ECE17 v Minister for Immigration - [2019] FCCA 1223

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECE17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1223

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – applicant believed but fear of harm found not to be well-founded – whether the Authority failed to make a forward looking assessment of the risk of harm from insurgent groups considered – no jurisdictional error but observations on humanitarian considerations.

Legislation:

Acts Interpretation Act 1901 (Cth), s.25D

Migration Act 1958 (Cth), ss.5H, 5J, 36, 65, 362, 417, 473DD, 473EA

Cases cited:

Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473

AQK17 v Minister for Immigration & Anor [2018] FCCA 3584

Baker v Minister for Immigration [2012] FCAFC 145

CPE15 v Minister for Immigration [2017] FCA 591

CSO15 v Minister for Immigration [2018] FCAFC 14

Minister for Immigration v Guo (1997) 191 CLR 559

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration v Yusuf (2001) 206 CLR 323

SZQXE v Minister for Immigration [2012] FCA 1292

Applicant:

ECE17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2835 of 2017

Judgment of:

Judge Driver

Hearing date:

9 May 2019

Delivered at:

Sydney

Delivered on:

12 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Solicitors for the Applicant:

Ryburn Solicitors

Counsel for the Respondents:

Mr N Swan

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application as amended in court on 9 May 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2835 of 2017

ECE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 15 August 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Afghanistan born in January 1986.[1] He first arrived in Australia at Christmas Island on or about 29 September 2012 as an unauthorised maritime arrival.[2] On 7 March 2016,[3] following the lifting of a statutory bar by the Minister, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).[4] The application included a statement from the applicant dated 1 March 2016 which set out his claims.[5]
[1] Court Book (CB) 40
[2] CB 47
[3] CB 25, 81
[4] CB 25-79
[5] CB 72-75
In support of his application for the SHEV, the applicant raised the following matters:[6]
a)he is a Hazara and Shia Muslim. He was born in Iran, as his father had fled Afghanistan due to persecution he suffered as a Hazara;[7]
b)in May 2012, the applicant was involved in a traffic incident with Pashtuns. They fired a shot at him, which grazed his skin and caused bleeding;[8]
c)a few days before the applicant fled to Australia, a friend of his was killed by the Taliban;[9] and
d)he fears harm from the Taliban or Pashtuns, because of his Hazara ethnicity, Shia religion, being a failed asylum seeker from the west, and for being an Afghan returnee from Iran.[10]
[6] CB 72-75; 145
[7] CB 72
[8] CB 72-73
[9] CB 73
[10] CB 74
On 4 January 2017, the delegate refused to grant the applicant the visa.[11] On 10 January 2017, the delegate’s decision was referred to the Authority for review.[12] On 30 January 2017, a submission was provided to the Authority in support of the applicant’s review.[13] On 15 August 2017, the Authority affirmed the delegate’s decision.
[11] CB 105-123
[12] CB 127-128
[13] CB 145-149

