DZV18 v Minister for Home Affairs

[2020] FCCA 77

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZV18 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 77

Catchwords:
MIGRATION – Unreasonableness – whether the Authority directed itself incorrectly – whether the Authority relied on country information so unreliable that the Authority’s reliance upon that information is unreasonable – whether the Authority made reasoning errors in determining whether the applicant could subsist in Afghanistan.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 36(2)(aa), 476(1)

Cases cited:

CRI026 v The Republic of Nauru [2018] HCA 19

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: DZV18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 413 of 2018

Judgment of: Judge McNab

Hearing date: 12 September 2019

Date of Last Submission: 12 September 2019

Delivered at: Melbourne

Delivered on: 24 January 2020

REPRESENTATION

Counsel for the Applicant: Mr Draper

Solicitors for the Applicant: D’Angelo Legal

Counsel for the Respondents: Ms Tattersall

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed 31 July 2018 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 413 of 2018

DZV18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application dated 31 July 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 5 July 2018. The Authority’s decision affirmed a decision of a delegate (‘Delegate’) of the First Respondent (‘the Minister’) refusing to grant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (‘the SHEV visa’).

2. This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (‘the Act’) and was heard on 12 September 2019.

3. For the reasons which follow, I have concluded that the application should be dismissed.

Background

1. The applicant is a male Afghani of Hazara ethnicity and of Shia religion. He arrived in Australia as an Unauthorised Maritime Arrival on 20 June 2013.

2. On 8 August 2016, the applicant was invited to apply for either a Temporary Protection (subclass 785) Visa or a SHEV visa.

3. On 12 May 2017, the applicant applied for the SHEV visa. This application was acknowledged on 17 May 2017.

4. On 7 August 2017, the applicant was invited to attend an interview to discuss the application and present evidence (‘the SHEV interview’). A second letter was sent on 17 August 2017 restating that the SHEV interview was scheduled on 21 August 2017.

5. On 18 August 2017, a further letter was sent rescheduling the SHEV interview to 7 September 2017.

6. On 29 August 2017, the applicant’s migration agent sent post-interview submissions in support of the applicant’s claims for protection. It appears that the applicant did attend the SHEV interview, though the date of the SHEV interview is not apparent from the Court Book.

7. On 14 September 2017, the applicant was notified that the Delegate refused to grant the SHEV visa.

8. On 19 September 2017, the applicant’s application was referred to the Authority.

9. On 14 November 2017, the applicant filed further submissions to the Authority.

10. On 5 July 2018, the Authority affirmed the decision under review.

Applicant’s claims to fear persecution

1. The applicant’s claims were set out in his statutory declaration accompanying the SHEV visa application (‘SHEV statement’). As summarised by the Minister’s submissions, these are:

   5.1 He was of Hazara ethnicity and a Shia Muslim.

   5.2 In 1986, his family relocated to Daya village because of “continued discrimination and armed attacks by Pashtuns”.

   5.3 In 1990, his family relocated from Daya village to Tokrik village due to armed conflict between Pashtuns and Hazaras which resulted in the applicant’s paternal uncle (S), being killed.

   5.4 In 1999, the Taliban kidnapped his paternal uncle (Q), who was an active member of the Hizb-e-Wahdat Party. Q was later found dead.

   5.5 In 2005, his family relocated to Ghazni city.

   5.6 He resided in Iran illegally in 1993-1997, 1999-2003, 2005-2006 and 2007- 2008. Each time he was located by Iranian authorities and deported.

   5.7 In 2009, he began working as a private taxi driver.

   5.8 On 11 December 2010, he was transporting four Hazara passengers to Kabul when the car was stopped by the Taliban and searched. The applicant and his passengers were beaten. The applicant was released but his passengers were taken.

   5.9 In 2011, he returned to the construction industry working for a person called M who had obtained a contract from a non-government organisation (NGO). Upon termination of his contract he was required to attend M’s offices in Kabul. On the way to Kabul the car was stopped by the Taliban who located documents relevant to his employment, he was beaten, detained and the Taliban began driving him back to Ghazni province when the car came under fire. The applicant hid and was able to escape.

   5.10 His family urged him not to return home, so he contacted a people smuggler who helped him flee the country.

The Authority’s decision

1. The Authority accepted that the applicant was from the village he claimed and that he was a Shia Hazara. The Authority further accepted that the applicant’s “home area” was Ghazni city, as the Delegate had confirmed this with the applicant at the SHEV interview, and otherwise the applicant had mostly lived in Ghazni city since 2007 and his mother, brother and another brother’s family reside in Ghazni city.

