EMJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 476
•30 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EMJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 476
File number(s): SYG 183 of 2021 Judgment of: JUDGE VASTA Date of judgment: 30 May 2024 Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed. Legislation: Migration Act 1958 (Cth): s 473DC, s 5J(3) Cases cited: DST18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1182
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
Minister for Immigration and Border Protection v SZSCA [2014] HCA 4
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of last submission/s: 23 May 2024 Date of hearing: 23 May 2024 Place: Brisbane Counsel for the Applicant: Mr McDonald-Norman of Counsel Solicitor for the Applicant: Varess Counsel for the First Respondent: Mr Johnson of Counsel Solicitor for the First Respondent: Clayton Utz Solicitor for the Second Respondent: submitting appearance, save as to costs’ ORDERS
SYG 183 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EMJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
30 MAY 2024
THE COURT ORDERS THAT:
1.The Application as amended be dismissed.
2.The Applicant pay the First Respondent’s cost of and incidental to the application fixed in the sum of $8,371.30.
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 VASTA
INTRODUCTION
On 5 February 2021, the Immigration Assessment Authority (“IAA”) affirmed a decision of the delegate not to grant the Applicant, EMJ18, a protection Visa. That same day, the Applicant asked this Court to review that decision.
The Applicant applied for the Visa on 18 August 2016. The delegate of the Minister refused to grant the Visa on 16 October 2017. Because this was a fast-track decision, the matter was referred immediately to the IAA.
A previous IAA decision was made on 7 August 2018 which affirmed the decision of the delegate. This Court remitted the matter back to the IAA, by consent, on 21 January 2019. Another IAA decision was made on 4 March 2019. This Court again remitted the matter back to the IAA, by consent, on 18 November 2020.
The present review is of the third iteration of an IAA review.
Background
The Applicant is a citizen of Afghanistan. He is a Shia Muslim and is of Hazara ethnicity. He lived in the Jaghori district of Ghazni province in Afghanistan; this is part of the Hazarajat region of Afghanistan. The Applicant came to Australia in March 2013 as an unauthorised maritime arrival.
The Applicant claimed that he had worked as a shepherd looking after the cattle of his village. He said that he would be paid by the owners and that they would take turns providing him dinner. He claimed that he was to go to dinner with an owner called AK. He said that AK had a reputation for being close to the Taliban.
The Applicant said that when he arrived at the home of AK, he saw five Taliban men inside the house. He said this surprised him and that he later called a policeman friend of his and told him what he saw at the house of AK. The Applicant said that the police attacked the house of AK that night and arrested three Taliban members but two escaped. He said that AK, and the Taliban men, realised that it was the Applicant who had reported them. The Applicant said that AK informed the Taliban and gave the Applicant’s details to them.
The Applicant said that he slept in another person’s house that night and was informed that AK was looking for him. He said that he escaped and went to another village and spoke to his father. He said that his father told him to leave Jaghori that day.
The Applicant said that he fled into Pakistan and then to Iran. He said that he was deported many times from Iran but could not return to his hometown because he was told that AK, and the Taliban, were still looking for him.
On the last time that he was deported from Iran, he fled to Pakistan and from there made his way to Australia.
He said that if he returned to Afghanistan, he would be killed because he is on the blacklist of the Taliban. He said that he will be discriminated against because of his Shia faith and his Hazara ethnicity, as well as having lived in a non-Muslim country.
Upon this matter being remitted to the present IAA, the Applicant provided a further statutory declaration dated 7 December 2020 (which is reproduced at CB 432).
The IAA decision
The IAA set about assessing the claims in a very meticulous manner. Without needing to descend into too much detail, the IAA did not accept the claims of the Applicant about being sought by the Taliban because of the incident at the house of AK. In fact, the Applicant had provided quite a deal of false information as to his very identity which caused the IAA to have grave doubts as to the credibility of the Applicant.
Notwithstanding that finding, the IAA still had to assess whether the profile of the Applicant, as a Shia Hazara returning to Afghanistan as a failed asylum seeker who had lived in a western country, was such that there was a real risk of persecution upon return.
The IAA relied very heavily upon country information in looking at the situation facing persons in Afghanistan who have a profile like that of the Applicant. The IAA did much research as to where in Afghanistan it may be safe for persons of that profile.
