DQA17 v Minister for Immigration & Anor
[2018] FCCA 2418
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DQA17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2418 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to file an amended application which added a further ground that the Authority fell into jurisdictional error by failing to consider s.473DD of the Act when determining whether to consider new information that the applicant sought to put before it – decision reserved on this question – leave refused. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 473CA, 473DC, 473DD Other materials cited: |
| Cases cited: AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109 Attorney-General (NSW) v Quin (1990) 170 CLR 1 BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 |
| Applicant: | DQA17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 431 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 3 May 2018 |
| Date of Last Submission: | 14 June 2018 |
| Delivered at: | Sydney (Perth by video link) |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Draper, Granich Partners |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 431 of 2017
| DQA17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 14 July 2017. The Authority affirmed a decision of a delegate of the Minister of Immigration to refuse to grant the applicant a protection visa.
Background
The applicant is a citizen of Afghanistan and a Hazara Shi’a Muslim from Daykundi Province. He arrived in Australia as an unauthorised maritime arrival on 31 March 2013.
On 26 May 2016, the applicant lodged an application for a protection visa after the Minister had exercised his power under s.46A of the Migration Act 1958 (Cth) to allow him to do so. That application was made on the basis of his claim to fear harm from the Taliban and Pashtuns because he is a Hazara Shi’a Muslim. He claimed that his father was killed by the Taliban and that his family then moved to Ghazni for 2 years. He also claimed that he could not rely on the Afghan government for protection and that he would not be able to relocate because he would not be safe anywhere in Afghanistan. Finally, he claimed that he feared harm as a returnee asylum seeker from the west who had embraced western culture and values.
On 22 November 2016, a delegate of the Minister made a decision to refuse to grant the applicant a visa. The matter was then referred to the Authority pursuant to s.473CA of the Act. Subsequently, the applicant’s adviser provided a detailed outline of submissions to the Authority addressing, amongst other things, the question of relocation within Afghanistan.
Authority’s decision
The Authority accepted that the applicant was from Daykundi Province in Afghanistan and that, while he had not lived in Kabul, he had visited there a number of times and had friends and tribal connections there. The Authority also accepted that the applicant’s father had been killed by a group of men linked to the Taliban but did not accept that those men had maintained an adverse interest in the applicant or that the applicant had been the subject of intended abductions or was personally threatened for any connection to his father or for any other reason.
The Authority did not accept that the applicant faced harm in Daykundi Province for any of the reasons claimed by him, or a combination of them. However, in light of country information about travel from Kabul to Daykundi Province, it did accept that the applicant faced a “small but real chance of serious harm” on his return trip to his home district as a Hazara Shi’a returnee.
The Authority then noted that sub-s.5J(1)(c) of the Act required that the real chance of persecution faced by the applicant must relate to all areas of Afghanistan. In the next section of its reasons, the Authority addressed that by reference to Kabul. One of the applicant’s grounds of review focuses upon the Authority’s reasoning in connection with this question. In light of that, it will be necessary later in these reasons to analyse the Authority’s reasoning process in some detail.
For present purposes, it is sufficient to observe that the Authority found that the applicant did not face a real chance of being killed or otherwise suffering serious harm in Kabul, or in accessing Kabul in the reasonably foreseeable future. In light of that conclusion, the Authority found that the applicant did not meet the definition of refugee in s.5H(1) of the Act and so did not satisfy sub-s.36(2)(a) of the Act.
The Authority next considered whether the applicant satisfied the criterion in sub-s.36(2)(aa) of the Act.
In this respect the Authority was satisfied, for the reasons that it had given in connection with the earlier criterion, that there were “not substantial grounds for believing that, as a necessary and foreseeable consequence” of the applicant’s removal to Afghanistan, he would face a real risk of significant harm if he returned to, and lived, in his home area. The Authority noted however, that s.36(2B) of the Act provided that there is taken not to be a real risk that the applicant would suffer significant harm in Afghanistan if it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant would suffer significant harm. On the basis of its earlier findings concerning Kabul, the Authority found that there was not a real risk of suffering significant harm in that city and then went on to consider whether it would be reasonable for the applicant to relocate to that place.
This aspect of the Authority’s reasoning is also the subject of one of the applicant’s arguments. For that reason, it will be necessary to consider the Authority’s reasoning in some detail later in these reasons and it suffices for present purposes to note that the Authority concluded, at [63] that, having considered the applicant’s personal circumstances it was satisfied that it was reasonable for him to relocate there. In light of that conclusion, the Authority found that the applicant did not meet the criterion in sub-s.36(2)(aa) and so affirmed the decision of the delegate.