2. The Authority accepted that the applicant’s uncles were killed in 1990 and 1999 as the applicant claimed. It was also accepted that the applicant’s brother has been missing since 2012. The Authority accepted that the applicant had spent time in Iran on numerous occasions, for safety reasons but also due to better job opportunities.

3. The Authority found the applicant’s claims ‘about his interactions with the Taliban in around 2010 and 2012 unconvincing’.[1] The Authority said, in relation to the 2010 incident, that there were inconsistencies between the SHEV statement and the SHEV interview. Notably, in his SHEV statement, the applicant stated the Taliban allowed him to go free, whereas in the SHEV interview, he claimed that he had escaped the Taliban. The Authority noticed a further inconsistency where the applicant had claimed the Taliban took his Taskera in circumstances where the applicant had provided the Delegate with the original Taskera that was issued in 2006 or 2007.

   [1] Authority’s decision record, 5 July 2018, [20].

4. In respect of the 2012 incident, the Authority notes that in a different interview, the applicant stated he was ‘self-employed [as a taxi] driver between 2011/2012 and 2013’.[2] When asked to explain the inconsistency of his claim to have stopped working as a taxi driver in 2012 after the Taliban incident, he stated that his employer told him not to tell anyone who he worked for and thus, he did not declare his true employment history when he first arrived in Australia.

   [2] Ibid [23].

5. After considering the applicant’s claims vis-à-vis his employment history, the Authority rejected that the applicant had adverse attention from the Taliban in 2010 or 2012. The Authority was otherwise not satisfied that the applicant would be identified on return to Afghanistan due to any connection to a non-governmental organisation (whether through employment or otherwise).

6. The Authority did not accept that applicant’s claims made in the SHEV interview that the Taliban had killed his father; noting that the claim had not been made earlier than the SHEV interview.

7. After stating the applicant’s claims (at [29] of the decision record), the Authority considered the country information at [31]-[33]. The Authority stated at [34] of the decision record that:

   Country information before me indicates that the Afghan government does not exercise uniformly effective control over all parts of the country, particularly in rural areas. I note that there have been attacks against Shia Hazaras in parts of Afghanistan in recent years. However, having regard to the country information before me, I find it does not support that Shia Hazaras are currently being targeted and harmed in ethnic or religious attacks, nor for other reasons, by the Taliban, Islamic State or other insurgent groups, in Ghazni city. I accept that the applicant is of the Shia faith; however, he has not claimed that he has ever attended mosques during major Shia festivals, or that he would do so on return. I also note his evidence in the SHEV interview that he does not pray or practise his religion, apart from fasting during Ramadan. I also accept that the applicant previously worked in construction for a contractor who provided services for a NGO; however, I am not satisfied that he will be identified as a person with links to the international community on return to Afghanistan on this basis. In weighing the information before me, I find that while Islamic State appears capable of planning and executing occasional attacks throughout Afghanistan, it remains a limited threat in Ghazni city. When I consider the frequency of attacks against Shias and Hazaras there, and the applicant’s lack of other profile or proximity connected to those in high profile groups, I find the chance that he would be harmed in Ghazni city, or on the roads in or around Ghazni city, due to his ethnicity or religion, or for any other reason, to not rise to a real chance. Further, I am not satisfied that the applicant will be imputed with a political opinion of being anti-Taliban and/or anti-Islamic State, arising from his ethnicity and religion, or for any other reason.

8. The Authority then turned to whether the applicant could subsist if returned to Afghanistan. The Authority at [35] of the decision record found, despite country information indicating unemployment and underemployment is a significant problem in Afghanistan, that:

   the applicant is able-bodied, of working age, and does not present with any health problems or other vulnerabilities that would impact his ability to seek and obtain employment in his home area, a place with which he is familiar

9. The Authority recognised that the applicant would transit through Kabul before driving to Ghazni city. The Authority stated at [42] of the decision record that:

   when I consider the frequency of such attacks, and that the applicant would only be required to make the journey by road once to return to his home area, I consider the chance that he will be involved in an incident or attack on the road, or put at additional risk because of his ethnic or religious profile in such an attack, to be remote.

10. The Authority then considered whether the applicant will face harm when returning to Afghanistan due to his profile as a failed asylum seeker. The Authority was not satisfied that Shia Hazara returnees from Iran or Australia or other Western nations are targeted by insurgents, and therefore, the Authority was not satisfied that the applicant faces a real chance of harm in his home area.

