DTM16 v Minister for Immigration and Anor
[2020] FCCA 2026
•24 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTM16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2026 |
| Catchwords: MIGRATION – Protection visa – Immigration Assessment Authority – whether the Authority made a jurisdictional error by failing to refer to and consider a report by Professor Maley – whether the Authority failed to consider a claim that relocation to Kabul would be unreasonable because of limited access to electricity and fresh water and the high rents in that city. |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184 |
| Applicant: | DTM16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 2663 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 30 June 2020 |
| Date of last submission: | 30 June 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 24 July 2020 |
REPRESENTATION
| Counsel for the applicant: | Min Guo |
| Solicitors for the applicant: | Beena Rezaee Legal & Migration |
| Counsel for the first respondent: | Vince Murano |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The application filed on 8 December 2016 and amended on 5 June 2020 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG2663 of 2016
| DTM16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority (“the Authority”). In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant’s claims
In his written submissions filed on 19 June 2020, the Minister summarised the applicant’s claims as follows:
a)he is a Hazara of the Shia faith who was born in Kosha, Sange-e Masha, Jaghori, Ghazni, Afghanistan5 – the Taliban first arrived in Kosha around 1996 and declared Sharia law;6
b)in 2007, he went to study geology at a university in Kabul – shortly after he commenced studying, a member of his community received a letter from the Taliban which “forbade anyone from our village who was working for international agencies, the government or studying at university”;7
c)one weekend, while travelling home from Kabul with friends in a taxi, the car was stopped by about 20 Taliban members – they were taken to a mosque, and over a period of three days, beaten before being released;8
d)as a result of the incident, he was so scared of travelling on the same road that he did not return to university in Kabul – during the kidnapping, the Taliban had taken his Taskera, so they knew his name;9
e)after a few months, he commenced a business in his village with his friend, [X] – they sold CDs, DVDs and flowers;10
f)early in 2012, [X] was kidnapped from a taxi by the Taliban while travelling to Ghazni to obtain supplies for their shop – [X] was never seen again;11
g)after the taxi driver returned to the village, he told the Applicant that during the incident the Taliban had asked about him and said that his name was on a list of people considered to have denounced Islam – he believes the Taliban were looking for him because he sold [certain items];12
h)he fears persecution in Afghanistan because: (1) he is a Shia Muslim; (2) he is a Hazara; (3) of his political opinion; and (4) he is part of the particular social groups of “failed Hazara asylum seeker” and “educated Shia Hazaras”;13 and
i)he cannot relocate in Afghanistan as: (1) the Taliban has a wide reach; (2) he would be unable to travel to any safe area because roads are dangerous; (3) he has no family or social connections in any other area in Afghanistan; and (4) he has limited work experience which would affect his ability to find work and financially support himself in another area.14
5 CB 171; [1] – [2].
6 CB 171; [4].
7 CB 172; [10].
8 CB 171 – CB 12; [11] – [16].
9 CB 173; [17] – [18].
10 CB 173; [19].
11 CB 173; [20].
12 CB 173; [21].
13 CB 174 – CB 175; [27].
14 CB 175; [29] – [30].
The Authority’s reasons for decision
The Authority considered that the applicant did not face a real risk of persecution in his home region of Jaghori for reasons of his religion and ethnicity. However, the Authority considered that, due to difficulties on the roads, the applicant would face a real chance of persecution while attempting to access his home area. The Authority then decided that the applicant could reasonably relocate to Kabul, where the Authority considered that he would not face a real risk of persecution.
The applicant’s written submissions filed on 5 June 2020 summarised the Authority’s reasons for decision as follows:
3.… The IAA specifically considered Kabul,2 and found:
2 The IAA did also refer to Mazar-e-Sharif, but only drew a conclusion as to risk of harm for Kabul: [60].
a.‘incidents of violence against Hazara Shia [sic] on the basis of religion or ethnicity remains rare’ in that city;3
3 IAA’s reasons, [47]; see also [48]-[50].
b.‘returnees from western countries are not specifically targeted on the basis of their [sic] being failed asylum seekers;4
4 IAA’s reasons, [51]; see also [52].
c.‘the incidence of interfaith and/or inter-ethnic violence against low profile Hazara Shia [sic] remains rare’ in that city;5
5 IAA’s reasons, [53].
d.‘there have been recent serious attacks in Kabul and that Hazara Shia were deliberately targeted’, but that ‘Islamic State’s presence and capacity to orchestrate attacks in the country in the reasonably foreseeable future is limited’ such that the IAA was not satisfied that ‘the threat from Islamic State is at a scale or frequency where the chance or risk of … being seriously harmed in an attack or other activity is anything more than remote’.6