Consideration
There are 4 grounds in the application. The applicant abandoned the second, third and fourth grounds but sought leave to file an amended application which added a further ground. The Court heard full argument on the proposed new ground but reserved its decision as to whether leave would be granted to the applicant to rely on it. It is convenient to deal with that issue first.
Proposed new ground
The proposed new ground is that the Authority fell into jurisdictional error by failing to consider s.473DD of the Act when determining whether to consider new information that the applicant sought to put before it. The applicant argued that the Authority failed to give a reason why the applicant’s illiteracy and the fact that he had been unrepresented prior to the referral to the Authority did not constitute “exceptional circumstances”.
The resolution of this argument requires some explanation of the statutory and factual context.
The Authority is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time his or her decision was made. That said, the Authority does have power to obtain “new information”. “New information” is information that was not before the delegate and that the Authority considers may be relevant: s.473DC(1). Of course, an applicant might also send “new information” to the Authority and ask that it take that information into account. However, in the event that it does obtain new information, the Authority cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are contained in s.473DD of the Act which provides:
...
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
On its face, the proposed new ground is that the Authority failed to consider this section when determining whether it could consider certain information. That is plainly incorrect because the Authority not only referred to s.473DD twice in its reasons (at [4] and [6]) but also addressed the conditions in sub-ss.473DD(a) and (b). On closer examination, however, and in light of the applicant’s oral and written submissions, the real intention of the proposed new ground is to suggest that there were exceptional circumstances and the Authority was wrong to conclude otherwise. That argument must fail because s.473DD(a) requires the Authority, not the Court, to be satisfied that there are exceptional circumstances.
The proposed ground may also be understood to be a contention that the Authority took an unduly limited approach to what constitutes “exceptional circumstances” in s.473DD(a). Part of this argument was that the Authority failed to consider the fact that the applicant was illiterate and unrepresented.
The Minister accepted that it would be an error for the Authority to do so and, in particular, it would be an error for it to approach the question of “exceptional circumstances” for the purposes of s.473DD(a) by limiting consideration only to the question of whether the “new information” was available to the review applicant at the time of the primary decision: BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221 at [8] - [9] and [37]; Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 at [112]; CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192 at [44]. However, the Minister submitted that the Authority did not fall into any such error and I agree.
The “new information” in question was some, but not all, of the information contained in the submissions given to the Authority by the applicant’s advisers. The Authority accepted, at [3], that, to the extent that the submissions contained legal and other arguments responding to the delegate’s decision, referred to policy advice and references to country information that were before the delegate, the submissions were not “new information” for the purposes of s.473DD. The applicant did not contest that analysis. He does, however, contest the way in which the Authority dealt with the remainder of the submissions. It is worth setting that consideration by the Authority out in full:
4.The submission contains references to articles which were not before the delegate and which constitute new information. No explanation was given for why these reports, which were published before the decision was made, could not have been provided prior to the delegate’s decision and I am not satisfied that they contain credible personal information. Relevant issues were discussed at the SHEV interview conducted over two months prior to the decision and the delegate explained in that forum that further information could be provided prior to the decision being made. I note that the applicant was unrepresented and that he is illiterate however even taking these circumstances into account I am not satisfied that s.473DD is met and nor am I satisfied there are exceptional circumstances to justify considering the information.
5.The submission also however references country information which was published immediately prior to and on the day of the delegate’s decision. The reports cover events which were significant and directly relevant to the applicant’s claims and were not considered by the delegate. When taking into consideration that the attacks occurred the day before the decision, the applicant’s illiteracy and his lack of representation, I accept the applicant could not have provided the information to the delegate in this short time. I am satisfied there are exceptional circumstances to justify considering the reports of 21 and 22 November 2016.
6.In disputing the delegate’s findings, the applicant’s representative asserted the applicant will face harm on account of his Hazara Shi’a profile as a member of a particular social group (PSG). Later in the submission it was asserted that the applicant would be at risk because of his religious and ethnic background, his imputed political opinion and his memberships of PSGs. The applicant had not previously raised that he fears harm as a member of a PSG arising from his race and religion nor any other profile factors and I am not satisfied that such a claim arose on the facts. I find that it constitutes new information. There is no explanation in the submission as to why the information could not have been provided earlier nor why it is credible personal information which had it been known may have affected consideration of the applicant’s claims. There is also no explanation as to the nature of any of the PSGs claimed or how his membership of such PSGs would contribute to a risk of harm. I am not satisfied that s.473DD(b) is met and nor am I satisfied there are exceptional circumstances to consider this information relating to these unnamed PSGs.
