EML17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 501
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EML17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 501
File number: MLG 2152 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 26 June 2023 Catchwords: MIGRATION - application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to exercise its jurisdiction, or acted unreasonably by not considering the exercise of its discretion in s 473DC of the Migration Act to invite the applicant to make submissions about relocation – whether Authority failed to exercise its jurisdiction, or acted unreasonably by not considering the exercise of its discretion under s 473CC(2)(b) of the Migration Act to remit the matter to the delegate for the issue of relocation – whether the Authority failed to consider applicant’s objections to relocation – whether the Authority failed to properly consider material facts and circumstances of the claims – whether Authority made findings that were illogical, irrational or unreasonable – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5AA, 36, 473CA, 473CC, 473DC, 476, 477
Migration Regulations 1994 (Cth) reg 4.43(2)
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
CRI028 v Republic of Nauru (2018) 356 ALR 50; [2018] HCA 24
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43
ERE18 v Minister For Home Affairs (No 2) [2021] FCA 1346
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 67 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms K McInnes Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz Lawyers ORDERS
MLG 2152 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EML17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
26 June 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). On 6 September 2017 the Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
In his written application and in his oral submissions to the Court, the applicant has asserted that there is jurisdictional error in the Authority decision for a number of reasons, including that:
(a)the Authority acted unreasonably in not considering the exercise of its discretion in s 473DC of the Migration Act to obtain new information from him in relation to relocation within Afghanistan;
(b)the Authority acted unreasonably in not considering the exercise of its discretion in s 473CC(2)(b) of the Migration Act to remit the matter to the delegate to make a finding in relation to relocation;
(c)the Authority failed to consider one or more of the objections to relocation raised by the applicant;
(d)the Authority failed to properly consider the facts and circumstances relevant to the applicant’s claims;
(e)the Authority made findings that were illogical, irrational or unreasonable;
(f)the government in Afghanistan has changed since the Authority decision and it would be impossible for the applicant to return to Afghanistan now; and
(g)even at the time of the Authority decision it would not have been safe for the applicant to relocate to Kabul.
For the reasons explained below, I find that the applicant has not established that the Authority decision is affected by jurisdictional error. I therefore dismiss the application to this Court.
BACKGROUND
The applicant is a citizen of Afghanistan. He entered Australia by sea at Christmas Island in December 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 22 April 2016 the applicant lodged a valid application for a protection visa. In his visa application, the applicant claimed to fear harm from the Taliban on the basis that Americans have a base on his family’s land and he received threats from the Taliban because his brother is in America and letting Americans use their family land.
On 1 September 2016 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
On 30 November 2016 a delegate of the Minister made a decision not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
The applicant was represented by a lawyer both before the delegate and the Authority. On 23 December 2016 the applicant’s lawyer provided a submission to the Authority.
On 6 September 2017 the Authority affirmed the decision of the delegate not to grant the applicant a protection visa.
AUTHORITY DECISION
Despite some concerns about the applicant’s evidence, the Authority was willing to accept that:
(a)the applicant’s family operated a large farm and an American base was built on this land;
(b)the applicant has siblings living in the United States and Germany, other family including his wife and children living in Pakistan, and his parents relocated internally within Afghanistan due to the deteriorating security situation in their home area;
(c)the applicant’s father previously held particular employment as claimed by the applicant and that the applicant’s father travelled to the United States earlier in his life for some part of his education;
(d)while the applicant was never directly threatened by the Taliban, he was told by other local persons that they heard Taliban members say they would kill the applicant on the basis of his suspected collaboration with the United States forces;
(e)on this basis, the applicant relocated to Wesh and decided to depart Afghanistan altogether in 2012 after seeing in Wesh some of the persons who had told him that they heard the Taliban threaten him, and after learning that members of the Taliban came to Wesh to purchase car parts; and
(f)the applicant’s uncle and cousins were involved with the Afghan Local Police.
Given the significant Taliban presence in the applicant’s home area and that his father, uncle and cousins have all been closely associated with the Afghan government and/or its security forces and its western backers, the Authority was satisfied that for the foreseeable future there was a real chance that the applicant would be killed by the Taliban as an imputed supporter of the Afghan government and/or its security forces and its western backers if he were to return to his home area. The Authority was satisfied that this would amount to a real chance of serious harm for reason of the applicant’s perceived political opinion.