The Authority’s decision

The Authority stated that it had taken into account the applicant’s written submission to the extent that it addressed claims and information before the delegate.[14] The Authority was not satisfied that s.473DD of the Migration Act 1958 (Cth) (Migration Act) was met in relation to country information that pre-dated the delegate’s decision. However, it found that there were exceptional circumstances to justify consideration of a report of Professor Maley dated December 2016 (and took it into account).[15] The Authority also took into account recent new country information on the security situation for Shia Hazaras in Kabul.[16]
[14] CB 172 [3]
[15] CB 172-173 [5]-[12]
[16] CB 173 [13]
The Authority accepted that the applicant was a Hazara and a Shia,[17] and that the applicant was an Afghan national, but was born in Iran.[18] It also accepted that the applicant had spent most of his life in Iran, and had stayed in Afghanistan between the middle and end of 2010, and between April and July 2012.[19] The Authority found that if the applicant returned to Afghanistan, he would return to Kabul and seek to re-establish himself there.[20]
[17] CB 174 [18]; 178 [36]
[18] CB 175 [19]
[19] CB 175 [20]
[20] CB 175 [22]
The Authority accepted the applicant’s claim that he was, in May 2012, involved in a traffic incident and confrontation, which escalated and resulted in him being shot at, causing an injury to his leg.[21] The Authority considered that the confrontation did not occur because of the applicant’s religion, ethnicity, language and/or accent, but instead because of anger about the incident and an exchange of profanities. It did not accept that the applicant was targeted because of his ethnicity, religion or perception that he was not from Afghanistan.[22] The Authority also did not accept that there was a real chance that the applicant would be harmed by the same men if he returned to Kabul, and did not accept that he was denied adequate protection by the authorities.[23]
[21] CB 176 [26]
[22] CB 177 [30]
[23] CB 177 [31]-[32]; [34]
The Authority was satisfied that the applicant would live in the community as a Hazara and Shia, but would not routinely practise his faith. It did not accept that there was a real chance of the applicant being seriously harmed because of his low level adherence to his faith.[24] The Authority observed that the country information did not indicate that ordinary Shia Hazaras were targeted by the Taliban or other anti-government elements in Kabul, but did indicate that ethnic and religious violence in Kabul was rare and that the persons at risk in Kabul were those associated with the government, military, media and international community. The Authority was not satisfied that the applicant had such a profile.[25] It was also not satisfied that there was a real chance that the applicant would be harmed in Kabul by Islamic State (IS) for reasons of his religion or ethnicity, and concluded that there was not a real chance of the applicant being attacked for reason of his ethnicity or religion by the Taliban, IS or any other anti-government element.[26] The Authority also did not accept that the applicant would face a real risk of discrimination in Kabul on account of his ethnicity or religion.[27]
[24] CB 178 [36]
[25] CB 178 [37]; 179 [40]
[26] CB 180 [43]; [47]
[27] CB 180 [45]-[47]
The Authority accepted that there were risks on the roads to “ordinary low profile Shia Hazaras like the applicant”, but was not satisfied that this amounted to a real chance of being seriously harmed.[28] It also considered that the applicant would remain in Kabul if he returned to Afghanistan, and would have no reason to travel outside the city. The Authority was not satisfied there was a real chance of the applicant being harmed on the roads.[29]
[28] CB 182 [55]
[29] CB 182 [56]
The Authority did not accept that there was a real chance that the applicant would be seriously harmed on account of having lived in Iran (or as a returnee from Iran), or that he would be seen and targeted as a foreigner because of his Iranian accent.[30] The Authority also did not accept that there was a risk of the applicant being targeted on account of his time in the west (and a returnee from the west), as a person who had lived in Iran, or as a failed returned asylum seeker.[31] It was further not satisfied that the applicant would face harm on account of any adverse profile, such as being a spy, foreigner, or being affiliated with the government.[32] The Authority also did not accept that the applicant faced a real chance of being unable to subsist, or would become destitute on return to Kabul.[33] It accepted that there were genuine security risks in Kabul, but found that the risk of the applicant being harmed in generalised violence was remote, and that any harm from generalised violence, or the difficult economic situation, would not be for a Refugees Convention reason.[34]
[30] CB 183 [63]
[31] CB 184-185 [68]
[32] CB 185 [68]
[33] CB 186 [77]
[34] CB 187 [78]-[79]
The Authority was not satisfied that there was a real chance of the applicant suffering serious harm and, accordingly, found that the applicant did not meet the definition of refugee in s.5H(1) of the Migration Act.[35]
[35] CB 187 [80]-[81]
The Authority did not accept that any low level discrimination the applicant may experience on return to Afghanistan would constitute significant harm.[36] For the same reasons given in relation to the refugee assessment, the Authority was also satisfied that there was not a real risk that the applicant would suffer significant harm if he returned to Afghanistan and lived in Kabul.[37] It was satisfied that any risk of significant harm arising from generalised violence or difficult economic circumstances was a risk faced by the population generally, and, applying s.36(2B)(c) of the Migration Act, did not amount to a real risk that the applicant would suffer significant harm.[38] Accordingly, the Authority was not satisfied that the applicant met s.36(2)(aa) of the Migration Act.
[36] CB 188 [84]
[37] CB 188 [85]
[38] CB 188 [86]