11. In respect of the general security situation in Afghanistan, the Authority stated, at [43] of the decision record, that:

    I find the chance that the applicant would be harmed as a bystander, or inadvertently caught up in an attack, or otherwise harmed through generalised violence is remote. I am also satisfied that any harm the applicant may possibly face in relation to generalised violence would not be for the essential and significant reason or reasons of his race, religion, nationality, membership of a particular social group or political opinion, but rather a consequence of any ongoing insurgency or insecurity present in the country overall. Accordingly, s.5J(1)(a) and 5J(4)(a) of the Act would also not be satisfied.

12. The Authority ultimately concluded that the applicant does not meet the requirements of the definition of refugee in section 5H(1) or meet the requirements of section 36(2)(a) of the Act.

13. For the preceding reasons, the Authority found that the applicant was not owed complementary protection pursuant to section 36(2)(aa) of the Act.

Grounds of review

1. The applicant has one ground of review:

   1. The 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 or suffer significant harm.

   Particulars

   (a) The Authority unreasonably concluded that the Applicant, of Hazara ethnicity and a Shi'a Muslim from Afghanistan, does not face a real chance of persecution or suffer significant harm if he is returned to Ghanzi City, Afghanistan;

   (b) The Authority unreasonably concluded that the Applicant, of Hazara ethnicity and a Shi'a Muslim from Afghanistan, can reasonably be expected to and practicably relocate to Ghanzi City, Afghanistan;

   (c) The Authority misdirected itself and unreasonable concluded that the Applicant, of Hazara ethnicity and a Shi'a Muslim from Afghanistan, does not face a real chance of persecution or will suffer significant harm if he is returned to, alternatively relocated to, and can reasonably be expected to, and can practicably, return, alternatively, relocate to Ghanzi City, Afghanistan. In reliance on and with reference to unreliable country information and failed to pay careful regard to the Applicant's personal and family circumstances.

Applicant’s submissions

1. The applicant, by submissions filed 29 August 2019, asserts that the Authority did not ‘direct itself’ in an appropriate way in order to arrive at a rational conclusion with respect to country information.[3] The applicant, at [12] of his submission, puts it that:

   The [Authority], instead, based its conclusion upon an irrational selection of country information to come to a conclusion that, because the information is in relation to Afghanistan as a whole and not specific to Ghazni city, the information is (somehow) irrelevant and need not be considered.

   [3] Applicant’s submissions, filed 29 August 2019, [11].

2. At [16] of the applicant’s submissions, the applicant impugns the Authority’s decision, stating:

   The [Authority], instead, based its conclusion upon an irrational selection of country and other information, for example, that large urban areas have greater employment opportunities, the Applicant is of working age and in good health and has work experience and skills that lead to the inevitable conclusion that the Applicant does not have a well-founded fear, or that that there is not a ‘real chance’, that he could not subsist, when and despite there being high unemployment and underemployment in Afghanistan.

3. It is said because the unemployment and underemployment rate in Afghanistan is high, it is illogical to conclude that a person will find such work.

4. The applicant says that the Authority has relied on information so unreliable that the Authority’s reliance upon it is unreasonable. The applicant relies on CRI026 v The Republic of Nauru [2018] HCA 19 (‘CRI026’) at [39] for this proposition, where Kiefel CJ, Gageler and Nettle JJ state:

   […] 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.

5. The applicant says, then, that this Court must ‘undertake an evaluation as to the accuracy and reliability of the country information considered by the Authority’.[4] As put by the applicants at [24] to [26] of the submissions:

   We submit that CRI026 extends the Court’s jurisdiction to review for jurisdictional error in that the Court must undertake an evaluation as to the accuracy and reliability of the country information considered by the Authority.

   The Full Court explained in Minister for Immigration and Border Protection v Singh [[2013] FCAFC 1] that the process of review of legal reasonableness “will inevitably be fact dependent” and the role of the supervising Court only involves a scrutiny of the factual circumstances in which the power comes to be exercised.

   We further submit that CRI026 read in the context of Singh requires the Court to scrutinise the factual circumstances upon which the Minister exercises his/her power to test those facts and circumstances for reliability. To put it simply: a decision to return an Applicant can only be reasonably made if that decision is made with regard to reliable information – consideration of unreliable information is unreasonable.

   [4] Ibid [20].

Minister’s submissions

1. The Minister submits that if the applicant is claiming the finding of the Authority to be unreasonable, that the threshold as set out in [131] of Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (Crennan and Bell JJ) (‘SZMDS’) is not met. Moreover, the Minister submits at [26] of their primary submissions (dated 22 August 2019) that even if an aspect of the reasoning was irrational or illogical, a jurisdictional error is not established ‘if that reasoning or finding of fact was not critical to the ultimate conclusion or end result’.