(References omitted)
This reasoning shows that the Authority not only had regard to the fact that the new information was available at the time of the delegate’s hearing, but also that it considered the applicant’s circumstances (including his illiteracy and the fact that the applicant was unrepresented before the delegate) and the nature of the information itself.
Overall, the proposed new ground suffers from the fact that it is, in reality, merely disagreement with the Authority’s conclusions under s.473DD. In my view, given that there was no explanation given for the lateness of raising the ground and the fact that it has little, if any merit, I refuse to grant leave to the applicant to amend his application to raise the ground. In doing so, I am conscious that the Minister suffered no real prejudice in respect of the ground and there was full argument on its merit.
First ground
The first ground is that “[t]he Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution”.
That ground is plainly addressed to the way in which the Authority addressed the criterion in sub-s.36(2)(a) of the Act. However, the particulars to the ground and the applicant’s submissions went beyond that ground and addressed 2 further issues. Both concerned the way in which the Authority dealt with the issue of whether the applicant could reasonably relocate to Kabul.
The applicant argued, first, that the Authority had unreasonably concluded that it was reasonable and practicable for the applicant to relocate to Kabul; and secondly, in submissions that addressed the decision of the High Court in CRI026 v The Republic of Nauru (2018) 355 ALR 216 (which was delivered after judgment in this matter was reserved), that the Authority erred by relying on information that was not reliable. Although there was no application to amend the application to include those arguments I consider that there is no unfairness to the Minister arising from them and I will deal with them as though they were formally before the Court.
Before doing so, it is necessary to briefly examine why the Authority was concerned with what might happen to the applicant if he were to go to Kabul, a place that the applicant had visited but had not lived in.
There are two reasons for the Authority’s focus on that city. First, in order to satisfy the criterion in sub-s.36(2)(a), the applicant had to have a well-founded fear of persecution that related to all parts of Afghanistan: sub-s.5J(1)(c). Secondly, in order to satisfy the criterion in sub-s.36(2)(aa), there had to be a real risk that he would suffer significant harm in Afghanistan. However, s.36(2B) relevantly provides that there is no such risk if:
...
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
...
The question of reasonableness of relocation arises under sub-s.36(2)(aa), but not under sub-s.36(2)(a): DFE16 v Minister for Immigration & Border Protection (2017) 317 FLR 215 at [26].
In light of those provisions, the Authority’s conclusions that there was no real risk of harm to the applicant in Kabul and that it would be reasonable for him to relocate there were both critical to the Authority’s decision. If they were not arrived at reasonably, or on a proper understanding of the law, then the Authority’s decision would be affected by jurisdictional error.
The real risk of serious harm in Kabul
Essentially, what the applicant must establish in order to succeed in his first argument is that the particular findings that are impugned were not open on the material before the Authority. In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, Justices Crennan and Bell explained at [131] that it was insufficient that different minds might reach different conclusions on the jurisdictional fact and that the test for illogicality or irrationality:
… must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109, the Court said, after referring to SZMDS:
[47]Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”. Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error.
(References to authorities omitted)
In his first argument the applicant focuses on the manner in which the Authority relied upon country information in reaching conclusions regarding the circumstances that might affect the applicant upon return to Afghanistan. While the Authority’s consideration of such information is, like its consideration of any other material, governed by the same principles of logic and reason as discussed immediately above, the identification of relevant information and the weight to be attributed to it is entirely a matter for the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [81] and SZUEP v Minister for Immigration & Border Protection [2017] FCAFC 94 at [27].
With those principles in mind, it is necessary to consider the relevant findings made by the Authority.
After finding that the applicant faced a real chance of serious harm in travelling to and on his return to his home area, the Authority noted that sub-s.5J(1)(c) of the Act required that the real chance of persecution faced by the applicant must relate to all areas of Afghanistan.
