Egf20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2022] FedCFamC2G 207

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EGF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 207

File number(s): MLG 3623 of 2020

Judgment of: JUDGE EGAN

Date of judgment: 24 March 2022

Catchwords: MIGRATION – application for safe haven enterprise visa – no illogicality or legal unreasonableness established – no error in construction of s. 91W of the Act – no failure on the part of the Authority to properly consider all of the applicant’s claims – no jurisdictional error established – application dismissed.

Legislation: Migration Act 1956 (Cth) ss. 473CB, 5H(1), 5J, 36(2), 36(2A), 473DC and 91W

Cases cited:
ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407

Minister for Home Affairs v DUA16 & Anor (2020) 385 ALR 212.

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210

Division: Division 2 General Federal Law

Number of paragraphs: 56

Date of last submission/s: 18 February 2022

Date of hearing: 3 February 2022

Place: Brisbane

Counsel for the Applicant: Mr A White

Solicitor for the Applicant: Clothier Anderson

Counsel for the First Respondent: Mr J Byrnes

Solicitor for the First Respondent: Minter Ellison

Counsel for the Second Respondent: Submitting appearance save as to costs
ORDERS

MLG 3623 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
EGF20

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE EGAN

DATE OF ORDER:

24 MARCH 2022

THE COURT ORDERS THAT:
1.The Further Amended Application for Review filed on 16 July 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Further Amended Application for Review, fixed in the amount of $7,467.00.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 EGAN
Introduction