6 IAA’s reasons, [58].
4.Accordingly the IAA concluded that the Applicant did not meet the statutory definition of ‘refugee’.7
5.The IAA also found that the Applicant could reasonably relocate to Kabul. In arriving at this conclusion, the IAA found:
a.‘the security situation in Kabul is serious’ and that ‘there are credible security risks in the city’, but that ‘when having regard to the size and population of the city, the presence of security and armed forces, and the applicant’s lack of any profile or proximity to those with such a profile’, the risk of being harmed in generalised violence was ‘remote’;8
b.the Applicant ‘has some familiarity with the city’, ‘a range of work experience, including a demonstrated ability to create and run his own business’;9
c.the Applicant’s family ‘have the ability to support the applicant in any relocation to Kabul’ but that in any event the Applicant could ‘relocate without that support’ because the Applicant ‘is a young, apparently able-bodied man’ and ‘has no vulnerabilities that would impact on his ability to relocate to Kabul’;10
d.the Applicant would return to Kabul without his extended family, but any ‘familial and social barriers’ arising from this was ‘outweigh[ed by] the factors that indicate it would be reasonable for the applicant to relocate to Kabul’.11
6.On the basis of ‘all the circumstances’ (as summarised above), the IAA said that it was therefore ‘reasonable for the applicant to relocate to … Kabul where there would not be a real risk’ of significant harm’.12
7 IAA’s reasons, [61].
8 IAA’s reasons, [68].
9 IAA’s reasons, [71].
10 IAA’s reasons, [72], [73].
11 IAA’s reasons, [73].
12 IAA’s reasons, [74].
The Minister summarised the Authority’s findings in paragraph 11 of his written submissions filed on 19 June 2020 as follows:
a)[the Authority] was satisfied that the Applicant had deliberately concealed evidence about his brother and cousin residing in Dubai,21 and noted evidence that the Applicant’s brother had undertaken a significant amount of travel between Dubai and Afghanistan and has had residency in Dubai since 2013;22
21 CB 339; [21].
22 CB 339; [23].
b)it accepted that in 2007 the Applicant was detained by the Taliban, seriously mistreated and later released;23
23 CB 340; [28].
c)while accepting the Applicant abandoned his studies in the immediate aftermath of the 2007 incident, the Authority did not accept that the Applicant would subsequently have regularly travelled between Kabul and Jaghori for supplies for his shop if he genuinely feared travelling on roads, or feared the Taliban – the Applicant opened the shop after the 2007 incident with his friend, [X]…;24
24 CB 341; [31] – [32].
d)it rejected the Applicant’s claim that he was targeted or named because of his ownership of the CD and DVD … shop, and did not accept that [X] went missing;25
25 CB 342; [36].
e)it found that there was no real chance of the Applicant being harmed by the Taliban or other AGEs in Jaghori for any reason claimed;26
f)while the Authority considered the Applicant’s home area to be safe, it found that he faces more than a remote chance of being harmed by reason of his religion and ethnicity in accessing his home area;27
g)however, having regard to country information, the Authority found there is not a real chance the Applicant will be seriously harmed in Kabul meaning he did not satisfy s 5J(1)(c);28
h)it was satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant’s removal to Afghanistan, he will face a real risk of significant harm if he returns to and lives in Jaghori;29
i)it found that the Applicant would not face a real risk of significant harm in Kabul;30
j)it found that while the security and general living conditions in Kabul would be challenging, because of a range of considerations, the Applicant could successfully relocate to Kabul and it would be reasonable for him to do so;31
k)it was satisfied that, even accounting for the difficult employment and economic circumstances in Kabul, the Applicant would, for reasons including the provision of financial support from his family, be able to find work or start a business and establish himself in Kabul;32
l)it accepted the Applicant would not have a family or support networks in Kabul but, for various reasons, did not accept his family could not financially support him in Kabul;33
m)even without financial support from his family, the Authority was satisfied the Applicant could relocate to Kabul because he is a single able-bodied man of working age without any specific vulnerabilities;34 and