The IAA noted that there was a serious conflict during an incursion into Jaghori by the Taliban in November 2018. The country information disclosed there was heavy fighting, roads were closed, and thousands were displaced in “siege-like conditions”. During this episode, there were 20 civilian deaths and six injuries in Jaghori, all caused by the Taliban. There were dozens of additional casualties as well. The conflict ended on 19 November 2018 after large-scale operations pro-government forces.
Whilst that information painted a grim picture for Hazaras, more recent country information showed that the Taliban were driven out of the area, roads were re-opened, and a new territorial force was in place in 2019. The IAA said that there was no information that suggested that there have been any further major attacks, or security incidents, in Jaghori in the two years following the Taliban’s removal from the area.
The IAA was not satisfied that the Taliban’s motives in 2018 were for ethnic or religious targeting but rather, it involved the targeting of a particular Hazara; an individual who had, allegedly, abused Pashtuns. The IAA said that they were not satisfied that the Taliban were systematically targeting Hazaras in Afghanistan and that there was no data that indicated that there was a resurgence of Taliban attacks, or other systematic harm, against the Hazara population. The IAA was not satisfied that security environment was likely to shift in the reasonably foreseeable future.
The IAA found that there was, and would be, no real chance of the Applicant facing harm from the Taliban in Afghanistan for reasons of his ethnic and religious profile, or any other related profile.
Whilst the IAA was satisfied that there is generally some societal discrimination against Hazaras in Afghanistan, this was not the case in the Hazarajat because they are the ethnic majority in that area. The IAA noted that the Applicant lived in the area for about 20 years and worked in the community. The IAA found that he had family in Jaghori and a network in that town. The IAA considered the chance of risk of discrimination or harm, for reasons of his ethnicity or religion, would be very remote.
The IAA noted that the Applicant would be returning to Jaghori with a significant asset base which would help to mitigate against the challenges of reintegration. The IAA said that, whilst no part of Afghanistan is free of risk, they were not satisfied that there was more than a remote chance of the Applicant facing harm on his return to Afghanistan as a Shia Hazara in Jaghori for any brief period in Kabul. The IAA considered that the Applicant was able to live and work in Jaghori in the past and would be able to do so in the future.
The IAA then assessed the risk for the Applicant on the roads given that he would, most likely, travel on the roads, and sometimes outside of his hometown area. The IAA considered that the risk of serious harm in general for those travelling on the roads was present, but remote.
The IAA assessed the risk to the Applicant because of his having lived in Australia and earned money whilst in this country. After careful analysis, the IAA did not consider that those circumstances would amount to a “real risk” of persecution and that the Applicant’s fears of harm were not well-founded.
The IAA also looked at the generalised violence in the country but considered the chance of the Applicant facing serious harm of such generalised violence was remote.
Having considered all those matters, the IAA found that the Applicant did not meet the requirements of the definition of refugee.
The IAA then turned to assessment of the complementary protection criteria. Having analysed those matters, the IAA found that there were not substantial grounds for believing that the Applicant would suffer significant harm if returned to Afghanistan.
Having made those conclusions, the IAA affirmed the decision of the delegate not to grant the protection Visa.
This Application
On 26 April 2024, the Applicant filed an amended originating application which comprised of four grounds. It is upon this application that the hearing proceeded. The application was really concerned with a particular aspect of the findings of the IAA.
In my view, to truly put the matters into context, it is necessary for me to reproduce portions of the IAA decision, as well as three relevant paragraphs from the statutory declaration of the Applicant.
Of importance in this matter, were the following three paragraphs of that statutory declaration:
9.My fiancé, GH, is currently residing in Herat, Afghanistan. Following the attacks on Jaghori in 2018, my fiancé’s family relocated and have not come back to Jaghori. My fiancé and I remain in constant contact (annexed were screenshots from Facebook messenger conversations and social media posts). This is the medium in which we correspond. A copy of our Nikah certificate, noting the version in my immigration files does not belong to me, and has been erroneously provided or included in my file, a copy of the original religious Nikah document is annexed. As you’ll see, this document does not reflect the requirements of a marriage certificate, as we are not married. The certificate allows for communication to commence between the parties and is a common practice in Afghanistan.
10.I was not present at the engagement as I was residing in Iran. My uncle, who was residing in Pakistan, along with my siblings, chose GH for me and arranged our engagement. Arranged marriages are common practice in Afghanistan
…
17.I cannot safely return to Jaghori. Recent reports of violence against Shia Hazaras across Jaghori means it is not safe for me to be there, even if I managed to somehow get there safely (notwithstanding the risk of harm on the roads in Afghanistan especially for Hazaras coming from the west). Further, I could not remain in Jaghori. I would have to leave there for work, health and other reasons, and also to see GH and finally marry.