However, the Authority did not consider that the real chance of serious harm extended to all areas of Afghanistan, and was not satisfied that the applicant would face a real chance of serious harm in Kabul. In reaching this finding, the Authority considered the applicant’s submission that once someone is on the Taliban’s list, that person will be targeted in Afghanistan no matter where they go and no matter whether they are a highly or lowly ranked person in Afghan society. The Authority:
(a)accepted that if the applicant were to relocate to Kabul, he would live amongst other Sunni Pashtuns from his home area who know him and his background and family associations;
(b)considered that it was not impossible that should the applicant relocate to Kabul, it may become known that he returned from a western country where he sought asylum, and that he may encounter persons from his home area who are sympathetic to the Taliban or are otherwise opposed to the current Afghan government and the western countries which back it;
(c)considered that in circumstances where the applicant never received a formal threat from the Taliban, and was never attacked by the Taliban or anyone else while he was living in his home area, and given that some five years have passed since he was told that threats had been made against him, the possibility that the Taliban would target the applicant in Kabul or that the applicant would be targeted on this basis by a person from his home area was remote;
(d)found that the applicant would be able to access Kabul directly and that he would not undertake an overland journey of the kind claimed in order to visit his family within the foreseeable future;
(e)took into account the security situation in Kabul in conjunction with the applicant’s circumstances and was not satisfied he would face a real chance of harm in the capital from the Taliban or any actor for the foreseeable future.
The Authority was therefore not satisfied that the applicant would face a real chance of serious harm in Kabul and found that the applicant did not meet the definition of a refugee in s 5H of the Migration Act and therefore did not meet s 36(2)(a) of the Migration Act.
In assessing the complementary protection criterion, the Authority relied on its findings in relation to the refugee criterion in concluding that the applicant would face a real risk of significant harm in his home area, but it was not satisfied that the applicant would face a real risk of significant harm in Kabul.
In considering whether it would be reasonable for the applicant to relocate to Kabul, the Authority considered his prior ability to find employment and accommodation without assistance or connections in difficult circumstances and was satisfied that the applicant would be able to find employment sufficient to provide him with income enough to be accommodated in an area of Kabul that would provide him with the necessities of life and a reasonable living environment. The Authority also considered the applicant’s family ties, including that the applicant has demonstrated an ability to live independently from his immediate family and his wider relatives for an extended period of time, and a willingness to continue to live apart from his immediate family for the foreseeable future in order to ensure his safety by applying for a temporary protection visa to remain in Australia. The Authority was satisfied that it would be reasonable for the applicant to relocate to Kabul and establish himself there without the support of his family. The Authority also had regard to the applicant’s overall circumstances and the foreseeable livelihood and security situation in Kabul more broadly, and was satisfied that it was reasonable for the applicant to relocate and remain in Kabul.
The Authority therefore found that the applicant did not meet the requirements of s 36(2)(aa) of the Migration Act and affirmed the delegate’s decision.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 6 October 2017 which is within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant advances the following three grounds of application:
1.The decision of the Independent Assessment Authority was affected by jurisdictional error in that it failed to exercise its jurisdiction and/or acted unreasonably.
Particulars
a)The Authority failed to consider the exercise of its discretion under s. 473DC(3) of the Migration Act to invite the applicant to make submissions to it on the question of his relocation within Afghanistan;
b)The Authority failed to consider the exercise of its discretion under s. 473CC(2)(b) of the Migration Act to remit the matter to the delegate for the issue of relocation to be determined at first instance;
c)The failure to exercise the discretion was unreasonable.
2.The decision of the Independent Assessment Authority was affected by jurisdictional error in that it failed to consider the objection which the applicant had made to relocation.
Particulars
a)The Authority did not deal with the applicant’s objection to relocation being, amongst other things, that it was unsafe all over Afghanistan;
b)The Authority failed to deal with the particularity of the applicant’s objection, in the context of his personal circumstances, and considering the information which had been put forward.
3.The decision of the Independent Assessment Authority was affected by jurisdictional error in that it failed to properly consider material facts and circumstances of the applicant’s claims.
Particulars
a)The applicant’s claims including evidence of material facts and circumstances were not given proper consideration.
The applicant’s application was prepared by his legal representative. At the time the matter came before me for hearing, the applicant represented himself. In circumstances where the grounds of application were not prepared by the applicant himself, I had each of the grounds interpreted for the applicant at the hearing and he was invited to make submissions about each of the three grounds and to make submissions more generally about what he believes the Authority did wrong.
CONSIDERATION
Need to establish jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief, the applicant must establish that the Authority decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.” (Emphasis added.)
To amount to a jurisdictional error, any error by the Authority must be material, in the sense that the error could realistically have deprived the applicant of the possibility of a successful outcome: SZMTA at [45].
Ground 1
By ground 1, the applicant asserts that the Authority failed to exercise its jurisdiction, or acted unreasonably, in respect of two matters:
(a)first, by not considering the exercise of its discretion in s 473DC of the Migration Act to invite him to make submissions on the question of his relocation within Afghanistan; and
(b)second, by not considering the exercise of its discretion under s 473CC(2)(b) of the Migration Act to remit the matter to the delegate for the issue of relocation to be determined at first instance.