The Authority then considered the country information before it relevant to the risk that the applicant may be harmed in Kabul: [24] – [44]. It concluded that that risk was remote. In summary, its findings were as follows:
a)there is a higher level of government control, security and state protection in Kabul than elsewhere in Afghanistan and the government has implemented a range of counter-measures to detect threats, deter insurgents and quickly respond to attacks. While those attacks still occur, they are mostly against high-profile targets: [24];
b)Islamic State (IS) is trying to inject sectarianism into the conflict in Afghanistan, but they remain a limited threat and it was unlikely that it could single-handedly succeed in that aim and it is not likely that sectarianism would take hold in Afghanistan in the reasonably foreseeable future: [25] – [29];
c)future mass casualty attacks on Shi’as are likely to be only occasional and, given the effective control by the government, the size of the Hazara Shi’a population in Kabul, and the applicant’s lack of profile or proximity to the usual targets of insurgent attacks, the risk of the applicant being harmed in Kabul for reasons of his race and religion are remote: [30];
d)Hazara Shi’as are active in the community and any discrimination that exists against them is low-level only. State protection would not be withheld from the applicant for reason of his being Hazara Shi’a and he would not face discrimination that would amount to serious harm: [32];
e)returnees from western countries are not specifically targeted on the basis of their being failed asylum seekers or because of any western appearance: [37];
f)there is no real chance that the applicant’s mental health will deteriorate or that he will require treatment not available in Kabul: [40];
g)the chance of the applicant being harmed in generalised violence while in Kabul was remote: [41];
h)there was no real chance that the applicant would be harmed as a result of any criminality: [42]; and
i)there is no real chance that the applicant would face serious harm while in transit from Kabul airport to Kabul city: [43].
The applicant makes a number of attacks on the Authority’s reasoning on this issue.
First, he criticises the Authority’s finding ([27]-[31]) that the applicant did not face a real risk of harm in Kabul from attacks (especially attacks by the Islamic State group). He argues that the fact that the government has a higher level of control in Kabul than elsewhere does not enable the conclusion that the applicant faces no real risk of harm. This contention, however, is based on an over-simplification and thus, a misunderstanding of the Authority’s reasons. The relative level of government control in Kabul was the starting point of the Authority’s analysis, not the sole basis for it. The Authority also considered the nature, frequency, cause, targets, and perpetrators of the attacks in Kabul that, quite obviously, were an important factor in determining the potential safety of the applicant if he were to return there.
Secondly, the applicant argues that his profile was irrelevant to the assessment of harm. He relies on a DFAT[1] report that suggests that, even though attacks are targeted, they can result in civilian casualties. The difficulty with this argument is that there is no inconsistency between the fact that civilians can be harmed in attacks that are focused on government or international targets and the conclusion that, in all of the circumstances considered by the Authority, there was no real risk that the applicant would be harmed in such an attack. Simply put, the fact that a civilian can be harmed in targeted attacks does not require the conclusion that there is a real chance that the applicant will be harmed in such an attack.
[1] Department of Foreign Affairs and Trade.
Thirdly, the applicant attacks the Authority’s findings, at [26], that IS will have limited expansion and capabilities in the future. He argues, first, that it was unreasonable for the Authority to conclude that the Taliban would be the friends of Hazara Shi’as because they are the enemy of IS. Once again, this argument is based on a misrepresentation of the Authority’s reasons. At [28], the paragraph referred to in the applicant’s submissions on this point, the Authority referred to the fact that the Taliban had condemned a recent attack on Shi’as and had spoken out against sectarianism. It did so as part of its consideration of whether the IS’s attempts to stoke sectarianism would succeed. The Authority did not find that the Taliban would befriend Hazara Shi’as or that they posed no threat to that group.
The applicant also argues that the Authority could not “rely on the presence of the international community as a reason for the government maintaining effective control over IS” because there were reports of a gradual withdrawal of that community. There are two problems with this argument: first, the Authority did not rest any of its conclusions solely on the existence of the international community in Afghanistan, but took a holistic approach, considering a number of different elements. Secondly, and more importantly, the existence of information that trends against the Authority’s findings does not support the conclusion that the findings were not open to it. The information relied on by the applicant was, in any event, qualified. It simply “brought into question” the economic gains in Afghanistan in light of the gradual withdrawal of the international community.
Fourthly, the applicant attacks the Authority’s finding, at [24] (and see also [41]), that, in spite of increased attacks on civilian targets in Kabul, “the applicant only has a one in 4 – 7 million chance of being harmed”. The applicant says that the Authority failed to consider the number of Hazara Shia’s in Kabul and reduced its analysis of the chances of a person being harmed to simply a “numbers game”.