The important background excerpts from the IAA decision are these:
60.The applicant has been broadly consistent about his engagement and has subsequently provided some Facebook evidence and chatlogs that confirm a relationship with a woman. Given my concerns with the applicant’s credibility, I find that third party evidence to be quite crucial here. I have had regard to the information about the use of Nikah and also arranged/forced marriages. I note that the Nikah is a contract, however a separate registration document is considered the official marriage document. According to DFAT, the Nikah has no legal significance in Afghanistan. I am prepared to accept the Nikah and translation as some evidence of his identity and relationship/engagement with a young woman (GH). I accept she may currently be in Herat, although I also find she is from Jaghori. I note and accept that another marriage certificate has obviously been included in the file in error. I give the latter no weight.
…
77.I have found that some of his family members continue to reside in Jaghori, and that his fiancée lived there too before she travelled to Herat. His evidence was that his fiancée left Jaghori because of the fighting in November 2018. That is plausible, but I also consider the security situation in Jaghori has stabilised, and I find that she would return to Jaghori in the future, if she has not done so already.
78.The applicant claims to have lived, studied and worked in Jaghori in the past. Accepting his approximate age, he lived there for over two decades. There is no suggestion he ever lived anywhere else in Afghanistan. In all the circumstances, I am satisfied this is where he would travel to and live should he be returned to Afghanistan. I accept the applicant has accumulated considerable savings while in Australia, that his dress and appearance is in some ways westernised, and that he has engaged in some commentary on his social media.
…
82.I have accepted the applicant is a Shia Hazara. I accept he is identifiable as Hazara and would practice as a Shia on his return to Afghanistan. I have found he would return to live in a Hazara-majority area in Jaghori District, Ghazni Province.
…
110.Lastly, I have weighed the applicant’s claims about the risks on the roads. I accept the submission that flights are oversubscribed and expensive, albeit I also consider the applicant has demonstrated he has the resources to secure a flight from Kabul to Bamiyan should he believe that is the safest passage for him. The applicant has provided a screenshot from Google Maps with directions between Bamiyan to Dahmardar Gulzar, south of Loman in Ghazni. The screen shot states ‘Sorry, we could not calculate directions’ between these two areas. I am not satisfied the limits of Google Maps evidences that there is no direct road route between Bamiyan Airport and Loman/Jaghori. DFAT refers to a number of transportation routes in the Hazarajat, noting unpaved roads can restrict movement, that the ongoing armed insurgency has affected the provinces surrounding the areas, and road transportation links between the Hazarajat and major cities can be far from secure. That indicates to me that there are transportation links within the Hazarajat, contrary to evidence from Google Maps.
The following paragraphs are the critical paragraphs for this review:
115.The country advice before me is comprehensive and specific and if there was continuing systematic or routine targeting of Hazaras and Shia Hazaras on the road networks, I consider it would have been reported by UNAMA or other agencies in more recent reporting. In that context, I am not satisfied that abduction or targeting of Hazaras is occurring with any frequency. Where it does occur, I accept EASO’s advice that it often related to another profile facts, such as links to the international community or government, or tribal tensions. Indeed, I consider that consistent with UNAMA’s previous analysis of abductions, referring to incidents involving Kuchi nomads and Hazara farmers. I am not satisfied the applicant has any such profile, nor do I consider there is any reason to think such a profile would be imputed to him, now or in the reasonably foreseeable future.
116.Based on the analysis, while I accept there are risks, I find that the chance or risk of the applicant being harmed as a Shia Hazara while traveling on the roads in Afghanistan to be remote and not real. I accept there is insecurity on the roads more generally, however I note it impacts all Afghans. In this regard, I give weight to the fact that the applicant does not share the risk profile of those I consider would be at risk when travelling through roads or checkpoints, for example military or government workers. Based on the advice before me, I am not satisfied the roads to Ghazni and Jaghori are impassable, and I give weight to the fact the security forces continue to clear and secure the roads. I consider the risks generally on the roads are credible, and I accept some Afghans fear travelling on the roads, but I consider the chance or risk of serious harm in general for those travelling on the roads is present, but remote.