n)having regard to the above, found the Applicant did not satisfy s 36(2)(aa).35
26 CB 342; [38].
27 CB 344; [45].
28 CB 344 – CB 347; [46] – [60].
29 CB 348; [64].
30 CB 348 – CB 349; [66] – [68].
31 CB 349; [70].
32 CB 349; [71].
33 CB 349; [72].
34 CB 349; [73].
35 CB 350; [74] – [75].
Ground of review
There is only one ground of review in the application filed on 8 December 2016 and amended on 5 June 2020, although it has two limbs. The ground of review is:
The IAA did not carry out its statutory task in relation to the assessment of reasonableness of the Applicant relocating to Kabul because it:
a.failed to consider the expert opinion of Professor William Maley; and/or
b.failed to consider the claim or claims that it would be unreasonable for the Applicant to relocate to Kabul due to the lack of access to clean water and electricity, and the high rents in that city.
Ground (a): Professor Maley’s report
The applicant’s lawyer and migration agent made a post-hearing written submission dated 25 February 2016 to the delegate. Relevantly, the submission noted that, at the interview with the delegate, the delegate had:
a.referred to the 2013 UNHCR Eligibility Guidelines for Afghanistan[1] which indicated that, in general, it was not reasonable for people to relocate within Afghanistan unless they had family members or contacts who were willing and able to provide genuine support to them; and
b.noted that an exception to the general rule expressed in the UNHCR Guidelines was young, able-bodied men, such as the applicant in the present case.
[1] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 6 August 2013, HCR/EG/AFG/13/01, available at: p8.
The relevant passage from the UNHCR Guidelines stated:
… the only exception to this requirement of external support are single able-bodied men and married couples of working age without identified vulnerabilities, who may in certain circumstances be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and are under effective government control. Given the breakdown in the traditional social fabric of society caused by decades of war, mass refugee flows and internal displacement, a case-by-case analysis will, nevertheless, be necessary.
In response to the delegate’s comments at interview, the applicant’s post-interview written submission to the delegate said:
40.The above passage [being the extract from the UNHCR Guidelines regarding the exception] indicates that not all ‘young, able bodied men’ would be able to relocate to Kabul. In relation to the particular vulnerability of Hazaras returning from abroad to Kabul without the requisite support networks, Professor Maley further confirms the following:
Of course, an Hazara returned from abroad with no ties in areas they can safely access would be in an even more perilous position. This ties in directly with the issue of livelihood opportunities. Again, serious research in this area highlights the importance of social relations. A recent study by Kantor and Pain emphasises the centrality of relationships to livelihoods in rural Afghanistan, and the points they make apply equally to urban areas (Paula Kantor and Adam Pain, Securing Life and Livelihoods in Afghanistan: The Role of Social Relationships (Kabul: Afghanistan Research and Evaluation Unit; December 2010). The mere fact that there may be people of similar ethnic identities do not in and of themselves give rise to the ties of personal affinity and reciprocity that arise from family connections. (Indeed, one mistake that observers – even Afghan observers – on occasion make is to underestimate the degree of differentiation amongst groups such as the Hazaras, including distinctions between elite and non-elite figures, distinctions based on district of origin and tribe, and distinctions based on values and ideology). An Hazara who is returned to a region in which he lacks strong social connections is likely to end up destitute, or be exposed to gross exploitation or criminal predation. The simplistic and superficial conclusion that Kabul offers a safe or meaningful ‘relocation’ option for Hazaras should be avoided.13 [Emphasis added in applicant’s written submissions to the delegate.]
13 Refer to Annexure D.
When Professor Maley said that an Hazara returned from abroad with no ties in areas they can safely access would be in an even more perilous position, (emphasis added) he was not responding directly to the UNHCR Guidelines quoted above. Rather, he was referring to a study by Schuster and Majidi (2013) which Professor Maley summarised immediately before the passage quoted in paragraph 9 above as follows:
A recent study of returnees to Afghanistan highlights how difficult reintegration can be even if people do have associates in the region to which they are returned.
The Authority dealt with the question of whether it was reasonable for the applicant to relocate to Kabul as follows:
69.In terms of whether it would be reasonable for the applicant to relocate to an area of the country such as Kabul where there would not be a real risk that he will suffer significant harm, the applicant claims that relocation would be unreasonable, because he has “never lived in Kabul (beyond several months while at university) and has no family or other support networks, is uneducated, and [the] … general living conditions for individuals … cause severe hardship”.
70.The security and general living conditions in Kabul would be challenging, however there are a range of considerations that indicate the applicant could successfully relocate to Kabul and that it would be reasonable for him to relocate to this area.