The applicant claimed to be a 39 year old citizen of Afghanistan who identified as a Hazara Shia Muslim. He had, prior to his arrival in Australia in 2012, been included in Offshore Humanitarian Visa and Orphan Relative Visa Applications which were refused subsequent to their making.
The applicant arrived at Christmas Island in 2012 as an unauthorised maritime arrival. In his entry interview, it was recorded that the applicant had resided in Iran between 1997 and 2012, before travelling to Pakistan where he stayed for a 1.5 month period. The applicant then legally flew into Sri Lanka where he stayed for a period of 4 months before travelling to Indonesia. In Indonesia he boarded a vessel which, after putting to sea, was intercepted off Christmas Island.
On 28 October 2016, the applicant applied for a Safe Haven Enterprise Visa.
On 15 July 2020, a delegate of the Minister refused the visa application.
The decision of the delegate was referred to the Immigration Assessment Authority (the Authority) for review. On 3 September 2020, the Authority affirmed the decision of the delegate not to grant the visa.
At [4] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s.473CB of the Migration Act 1958 (Cth) (the Act).
At [17] of its reasons, the Authority set out the applicant’s claims for protection as follows:
•The applicant is a Shi’a Muslim of Hazara ethnicity from [place omitted] village, Jaghori district, Ghazni Province, Afghanistan. He is a citizen of Afghanistan and no other country.
•His maternal uncle and grandfather went missing when he was a child. They are presumed to have been killed by the Taliban.
•Due to the security situation and Taliban targeting of Hazara Shi’as, he fled to Iran where he lived unlawfully, without any regularised status for a number of years. He was deported to Afghanistan in late 2011 or early 2012. He travelled to Kabul with some other deportees and upon realising how poor the security situation was, he left for Pakistan within the month and commenced his journey to Australia out of Quetta.
•While his wife and daughter and his wife’s parents reside in Iran as registered refugees, he has no right to re-enter and reside there.
•He fears returning to Afghanistan. He fears that being a Hazara Shi’a Muslim who has lived several years in Iran and Australia, he will be discriminated against and will be targeted and harmed and/or killed by the Taliban and other anti-government elements (AGEs). He believes they will target him because of his race and religion and because he will be imputed as having a political opinion in support of Shi’a militia and opposed to Taliban/Sunni extremist groups.
The Authority did not consider that the applicant had given consistent accounts during the course of the visa application process. It set out its concerns at [18] – [27] inclusive of its reasons as follows:
‘[18]The applicant has consistently claimed: He is an Afghan Hazara Shi’a who fled Afghanistan and still fears the Taliban and Sunni extremists. He lived for some period in Iran but held no legal or regularised status there and has no right to re-enter or reside there. His daughter was born in Iran in 2009. His wife and daughter and wife’s parents still live there as registered refugees along with his disabled sister, ‘M’ for whom they care. He was deported from Iran to Afghanistan in late 2011/early 2012, spent around a month in Kabul and then commenced his protracted journey to Australia, which took more than a year.
[19]However, there are numerous issues the applicant has not been consistent on, or forthcoming about.
[20]Initially, in his Entry interview and SHEV application, the applicant claimed he had never previously applied for an Australian visa. He claimed to have been an only child born in around 1982, orphaned from a young age and raised by his grandmother until he was a young teenager sent to work for other families. He lived and worked for other families in Nahur, Afghanistan and fled from there to Iran in 1997 (when he was around 15). He got married and had his daughter in Iran and lived and worked there illegally until he was deported in about December 2011. Much of this detail was also echoed in a statutory declaration provided in November 2016 and the pre-interview submission in July 2019. However, throughout the course of two SHEV interviews (where the applicant was put on notice as to the department’s numerous concerns) and through further bundles of statements, submissions and information provided following the interviews, it transpired that much of this was untrue.
[21]It became evident that the applicant was joined as a dependent applicant in two previous offshore visa applications, that his parents had survived until 2006 and 2011 (well into his adulthood) and that he has several siblings including at least three in Australia, one in Iran and one in Afghanistan. It also became evident that the applicant had given false and misleading information on multiple occasions regarding various other aspects of his background and identity. This is reflected in the review material which contains multiple variations of the applicant’s name11 and date of birth (DOB),12 his parents’ names13 14 and his grandfather’s name.
[22]Throughout the SHEV process, the applicant also gave differing information as to when he met and married his wife and how long they knew each other before they married16and when she and her family moved from Afghanistan to Iran. There are also notable discrepancies surrounding the circumstances and timing of the applicant’s claimed departure from Afghanistan to Iran.18 His later proffered claim is that he departed with his mother and siblings around 2008/9 but this discordant with his claims he met and married his wife in Iran and his marriage certificate indicating they married in Iran in 2007. The applicant’s response to this is that there must be an error either in the original document or in the translation, but no ‘correct’ translation or further clarification on the matter was provided subsequently and it still has not been satisfactorily explained. The most recent submission provided to the delegate (on 17 January 2020) referred to the applicant’s poor ability to recall dates. It stated the applicant was unsure of the year he entered Iran but within the year of arriving there, he got married and had his daughter (who was born in May 2009). Again, this does not account for the date on the marriage certificate. The submission to the IAA notes the applicant “….certainly resided in Iran since at least 2008/09”. However, the applicant has provided little information around his claimed life in Afghanistan in the 15 or more years leading up to 2008/09, in contrast to the more detailed descriptions he had given regarding this period in Iran at earlier stages of the SHEV process when he was claiming he arrived there in 1996/97.
[23]As alluded to already, issues have also arisen around documentation. In addition to the disputed date on the marriage certificate, his daughter’s birth certificate suggests he was born in 1987 (not 1982 as he claims). There are also significant issues surrounding whether the applicant ever had a taskera or passport before coming to Australia and with the authenticity of the taskera he obtained and produced in response to the department’s request for documentary evidence of his identity, nationality or citizenship under s.91W of the Act (discussed below).
[24]The applicant was put squarely on notice of the department’s concerns as to the applicant’s identity. While various statements and submissions have been made purporting to correct information, and to clarify and explain the issues that have arisen, I do not necessarily find the later evidence to be any more convincing than that provided earlier and a number of issues still remain unresolved.
[25]As to my conclusions, I accept the applicant’s claimed first name but whether he has a surname/family name, and what that is precisely, I cannot determine. Nor can I determine with any certainty his DOB or, even an approximation of the year, beyond it being sometime in the 1980s or early to mid 1990s. There is no reason to dispute his claimed ethnicity and religion. I accept he is of Hazara ethnicity and a Shi’a Muslim. I am prepared to accept the applicant was born in Jaghori, Afghanistan, noting he has consistently claimed this, and placing some weight on the information in the offshore application files indicating his siblings were also born and lived there, and noting they were issued Afghan passports in 2011. I cannot determine when the applicant went to Iran, but I accept the representative’s submission that he was there from at least 2008/09.
[26]Weighing my acceptance as to the applicant being Hazara and Shi’a and of a family who originates from Jaghori district in Ghazni province, Afghanistan and absent any reliable positive evidence of Iranian citizenship or residency, I find that Afghanistan, rather than Iran, is the applicant’s receiving country. I also accept his claims regarding his wife and daughter’s and sister’s status and circumstances in Iran and that he was deported back to Afghanistan in 2011/12.