117.I consider those risks would be further mitigated by the infrequency with which I consider the applicant would travel on the roads, being a single return journey from Kabul to Jaghori, or to visit his fiancée in Herat, if she has not already returned to Jaghori. I also accept the applicant may need to travel outside of Jaghori from time to time for work, health, shopping, trade and other reasons. However, the applicant has not satisfied me this would be anything other than intermittent. I consider much of what he needs could be obtained within the relative security of the Hazarajt region, and that any need to travel further afield would be infrequent. I am satisfied this was the case in his previous two decades in Afghanistan, and that this would be the case on his return. I consider it would be reasonable for the applicant to live and work in Jaghori and other Hazara-majority areas in the Hazarajat, and to travel infrequently out of the area where necessary. For clarity, I do not consider this would involve any modification of behaviour on his part.
118.I find that the chance or risk of the applicant being harmed as a Shia Hazara, or on insecure roads in general, while travelling in Afghanistan would be remote. I consider those risks would be further mitigated by the infrequency with which I consider he would travel on the roads. I find he would not face a real chance of harm for these reasons, if he were to return to Afghanistan, now or in the reasonably foreseeable future.
For completeness, I also reproduce paragraph 149 which related to the summary of the consideration of the complementary protection criteria: -
149.In relation to his ethnic and religious profile, his profile related to his time in the west, his actual or perceived wealth, his cumulative profile, or in relation to generalised violence, I have found there is not a real chance of the applicant facing harm for those reasons. For the same reasons, and having regard to the same considerations, I am also not satisfied there are substantial grounds for believing that the applicant will face a real risk of significant harm for these reasons.
It is upon that material that the three grounds of this application are based.
The Grounds
Ground one is expressed in these terms:
1.The Authority committed jurisdictional error insofar as the Authority concluded that the applicant does not face a real risk of harm arising from travel outside Jaghori because either (i) the applicant’s fiancée would leave her family and moved to Jaghori to be with him, or (ii) he would visit Herat to be with her only “infrequently… where necessary”, in circumstances where:
(a)there was no evidence that the applicant’s fiancée would leave her family and moved to Jaghori to be with him, or that, if she remained in Herat he would visit Herat to be with her only “infrequently… where necessary”;
(b)those conclusions were illogical or irrational or based on findings or inferences of fact not supported by logical grounds; and
(c)in any event the intentions and plans of the applicant, his fiancée, and their respective families in relation to the future marriage and future residents were not explored by the Delegate, and the Authority unreasonably failed to consider exercising power under s 473DC(3) of the Act to get new information from the applicant concerning those matters.
The Applicant has argued that the IAA simply had no information before it upon which to base a finding that involved GH. All that was known of GH was that the Applicant said that he was engaged to her and that she, and her family, left Jaghori to go to Herat because of the November 2018 incursion by the Taliban. The Applicant claimed that he has been in contact with her through Facebook messenger. As discussed during the hearing before me, there was no evidence that the Applicant and GH had ever actually physically met. The Applicant claimed that he would not stay in Jaghori for a few reasons which included that he wished to see GH and finally marry.
The Applicant claims that such information was insufficient to make the statement that was made in the first sentence of paragraph 117. The Applicant claims that the IAA materially relied upon these findings and therefore fell into jurisdictional error. The Applicant also claims that, if it wished to rely upon these findings, it was unreasonable for the IAA not to exercise its power under s 473DC of the Migration Act 1958 (Cth) (“the Act”) and seek new information from the Applicant.
Ground two is expressed in these terms:
2.The Authority committed jurisdictional error insofar as the Authority found it would be reasonable for the applicant to remain in Jaghori and not travel to Herat to be with his fiancée more than “infrequently… where necessary”.
The arguments of the Applicant are very similar to the last ground, but the Applicant argues further that the IAA was required to be satisfied as to whether the Applicant would face a real chance of persecution or real risk of significant harm in Afghanistan. The Applicant submits that the IAA failed to consider whether the Applicant could reasonably remain in the Hazarajat area and would only “intermittently” or “infrequently” leave that area.
This argument relies upon the reasoning in Minister for Immigration and Border Protection v SZSCA [2014] HCA 4. In that case, the facts were that the visa applicant would be returning to Kabul. It had been found that the visa applicant would not face a real chance of persecution if he did not leave Kabul. However, that visa Applicant was a truck driver. The High Court said that it had to be assessed as to whether it was reasonable for that visa applicant, being in a truck driver, not to leave Kabul.