The present proceedings

These proceedings began with a show cause application filed on 13 September 2017. The applicant now relies upon an amended application filed on 5 October 2017. At the trial of this matter on 9 May 2019, I granted leave for the applicant to further amend the single ground in it to broaden its scope somewhat. In its final form, that ground is:
1. In holding that the applicant did not face a real chance of serious harm from [insurgent groups] on account of his ethnicity or religion (imputed or actual), the Immigration Assessment Authority (IAA) erred in failing to consider the risk faced by the applicant in the reasonably foreseeable future.
Particulars
a. The IAA accepted that the applicant was a Hazara Shia: IAA Decision [18].
b. The IAA accepted that the Taliban were active and “have the capability to orchestrate serious attacks in Kabul”, but found that the Taliban were not targeting Shia Hazaras for reasons of their ethnicity or religion within Kabul: IAA Decision [43].
c. The IAA accepted that “the security situation in Afghanistan is serious and there has been a deterioration in the security situation through the country, including Kabul”: IAA Decision [78].
d. There was information before the IAA that indicated that, in the past, the Taliban had targeted Hazaras: see, eg, material referred to at p 4 of the decision of the Minister’s delegate.
e. In assessing whether the applicant faced a real chance of serious harm from the Taliban on account of his ethnicity or religion (imputed or actual), the IAA did not once refer to the issue of whether the applicant might face such a risk in the reasonably foreseeable future.
The only evidence I have before me is the court book filed on 30 November 2017. Both the applicant and the Minister filed helpful pre-hearing written submissions and made oral submissions through their counsel at the trial.