[27]As a returnee, the applicant would be returned initially to Kabul. However, the applicant claims he was born and resided in Jaghori before leaving Afghanistan. He has a sister in Afghanistan, but he claims they have lost contact and there is nothing before me indicating that she or any other relatives are in Kabul. The applicant referred to living and working in Nahur when he was young but there are no indications he remained there into his adulthood. I am not satisfied the applicant has close ties or connections in Kabul, Nahur or any part of Afghanistan other than Jaghori. I note the submission to the IAA refers to the applicant’s home area being in Ghazni Province, and that submissions were made about the security situation in Jaghori and Ghazni. I find that Jaghori is the place to which he would return and reside.’
At [31] – [32] of its reasons, the Authority set out what constituted a person as a refugee under s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.
At [33] of its reasons, the Authority recorded that it was [not] [1] satisfied on the evidence before it that the applicant had a known profile, or was of any adverse interest to anyone in Afghanistan. It found that the applicant did not face a real chance of harm in relation to the claims raised by him, nor for any reason connected to the disappearance or death of his grandfather and uncle. The Authority was also not satisfied that the applicant faced a real chance of being sought out and harmed by any militant group, or anyone else in Afghanistan.
[1] The Court infers that the word ‘not’ was omitted from the first line of the paragraph before the word ‘satisfied’.
Application for Review
On 8 October 2020, the applicant filed an Originating Application for Review of the decision of the Authority.
At the hearing before the Court, the applicant relied upon a Further Amended Application for Review filed on 16 July 2021, the grounds of which were as follows:
1. The Authority constructively failed to assess the Applicant’s claims against s. 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
Particulars
The Applicant claimed to fear harm in Afghanistan as a Shia Hazara, including from the Taliban. The Authority assessed these claims against s 36(2)(a) of the Act and concluded that there was no real chance that the Applicant would be harmed due to his religion or ethnicity: [34]-[44] of the Authority’s reasons.
In reaching that conclusion, the Authority accepted that there had been many incidents of violence carried out by the Taliban, including in the province incorporating the Applicant’s home region. However, it was ‘not satisfied that the Taliban had engaged in ethnic and religious targeting’ so as to establish a nexus between these incidents and the Applicant’s ethnic and religious identity: [42].
On the same basis, the Authority concluded that the Applicant did not face a real chance of serious harm arising from his ethnic or religious identity while travelling from Kabul to his home region by road: [59]-[67].
The Authority did not revisit these matters in assessing whether the Applicant faced a real risk of significant harm under s 36(2)(aa) of the Act: [73]-[80]. In particular, the Authority failed to consider whether the Applicant faced a real risk of significant harm from violence and insecurity in Afghanistan regardless of whether there was a nexus between that risk and his religious and ethnic identity.
2.The Authority made a finding without evidence, constructively failed to consider the Applicant’s claims, or made an unreasonable or illogical finding.
Particulars
In concluding that the Applicant did not face a real chance of serious harm on the basis of his ethnic or religious identity, the Authority accepted country information indicating that ‘Shias face a high risk of being targeted… when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals’: [36].
However, the Authority concluded that ‘[t]he applicant has not claimed he has any intention or interest in attending large gatherings, demonstrations or festival/commemorations or spending time in the cities’: [37].
In circumstances where the Applicant had indicated (and the Authority had accepted) that he was a Shia Muslim, and the Applicant had drawn attention to the chance or risk of harm that he may face in various major cities in Afghanistan, there was no basis in the material before the Authority for it to assume that he had no intention or interest in attending large gatherings of the kind described, or spending time in cities.
The Authority’s conclusion indicates that it has either misapprehended the Applicant’s claim, or reached a convenient finding that had no evident or intelligible basis and no basis in the material before it.
3.The Authority constructively failed to consider the Applicant’s claims relating to his family unit.
Particulars
The Authority accepted that the Applicant had a wife and daughter in Iran. The Authority acknowledged that the Applicant had claimed to fear that his family members may be harmed, but concluded that he would not face significant harm on this basis: [78].
There was no evidence before the Authority that the Applicant’s wife and daughter would or could return to Afghanistan were he to do so.
The Authority failed to consider whether the Applicant’s forced separation from his wife and child, in the event that they did not return to Afghanistan, may in itself constitute significant harm per s 36(2A) of the Act. It further failed to consider whether, in the event that they did return to Afghanistan, this may give rise to a chance or risk of harm to the Applicant (for example, by virtue of severe financial hardship or an inability to subsist).
4. (Abandoned).
5. The Authority made an unreasonable or illogical finding, or constructively failed to consider the material before it and/or the Applicant’s claims.
Particulars
In concluding that the Applicant did not face a real chance of serious harm from the Taliban as a Shia Hazara, the Authority relied on the Taliban’s own public statements denying that it was actively targeting civilians based on race, ethnicity or sect, and disavowing or denouncing incidents targeting Shia Hazaras: [40]-[42]. The Taliban is the claimed agent of persecution and an accepted terrorist/insurgent group by the Australian government.
The Authority’s reliance on the Taliban’s statements lacks an evident or intelligible basis and indicates a failure to engage in active, intellectual consideration of that material and/or the Applicant’s claims.
6.The Authority constructively failed to consider the Applicant’s claims or made a finding without evidence, and unreasonably failed to exercise or consider exercising its discretion pursuant to s 473DC of the Act.
Particulars
The Authority assessed the Applicant’s claim on the basis that if he were returned to Afghanistan, he would return to and remain in rural Jaghori: e.g., [37]. The materials before the Authority provided no basis for that assumption—indeed, the Authority accepted at [27] of its reasons that the Applicant had ‘no close ties or connections to Jaghori’—and the Delegate had not assessed the Applicant’s claim on that basis.
In the circumstances, the Authority ought to have exercised or considered exercising its discretion under s 473DC of the Act in order to indicate to the Applicant that it would assess his claim on this basis and invite comment from him. Having not done so, the Authority had no basis for its assumption that the Applicant would return to and remain in rural Jaghori.
7.The Authority unreasonably failed to exercise or consider exercising its discretion pursuant to s 473DC of the Act.
Particulars
The Delegate assessed that the Applicant had provided a reasonable explanation for providing a ‘bogus document’ under s 91WA of the Act: CB 516.
The Authority assessed that the Applicant had not provided a reasonable explanation for providing a ‘bogus document’ under s 91WA of the Act: [81]- [93].
In the circumstances, the Authority ought to have exercised or considered exercising its discretion under s 473DC of the Act to indicate that it was contemplating a departure from the Delegate’s finding and invite comment from the Applicant. Its failure to do so was legally unreasonable.
8.The decision of the Authority was affected by jurisdictional error because it considered itself prohibited from granting the visa by s 91W(2) of the Act when a factual precondition of the prohibition, the Applicant not having a reasonable explanation for providing a bogus document (s 91W(2)(c)), did not exist.
Particulars
A.On 31 October 2016, the Minister’s Department (Department) wrote to the Applicant requesting documentary evidence of his identity under s 91W(1) of the Ac): CB279.
B.On 15 July 2019, the Applicant provided a Taskera in response to the s 91W(1) request: CB395-403.
C.The Taskera had been obtained irregularly by the Applicant’s father- in-law and thus met the definition of “bogus document” in s 5 of the Act: CB453.
D.On 27 November 2019 (CB435) and 6 December 2019 (CB450, CB468) the Applicant provided evidence and submissions explaining why the Applicant had provided the bogus Taskera.
E. The explanation was, as a matter of fact, reasonable.
F.In the premises, the factual precondition of the prohibition in s 91W(2) did not exist.