71.The applicant has lived in Kabul, albeit for a brief period during university, but also claims to have travelled there for supplies for his store. I am satisfied he has some familiarity with the city. He is not uneducated, but in fact finished high school, undertook a year of prep studies to enable him to enter a university, and he studied in Kabul for a few months at a university. He has a range of work experience, including a demonstrated ability to create and run his own business. I find that he would also be able to obtain some financial support from his family if he were to relocate to Kabul. In that context, I find that even accounting for the difficult employment and economic situation in Kabul, I am satisfied that the applicant would be able to find work or start a business and establish himself in the city.
72.In terms of that support, I accept his evidence given at interview and in his submissions that he would not have family or support networks in Kabul, but I find that the applicant has misrepresented the financial support his family could provide him from outside of the city. I do not accept his claims that his family cannot support him. I have found his evidence as to how he and his family funded his travels to Australia, and his brother’s multiple trips to Dubai, to be unconvincing. The applicant has not adequately explained how his family was able to pay for his travels to Australia, given the demise of his own business and the costs associated with his widowed mother running a farm, and sending his siblings to school. Even allowing for his savings, his business only made AFN 25,000 (US 357) a month, which would not explain how he was able to accumulate the amount needed. He continues to claim they are not in a strong financial position. I do not accept the applicant’s submissions that the delegate’s conclusions on his family’s finances were not open to her. I am satisfied that the applicant’s family is in a stronger economic position than claimed and they have the ability to support the applicant in any relocation to Kabul.
73.In any event, I am satisfied he could relocate without that support. UNHCR and DFAT advice indicates that relocation to urban areas is more successful for those that possess family and tribal connections. The exception to this is single able-bodied men and married couples of working age without specific vulnerabilities.40 The applicant is a young, apparently able-bodied man. The applicant is engaged, but does not have children. He speaks Hazaragi and some English, and I am satisfied he has no vulnerabilities that would impact on his ability to relocate to Kabul. While I accept there would be challenges in terms of him being unable to visit his extended family outside of Kabul, I do not accept that by necessity the applicant would need to return to Jaghori for family obligations if it is the case that his life is at risk. In any event, I am not satisfied that those familial and social barriers outweigh the factors that indicate it would be reasonable for the applicant to relocate to Kabul.
40 UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan”, 19 April 2016, UN6C8EFBB3, at p.8-9; DFAT, “DFAT Thematic Report Conditions in Kabul – September 2015”, 18 September 2015, CISEC96CF13367, at p.9-10.
Clearly, the Authority did not refer to the report by Professor Maley. The applicant submitted in these circumstances that:
15.None of this is to say that the IAA must necessarily have accepted Professor Maley’s opinion, because it is open for the IAA to accord whatever weight it reasonably considers appropriate to the competing evidence before it, including rejecting some evidence in preference of other evidence. However, the IAA’s reasons did not make any reference to Professor Maley’s opinion, let alone engage in any active intellectual process in respect of it. There was no process of articulating the different effect of the evidence the IAA cited on the one hand, and the Maley opinion on the other, and engaging in any exercise of weighing and preference.23
16.The Maley opinion could not have been dismissed as not credible or insignificant. It went directly not just to the question of reasonableness of relocation, but to the specific consideration that was important for the IAA of whether it would be reasonable to relocate in the absence of any familial support in the putative place of relocation.
17.The inference can only be that the IAA did not consider the Maley opinion. However, it was central [to] the Applicant’s case against relocating to Kabul. Accordingly, the failure to consider it was a jurisdictional error.
23 MZYTS at [50].
In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; (2013) 136 ALD 547; [2013] FCAFC 114, the Full Court of the Federal Court said at [50] that:
… The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
The Minister’s argument was basically that there was no need to weigh Professor Maley’s report against the UNHCR Guidelines and the report of the Department of Foreign Affairs and Trade (“DFAT”), both of which the Authority relied upon, because the three documents all said basically the same thing, save that the UNHCR Guidelines also said there was an exception, which Professor Maley did not address.