Consideration

The applicant’s sole ground of review asserts that the Authority, in finding that he did not face a real chance of serious harm from the Taliban, IS or other insurgent groups on account of his ethnicity (Hazara) or religion (Shia), failed to consider the risk faced by the applicant “in the reasonably foreseeable future”.
Whether an applicant has a well-founded fear of persecution on return to their receiving country requires the decision-maker to consider the situation into the reasonably foreseeable future. This was made clear in Minister for Immigration v Wu Shan Liang[39] where the High Court stated:
There is nothing here to suggest that the delegates abandoned the process of looking to the future which is the essence of the Chan test.
…
The Tribunal had expressed the following conclusion:
Looking at the applicant's claims overall, I am unable to find that there is a real chance that he would be persecuted for a Convention reason were he to return at this time or within the reasonably foreseeable future.
[39] (1996) 185 CLR 259 at 278.2 and 279.10
On its face, this is the correct test.
(footnote omitted)
In CPE15 v Minister for Immigration[40] Mortimer J stated:
The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.
[40] [2017] FCA 591 at [60]
An issue before the Authority was whether the applicant, if required to return to Afghanistan, would face a real chance of serious harm from:
a)IS; or
b)insurgent groups other than IS.
As stated above, this required the Authority to consider matters into the reasonably foreseeable future.
The Authority considered:
a)the risk of harm to the applicant from insurgent groups other than IS at [37]-[40][41] and [43][42] which concluded with a finding at [43]:
Based on all the information before me, I find there is not a real chance of the applicant being seriously harmed in Kabul for reasons of his ethnicity or religion, by the Taliban, Islamic State or any other AGE active in this area.
b)the risk of harm to the applicant from IS at [41]-[43][43] which concluded with the same finding at [43].
[41] CB 178-179
[42] CB 180
[43] CB 179-180
The applicant invites the Court to conclude that the Authority overlooked considering matters into the reasonably foreseeable future for four reasons:
a)the Authority has not referred to the reasonably foreseeable future anywhere in its reasons for decision. In the event the applicant has overlooked a brief reference in a paragraph of the Authority’s decision in considering a different claim, it remains the case that the Authority has not referred to the reasonably foreseeable future in discussing the matters above;
b)it is accepted on behalf of the applicant that there is no magic in words. It is not necessary for the Authority to expressly use the words “the reasonably foreseeable future”. However, if one reviews the Authority’s language at [37]-[43],[44] the Authority refers to events in the past and present, but does not use language which suggests it has considered matters into the reasonably foreseeable future;
c)the country information before the Authority indicated that “the security situation in Afghanistan is serious and there has been a deterioration in the security situation throughout the country”.[45] Where the security situation in a country is fluid and deteriorating, it is important for a decision-maker to consider the security situation into the reasonably foreseeable future; and
d)section 473EA of the Migration Act provides:
[44] CB 178-180
[45] at CB 186-187 [78] and CB 182 [55]
If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:
(a) sets out the decision of the Authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
Section 25D of the Acts Interpretation Act 1901 (Cth), titled “Content of statements of reasons for decisions”, provides:
Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
While the contention is arguable, I do not accept it. First, the Authority stated the tests correctly for the purposes of its inquiries into the refugee and complementary protection criterion. Secondly, the language used in its detailed analysis indicates that the Authority did not confine itself to past circumstances or circumstances at the point of the applicant’s return to Afghanistan. Thirdly, while the Authority did not expressly look into any precise point in the future, it was not required to do so and, in the context of the country information available to the Authority about Afghanistan, it was probably not possible to do so. Decision makers are not required to speculate in circumstances where the future is not foreseeable beyond the near point.
These issues are addressed extensively in the Minister’s submissions, with which I agree.
In order to be granted the visa, the Authority had to be satisfied that the applicant met all the criteria for it.[46] One criterion was that contained in s.362(a) of the Migration Act, namely, that the Authority is satisfied that the applicant “is a refugee”,[47] or that the Authority has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that the applicant will suffer significant harm.[48] “Refugee” is now defined in s.5H of the Migration Act and, among other things, requires that a visa applicant have a “well-founded fear of persecution”. That concept is, in turn, defined in s.5J(1) of the Migration Act and requires, among other things, that “there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in [s.5J(1)(a)]”.
[46] see s.65(1) of the Migration Act
[47] section 36(2)(a)
[48] section 36(2)(aa)
This requires a forward looking, or prospective, assessment, about what may happen to the visa applicant on return to their receiving country (here, Afghanistan).[49]
[49] see eg. CSO15 v Minister for Immigration [2018] FCAFC 14 at [23]; Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 at [73]
As Mortimer J held in CPE15 at [59], that inquiry requires speculation about the future “and the period of time throughout which that speculative task must be carried out has been expressed to include so much of the future as is ‘foreseeable’ or ‘reasonably foreseeable’”. Her Honour further observed that “the purpose of the ‘well-founded’ aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical ‘on the ground’ circumstances she or he will be living in”. As Flick J has observed, “when forming a view as to events as they may unfold in the reasonably foreseeable future, reliance may be placed upon past events”.[50]
[50] see SZQXE v Minister for Immigration [2012] FCA 1292 at [8], citing Minister for Immigration v Guo (1997) 191 CLR 559 at 575