As to Ground 1 of the Further Amended Application for Review, it was asserted that the Authority had constructively failed to assess the applicant’s claims against the complementary protection criteria as set out in s. 36(2)(aa) of the Act. It was claimed that though the Authority had, under s. 36(2)(a) of the Act, assessed the Applicant’s claims that he feared harm in Afghanistan as a Shia Hazara, it had not assessed whether the applicant faced a real risk of significant harm under s. 36(2)(aa) of the Act. It was claimed that the Authority had failed to consider whether the applicant faced a real risk of significant harm from violence and insecurity in Afghanistan ‘regardless of whether there was a nexus between that risk and his religious and ethnic identity’.
First, the Authority did address what constituted the relevant s. 36(2)(aa) complimentary protection criteria at [73] of its reasons, as well as what constituted ‘significant harm’ under s. 36(2A) of the Act at [74] of its reasons. It could not be said that the Authority had failed to acknowledge that it had to take such matters into account before arriving at its decision.
Second, at [34] – [46] inclusive of its reasons, the Authority first acknowledged that the applicant feared being targeted by reason of his Hazara Shia identity. The Authority then carefully considered country information and accepted that Shias’ faced a high risk of being targeted by ISKP (Islamic State in Khorasan Province) and other militant groups by reason of their religious affiliation when assembling in large and identifiable groups (such as during demonstration or when attending mosques during major religious festivals), and that the risk increased for those living in Shia majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat. The Authority found at [37] – [38] of its reasons that the applicant would not be exposed to a high risk of harm, saying as follows:
‘[37]The applicant has not claimed he has any intention or interest in attending large gatherings, demonstrations or festivals/commemorations or spending time in the cities. Nor has shown any interest in political activism or taking up a profession which would be of interest to insurgent groups. Notably, he would be returning to rural Jaghori, which is a relatively secure Hazara majority district within the Hazara dominated Hazarajat region.22 DFAT does not indicate a level of risk for Hazaras/Shi’as living in Jaghori or any part of the Hazarajat however it does note the security situation in the Hazarajat has been considerably better in recent years than in most other parts of Afghanistan in part because Hazaras make-up the vast majority of the population there. According to DFAT, this ethnic homogeneity provides fewer opportunities for ethnic tension and as Hazaras are visually distinct, non-Hazaras have found it difficult to infiltrate these areas without detection.23
[38] There is no evidence of an ISKP presence in Jaghori, or ISKP attacks being carried out in Jaghori, nor other mass casualty attacks of the same kind. The evidence does not suggest that the applicant would be residing in or frequenting areas where ISKP or other unidentified perpetrators have recently targeted Hazara/Shi’as, or that he would be attending the kind of places or events that have been deemed higher risk.’
At [39] – [46], when finding that the country information before it did not support the proposition that Hazara Shias’ in Jaghori would generally face targeted attacks or serious harm from the Taliban or other militant organisations, it said as follows:
‘[39]I have had regard to the high rates of insurgent (mainly Taliban) activity and the correlating high number of security incidents in Ghazni province. 2018 and early 2019 saw particularly active fighting as the Taliban sought to expand their control in the province, even briefly capturing the provincial capital in August 2018. As the representative has submitted, security conditions also deteriorated in and around Jaghori district. In late October 2018 many Hazara families were displaced due to fighting between the Taliban and a Hazara former Afghan Local Police (ALP) commander in Khas Uruzgan (in neighbouring Uruzgan province) and in November 2018, the Taliban launched major offensives leading to protracted fighting and massive displacement in the otherwise peaceful Jaghori and Malestan. Roads connecting those districts to Ghazni City were also reportedly blocked, preventing travel and closing off supply routes, leaving civilians in siege-like conditions. According to UNAMA, the Taliban was responsible for 26 civilian casualties (20 killed, six injured) in Jaghori and 11 (four killed, seven injured) in Malestan during the offensive, while dozens more casualties had likely lost their civilian status due to directly participating in the hostilities. Pro-government forces successfully fought back in large scale operations, ending the conflict by 19 November 2018, and had pushed the Taliban out of Jaghori and Malestan by late November.
[40]In response to accusations that its offensives were ethnically motivated, in November 2018 the Taliban issued a public statement denying that it was actively targeting civilians based on specific race, ethnicity or sect. Radio Free Europe/Radio Liberty (RFE/RL) and the Afghanistan Analysts Network (AAN) interpreted the attacks as an attempt to gain a foothold among Hazara communities and integrate Hazara fighters into Taliban ranks, following their successful takeover of ethnic Tajik and Uzbek areas in northern Afghanistan, but as RFE/RL noted, the Taliban’s past atrocities against Hazaras presented likely barriers. Professor William Maley on the other hand, opined there was no military significance to the November 2018 offensives, suggesting they make more sense if seen as “…a symbolic strike designed to highlight the inability of the Afghan state effectively to protect members of a vulnerable ethnic and sectarian minority, and as punishment for the relatively tolerant and liberal lifestyle of these communities, far removed from the puritanical extremism of the Taliban.” Sources also reported that the government’s response was perceived as too slow, fuelling fears of ethnic targeting and an anti-Hazara bias of the government. Hazara representatives started to mobilise their own forces to defend Jaghori and Malestan and Hazara activists protested against the government in Kabul in 2018, urging for more effective measures to restore security in the districts under threat. This protest was targeted with an explosion that killed at least six people and injured more.
[41]At the end of November 2018, AAN considered there was still a threat of renewed attacks. Drawing from Professor William Maley’s and Niamatullah Ibrahim’s comments of November 2018, the representative submitted in July 2019 that the November 2018 attacks had the potential to aggravate political and security conditions and (regardless of the Taliban’s exact objectives) to escalate the ethnic and sectarian dimensions of the conflict. The representative emphasised the “extraordinarily fluid” nature of security situation and submitted “...the current climate, since the coordinated Taliban assault on Jaghori in November 2018, is an indicator that, currently, no place in Afghanistan can be considered safe.” I note that in April 2019, the Long War Journal (LWJ) described Jaghori as a contested district and while it did not specify which category Jaghori fell into, in July 2019 it reported that 11 of Ghazni’s districts were Taliban controlled while the remaining eight were contested.
[42]No information was submitted, and there is no other information before me suggesting there have been any further attacks or security incidents in Jaghori in the 19 or so months since the Taliban was pushed out in November 2018. There is evidence of further security incidents in Ghazni province but none of these incidents are said to have occurred in Jaghori or the road to Jaghori, nor have they been categorised as incidents of Taliban targeting against Shi’a’s or Hazaras. I have considered the competing views about the Taliban’s motives in the Hazara districts in 2018 but I am not satisfied it was a manifestation of ethnic or religious targeting. The Taliban statement that it was not targeting people on ethnic or religious grounds appears to be corroborated by the fact that casualty rates for the relevant period do not suggest there was indiscriminate or systematic targeting. Casualties appear to have arisen out of fighting (with those harmed being direct participants in the hostilities or bystanders caught up in cross- fire or similar situations) rather than targeted sectarian/religious attacks. The information before me also indicates the Taliban has publicly condemned and denied any involvement in other recent incidents targeting Hazara/Shi’as and the media and other commentators have not pointed to the Taliban being responsible. Further, taking into account the developments involving peace talks with the Taliban and discussions on the withdrawal of US troops, while there was some spikes of violence elsewhere, there is no information before me to indicate that there has been any deterioration in the general security situation in Jaghori in 2019 or 2020, nor that the Taliban have indicated an intention to harm or mistreat persons of the applicant’s profile. I also note that since the events of November 2018, further security measures have been enacted in the district. EASO reported that by mid-2019, a newly established Afghan National Army Territorial Force (ANA TF; a new local defence force authorised by Presidential decree) was being piloted in Jaghori district as part of a pilot project, supplementing the Afghan National Police (ANP), Afghan Local Police (ALP), and National Directorate of Security (NDS) paramilitary forces. Weighing all the information before me, I am not satisfied that the Taliban has been engaging in ethnic and religious targeting in Ghazni, or that the adverse outcomes suggested by the representative are any more than speculative.
[43]DFAT has assessed that people working for, supporting or associated with the Afghan government and/or the international community (or perceived to be doing so) face a high risk of violence perpetrated by AGEs, particularly the Taliban. The UNHCR and UKHO have also reported on the systematic targeting of such persons. The representative has argued the delegate failed to appreciate DFAT also advised that because Hazaras are widely perceived to be supporters of the government, this risk profile is applicable to them. I note the submission to the IAA also refers to the applicant as being imputed with an anti-Taliban opinion. DFAT reports that most civilian casualties resulting from attacks on those associated with the government or international community result from suicide and complex attacks which are highly indiscriminate in nature carried out in civilian-populated areas, such as outside of government compounds. It is possible that some Hazaras have been caught up in these or other types of attacks throughout the course of the insurgency. However, DFAT has not provided any examples of incidents of Hazaras being targeted for the perception that they are government supporters or anti-Taliban. It is also not apparent from the other reporting before me that there has been any recent targeting of ordinary Hazaras who have no other profile or engagement (such as the applicant) on this basis.
