DVS17 v Minister for Immigration and Border Protection

[2022] FedCFamC2G 538

FEDERAL CIRCUIT COURT AND FAMILY OF AUSTRALIA (DIVISION 2)

DVS17 v Minister for Immigration and Border Protection [2022] FedCFamC2G 538

File number:	MLG 1861 of 2017
Judgment of:	JUDGE RILEY
Date of judgment:	6 July 2022
Catchwords:	MIGRATION – Immigration Assessment Authority – protection visa – relocation – whether the Authority considered all of the matters it was obliged to consider.
Division:	Division 2 General Federal Law
Number of paragraphs:	26
Date of hearing:	3 March 2022
Place:	Melbourne
Counsel for the Applicant:	Angel Aleksov
Solicitor for the Applicant:	WLW Migration Lawyers
Counsel for the First Respondent:	Jonathan Barrington
Solicitor for the First Respondent:	Mills Oakley
Solicitor for the Second Respondent:	DLA Piper Australia

ORDERS

MLG 1861 of 2017

FEDERAL CIRCUIT COURT AND FAMILY OF AUSTRALIA (DIVISION 2)

BETWEEN:

DVS17
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	6 JULY 2022

THE COURT ORDERS THAT:

1.The decision of the Immigration Assessment Authority made on 4 August 2017 in matter number IAA17/02594 be set aside.

2.The matter be remitted to the Immigration Assessment Authority for determination according to law.

3.The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,853.

Note:   The form of the order is subject to the entry in the court’s records.

Note:   This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE RILEY:

INTRODUCTION

1. This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is a Tajik Sunni Muslim from Afghanistan. He came to Australia by boat when he was about 15 or 16 years old. He was 19 or 20 years old at the time of the Authority’s decision.

3. After the Authority’s decision, the United States withdrew its military from Afghanistan and the Taliban is now in control of the whole country. However, these circumstances are not relevant to this court’s consideration of this matter. This court is only permitted to determine whether the Authority made a jurisdictional error.

   THE APPLICANT’S CLAIMS

4. The Authority summarised the applicant’s claims at paragraph 12 of its reasons for decision as follows:

   •He is a young Tajik Sunni Muslim … from [a village in] Logar Province.

   •His village (which was mostly comprised of Tajik families) was caught in the fighting between the Taliban and the Afghan Army. The village was often controlled by the Taliban who used it as a base from which to fight the Army. The villagers were often fired upon by the army when the Taliban retreated to their own village and homes. Fighting and attacks became part of everyday life. Often the villagers would ask the Taliban to leave but they would not listen. If the villagers did not comply with the Taliban's orders they would kill them.

   •His home was often on the Taliban side as but his school would be on the Army side. Often students would stop going to school because it was not safe. The Government sometimes closed the school for safety reasons. Because of the strong Taliban presence the Army would often enter the village looking for them and would accuse the villagers of harbouring Ta libs.

   •His father owned property in Logar and the family farmed the land. The Taliban often chose to their land as a key area of control. They took whatever they wanted and the villagers were powerless to stop them.

   •Sometime in 2009/2010, his brother made plans to go to Iran however after he left, the family never heard from him again. He does not know what happened to his brother and his parents became upset when he used to ask about it.

   •In early 2013 when he was about 15 or 16 years old, the Taliban approached and told him he had to join them. They said the Army are not Muslim, that they are working with the American Army and they needed to fight against them. He told them he did not want to join and they said they would give him one week to join or they would not let him live. They slapped him and told him to make the right decision.

   •He told his father what happened. His father took him to Kabul but they worried that Kabul was too close to Logar and he could be located there. His father took out a mortgage on the land to pay a smuggler.

   •The family worried that if the Taliban could not get the applicant they would target his younger brothers.

   •Since he has been in Australia many of his relatives have been killed in his village. The Taliban still control the area. Some of the village leaders had asked the government to help the family but the government advised them they had to protect themselves.

   •He fears being forcibly recruited or killed by the Taliban. He also fears being harmed for reasons of his Tajik ethnicity and his Sunni Islam faith, and due to his status as a young male in Afghanistan, the eldest male in his family, a returnee from the west who will be perceived as a spy who abandoned Islam, a landowner, and someone whose details were published in the 2014 data breach.

   THE AUTHORITY’S REASONS FOR DECISION

5. The Authority accepted that the applicant faced a real chance of serious harm on the basis of his imputed political opinion, arising from his westernised appearance and persona, if he returned to his rural village in Afghanistan. However, the Authority considered that the applicant could reasonably relocate to Kabul.

   LEGAL PRINCIPLES

6. The Minister said in his written submissions that the legal principles applicable to relocation matters are as follows:

   11.Under s 36(2B)(a) of the Act, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that 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.

