions

1. As a result I find that ground 1 is made out, albeit on a basis only obliquely argued. I will therefore make orders accordingly.

2. The parties agreed at the hearing that costs should follow the event using the scale fees, and I therefore so order.

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

Associate:

Date: 26 September 2019