I address each of these matters in turn.
In relation to the first part of this ground, the applicant at the hearing referred to the Authority’s finding that he could relocate and continue to live separately from his family and submitted that he could not accept this finding. This submission does not appear to be directed at the asserted error, but rather is an expression of disagreement with a finding made by the Authority. The Minister treated this submission as an assertion that a finding made by the Authority was illogical or irrational, and the applicant confirmed in his reply submissions that he believed the Authority made a finding that was illogical, irrational or unreasonable. Although this submission was raised in the context of ground 1, it really raises a separate assertion of jurisdictional error and will be addressed separately below. It is only considered in the discussion on ground 1 to the extent that it may inform the errors asserted by that ground.
Section 473DC of the Migration Act confers on the Authority a discretion to get new information that was not before the delegate and that the Authority considers might be relevant to the review. That discretion must be exercised reasonably: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3]; Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 (CRY16) at [82].
While ground 1 refers to s 473DC, the error asserted is that the Authority did not consider inviting the applicant to make submissions rather than an assertion that the Authority did not consider inviting the applicant to provide new information in relation to whether he could relocate within Afghanistan.
In fact, the applicant was invited to make submissions in accordance with the Authority’s Practice Direction, paragraphs 20 and 21 of which invited him to provide a submission of no longer than five pages addressing why he disagreed with the Department’s decision and any claim or matter that he presented to the Department that was overlooked.
The submission provided by the representative on 23 December 2016 purported to be provided in accordance with the Practice Direction and addressed relocation at [21] and [22], which read:
21.When the delegate moved to consider the question of risk in Kabul, the reasoning process was infected by the earlier tainted view. The applicant’s case, which was not properly considered, was that there was a real basis for his fear in his home area, and that the theoretical possibility of relocating to Kabul was not a realistic one. Given the undisputed country information that persons perceived to assist the foreign forces were at risk of harm from the Taliban or their associates, it was no answer to say that the applicant could easily move to the capital. The capacity of the Taliban is well known. It is not confined to seeking out only those with a high profile. People such as the applicant are obviously a thorn in the side of the Taliban as without use of local land, the foreign forces would have no capacity to operate and provide a counterbalance to the Taliban in rural areas.
22.Further, the delegate failed to consider the practical reality of the applicant being able to get to Kabul, in order to theoretically relocate there. It is not sufficient to simply assume that the applicant would be able to fly into the capital, as opposed to travelling overland, for example from Pakistan. If the applicant were to return overland, in all probability he would travel from Quetta, where his wife and children currently reside. If this were the case, which was not considered by the delegate, he would need to pass through similar areas to where he previously resided, which are currently significant areas of conflict. Whilst trying to get to Kabul, it is likely that his previous (imputed) support for the Taliban would become known.
Notwithstanding that the ground asserts unreasonableness in the failure to consider inviting the applicant to make submissions, as opposed to providing new information, I will infer that the applicant intended to assert that the Authority erred by not considering exercising the discretion in s 473DC to invite him to provide new information.
There are a number of cases where the Authority was found to have unreasonably failed to exercise its discretion in s 473DC (or to consider exercising the discretion). Each case must turn on its own facts, but those cases where the Authority has been found to have acted unreasonably include:
(a)where a new dispositive issue, such as relocation, or relocation to a particular place, has been addressed by the Authority but was not addressed by the delegate (eg CRY16; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32); or
(b)where the Authority made adverse credibility findings, in circumstances where the delegate relevantly accepted the applicant’s credibility and where the Authority did not have access to all relevant information, such as explanations for relevant inconsistencies or access to information from which the Authority could assess the applicant’s demeanour (eg DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43, ABT17).
In the present case, the delegate, like the Authority, found that the applicant faced a real chance of serious harm and a real risk of significant harm if he returned to his home area and considered whether the applicant could relocate to Kabul to avoid facing a real chance of serious harm or a real risk of significant harm. The possibility of relocation was not a new dispositive issue that arose for the first time before the Authority. The applicant appears to have been given an opportunity before the delegate to explain why he could not relocate within Afghanistan or why it would not be reasonable for him to relocate within Afghanistan.[1] Given the similarity in approach between the delegate and the Authority, and the opportunity afforded to the applicant by the delegate to comment on relocation, supplemented by the submissions prepared by the applicant’s representative and provided to the Authority, which addressed relocation, there is no particular feature of this case that made it unreasonable for the Authority not to exercise the discretion to get new information from the applicant about relocation. I accept the Minister’s submission that the Authority was able to adequately determine the issue of relocation based on the information before it.