   12.Whether relocation is possible requires the application of a two-step test:¹ first, whether, objectively, there is no appreciable risk of the feared persecution occurring in another part of the applicant’s country of nationality;² and secondly, if there is no appreciable risk, whether relocation is “reasonable”.³ The Authority’s consideration of the first part of this test is not challenged on this judicial review.

   13. It is well established that “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”.⁴

   14.A broad-brush approach should not be taken by a decision-maker: detailed consideration of the circumstances “on the ground” in the putative place of relocation is required.⁵ “[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”.⁶

   15.However, the Full Court has cautioned against a “checklist” approach to objections. In AHK16 v Minister for Immigration and Border Protection, Mortimer, Moshinsky and Thawley JJ stated (emphasis added):

   An “objection” made by a visa applicant to relocation has no conceptual or statutory status in the task of determining whether the casual element of Art 1A of the Refugees Convention is satisfied. As Mortimer J noted in MZANX, matters raised by a visa applicant (whether by way of “objection” or otherwise) are likely to form part of the framework in which a decision-maker will need to assess the safety and reasonableness/practicability of a person returning to a particular part or parts of her or his country of nationality. However, as her Honour also noted in MZANX, the decision-maker’s task is not completed by ticking off a checklist of matters raised by a visa applicant. Too much focus on “objections” tends to encourage this kind of “checklist” approach, which detracts from an appreciation of the overall task of the decision-maker, and from the Court’s task on judicial review to determine whether the state of satisfaction was lawfully formed: see MZYTS at [46]. 

   16.Relatedly, Beach J has said that it would be “wrong to assert that the Authority had to set out in its reasons a detailed discussion of each and every aspect raised by the appellant concerning relocation. … Further, the level of detail required is partly a function of how the appellant has raised the point and the detail given by him”.⁷ Similarly, Allsop J observed that a decision-maker is not required in addressing relocation “to elaborate on every aspect of its practical operation”.⁸

   :MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; 161 ALD 73, at [35] (Kenny J) (MZACX).

   :SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51, at [14] (Gummow, Hayne and Crennan JJ).

   :Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317, at [25] (French CJ, Hayne, Kiefel and Keane JJ).

   :AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106; 161 ALD 457, at [27] (Mortimer, Moshinsky and Thawley JJ).

   :MZANX v Minister for Immigration and Border Protection [2017] FCA 307, at [55].

   :MZANX v Minister for Immigration and Border Protection [2017] FCA 307, at [55].

   :EHV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 649, at [48] (Beach J).

   :SZJBI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216, at [22] (Allsop J).

   GROUND OF APPLICATION

7. There is only one ground of review in the application filed on 28 August 2017 and amended on 3 February 2022. It is as follows:

   The IAA failed to consider the following required matters, in dealing with reasonableness of relocation:

   a.That the applicant would have to make modifications to his behaviour to avoid harm.

   b.That the applicant would face societal discrimination (on any view).

   a.        modifications to behaviour

8. In rejecting the applicant’s refugee claims, the Authority discussed the risk of criminality in Kabul at paragraph 41 of its reasons for decision and said that:

   [Various factors] will be conducive to [the applicant’s] integration and his ability to take reasonable precautions consistent with those taken by other ordinary civilians in Kabul which would not amount to precluded modifications of behaviour.

9. The applicant argued that, in considering the applicant’s complementary protection claims and whether relocation was reasonable, the Authority was obliged to, but did not, consider whether the need to take precautions in Kabul would render the relocation unreasonable.

10. The Minister argued that, implicitly, the Authority did consider that issue in the context of considering relocation and complementary protection. The Minister relied on paragraph 63 of the Authority’s reasons for decision, where the Authority said:

    I note the representative’s concerns about security risks however I am satisfied that Kabul is under the effective control of the Afghan government and will be so in the reasonably foreseeable future. I found that the risk that he would be harmed through generalised or insurgent violence or criminality is remote. Taking into account the applicant’s overall circumstances and the foreseeable livelihood and security situation in Kabul more broadly (including the overall situation regarding generalised violence and criminality in Kabul), I am satisfied that relocation to Kabul is reasonable in the applicant’s circumstances and I find it would be reasonable for the applicant to remain in Kabul.

11. The applicant’s point was that a finding that the chance of persecution (through criminality) is remote does not address the question of whether relocation would be reasonable in circumstances where a person would have to modify their behaviour to avoid criminality.

12. The Minister argued that it could be inferred that the Authority did implicitly address that question, because:

    It is implausible that the Authority intended to refer to and take into account its earlier findings on criminality when assessing reasonableness, yet somehow overlooked how precautions factored into that finding.

13. I do not find that implausible at all. It seems to me that the Authority could easily have overlooked the taking precautions issue when deciding the relocation issue.