2. In relation to the Authority’s findings in relation to the risk of harm in Afghanistan, the Minister submits (at [28] to [31] of their primary submissions) that those findings were open to the Authority as:

   28 First, it is apparent that the Authority gave detailed consideration to a wide range of country information (CB 219–224, [30]–[35], [37]–[43]) in finding that the applicant did not face a real chance of harm in, or in accessing, Ghazni city (CB 223, [40]; CB 224, [42]).

   29 Second, the applicant’s ground appears to largely focus on the manner in which the Authority relied upon “country information” in reaching the conclusions as to the risk of harm in the applicant’s home area. Subject to the principles of legal unreasonableness, the identification of relevant country information, and the weight to be attributed to it, was a matter for the Authority. As the Full Court of the Federal Court held in NAHI at [14]:

   The question of the accuracy of the ‘country information’ is one for the Authority, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.

   30 Third, to the extent that the applicant seeks to rely on CRI026 v The Republic of Nauru (CRI026) that case does not stand for the proposition that the Court is required to undertake an evaluation as to the accuracy and reliability of the country information considered by the Authority. In that case, consideration was given to the appellant’s argument that the availability of reasonable internal relocation was irrelevant to the assessment of complementary protection. It was in that context that the Court accepted the need for reliable information as to the safety and suitability of the place of relocation before a decision maker could properly reject a claim for complementary protection on the basis of the availability of internal relocation. The Court in CRI026 did not engage in an assessment of what constituted “reliable information” or otherwise endorse the Court undertaking its own assessment of the information before the decision maker. Accordingly, CRI026 does not displace or extend the principles established in NAHI.

   31 Fourth, it cannot be said that only one conclusion was open to the Authority when reviewing the delegate’s decision, namely, to accept the applicant’s claims (or, more specifically, the applicant’s view of the preferred conclusion to be drawn from the country information before the Authority). Nor can it be seriously contended that the impugned findings were not open to the decision maker (albeit, the applicant may not agree with them). As Griffiths J said in Stretton at [74], “to describe reasoning as unreasonable (or irrational) may merely be an emphatic way of disagreeing with it.” The Court’s task in determining whether a decision is vitiated for legal unreasonableness is “strictly supervisory”, and it “does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision.”

   (footnotes omitted)

1. The Minister submits that, with respect to the applicant’s claims that the Authority ‘did not direct itself’ appropriately, that:

   a)first, the applicant does not identify what the appropriate direction was or why that direction was necessary;

   b)second, ‘it cannot be accepted that the Authority failed to consider country information that may have supported the applicant’s claims’;[5] and

   c)third, consistent with NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (‘NAHI’), it is for the Authority to weigh country information and to make findings.

   [5] Minister’s supplementary submissions, filed 9 September 2019, [11].

2. The Minister submits that this means there is no error in the Authority’s decision.

3. The Minister responds to [12] of the applicant’s submissions which state:

   The [Authority], instead, based its conclusion upon an irrational selection of country information to come to a conclusion that, because the information is in relation to Afghanistan as a whole and not specific to Ghazni city, the information is (somehow) irrelevant and need not be considered. And it was not considered.

4. The Minister says that the Authority did not make such findings that the applicant attributes to it. The Minister says the Authority ‘embarked on an entirely rational process of reasoning’, considered Department of Foreign Affairs and Trade (‘DFAT’) information, and where the country information did not ‘indicate a level of risk for Shias living in the applicant’s home region [the Authority] then went on to consider the country information specific to that region’.[6]

   [6] Ibid [16].

5. In response to the applicant’s assertion that a real chance of persecution is not a matter of statistical probability, the Minister agrees. To the extent that the complaint is seeking the Court to review the Authority’s decision, the Minister says that is impermissible merits review.

6. The Minister says the applicant’s characterisation of the Authority’s reasoning that the applicant could subsist in Ghazni city is not correct. The Minister says the Authority’s reasoning is not fairly characterised as simply as: ‘as the applicant was capable of working and had workplace skills he would, as an able bodied person, necessarily be employed’.[7] The Minister, at [20] of the supplementary submissions, says that:

   20 The Authority’s finding that the applicant would not be denied employment or the capacity to subsist on return was open to the Authority on the material before it and based on:

   20.1 country information as to employment opportunities and main sectors of employment;

   20.2 the applicant’s employment history and skills;

   20.3 the applicant’s circumstances and particularly lack of health problems and other vulnerabilities and familial ties; and

   20.4 the submission that the applicant would, if located elsewhere, be required to travel to Ghazni city for employment.