The UNHCR Guidelines, which are exhibit ANA-2 to the affidavit of Andrea Nicola Anastasi dated 19 June 2020, said at page 8:
Whether an IFA/IRA [ie, an internal flight alternative or internal relocation alternative] is reasonable must be determined on a case-by-case basis, taking fully into account the security, human rights and humanitarian environment in the prospective area of relocation at the time of the decision. In particular, the poor living conditions and precarious human rights situation of Afghans who are currently internally displaced in Afghanistan are relevant considerations that need to be taken into account in assessing the reasonableness of a proposed internal flight or relocation alternative. UNHCR considers that a proposed IFA/IRA is reasonable only where the individual has access to (i) shelter, (ii) essential services such as sanitation, health care and education; and (iii) livelihood opportunities. Moreover, the UNHCR considers an IFA/IRA as reasonable only where the individual has access to a traditional support network of members of his or her (extended) family or members of his or her larger ethnic community in the area of prospective relocations, who have been assessed to be willing and able to provide genuine support to the applicant in practice.
Immediately following that paragraph was the extract from the UNCHR Guidelines set out in paragraph 8 above, which concerns the exception for single, able-bodied men.
The DFAT report referred to by the Authority is exhibit ANA-1 to Mr Anastasi’s affidavit. It included the following statements:
Ethnicity
3.8Traditional extended family and tribal community structures are the main protection and coping mechanisms for people in Afghanistan, who rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence. People tend to move and settle in large groups, often with several other families, for this reason. As a consequence, large groups of people can arrive in a particular area, resulting in rapid population growth and a strain on infrastructure and services.
…
3.11DFAT assesses that, notwithstanding road safety concerns and the security situation in Kabul, there are generally options available for members of most ethnic and religious minorities to relocate from other parts of Afghanistan to relative safety in Kabul. This relocation is more likely to be successful where the individual travels as part of a larger group, or has established networks that can assist with the provision of basic necessities.
…
Other factors affecting internal relocation
…
3.13International relocation to urban areas is generally more successful for single men of working age, provided they are able to make use of family or tribal networks. Unaccompanied women and children are least likely to be able to successfully relocate to urban areas, particularly if these networks are lacking.
The relevant part of Professor Maley’s report is set out above, but the most critical part of it is:
An Hazara who is returned to a region in which he lacks strong social connections is likely to end up destitute, or be exposed to gross exploitation or criminal predation.
The Minister submitted that all three reports acknowledged the difficulties faced by people in Afghanistan who attempted to relocate to areas without family support. The Minister further submitted that the UNHCR Guidelines indicated that there was an exception to those general difficulties, and submitted that Professor Maley’s report did not exclude that exception.
That is correct. While Professor Maley said it was likely that a person without strong social connections would end up destitute, or be exposed to gross exploitation or criminal predation, Professor Maley did not say that outcome was inevitable. Therefore, Professor Maley’s report left room, so to speak, for the exception in the UNHCR Guidelines.
Contrary to the Minister’s submission, the DFAT report did not acknowledge the difficulties of relocating in Afghanistan particularly clearly. It focussed on the matters that would lead to a relocation being more successful. However, the UNHCR Guidelines were certainly very clear at page 8 that it was not reasonable for those without appropriate supports to relocate within Afghanistan.
Consequently, this case differs from MZYTS, because the Authority was not confronted with a choice between conflicting pieces of country information. Therefore, it was not a jurisdictional error for the Authority to fail to weigh up Professor Maley’s report as against the UNHCR Guidelines. The usual rules applied in this case, namely, that:
a.a decision-maker is not obliged to refer to every piece of evidence: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184; and
b.it is open to a decision-maker to choose which items of country information to prefer.
Moreover, the Authority accepted the substance of Professor Maley’s report, finding that the applicant’s relocation would be challenging and that the employment and economic situation in Kabul would be difficult. The Authority also addressed the issue of the support that the applicant would have in Kabul, thus indicating an awareness of the issues raised in Professor Maley’s report. In these circumstances, the failure to mention Professor Maley’s report by name was not indicative of jurisdictional error.
However, the most important point is that the Authority had two independent bases for considering that the applicant could reasonably relocate to Kabul. The first, in paragraph 72 of the Authority’s reasons for decision, was that, contrary to the applicant’s submissions, he would have financial support from his family if he relocated to Kabul. That finding meant that the applicant would not be in the category of people described by Professor Maley, being those who were without strong social connections, who, because of the economic consequences of being without strong social connections, were likely to end up destitute, or exposed to gross exploitation or criminal predation. This is another reason that it was not an error for the Authority to not mention Professor Maley’s report. It was not relevant to the applicant’s personal circumstances, because he was not a person who would be without financial support from his family in Kabul.