[44]Relevantly, the 2018 offensive in Jaghori and Malestan was, as AAN put it, ‘unprecedented’ in its nature. It was a rare occurrence in an otherwise peaceful and secure part of the Hazarajat and the information does not suggest that there is likely to be a repeat incident in the reasonably foreseeable future. And as noted above, I am not satisfied it was a case of ethnic or religious targeting. The information before me does not support that Hazara Shi’a’s in Jaghori or the broader Hazarajat are generally facing targeted attacks or serious harm from the Taliban or other AGEs, including ISKP and its affiliates in Jaghori (or Malestan or anywhere in the Hazarajat), because of their religious or ethnic profiles, nor because they are perceived to be supporters of the government. And notwithstanding DFAT’s comment that considerable ethnic and intra- ethnic tensions exist throughout the country, the weight of the information before me does not support that sectarianism has taken or has taken hold at the community level such that Hazaras/Shi’a are being systematically harmed in societal level violence. I am not satisfied these situations will change for the worse in the reasonably foreseeable future. Having regard to all the above I am not satisfied on the evidence before me that there is more than a remote chance of the applicant being harmed in sectarian attacks as a Shi’a and a Hazara in or around Jaghori.
[45] According to DFAT, Afghanistan’s Hazara population has long faced social, economic, and political discrimination, although the extent of this discrimination has varied over time and Hazaras have made significant social, political and economic gains in Afghanistan since the fall of the Taliban in 2001, albeit from a low base. International observers such as the USDOS have reported various forms of societal discrimination against Hazaras including extortion, illegal taxation, forced labour, forced recruitment, physical abuse and detention, as well as in hiring and work assignments. However, while these things are reported to have happened in the country, the only specific examples relate to Hazara ANP officers with profiles and circumstances unlike the applicant’s. The information before me does not suggest there is systematic discrimination of this nature against ordinary Hazara Shi’as. nor am I satisfied the reported instances accurately reflect the nuanced situation in Jaghori and the Hazarajat.
[46] DFAT assesses that societal discrimination along ethnic lines most commonly manifests through nepotism or the giving of positive preference in favour of one’s own particular ethnic and religious groups rather than in the form of negative discrimination and is most likely to occur in areas where the ethnic group concerned is in the minority. DFAT assesses that Hazaras residing within the Hazarajat face a lower risk of experiencing societal discrimination in relation to employment opportunities than those residing elsewhere due to their being in the ethnic majority. I do not accept that the applicant, being a member of the dominant ethnic and religious group in Jaghori and the broader Hazarajat, will be denied things such as employment, healthcare or the necessities of life on the basis of his Hazara Shi’a profile (or for any reason in fact), or that he would face any more than a remote chance (and therefore not a real chance) of suffering any kind of official or societal discrimination.’
(footnotes deleted)
Further, at [61] – [67] of its reasons, the Authority considered country information on the question of the dangers experienced by those travelling on the road network in Afghanistan, and in particular, the risks that the applicant might face in travelling to Jaghori from Kabul, or any other area where the applicant might go when seeking to find employment, or when visiting relatives, or when travelling to Iran. The Authority said as follows:
‘ [61] Submissions have been made about the dangerous road network in Afghanistan and the risks the applicant would face in travelling to Jaghori from Kabul, or any other area where he might be forced to find employment, or visit relatives, and in travelling to Iran to visit his family there.
[62] According to the applicant’s later statements and submissions, he resided in Jaghori until he left for Iran (which by the latest submissions, was around 2008/09) performing rural work such as shepherding. In Iran he did tiling and construction work and has been running his own business in this field in Australia. I am mindful of the high rates of unemployment and underemployment in Afghanistan, the detrimental effect of COVID-19 on Afghans’ livelihoods (as noted in material given to the IAA) and the applicant’s claimed lack of current networks in the country. However, the information before me does not satisfy me that there would be no employment available in Jaghori or the Hazarajat. The applicant has a variety of skills and experiences and appears to have an aptitude for working in different environments. Even if he does not have any family or other current connections in Jaghori, I am satisfied that he will be able to find some work in Jaghori, or the Hazarajat which for the reasons given earlier do not pose a risk. I do not accept the applicant will as a matter of course need to travel outside this region for work. I also consider it purely speculative that he would travel to visit other relatives in the country since he claims he has had no contact with any relatives in Afghanistan for several years and given no indication as to who he would consider visiting or where.
[63] However, I accept the applicant would make his return journey from Kabul to Jaghori by road. The information before me refers to insurgents and criminals targeting the national highway and secondary roads, and manning unofficial checkpoints, and to the Taliban closing roads to Jaghori during fighting in 2018.52 I also note the information regarding the high Taliban activity in Ghazni and accept there may be a Taliban presence along parts of the road. I am mindful too, that there have been some incidents in the areas the applicant may have to pass through in Ghazni and Maiden Wardak provinces on his return. Two returnees from Australia were harmed on their travels through Ghazni in 2014, two incidents of abduction targeting Hazara civilians in Maidan Wardak were recorded in 2015 and seven in 2016 and a group of Hazaras was kidnapped in the Qarabagh area of Ghazni in 2018.54 As for the roads to Iran, the applicant has given no indication of the route he would likely take but I accept the road network between Jaghori and Iran would be affected by insurgents and criminals just as it is elsewhere. It is possible that on such journey, the applicant would pass through places like Zabul and Herat where the information before me indicates there have been incidents of targeting against Hazaras/Shi’as.
[64] I can understand the applicant’s fears but UNAMA attributes (and DFAT also refers) the 2016 incidents to land disputes in the area between Hazara residents and Kuchi tribal members and the UKHO’s reporting indicates the Qarabagh incident also arose out of a resource dispute between local Hazaras and Pashtuns.55 I am satisfied the incidents in Zabul have been isolated and rare and the incidents in Herat have mainly been directed at specific locations as opposed to manifesting through any road targeting.
[65] While EASO referred to abductions and killings of Hazaras travelling along the roads it has not detailed when these incidents occurred or the specific circumstances of them, and states that other reasons could often be identified, such as non-political communal disputes or the individual being an ANSF member, having a job in the government or the NGO sector, linking the incidents to profiles beyond the victims’ ethnicity.56 The evidence suggests the incidents have tapered off since 2015 and I am satisfied that the circumstances of those targeted since then are distinct from those of the applicant, who would only be briefly travelling through those areas. There is no credible evidence of returnees being targeted on the roads since 2014.
[66]DFAT’s most recent advice is that insurgents and criminals tended to target people (of all ethnicities) on the roads who appear wealthy, or are associated with the government or the international community.57 No submissions have been made as to the applicant appearing wealthy and on the evidence I am not satisfied that he would be perceived as such. Beyond being Hazara (who DFAT suggests are perceived as government supporters) and returning from Australia, the applicant has no links to the government or the international community. While DFAT refers to ethnicity playing a role in the section of victims once vehicles are stopped, and of spotters calling ahead to alert insurgents and criminals which vehicles are carrying Hazaras, the only example DFAT provides is (what I am satisfied has been a rare) incident in Zabul in 2015 and information from other sources also does not suggest the things DFAT describes are still occurring. The applicant would not be personally known or of adverse interest to any insurgents in Afghanistan so I am satisfied no one will be looking out for him on the roads or otherwise. Even with the Taliban’s significant presence in the country and reported pockets of ISKP and other insurgents, there are no recent reports of them targeting travelling Hazara Shi’as or returned asylum-seekers specifically on the basis of religious or ethnic reasons, or returnee/asylum seeker profiles.
[67]The reporting before me is comprehensive and specific and if there was continuing systematic or routine targeting of Hazaras/Shi’as or returnees in Jaghori, or on the road networks, I consider it would have been reported by at least some of the sources before me. In the context of the large amount of material before me, in this circumstance it indicates that the risk the applicant may face is very low. Having regard to all of the above, including I consider the possibility of the applicant being harmed on while travelling on the roads in Afghanistan to be remote and not real.’