   [7] Ibid [19].

Consideration

1. A central plank of each of the submissions made by the applicant in support of the particulars to the single ground are based on the view that CRI026 mandates the Court to embark on an evaluation of the accuracy and reliability of country information considered by the Authority.

2. It is not apparent that CRI026 is authority for that proposition. As explained at [38]-[39] of CRI026:

   [38] Counsel for the appellant further contended, in substance, that it logically could not be that the availability of reasonable internal relocation is relevant to the assessment of complementary protection, for, if it were, 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.

   [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 & 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 applicants 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.

   (footnotes omitted)

3. In this matter, the Authority referred to a range of DFAT thematic reports which were relevant to the grounds raised by the applicant before it. The applicant has pointed to no basis on which it could be said that the country information produced by DFAT was unreliable.

4. The Authority had current country information provided by DFAT and considered that information against the particular circumstances of the applicant as it was required to do.

5. The applicant is inviting the Court to conduct its own review of the reliability of country information prepared by DFAT. It was said by the Full Court in NAHI at [14] that:

   In their original application for a protection visa, the appellants placed before the Minister’s delegate ‘country information’ of their own, from a variety of sources. The Tribunal appears to have had this material before it, by way of the file of the Department of Immigration and Multicultural and Indigenous Affairs. The appellants’ submissions to this Court complained that the Tribunal did not comment on this material. The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.

6. I also note the oft referred to passage at [11] of the same decision to the effect that the question of the accuracy of the country information is one for the Authority and not for the Court:

   […] The weight that [the Tribunal] gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

7. The applicant, at [2] of his submissions, purports to summarise the Authority’s findings where it has relied on country information. Parts of that summary are based on selective quotes or incomplete précis of the findings. For instance the applicant summarises [31] of the Authority’s decision as follows:

   a. several attacks have been conducted by AGE’s in Ghazni city between 2015 and 2016, primarily targeting security and military post, prominent religious figures. The Court and DFAT reported that persons with links or perceived links to the government are at high risk of violence (CB 220, [31]);

8. The Authority’s decision at [31] of the decision record states:

   31. Sources indicate that several attacks have been conducted by anti-government elements (AGEs), primarily the Taliban, in Ghazni city between 2015 and 2016. The targets of these attacks included security and military posts, a prominent religious cleric who administered a school, and a provincial court. Despite these attacks, Pajhwok Afgan News reported in May 2016 that, due to security fears in their own districts, 11 district chiefs of Ghazni Province lived and worked in Ghazni city. In October 2016, Afghanistan Analysts Network (AAN) reported that the Taliban had convincingly spoken out against sectarianism and stayed away from violence that could stir sectarian hatred. DFAT, the UK Home Office and the UNHCR assess that individuals with links (or perceived links) to the government and/or international community are at high risk of violence from AGEs in Afghanistan.

   (citations omitted, my emphasis)

9. The summary provided by the applicant fails to make reference to the highlighted part of [31] of the Authority’s decision record. The highlighted part qualifies the part that the applicant refers to.

10. I do not make this observation to suggest that the applicant is seeking to mislead the Court, but to make clear that the Authority’s decision is more nuanced than suggested by the applicant’s summary. For instance, the applicant challenges the finding at [35] of the Authority’s decision record where the Authority was not satisfied that there were vulnerabilities or barriers that would deny the applicant a capacity to earn a living in Ghazni city or that he would be denied employment or services that would threaten his capacity to subsist. The Authority, at [35] of the decision record, noted DFAT country information indicated that ‘unemployment and underemployment is high in Afghanistan’. The Authority, again at [35] of the decision record, further referred to country information from the review material that indicates that large urban areas in Afghanistan offered greater opportunities for employment than many other areas. The Authority’s decision in relation to the applicant’s prospects for finding employment in Ghazni city is not illogical or irrational.

11. The Authority’s decision is not one that is illogical or irrational. Whilst another decision-maker may have reached a different view as to the level of risk that the applicant was exposed to, the reasoning of the Authority in [31] to [35] of the decision record indicates that the Authority has considered the applicant's claims, the Authority has referred to and has analysed country information, and then the Authority has reached a conclusion which is supported by that analysis. The Authority’s decision is not one that can be said to be illogical or irrational as described in SZMDS.

Conclusion

1. For these reasons, none of the particulars in the applicant’s ground for judicial review reveal jurisdictional error on the part of the Authority. Accordingly, the application should be dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  24 January 2020