The Authority went on in paragraph 73 of its reasons for decision to consider the applicant’s position if he did not have his family’s financial support in Kabul. This was an entirely independent basis for the Authority’s conclusion that the applicant could reasonably relocate to Kabul. This basis arose from the exception mentioned in the UNCHR Guidelines. As discussed above, the report by Professor Maley did not mention this exception, but did not exclude the possibility of it either. In these circumstances, it was unnecessary for the Authority to mention the report by Professor Maley, as it did not address the exception identified in the UNHCR Guidelines.
The applicant argued in this court that it was not open to the Authority to disregard Professor Maley’s report, because the submission to the delegate relied on Professor Maley’s report as a direct counter argument to the exception identified in the UNHCR Guidelines. However, it is implicit in the Authority’s reasons for decision that the Authority considered that Professor Maley’s report was no answer to the exception identified in the UNHCR Guidelines. For the reasons discussed above, that view was open to the Authority.
This ground is not made out.
Ground (b): limited clean water and electricity and high rents
The applicant submitted that the Authority failed to have regard to the applicant’s claim that it would not be reasonable for him to relocate to Kabul because it has a huge underclass that does not have access to clean water or electricity and rents are very high.
The applicant submitted that the claim was made in his lawyer’s written submission dated 7 September 2016 to the Authority (CB322-326), when the lawyer said at (CB326):
Should the IAA not accept that the applicant is owed protection on account of satisfying s.36(2)(a), it is submitted that protection is owed as a result of the Applicant satisfying s.36(2)(aa). What is clear from country information is that the applicant’s circumstances would mean that relocation to Kabul would not be reasonable. This is because the Applicant has never lived in Kabul (beyond several months while at university) and has no family or other support networks, is uneducated, and country information indicates that general living conditions for individuals like the Applicant would cause severe hardship.
In another recent decision, the AAT placed significant weight on the following DFAT information when consider whether [an] Hazara man like this applicant could relocate to Kabul:
DFAT also specifically reported in relation to Kabul in September 2015:
·Kabul has seen a marked increase in the number of incidents in 2015 compared to the corresponding period in 2014. According to a Resolute Support mission report for January-April 2015, insurgent attacks in Kabul have increased by around 60 per cent compared with the same period in 2014.
·DFAT have emphasised family and tribal networks as being important factors for successful relocation. They state that internal relocation to urban areas is generally more successful for single men of working age, provided they are able to make use of family or tribal networks. However, the applicant has not lived in Kabul and has no family located there.
·There is a huge Hazara underclass in Kabul that does not have access to clean water or electricity and rents are very high. DFAT have also referred to unemployment being widespread in Kabul and underemployment common. The applicant has rather limited work skills having worked only in farming and labouring and he has only a very limited education. (emphasis added)
·Notwithstanding, Kabul is safer than other parts of the country there is evidence of a number of insurgent attacks that target government institutions, political figures and Afghan National Security Forces, other security services and international organisations. Though this is not sufficient in itself to establish a real chance that the applicant would face serious harm, the existence of these attacks and the danger that the applicant may be caught up in them contributes to the unreasonableness of relocation.10
10 1515236 (Refugee) [2016] AATA 3380 (23 February 2016).
As can be seen from footnote 10, the quotation in the applicant’s lawyer’s written submission set out in the previous paragraph was from a decision of the Administrative Appeals Tribunal dated 23 February 2016.
The Authority addressed which parts of the applicant’s lawyer’s written submission dated 7 September 2016 it could consider in paragraphs 3 to 5 of its reasons for decision. The Authority said in those paragraphs:
3.A submission was provided to the IAA on 7 September 2016. No submissions were made on the application of s.473DD.
4.To the extent that the submission responds to the applicant’s existing claims and concerns with the delegate’s decision and refers to country information that was before the delegate, I am satisfied this is not new information and I have considered that as part of the assessment.
5.The submission refers to and quotes a number of decisions of the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT). To the extent the information cited refers to information from the United Nations Assistance Mission in Afghanistan (UNAMA), the United Nations High Commissioner for Refugees (UNHCR), and the Australian Department of Foreign Affairs and Trade (DFAT), I am satisfied this is not new information. To the extent that this is referring to the decisions of the AAT between the dates of 7 November 2015 and 5 July 2016, I am not satisfied that this new information is credible personal information or that it is information that was not and could not have been provided to the Minister before the primary decision was made on 8 August 2016. Considering all the circumstances, I am also not satisfied that there are exceptional circumstances to justify considering the new information. (emphasis added)
That is, the Authority decided that it could not consider the new information consisting of the Tribunal decision dated 23 February 2016. The applicant did not challenge that conclusion. Consequently, there was not an express claim before the Authority that, There is a huge Hazara underclass in Kabul that does not have access to clean water or electricity and rents are very high.