At [78] – [79] of its reasons, the Authority found that it was not satisfied that there was no safe place in Afghanistan for the applicant and his family to live. It found that it was not satisfied that the applicant had a well-founded fear of persecution, or that there was a real risk of the applicant suffering significant harm ‘on any basis’. It further found that there was not a real chance of the applicant facing harm for any reason if he was to return to his home district of Jaghori. The Authority said as follows:
‘[78]Submissions have been raised about the applicant living in fear for his wife and daughter and about there being no safe place in Afghanistan for them. While it is natural that the applicant would have these concerns, I am not satisfied they give rise to a well-founded fear of persecution, or a real risk of significant harm on any basis.
[79] I have otherwise found the applicant would not face a real chance of harm for any reason on return. For the same reasons, I am not satisfied he would face a real risk of harm, including significant harm – from anyone in Afghanistan.’
Having carefully considered the applicant’s claims relevant to the s. 36(2)(a) criteria, it was unnecessary for the Authority to then duplicate its reasons so as to address the s. 36(2)(aa) complimentary criteria in an identical way. The Authority did address and consider the applicant’s claims under s. 36(2)(aa) of the Act, and it was not satisfied that the applicant met such criteria. It was entitled to do so. Further, it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
There is no merit to Ground 1.
By Ground 2 of the Further Amended Application for Review, it was claimed that the Authority had made a finding without evidence, had constructively failed to consider the applicant’s claims, or had made an unreasonable or illogical finding. It was asserted that there was no basis for the Authority to ‘assume’ that the applicant had no intention or interest in attending large gatherings or spending time in cities.
First, what the Authority found at [37] of its reasons was that: ‘The applicant has not claimed he has any interest in attending large gatherings, demonstrations or festivals/ commemorations or spending time in the cities. Nor has [he] shown any interest in political activism or taking up a profession which would be of interest to insurgent groups. Notably, he would be returning to rural Jaghori, which is a relatively secure Hazara majority district within the Hazara dominated Hazarajat region. DFAT does not indicate a level of risk for Hazaras/Shi’as living in Jaghori or any part of the Hazarajat however it does note the security situation in the Hazarajat has been considerably better in recent years than in most other parts of Afghanistan in part because Hazaras make-up the vast majority of the population there. According to DFAT, this ethnic homogeneity provides fewer opportunities for ethnic tension and as Hazaras ar visually distinct, non-Hazaras have found it difficult to infiltrate these areas without detection.’
Second, an applicant must meet a high bar before there is a finding of illogicality or irrationality on the part of the Authority. In SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210, when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were said to be either irrational or illogical, Wigney J, at [52] - [56] and [61], said:
“[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
[53]The Minister submitted that a decision of the Tribunal can only be overturned on the basis of illogicality or irrationality if it is shown that the end result is one which no logical or rational decision-maker could arrive at. The submission appeared to be that, where a decision is challenged on the basis of illogicality or irrationality, the reviewing court should decide for itself whether the end result was irrational on the materials that were before the decision- maker, as opposed to whether the decision-maker’s reasoning was illogical or irrational. This was said to flow from the judgment of Crennan and Bell JJ in SZMDS.
[54]The Minister’s submission in that regard is rejected. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137- 138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
[55]Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
[56]An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.…
[61]In all the circumstances, it was not at all illogical, irrational or unreasonable for the Tribunal to have regard to the fact that Mr B said nothing in the biodata interview concerning the Tamil Tigers in assessing the credibility of his claims as they were later developed.”
The Authority made its findings about the applicant’s lack of interest in attending large gatherings or spending time in cities based upon the evidence before it. Such findings were open to it based upon its assessment of that evidence in the context of the country information before the Authority.
At Court Book p. 582 [2] it was submitted on behalf of the applicant by his lawyers in a letter dated 14 August 2020 directed to the Authority that DFAT had assessed that Shia faced a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals. It was also submitted that the risk increased for those Shia living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul. In the light of those issues being live issues raised on behalf of the applicant, had the applicant had any intention to assemble in large and identifiable groups during demonstrations or major religious festivals, or if the applicant had intended to live in major cities such as Kabul, one would have expected that a submission to that effect would have been made as a basis for it being further submitted that the applicant was in a vulnerable and dangerous position thereby. No such submission was made.
[2] Exhibit 2
That the Authority recorded that the applicant had not claimed that he had any intention or interest in attending large gatherings, demonstrations or festivals, or otherwise that he intended to spend time in large cities was, accordingly, contextually significant. The applicant at [37] of its reasons had also found that the applicant had not shown any interest in political activism or taking up a profession which would raise his profile so as to lead him to become of interest to insurgent groups.
It was submitted on behalf of the applicant that it was well known that Shia Hazaras’ gather together to pray in mosques, and that when involved in a particular Ashura commemoration, they gather in large public processions. Even if that was so, there was no evidence that suggested that the applicant would so participate in any such commemoration, or that he would otherwise attend large gatherings so as to place himself in danger. Based upon the evidence before the Authority, it was open for the Authority to find that the applicant would return to the relatively secure and safe Hazara majority district of rural Jaghori.
The Authority acted reasonably in making its findings at [36] and [37] of its reasons. It did so having regard to the claims made by the applicant. Its reasoning process was neither illogical nor unreasonable. The decision of the Authority could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision- maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
There is no merit to Ground 2 of the Further Amended Application for Review.
Ground 3 of the Further Amended Application for Review was a claim that the Authority had ‘constructively failed to consider the applicant’s claims relating to his family unit’. It was asserted that the Authority failed to consider whether the applicant’s forced separation from his wife and child, in the event they did not return to Afghanistan, may in itself constitute significant harm under s. 36(2A) of the Act. It was further asserted that the Authority had failed to consider whether, in the event that the applicant’s wife and daughter did return to Afghanistan, such return may give rise to a chance or risk of harm to the applicant by reason of his suffering severe financial hardship or being unable to subsist thereby. [3]
[3] Paragraphs [19] – [21C] of Applicant’s Consolidated Submissions filed on 18 February 2022.
First, it was open to the Authority to find that little weight could be attached to the claim that the separation of the applicant from his wife and daughter, should he be returned to Afghanistan, and should they continue to live in Iran, would in itself constitute significant harm. The claim should be viewed in the light of the applicant having in fact been separated from his wife and daughter since late 2011/early 2012, as found by the Authority at [2] and [18] of its reasons. In any event, the Authority did consider the applicant’s separation from his wife and daughter as follows:
(a)At [17] of its reasons the Authority noted the applicant’s claim that his wife and daughter resided with his wife’s parents in Iran and that the applicant had no right to re-enter and reside in Iran.
(b)At [61] of its reasons the Authority noted that there was possible risk in travelling on the road network within Afghanistan if the applicant was to travel to Iran to visit his family there.
(c)At [62] of its reasons the Authority noted that the applicant possessed a variety of skills and that he would be able to find some work in Jaghori. That finding was made in the context of the Authority considering it speculative as to whether the applicant would travel to visit his family or relatives in other parts of Afghanistan or elsewhere.
(d)At [68] of its reasons the Authority addressed the question of the applicant’s mental health. At [69] of its reasons the Authority noted that no independent medical evidence had been produced to the Authority probative of any diagnosed mental health illness. It noted that country information did not indicate that mental health treatment in Afghanistan was denied or withheld from persons for any reason specified in s 5J(1)(a) of the Act.
Further, at [77] of its reasons, the Authority addressed the question of the applicant’s mental health, concluding that the applicant would not be subjected to acts or omissions ‘related to’, or impacting on any aspect of his mental health so as to constitute significant harm as defined in the Act.
The Court further considers that even if the Authority had failed to deal specifically with the applicant’s claims relating to mental health, the applicant had failed to discharge his onus of putting any probative material before the Authority suggestive of the likelihood of his suffering some mental health condition by reason of his separation from his family, or otherwise. That was so in the context of there being no evidence from the applicant’s wife as to whether or not she even wanted to resume any relationship with the applicant. Any failure on the part of the Authority, therefore, was immaterial. Even if the Authority had considered the applicant’s claims as made, it could not be said that any such consideration could realistically have resulted in the Authority arriving at a different decision.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45]Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46]Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”