Importantly, however, as I have recognised, “it is…unnecessary for a decision maker to specifically refer to the reasonably foreseeable future in making that forward looking assessment”.[51] The real question is whether, as a matter of substance, the Authority has undertaken that forward looking, or prospective, assessment of what may happen to the visa applicant on return.
[51] see AQK17 v Minister for Immigration & Anor [2018] FCCA 3584 at [40]
The Authority in this matter clearly understood the test it was to apply. At [15]-[16][52] of its reasons, it correctly summarised the definition of refugee in s.5H(1) of the Migration Act, as well as observing that there must be a “well-founded fear of persecution”, which required, among other things, that there is a “real chance that the person would be persecuted”. While it is correct that the Authority did not use the phrase “reasonably foreseeable future”, it was plainly not required to do so[53] and the phrase is not, in any event, used in ss.5H or 5J of the Migration Act. The fact that the Authority does not use that phrase does not, of itself, show a misunderstanding or misapplication of the relevant test. The Authority’s reasons should not be read with an eye finely attuned for error.[54]
[52] CB 174
[53] AQK17 at [40]
[54] cf. Wu Shan Liang
The ground of review and the applicant’s submissions allege that the Authority failed to “have regard to the reasonably foreseeable future” in considering whether the applicant faced a real chance of harm from the Taliban, IS or other insurgent groups. The applicant focuses on [37]-[43] of the Authority’s reasons. However, the reasons must be read as a whole,[55] and the discussion at [37]-[43] forms part of the Authority’s assessment, at [35]-[56],[56] of the “risks to the applicant on the basis of his ethnicity, his religion…”, both in Kabul and Afghanistan more generally.
[55] cf. Baker v Minister for Immigration [2012] FCAFC 145 at [43]-[45]
[56] CB 178-182
It is apparent that the Authority did, at [35]-[56] of its reasons, engage in a prospective assessment of the applicant’s risk of harm on account of his ethnicity (Hazara) or religion (Shia) if he were to return to Afghanistan, as it was required to do.
As noted above, the Authority correctly understood the test it was to apply, and it expressed its conclusion at [47],[57] in terms of the applicable statutory test, namely, that the applicant did not have “a well-founded fear of persecution” on account of his ethnicity or religion.
[57] CB 180-181
Further, in its consideration of the complementary protection criteria, the Authority expressly stated that it was assessing whether there were “substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to [Afghanistan], there is a real risk that the person will suffer significant harm” (emphasis added).[58] This also plainly suggests that the Authority was engaging in a prospective assessment, as required. Also, at [85],[59] the Authority, in considering harm under the complementary protection criterion in relation to the applicant’s religion and ethnicity was, in reliance on its earlier findings, “satisfied there is not a real risk that he would suffer significant harm for any of the reasons claimed if he returns to Afghanistan, and lives in Kabul…”. This, too, suggests that the Authority had undertaken a prospective assessment, focussing on what would occur if the applicant returned to Afghanistan.
[58] at CB 187 [82], emphasis added; see also CB 188 [88]
[59] CB 188
Contrary to the applicant’s submissions, the language, expressions and findings used and made by the Authority make it plain that it did engage in a prospective assessment of what the applicant would do and the risk of harm he would face if he returned to Afghanistan.[60] For example:
a)the Authority found that if the applicant went back to Afghanistan, he would return to Kabul and would seek to re-establish himself there, and had “assessed him on that basis”;[61]
b)the Authority considered at [36][62] the applicant’s religious practices and made findings as to how the applicant “would live in the community”, how the Authority “expected” he would practise his faith, and concluded that he “would not be” harmed if he returned;
c)in relation to harm suffered by Shia Hazaras from the Taliban and other anti-government elements, the Authority considered the country information before it as to the risk of harm faced by Shia Hazaras in Kabul; ie. the applicant’s circumstance if he returned. That indicated that “ordinary Shia Hazaras” were not being targeted. The country information also indicated that persons with certain profiles were at risk, but the Authority found that the applicant did not have such a profile and would not if he returned to Afghanistan.[63] The Authority also considered country information put forward by the applicant relating to recent attacks in 2016 and 2017 against Shia Hazaras. The Authority was not, on the basis of this country information, satisfied that the applicant would be at risk of harm if he returned;[64]