Nevertheless, the Authority was obliged to consider claims arising from the materials. The Authority acknowledged in paragraph 5 of its reasons for decision that there was before it a DFAT report, which was not new information, presumably because that report was before the delegate. The delegate’s reasons for decision refer to a DFAT report dated 18 September 2015. It is exhibit ANA-1 to Mr Anastasi’s affidavit.
That report relevantly said:
Economic Overview
…
2.11The concentration of international forces, international organisations and government ministries in Kabul has meant that the cost of living is relatively high compared to the rest of the country. Rents in Kabul tend to be expensive compared to most other parts of Afghanistan. As a result, many residents of Kabul live in informal settlements. Many poorer residents are forced to borrow money to survive, entering a cycle of poverty and indebtedness. (emphasis added)
…
Utilities
2.22Access to electricity is highly variable, even in formal areas of the city. Electricity ‘load shedding’ is common, causing blackouts (including scheduled blackouts) that can last up to 15 hours. For many residents of Kabul’s informal areas, electricity is supplied by a community generator for which a fee is charged by the operator, a relatively expensive form of supply. According to the World Bank and the United Nations High Commissioner for Refugees (UNHCR), although most established residents have access to some electricity, up to 84 per cent of IDPs lack access to any electricity. (emphasis added)
2.23Most informal and illegal areas do not have reliable access to municipal water supply, relying instead on wells and water deliveries. Sanitation in these areas is poor. Waste collection is better in informal areas than illegal areas. Many communities burn their waste which contributes to high levels of air pollution. (emphasis added)
The Authority did not refer specifically to that DFAT information, but nor did the applicant. The Authority was cognisant of the applicant’s submission to it, that did not consist of new information, that:
What is clear from country information is that the applicant’s circumstances would mean that relocation to Kabul would not be reasonable. This is because the Applicant has never lived in Kabul (beyond several months while at university) and has no family or other support networks, is uneducated, and country information indicates that general living conditions for individuals like the Applicant would cause severe hardship.
It is apparent that the Authority was cognisant of that submission because it quoted from it, at paragraph 69 of its reasons for decision, as follows:
In terms of whether it would be reasonable for the applicant to relocate to an area of the country such as Kabul where there would not be a real risk that he will suffer significant harm, the applicant claims that relocation would be unreasonable, because he has “never lived in Kabul (beyond several months while at university) and has no family or other support networks, is uneducated, and [the] … general living conditions for individuals … cause severe hardship”.
The Authority’s response to that submission, and the DFAT report extracted above, acknowledged the difficulties of living in Kabul as follows:
70.The … general living conditions in Kabul would be challenging …
71.… even accounting for the difficult employment and economic situation in … [Kabul]
In my view, that was a sufficient acknowledgement of the difficulties of living in Kabul, in circumstances where:
a.the only express claim that the Authority was able to consider was that general living conditions for individuals … cause severe hardship;
b.the DFAT material indicated that rents were higher in the capital than elsewhere in Afghanistan, which is a worldwide phenomenon;
c. the DFAT material indicated that most established residents have access to some electricity, and the Authority considered that the applicant would have financial support from his family and, impliedly, would thus become an established resident; and
d.the DFAT material indicated that most informal and illegal areas did not have access to municipal water supplies, and the Authority considered that the applicant would have financial support from his family and, impliedly, would thus not be living in an informal or illegal area.
The Authority, having noted that living in Kabul would be challenging for the applicant, went on to weigh up the considerations that would make living there a reasonable option for him. In my view, the Authority did not fail to consider the claim about water, electricity and rent, to the extent that that claim arose from the materials before it, and the Authority adequately considered the express claim of severe hardship.
For completeness, I note that the applicant’s lawyer submitted that the Tribunal, in the other case, had placed weight on the DFAT report when considering whether [a] Hazara man like this applicant could reasonably relocate to Kabul. The lawyer seems to have then quoted from the Tribunal’s decision in the other case, noting that:
There is a huge Hazara underclass in Kabul that does not have access to clean water or electricity and rents are very high. DFAT have also referred to unemployment being widespread in Kabul and underemployment common. The applicant has rather limited work skills having worked only in farming and labouring and he has only a very limited education.