There is no merit to Ground 3.
As to Ground 5 of the Further Amended Application of Review, such was a claim that the Authority had made an unreasonable or illogical finding, or had constructively failed to consider material before it on the question of whether or not the applicant would be targeted as a result of him being a Shia Hazara. It was submitted that ‘the Authority’s reliance on the Talaban’s statements lacked an evident or intelligible basis, and indicated a failure to engage in active, intellectual consideration of that material and/or the Applicant’s claims’.
At [35] – [60] and at [64] – [67] inclusive of its reasons, the Authority carefully considered a wealth of country information which led it to find that there was a very low risk of Shia Hazara’s being targeted in Jaghori, or on road networks in and about Jaghori. At [42] of its reasons, when referring to the public statement issued by the Taliban in November 2018 to the effect that it was not actively targeting civilians based on specific race, ethnicity or sect, the Authority found that such claim as made by the Taliban appeared to have been corroborated by the fact that casualty rates in the 19 or so months after November 2018 did not suggest that there was indiscriminate or systematic targeting. Rather, the casualty rates appeared to be as a result of fighting rather than from targeted sectarian/religious attacks. In making its findings, it was a matter for the Authority as to which country information was to be preferred by it.
That the Authority took the Taliban public statement into account when assessing risk factors was not illogical or unreasonable. It was a matter that could legitimately assist the Authority in assessing other evidence before it, such as the nature and rates of casualties suffered by people over the relevant period, as well as the circumstances in which such injuries were sustained.
The Authority considered the content of a large volume of country information, and later arrived at its findings based upon such country information, as well as the content of the November 2018 Taliban statement. The Authority did not solely rely upon such Taliban statement before making its findings. The Authority found that there was a very low risk of the applicant suffering harm in and about Jaghori. Such finding was open to it.
There is no merit to Ground 5 of the Further Amended Application for Review.
Ground 6 was a claim that the Authority had constructively failed to consider the applicant’s claims, or alternatively that the Authority had made a finding without evidence. It was further claim that the Authority had failed to exercise, or consider exercising, its discretion to get new information pursuant to the provisions of s. 473DC of the Act, which relevantly provided as follows:
“s. 473DC Getting new information
(1)Subject to this part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in other circumstances
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information
(a) in writing; or
(b)at the interview, whether conducted in person, by telephone or in any other way.
First, there is no general obligation on the part of the Authority to get new information. [4] It has been held that a consideration as to whether or not new information should be obtained or not should not be made through a natural justice lens. The facts in each different case necessarily determine whether or not the discretion ought to be exercised.
[4] Minister for Home Affairs v DUA16 & Anor (2020) 385 ALR 212 at [27]
Second, at [27] of its reasons, the Authority considered the question as to where the applicant would live if returned to Afghanistan. The Authority noted that in the submissions made on behalf of the applicant to it, [5] reference was made to the applicant’s home area being in Ghazni Province. In the applicant’s entry interview it was recorded that the applicant had been born in the district of Jaghori which lies within the Province of Ghazni. In circumstances where neither the applicant nor the applicant’s representatives disabused the Authority of the notion that the applicant would return to a place other than what was described as his home area within Ghazni Province, there was no basis for the Authority finding that the applicant’s home area would be otherwise than as described by his lawyers. In such circumstances there was no reasonable basis on which the Authority ought to have exercised its discretion to get new information as claimed.
[5] See letter from Clothier Anderson Lawyers to the Authority dated 14 August 2020 at Exhibit 2 (Court
There is no merit to Ground 6 of the Further Amended Application for Review.
Ground 7 was a claim that the Authority had unreasonably failed to exercise its discretion pursuant to the provisions of s. 473DC of the Act for the purpose of assessing the circumstances in which the applicant had provided a bogus document. It was not in issue that the applicant had provided a taskera in which there was false information. At [84] of the reasons of the Authority it was said as follows:
‘[84] According to the applicant he had his father-in-law obtain the taskera on his behalf in 2018. On the applicant’s own evidence, it contains some false information including the applicant’s DOB as told to his father-in-law in order to make the taskera accord with the identity he had earlier presented to the department. The applicant also stated it his Grandfather’s name was incorrect because it had been issued on the basis of another person’s taskera rather than his father’s. While the applicant maintains it is a genuine document because it was officially issued through a taskera office in Afghanistan, it was obtained through false or misleading statements made knowingly by the applicant as to his DOB, and (noting it was issued not on the basis of his father’s but another man’s taskera) appears not to have been issued in respect of the applicant. As the delegate raised in the second SHEV interview, there are also questions as to whether it was officially issued. I am satisfied that the applicant provided a bogus document in response to the 91W request. This is not disputed by his representative who themselves characterised the taskera as being “clearly bogus” and focussed their last two submissions to the delegate on establishing that the applicant had a reasonable explanation for providing this bogus document, and other false information at the various stages of the SHEV process (the explanations for these aspects being intertwined).’
Section 91WA of the Act relevantly provided as follows:
“s. 91WA Providing bogus documents or destroying identity documents
(1)The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a)The applicant provides a bogus document as evidence of the applicants identity, nationality or citizenship; or
(b)       the Minister is satisfied that the applicant:
(i)has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii)had caused such documentary evidence to be destroyed or disposed of.
(2)      Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a)has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence;
(b)       either:
(i)provides documentary evidence of his or her identity, nationality or citizenship; or
(ii)       has taken reasonable steps to provide such evidence.
(3)For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.
At [87] – [93] inclusive of its reasons, the Authority set out why the application for the visa was required to be refused pursuant to the provisions of s. 91WA of the Act, as follows:
‘[87] I have considered the explanations proffered on the applicant’s behalf. As noted, the explanations for providing the bogus document intertwine with those relating to other identity issues which arose in the SHEV process. But I am not satisfied that any of them (either individually or combined) amount to a reasonable explanation for providing the bogus document.