14. The Minister also argued that the Authority clearly considered that the precautions were reasonable. That may be so. However, it does not follow that a relocation where it would be necessary to take precautions would be reasonable. This is so especially in the context that the Authority accepted:

    (a)at paragraph 39 of its reasons for decision, that:

    Civilians have been killed in places of worship, bazaars, and other ordinary places they need to access.

    (albeit that there was no evidence that Tajiks and Sunnis were specifically targeted); and

    (b)at paragraph 41 of its reasons for decision, that:

    … the police capacity to maintain law and order is constrained by a lack of resources, and equipment, poor training, low education levels and corruption.

15. I do not accept that the passage cited by the Minister addressed the question of whether relocation would be reasonable in circumstances where a person would have to modify their behaviour to avoid criminality in Kabul as it was at the time of the Authority’s decision.

16. Alternatively, the Minister argued that the Authority was not obliged to consider the question of whether relocation would be reasonable in circumstances where the applicant would have to modify his behaviour to avoid criminality. The Minister said that was because the applicant did not raise it as an issue. The applicant said that he did not have to, because the issue arose from the materials, being the Authority’s own finding that the applicant would have to take precautions to avoid criminality. I accept the applicant’s argument on this point. It is obviously correct.

17. Nevertheless, the Minister argued that the Authority’s reasonable precautions comment was only a minor basis for its finding that the applicant would not face a real risk of persecution by reason of criminality, and therefore did not need to be considered in dealing with the relocation issue. I do not accept that argument. The Authority found that the applicant would not be targeted by virtue of some his characteristics, and then went on to say that some of his other characteristics would be conducive to “his integration and ability to take reasonable precautions”. I consider that the reasonable precautions comment was a substantial plank of the Authority’s reasoning on this issue. It was not so minor that it did not need to be considered in assessing the reasonableness of relocation.

18. The first aspect of the ground of review is made out.

    b.        societal discrimination

19. Similarly, in assessing the refugee claims, the Authority accepted at paragraphs 37 and 44 of its reasons for decision that the applicant would face low-level societal discrimination but found that it would not amount to persecution. The applicant argued that the Authority was obliged to, but did not, consider societal discrimination when deciding whether relocation to Kabul was reasonable.

20. The Minister argued that the Authority did consider societal discrimination in its assessment of the reasonableness of relocation, although the Authority did not use the term “societal discrimination”. The Minister relied on paragraph 58 of the Authority’s reasons for decision, which is as follows:

    Based on the country information, and having regard to the applicant's submissions through this process, I accept there are economic and other challenges in relocating to Kabul. While there are a greater range of employment opportunities in Kabul than elsewhere, there is also evidence of unemployment and underemployment. 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.I accept that large numbers of IDPs and refugee/returnee populations also settle there, creating additional pressures in terms of accommodation, employment and basic services. I accept these factors would make relocation challenging. However on the information before me about this applicant in his specific personal circumstances, I am satisfied that although the applicant will face challenges, I do not accept the applicant will become destitute or that the challenges would make relocation unreasonable.

    (emphasis added) (footnote omitted)

21. The Minister argued that “other challenges” included societal discrimination. The applicant argued that “other challenges” did not include societal discrimination. The applicant argued that “other challenges” meant, for example, finding a home, living away from family, and adjusting to non-Western behaviours. (These issues were particularly significant, given that the applicant left Afghanistan when he was about 15 or 16 years old, and therefore would not have been entirely familiar with Afghan ways.)

22. I cannot detect anything in paragraph 58, or elsewhere in the Authority’s reasons for decision, that indicates that the Authority did factor in the possibility of societal discrimination to its consideration of the reasonableness of relocation.  The Authority itself noted at paragraph 37 of its reasons for decision that:

    DFAT also indicates that the risk of discrimination may be significantly higher for returnees from western countries who do not maintain a low profile such as by taking steps to conceal their association with the country from which they have returned. I accept the applicant may face some discrimination and that this risk may be increased as a result of his return from a western country…

23. The Authority found that the low level societal discrimination that the applicant might face in Kabul would not amount to persecution. However, that does not mean that low level societal discrimination can be ignored for the purposes of deciding whether relocation to Kabul was reasonable.

24. In any event, the Minister argued in the alternative that the Authority was not obliged to consider societal discrimination in its assessment of the reasonableness of relocation to Kabul because the applicant did not raise the point. However, he did not need to, because the Authority itself made findings that the applicant would face societal discrimination.

25. This aspect of the ground of review is also made out.

    CONCLUSION

26. As the applicant’s ground of review has been made out, the matter will be remitted to the Authority for determination according to law. The Minister will be required to pay the applicant’s costs of the proceeding.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Associate:

Dated:       6 July 2022