What that paragraph highlights is that the applicant in the Tribunal case was not like the applicant in the present case. The applicant in the Tribunal case had never lived in Kabul, had only worked in farming and labouring and had a very limited education. On the other hand, the applicant in the present case had lived in Kabul for a few months, had attended university, albeit briefly, had run a small business, and had a family who could support him financially.
The applicant relied on DIJ17 v Minister for Immigration and Border Protection [2018] FCCA 2407 where Judge Smith said:
18.At [57] of the submission [to the Authority], the applicant’s representative made the following submission:
Access to safe water is a general challenge across Afghanistan. Even in the most develop region of Afghanistan, Kabul, ‘almost half of the capital’s residents lacked regular access to water.’ AI’s 2016 field visit found that ‘[i]n all displaced communities’ visited in Kabul, Mazar-e-Sharif and Herat ‘access to water was a critical issue’ – especially in Kabul and Mazar-e-Sharif where ‘[p]eople were often forced to make long, daily trips to gather water from wells located far away from their homes’. …
(Emphasis added)
19.In 2015 the UN OCHA reported that “millions of already vulnerable people in Afghanistan are at risk of contracting diarrhea [sic], typhoid, polio and other water-borne and contagious diseases due to poor hygiene and lack of access to clean water and sanitation”. The applicant fears that he will not have access to safe or clean drinking water.
…
33.The Authority’s reasoning was that, given the relative economic strength of both Kabul and Mazar-e-Sharif, and the applicant’s own experience and resourcefulness, he will be able to find a job and, as a result, will be able to sustain himself and meet the basic necessities of life. As a matter of logic there appears to be little wrong with that reasoning. The difficulty with it, however, is that it fails to grapple with the essential element of the applicant’s objections to relocation, namely, that the reality in those cities was that the basic resources were meagre and there was stiff competition for them. For instance, the applicant relied on information to the effect that “almost half of the capital’s residents lacked regular access to water”. That information was not qualified by any reference to employment and so objection was not addressed by the Authority’s conclusion that the applicant would be able to find work.
(Footnotes omitted)
The applicant also relied on CMV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2019] FCCA 2252. Judge Driver said in that case:
27.The Authority’s finding at [74] that the applicant “would have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life” is said to be equally inadequate. The applicant’s submissions to the Authority raised very specific objections to relocation including that he would not have access to adequate accommodation and safe drinking water in Mazar-e-Sharif.
28.For example, in the applicant’s written submissions to the Authority, the applicant provided evidence from UNHCR in 2016 that “73.8 per cent of the urban population in Afghanistan live in slum households” and that only “46 per cent of the population have access to potable water”. The applicant also raised the following objections on the basis of inadequate housing:
73.8 per cent of the urban population in Afghanistan live in slum households. Poverty among urban households is reportedly widespread and the economic situation of urban households is reported to have deteriorated significantly in the past years …
29. At [14] the submission continued:
The above information demonstrates that it would be unreasonable for the Applicant to relocate to an urban area, such as Mazar-e-Sharif… where he would be unable to accommodate for his basic needs, including food, safe drinking water, shelter and be forced into a circumstance of poverty. The Applicant requests the IAA consider each one of these factors individually in its assessment of the reasonableness of relocation. All current indicators demonstrate that the urban areas of Afghanistan are is currently incapable of absorbing further returnees and the Applicant is extremely likely to face economic destitution or an existence below at least an adequate level of subsistence.
(applicant’s emphasis retained)
…
59.In my view, it was insufficient for the Authority to deal with the applicant’s submission at such a high level of abstraction. The assumptions made by the Authority were both bold and broad. In my view, the Authority needed to consider what level of scarcity and meagreness was practicable and what level of scarcity and meagreness was reasonable for the applicant to accept in his struggle for existence. Some things should no doubt be assessed against basic standards, such as access to potable water, food, clothing and shelter. Other things might be assessed on a more relativistic basis, because if a person is returning to a third world country, they must expect third world conditions. These may be issues of some subtlety of analysis which was absent from the Authority’s reasoning.
The reasoning in DIJ17 and CMV18 was in large part based on the specific submissions made to, and evidence that was before, the Authority in those cases. The submissions and evidence in the present case did not reach that level, so did not require the same level of response from the Authority.
The second aspect of the ground of review is not made out.
Conclusion
As neither aspect of the ground of review has been made out, the application will be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 24 July 2020
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