[88] The applicant may well have faced some initial pressure from his family members not to do anything that might jeopardise their own applications or statuses but I am unconvinced that presenting a genuine taskera in 2019, several years after his family members were granted visas would have been in any way compromising to their status. As for his brother having involvement and influence over the evidence given, I note the applicant was actively represented during the SHEV process by an experienced firm who made multiple submissions on his behalf and declared in the paperwork that they were assisting him, including with the completion of his application. The applicant’s statutory declarations provided with his SHEV application and in response to the 91W request were also made in the presence of legal practitioners. Given these factors, and noting the taskera and other false evidence was given over several years following his initial arrival and in various forums, I do not accept the explanation about the applicant trusting his brother to make arrangements for him including completing application forms or having influence over this taskera. Nor do I accept the applicant’s family have faced difficulties obtaining documents when the AH117 file clearly indicates a number of his siblings produced Afghan passports in 2011, and there is nothing to indicate these were fake or fraudulently obtained. I do not find these to be credible explanations.
[89] I note that the applicant had been advised in the Entry interview, written correspondence from the department prior to his SHEV interviews (including in the SHEV application form where he signed a ‘[D]eclaration of truth’ and a document titled ‘Important information about your Protection visa interview’), and at numerous points in his two SHEV interviews, of the importance of telling the truth. He was also advised in writing that the provision of a bogus document in response to the s.91W request may result in refusal. Yet the untruths persisted though the SHEV application and s.91W response around four years after his arrival, through the provision of the taskera and parts of the SHEV interviews more than six years after his arrival. As I have noted above, there are also some problems with the latter information provided. The applicant has shown a propensity across several years to mislead on fundamental matters of his identity such as his name, DOB, family members’ names and composition and the background of events leading to his departure from Afghanistan and several years after arriving and having legal representation, arranged documentation to contain some manufactured detail.
[90] The applicant has demonstrated an ability to acquire a taskera through official channels and I do not accept that lack of a family name, the circumstances of his birth and only having an approximate date of birth, nor his claimed situation of being undocumented in Iran explain the provision of this false document. I do not consider that the submissions as to the applicant being able to obtain the taskera as claimed and about Afghan documents being ripe for fraud and commonly containing wrong information are a reasonable explanation for the applicant deliberately arranging for his taskera to include false information. And I do not consider that the applicant’s desire to maintain his falsehoods itself serves as a reasonable explanation, when taking into account all the circumstances specific to the applicant. Nor, given his specific and individual circumstances, do I consider the other aspects of the proffered explanations satisfactorily go to a reasonable explanation.
[91] The applicant was put squarely on notice of the department’s concerns as to applicant’s identity overall and specifically as to the taskera (and his representative also appears to have counselled that the taskera is bogus) but he maintains it is genuine. And while various statements and submissions have been made purporting to correct information, clarify issues and explain the taskera, I do not necessarily find the later evidence to be any more convincing than that provided earlier and a number of issues still remain unresolved.
[92] Ultimately, having regard to all the circumstances, I am not satisfied the applicant has provided a reasonable explanation for providing the bogus taskera.
[93] Section 91WA applies to the applicant. Therefore, the grant of the visa is prevented by that section.’
At the time that it made its decision, the Authority had before it submissions relating to the bogus document as set out in the applicant’s lawyer’s letter dated 9 December 2019, [6] and the applicant’s statement [7] dated 6 December 2019. The explanations for the provision of the bogus document were extensive. The applicant and his advisors were accordingly in no doubt as to the significance of the provision by him to the department of the bogus document. The Authority was entitled to make a different decision from that of the delegate on the question of the provision of the bogus document. This is not a situation such as in ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407 where there was found to have been an informational gap. The Authority did not err in its approach as to the refusal of the visa application based upon s. 91WA grounds.
[6] CB 452-460 – Exhibit 1.
[7] CB 470-472 – Exhibit 1.
Further, even if there had been error in the way in which the Authority had considered the applicant’s claims that he had given a reasonable explanation for the provision by him of the bogus document, it could not realistically have resulted in a different decision being made, as there was no other material which the applicant or his advisors could have additionally provided to that which was already before the Authority.
There is no merit to Ground 7.
Ground 8 was a claim that the Authority had fallen into jurisdictional error because it considered itself prohibited from granting the visa by reason of the provisions of s. 91W(2) of the Act. Section 91W of the Act relevantly provided as follows:
“s. 91W Evidence of identity and bogus documents
(1)The Minister or an officer may, either orally or in writing, request an application for a protection visa to produce for inspection by the Minister or the officer, documentary evidence of the applicant’s identity, nationality or citizenship.
(2)      The Minister must refuse to grant the protection visa to the applicant if:
(a)       the applicant has been given a request under subsection (1); and
(b)the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; and
(c)the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and
(d)when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:
(i)        refuses or fails to comply with the request; or
(ii)       produces a bogus document in response to the request.
(e)       Subsection (2) does not apply if the Minister is satisfied that the Applicant:
(a)has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and
(b)       either:
(i)produces documentary evidence of his or her identity, nationality or citizenship; or
(ii)       has taken reasonable steps to produce such evidence.
(iii)      For the purposes of this section, a person produces a document if the person produces, gives, or provides the document or causes the document to be produced, given, presented or provided.
This Ground seeks an impermissible merits review of the decision of the Authority and is without merit.
The Ground is otherwise without merit in that the Authority had found that the applicant failed to provide a reasonable explanation for producing the bogus document as provided for in s. 91W(2)(c) of the Act. It was open to the Authority to arrive at that decision. Another reasonable and logical decision maker could likewise have arrived at such decision. 8 The Authority did not err in its application of s. 91W of the Act. There is no merit to this Ground.
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.
Associate:
Dated: 24 March 2022

Book) CB p. 582.

File number(s):	MLG 3623 of 2020
Judgment of:	JUDGE EGAN
Date of judgment:	24 March 2022
Catchwords:	MIGRATION – application for safe haven enterprise visa – no illogicality or legal unreasonableness established – no error in construction of s. 91W of the Act – no failure on the part of the Authority to properly consider all of the applicant’s claims – no jurisdictional error established – application dismissed.
Legislation:	Migration Act 1956 (Cth) ss. 473CB, 5H(1), 5J, 36(2), 36(2A), 473DC and 91W
Cases cited:	ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407 Minister for Home Affairs v DUA16 & Anor (2020) 385 ALR 212. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210
Division:	Division 2 General Federal Law
Number of paragraphs:	56
Date of last submission/s:	18 February 2022
Date of hearing:	3 February 2022
Place:	Brisbane
Counsel for the Applicant:	Mr A White
Solicitor for the Applicant:	Clothier Anderson
Counsel for the First Respondent:	Mr J Byrnes
Solicitor for the First Respondent:	Minter Ellison
Counsel for the Second Respondent:	Submitting appearance save as to costs

MLG 3623 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	EGF20 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	24 MARCH 2022