The Court said that to assess whether such a situation was reasonable, required an assessment as to the impact on the visa applicant of remaining in Kabul and not driving trucks on the roads he usually frequented during his business. Such an assessment needed to address what was necessary to an enquiry as to whether it was reasonable to expect the visa applicant to remain in Kabul and not try trucks outside it.
In the present case, the Applicant argues that no such assessment has been done and therefore the finding is infected with jurisdictional error.
Ground Three is expressed in these terms:
3.The Authority committed jurisdictional error insofar as the Authority erred in applying the behavioural modification test in s 5J(3) of the Act to the applicant’s refugee claims, and erred in applying any behavioural modification test to the applicant’s complementary protection claims.
This ground focuses on the last sentence of paragraph 17 of the reasons of the IAA. The Applicant argues that the IAA failed to consider whether any previous infrequent journeys of the Applicant, outside of his home area, were themselves a modification of behaviour because of his fear of persecution, and whether the Applicant would visit his fiancée infrequently rather than more regularly due to a fear of persecution, and whether this would amount to a modification of behaviour.
The Applicant argues that if there were such a “modification”, then the modification needed to have been considered when assessing the complementary protection criteria. Because the IAA did not undertake this task, the Applicant argues that the assessment of the complimentary protection criteria is also affected by jurisdictional error.
Ground four is expressed in these terms:
4.The Authority committed jurisdictional error insofar as its review under s 437CC [sic] of the Act was stultified by a failure by the Secretary to comply with s 473CB of the Act and its decision-making process was unreasonable.
This ground is almost the exact same ground that was considered by the Chief Judge of this Court in DST18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1182. The ruling of the Chief Judge, if followed by me, would be a complete answer to this ground. The Applicant made a proper concession that, on the state of the law as it is now, I would be bound to follow the ruling in DST18 (Supra).
While not conceding that the ground should be struck out (as there will be an appeal in DST18 to the Full Court later this year), the Applicant conceded that the Court would find no merit in the ground and so did not seek to press it.
This ground did not form part of the proceeding and I will make formal orders about the ground at the conclusion of these reasons.
General Discussion
While it is my usual practice to deal with the grounds seriatim, the underlying premise for all three grounds needs to be assessed first. The three grounds are premised upon the Applicant’s submission that, in paragraph 117 of the reasons, the IAA was making to dispository findings as to claims that had arisen.
I do not accept that this is the case. As can be seen by my summary of the IAA decision, and from the excerpts I have reproduced, the IAA proceeded in a very methodical manner when assessing the claims of the Applicant. As the first sentence in paragraph 110 states, the final claim assessed was the claim that the Applicant made about the risks on the roads. The IAA had previously adumbrated that it would be looking at this aspect.
Paragraph 115 concluded with the IAA saying that they were not satisfied that the Applicant had a profile that would lend itself to the heightening of risk on the roads. At paragraph 116, the IAA found that the chance of the Applicant being harmed, because he was a Hazara travelling on the roads, to be remote. The IAA said that the insecurity and the roads more generally impacts all Afghans.
The IAA said that they considered that there were credible risks associated with travel on the roads but that the chance or risk of serious harm in general for those travelling on the roads, whilst present, is remote. This was summarised and repeated in paragraph 118.
That is the dispositive finding as to the claim about the roads.
The Applicant did not make any claim that he was a person who had used the roads frequently before he left Afghanistan. The Applicant had not needed to travel frequently outside of his home area in his previous 20 years in Afghanistan. As seen in paragraph 17 of his statutory declaration, the Applicant had simply said that it was not safe for him to be in Jaghori and made a comment that spoke of his being able “to get there safely, notwithstanding the risk on the roads in Afghanistan especially for Hazaras…” (My underlining) This was the totality of his claim that was assessed in paragraphs 110 to 116 of the IAAs reasons.
The Applicant has premised the three grounds on the basis that there was a claim that the Applicant would be at risk of harm because he would need to be on the road travelling to visit GH. There was no such claim.
What the IAA has done is to make a finding that there are risks using the roads to travel but that those risks are remote. What the IAA has said, in paragraph 117, is that the remote risk is mitigated further because of the infrequency with which the Applicant would travel on the roads. The IAA identified that the only travel on the roads, that could be identified specifically from what the Applicant had said, was a journey from Kabul to Jaghori and a journey to visit the fiancé in Herat if she had not already returned to Jaghori.
The materiality of the issue relating to any travel to see GH is really non-existent. The finding had already been made that the use of the roads presented a risk, however that risk was remote. Even if the Applicant were to somehow travel at all to Herat, the finding by the IAA was that the risk of such travel was remote.