While it may be accepted that an assessment of the risk of future harm is not entirely a numbers game (the focus on specific targets is often a very important consideration), it is not necessarily irrelevant, or unreasonable, to take into account the mathematical probability of an event’s occurrence. This will be affected by the nature, actions and intentions of the perpetrators but also potentially by the number of potential victims. This is particularly the case where, as here, a number of attacks had been on civilian targets. The fact that such attacks take place in a large city with a large population, however, can logically affect the likelihood of any one of the residents being harmed in such an attack. That said, the Authority did not reduce its consideration to a numbers game. As I have mentioned, it engaged in a qualitative analysis of the level and nature of the attacks in Kabul as well as considering the size and constitution of the population of that city.
Fifthly, the applicant attacks the Authority’s finding, at [37], that returnees from western countries are not specifically targeted. He says that this finding is contradictory to the Authority’s earlier findings that the risk of discrimination against returnees, is significantly higher for returnees from western countries who do not take steps to conceal their association with the country from which they have returned ([33]), and that Hazaras are widely perceived to be affiliated with both the government and international community ([36]).
The argument does not lead anywhere. At [33] and [36] the Authority referred to certain information about the potential harm that might face returnees. Then, at [37], it referred to other information which it appreciated was not entirely consistent with the earlier information. It showed this appreciation by commencing that paragraph with the word “However”. In addition to that information, it also relied on the absence of any reports of returnees being targeted since 2014 and the fact that other reports related to anonymous, unverified reports mostly about young returnees.
For those reasons, the applicant’s attacks on the Authority’s findings about the risk of serious harm in Kabul must be rejected.
Reasonableness of relocation to Kabul
The analysis of whether it is reasonable for an applicant to relocate within his or her country of nationality is a fact intensive one which must focus on the applicant’s specific circumstances and those of the place of relocation: CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14 at [48]. In AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 the Full Court explained:
[27]It is well accepted that how an administrative decision-maker (including the Tribunal) approaches the question of whether it is reasonable to expect a protection visa applicant to return to a particular part of her or his country of nationality will depend to some extent on the framework set by the claims made by the visa applicant about why it is not safe, and/or not reasonable for her or him to return to a particular location or locations: see SZMCD at 438 [123]; Randhawa at 443 (Black CJ); SZATV at [24] (Gummow, Hayne, Crennan JJ), at [81] (Kirby J); SZSCA at [27], [31]-[33] (French CJ, Hayne, Kiefel, Keane JJ); CSO15 at [26]-[27], [47]-[48] and MZYPW at [9] (Flick and Jagot JJ). However as Mortimer J noted in MZANX at [58]:
There is no doubt that the “framework” set by an applicant may be an important factor. Indeed, the appellant submits the reviewer did not pay sufficient attention to the framework set by his adviser’s submissions on the two questions of “insecurity, political instability and social problems” and “unemployment such as to impact his ability to meet his basic needs”. However, it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.
The applicant placed particular reliance upon the decision of Mortimer J in MZANX v Minister for Immigration & Border Protection [2017] FCA 307 in which her Honour said:
[51]In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.
…
[55]In the context of relocation, detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship (see [60] to [61] below). Likewise, the circumstances of that individual – her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope. …
After the hearing of this matter, the High Court handed down its decision in CRI026. That decision was made on appeal from the Supreme Court of Nauru concerning the issue of internal relocation in the context of the Refugees Convention Act 2012 (Republic of Nauru). The appellant contended that the question of reasonableness did not apply in determining whether there was an obligation of complementary protection under that Act because, if it did, it would be incumbent upon an applicant for complementary protection to undertake the practically impossible task of establishing that there is no place in his or her country of nationality to which he or she could reasonably relocate.
The Court rejected that contention:
[39]That contention should also be rejected. Implicitly, it proceeds from the false premise that a claim for complementary protection is in the nature of an adversarial proceeding in which the burden of proof is on the applicant and, therefore, that, in the event of the applicant failing to discharge the burden of proof, the claim for complementary protection must fail. To the contrary, however, as appears from BL v Australia, before a decision maker may properly reject a claim for complementary protection on the basis of the availability of reasonable internal relocation, the decision maker needs reliable information as to the safety and suitability of the place of relocation. Moreover, as Gummow, Hayne and Crennan JJ observed in SZATV v Minister for Immigration and Citizenship in relation to a claim for refugee protection:
What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant’s personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable that the claim for complementary protection may be rejected on that basis.
(Citations omitted)
As will be seen, the applicant relies on one aspect of this passage in support of his third argument. For present purposes it is necessary to note that, subject to that argument, the decision in CRI026 is consistent with the authorities considered above.