d)in relation to IS, the Authority considered relevant country information about their actions, including recent attacks in 2016 and 2017.[65] The Authority noted that casualties caused by IS were decreasing,[66] and that IS was focusing on high profile government, military and coalition targets, ie. not the applicant;[67]
e)relying on country information, the Authority did not accept that anti-government elements were targeting Shia Harazas in Kabul on the basis of their ethnicity and/or religion;[68] and
f)other parts of the Authority’s decision also plainly show that it undertook a prospective assessment of the risk of harm facing the applicant on return to Afghanistan.[69]
[60] again, the Authority’s reasons should not be read with an eye finely attuned for error (cf. Wu Shan Liang)
[61] at CB 175 [22]; see also CB 182 [56]. See also CB 177 [31] and [34], where the Authority considered whether the applicant was at risk of harm from certain men, “if he were to return to live in Kabul”
[62] CB 178
[63] at CB 178 [37]
[64] at CB 179 [40]
[65] at CB 179 [41]-[42]
[66] at CB 179 [41]-[42]
[67] at CB 179 [42]
[68] at CB 180 [43], CB 181 [47]
[69] see eg. CB 180 [46] - discrimination he would suffer if he returned to Kabul; CB 182 [55]-[56] - risk on the roads if he returned to Kabul; CB 183 [63] and CB 183 [68] - risk of harm on account of having lived in Iran or Australia; CB 185 [73]; CB 186-187 [75]-[79] - risk of generalised violence
The applicant’s submission to the Authority refers to country information indicating that the security situation in Afghanistan was deteriorating, which, it is submitted, meant that it was “important” for the Authority to consider the “reasonably foreseeable future”. No error is revealed by this submission. The Authority acknowledged that “there has been a deterioration in the security situation in the country overall…”.[70] That does not, however, mean that the applicant would face a real chance of harm on return to Afghanistan. Having acknowledged this country information, the Authority also considered country information as to the particular risk of harm relevant to the applicant in the areas to which he was returning, and was not satisfied that the applicant would face a real chance of harm there.[71] In doing so, the Authority considered country information (put forward by the applicant) as to recent circumstances and attacks in those areas.[72] No failure to engage in a prospective assessment of the applicant’s risk of harm on return to Kabul has been shown.
[70] at CB 182 [53]; see also CB 186-187 [78]
[71] eg. at CB 178 [37]-[43]
[72] eg. at CB 178 [39]-[42]
The applicant relies on Minister for Immigration v Yusuf[73] at [69], and alleges that the failure to “refer” to the reasonably foreseeable future leads to the inference that this was not considered. However, as noted above, there was no obligation on the Authority to use the phrase “reasonably foreseeable future”. When the Authority’s reasons are read fairly and as a whole, it is tolerably clear that the Authority did engage in a prospective assessment of what the applicant would do and the risk of harm he would face if he returned to Afghanistan.
[73] (2001) 206 CLR 323
I am satisfied that the Authority did make a forward looking assessment concerning the risks faced by the applicant from insurgents. The applicant has not challenged the Authority’s assessment of the risk he faces from generalised violence in Kabul or Afghanistan more generally. That may have been a generous concession, having regard to the fact that the Authority accepted the applicant had been shot during his brief period in Kabul, which might indicate a real risk of significant harm from generalised violence for the purposes of the complementary protection assessment. In a country where firearms are ubiquitous and are openly carried on the street, and in circumstances where the applicant was shot in a random incident of violence because of a traffic incident, the conclusion that he does not face a real risk of significant harm as a result of generalised violence is, to my mind, a somewhat brave one.
This is a matter which the Minister might consider pursuant to s.417 of the Migration Act. Further, there are humanitarian considerations in this case. The applicant was born in Iran as a refugee and spent most of his life there. More recently, he has spent some years in Australia. He has only spent a short time in Afghanistan, in Kabul, where he was shot. Plainly, being compelled to return there is a very unhappy prospect for him.

Conclusion

The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 12 June 2019