Ground One
On the evidence before it, the AAT was satisfied that GH existed and that she was the fiancé of the Applicant. The IAA was satisfied that GH lived in Jaghori but left, with her family, for Herat when the November 2018 Taliban offensive began. Now that the Taliban and had been driven out, it would not be unreasonable for the IAA to infer that GH and her family would return to the area which the IAA regarded as being safe for the Hazara ethnicity.
The only danger that the Applicant had identified in Jaghori, had been because of the November 2018 incident. Because the Taliban have been driven out of the area, the fear of persecution could not be said to be well-founded.
In those circumstances, it was open for the IAA to infer that those who had been displaced because of the violence, would now return because of the cessation of violence and the increased security for Hazaras in the area. For this reason, the clause “if she has not already returned to Jaghori” is not an unreasonable observation for the IAA to make.
The Applicant had not claimed that he would be making any more than one journey to see GH and that they would then marry.
For the IAA to equate the potential travel from Jaghori to Herat with the travel from Kabul to Jaghori, was open to it upon this evidence. It could not be described as speculative.
But even if the IAA had engaged in speculation, and therefore had made an error, it was simply not a material error as it could not have affected the conclusion that the risk of harm on the roads, whilst real, was remote. The error would not be a jurisdictional error.
Because this aspect was not a matter where the IAA was making a conclusion upon a claim that had been made by the Applicant, these circumstances were different than those that obtained in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 and there was no need for the IAA to consider whether it ought to have sought new information from the Applicant.
For these reasons, Ground One fails.
Ground Two
With this ground, the Applicant has proceeded upon a premise that the IAA has found that the Applicant would travel “infrequently”, “intermittently” or “where necessary” to visit GH. This is a misstatement of what the IAA has said. The IAA has given an example of what travel the Applicant may undertake which would cause him to use the roads outside of his home area. The IAA has not given any descriptor as to the frequency of contact between the Applicant and GH. The only evidence before the IAA was that the Applicant claimed that, when he went to see GH, they would marry.
The IAA had noted that the Applicant had infrequently used roads outside of his home area before he left Afghanistan. The IAA concluded that the Applicant would still have the same level of usage of those roads when he returned to Afghanistan. The Applicant did not ever claim, nor was there any evidence, that there would be a continuing courtship if the Applicant returned to Afghanistan; rather, the evidence was that they would marry as soon as they physically were together.
This is a totally different situation than that which obtained in SZSCA (Supra). The factual circumstances in this matter do not demand that the IAA assess whether it was reasonable for the Applicant to be doing anything other than he had done before he had left Afghanistan, because there was no claim that the Applicant would do anything different.
Whilst it is that the Applicant claimed that he could not stay in Jaghori, this was based upon the presence of the Taliban and making life for Hazaras unsafe. The IAA had found that this was not the case and therefore, the reason that the Applicant gave, for needing to leave his home area, was now non-existent.
In any event, the IAA had already made a finding that the use of the roads, whilst not without risk, only carried a remote risk of serious harm befalling the Applicant. Even if the IAA were in error, the error was not jurisdictional because the finding was not material to the overall conclusion.
For this reason, Ground Two fails.
Ground Three
As previously noted, this ground derives from the last sentence of paragraph 117. The IAA said that they had expected that the Applicant would continue to behave as he had in the past. The Applicant gave no evidence, nor made any claim, that in his use of the roads before he left Afghanistan, he had to modify his behaviour in any way, let alone in a manner that would fit within the categories in s 5J(3) of the Act.
It seems to me that the IAA was simply saying that there was no indication that the Applicant had modified his behaviour in the past, and therefore there was no need for him to modify his behaviour in any way that would enliven s 5J(3) of the Act. There can be no jurisdictional error that arises from this.
I do note what the Minister has said at paragraphs 27-32 of their submissions. Even though I do not see the need to engage in a “what if I’m wrong” scenario in this instance, I would adopt what was said by the Minister in those parts of his submissions.
Having come to those conclusions regarding this point, it also follows that there was no error in the manner in which the complementary protection criteria were assessed.
But, even if there were an error, given that the IAA had made findings as to the risk on the roads being remote, such an error would not be material, and therefore not jurisdictional.
For those reasons, Ground Three fails.
Ground Four
For the reasons already outlined, Ground Four fails.
Order
I order that the application for review is dismissed with costs fixed in the amount of $8371.30.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 30 May 2024
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