Here, the applicant argues that the Authority failed to consider matters that affected the practical and realistic ability of the applicant to relocate to Kabul. First, he points to the accepted facts that the applicant had never lived there and had no family connections in the city, he is illiterate with limited work experience and there is high underemployment and unemployment. He says that the information before the Authority did not allow it to conclude that there were employment opportunities in Kabul and, further, that the information from DFAT about the “poor economic opportunities” in Afghanistan meant that the Authority’s reliance on the size of the city was unfounded and unreasonable. He suggests also that, in light of those matters, it was unreasonable for the Authority to conclude that he could reasonably relocate to Kabul.
The Authority did engage in a fact-intensive analysis of the potential circumstances facing the applicant in Kabul. At [34], it considered the applicant’s work history in Kabul and elsewhere including his tribal links and familiarity with that city. It also considered the applicant’s mental health and the availability of health services in Kabul: [40], [52]. It referred to, and then addressed the applicant’s submissions concerning relocation: [55]. These included the question of economic opportunity and accommodation. The Authority’s analysis of this question was based on country information and the applicant’s own work history and his connections to Kabul.
I am not satisfied that the Authority misunderstood what was required by sub-s.36(2B)(a) of the Act, or that it was not open for it to be satisfied that relocation to Kabul was reasonable for the applicant. In other words, the Authority’s conclusion to that effect was not unreasonable in the sense required to give rise to jurisdictional error.
The applicant also argued that, in light of CRI026, the Authority could only be satisfied that it was reasonable for the applicant to relocate on the basis of reliable information about the relevant circumstances in Kabul.
The passage in CRI026 relied on by the applicant is set out at [48] above. He argues that this passage means that the Court must undertake an evaluation as to the accuracy and reliability of the country information considered by the Authority. His argument was that where, as here, there was information that was contradictory and inconsistent with the information relied on by the Authority, the latter information was, for that reason, unreliable and so the Authority’s reliance on it was unreasonable.
There are many difficulties with that submission. Leaving to one side the different statutory context in which CRI026 was decided, there are two particular issues. First, what was meant in CRI026 by the word “reliable”; and secondly, whether the information here was “reliable”.
The applicant contends that information is reliable if it is “suitable or fit to be relied on” and “of proven consistency in producing satisfactory results.” The error in this approach is that the words of the High Court in CRI026 are not to be examined as though they were part of the Act. The Court adopted this word from a communication of the United Nations Human Rights Committee[2] concerning whether Australia would breach its obligations under the International Covenant on Civil and Political Rights[3] if it were to return a citizen of Senegal to Senegal. In a concurring opinion, one of the members of the committee said[4]:
... The duty of ascertaining the location where adequate and effective protection is available in Senegal does not rest upon the authorities of [Australia]. Their duty is limited to obtaining reliable information that Senegal is a secular State where there is religious tolerance.
[2] United Nations Human Rights Committee, Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014).
[3] International Covenant on Civil and Political Rights opened for signature 16 December 1966 (entered into force 23 March 1976).
[4] Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014) at Appendix II per Dheerujlall B Seetulsingh.
There is nothing in either CRI026 or the communication from the United Nations Human Rights Committee to suggest that information had to be consistent with all other information before it could support the view that relocation would be reasonable. It may be accepted for present purposes, and without the benefit of any argument from the Minister on the point, that any administrative decision must be based on “reliable” information in the sense that the information must provide a logical basis for the decision-maker to be satisfied of the likelihood of the existence of a fact in issue. Even if “reliable” required more, as suggested by the applicant, it was not, and could not have been, submitted that there was no such information here.
The Authority relied on information from sources including DFAT and the UNHCR. It would be surprising if the views of the Australian government or the international agency with responsibility for the Refugees Convention[5] could not be a sufficient basis for determining the question of reasonableness of relocation: see, albeit in a different context, Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 428 (McHugh J).
[5] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2).
The fact that there may have been information inconsistent with the information relied on by the Authority did not mean that either information was unreliable. Contrary to the applicant’s argument, the High Court in CRI026 did not overrule the well-established principle that it is a matter for the Authority, and not the Court, to decide what information it accepts: NAHI at [11]. The High Court did not specifically refer to that proposition because it was not relevant to any of the issues before the Court. It is not only a principle stated in a decision binding on me but is also consistent with a long line of authority about the limits of the Court’s role in the judicial review of administrative action: see, for example, Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J).
Conclusion
The applicant has not established that the Authority’s decision is affected by jurisdictional error. The application must be dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 7 September 2018
6
13
7