[1] A transcript of the interview that the applicant attended with the delegate is not in evidence before the Court, but the Authority in its reasons summarised various responses and evidence given by the applicant in response to questions from the delegate that appear to relate to relocation. I infer from these answers that the applicant was invited to discuss with the delegate the reasons he did not think that he could reasonably relocate to Kabul.
Given the submissions made by the applicant at the hearing and the focus in his submissions on the Authority’s findings that he would not travel by road to see his family in Pakistan and that it would be reasonable for him to relocate without his family, I have considered specifically whether it was unreasonable for the Authority not to invite the applicant to provide new information about whether he would travel to see his family, and if not, whether it was reasonable for him to relocate without his family. I am not satisfied that the Authority acted unreasonably in not inviting the applicant to comment on these issues.
I accept that the Authority’s findings in relation to these issues were different to those of the delegate. The delegate only considered the applicant’s family in so far as it made a finding that the applicant would not be required to support his wife and children while he is living in Kabul any more than he has been required to support them while living in Australia. The Authority, on the other hand, relevantly found that the applicant would not undertake any overland journey to visit his family in the reasonably foreseeable future and that it would be reasonable for the applicant to relocate to Kabul and establish himself there without the support of his family.
However, the Authority was not required to establish the applicant’s case for him and it was for the applicant to advance whatever arguments he wished in support of his claims Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [187]; ERE18 v Minister For Home Affairs (No 2) [2021] FCA 1346 at [42]. It appears the applicant was invited to provide to the delegate reasons why he could not reasonably relocate within Afghanistan and it was open to the Authority to proceed on the basis that the applicant had given any information he wished to give, either to the delegate or in the submission to the Authority, in relation to the reasons why he could not reasonably relocate. It was further open to the Authority to proceed to make findings on whether the applicant would travel overland to visit his family in Pakistan and whether it would be reasonable for him to relocate without the support of the family based on the evidence and information that was already before it, which included information about how long the applicant had been residing separately to his family and his apparent willingness to remain apart from his family to pursue his protection claims.
The first part of ground 1 does not establish jurisdictional error.
Insofar as ground 1 asserts that the Authority erred by not considering remitting the matter to the delegate to allow the delegate to make a finding on relocation, the applicant submitted at the hearing before the Court that he wished to go before the delegate again to talk about more issues and to provide further evidence.
This part of the ground is misconceived for a number of reasons. First, the delegate did in fact consider and make findings on whether the applicant could relocate to Kabul. Second, there was nothing before the Authority to indicate that the applicant wished to provide any further information or that he wished to have a further opportunity to raise matters with the delegate. I accept the submission advanced by Counsel for the Minister at the hearing that it was not unreasonable for the Authority not to consider remitting the matter when it was not asked to do so.
Further, I accept the Minister’s submission that there was no statutory basis that entitled to the Authority to remit the matter to the delegate for the issue of relocation to be determined, particularly in circumstances where this had already been determined by the delegate. Section 473CC(2)(b) of the Migration Act allows the Authority to remit the decision for reconsideration in accordance with such direction or recommendations of the Authority as are permitted by regulation. The permissible directions are identified in reg 4.43(2) of the Migration Regulations 1994 (Cth) and comprise:
(a)the referred applicant must be taken to have satisfied the criteria for the visa that are specified in the direction; or
(b)the referred applicant is a refugee within the meaning of subsection 5H(1) of the Act; or
(c) subsection 36(3) of the Act does not apply to the referred applicant; or
(d)the referred applicant satisfies each matter, specified in the direction, that relates to establishing whether the referred applicant is a person to whom Australia has protection obligations because the criterion mentioned in paragraph 36(2)(aa) of the Act is satisfied in relation to the applicant.
None of these permissible directions would allow the Authority to remit the matter to the delegate to make findings on relocation, particularly in circumstances where the delegate already discharged that function.
The second part of ground 1 also does not establish jurisdictional error.
Ground 2
By ground 2, the applicant asserts that the Authority failed to consider his objection to relocation. In the particulars to the ground in the written application, the applicant identified that the objection to relocation overlooked by the Authority was that it was unsafe all over Afghanistan. In his oral submissions to the Court, the applicant again referred to the Authority’s findings that he would not travel to see his family in the future and that it was reasonable for him to relocate without the support of his family. The applicant submitted that it was unreasonable for the Authority to find that he would not see his family in the future and that one cannot compare someone living in Australia and not seeing their family to not seeing his family in Afghanistan or Pakistan if he is living in Kabul. The applicant submitted that it was not reasonable that he would not see his family for the rest of his life and the Authority erred by not considering the impact on him of not seeing his family if he relocated to Kabul.
Again, to the extent that this raises questions of whether the Authority’s findings were irrational, illogical or unreasonable, it is addressed separately below. In the context of ground 2, I asked the applicant at the hearing whether he had made any submission to the delegate or the Authority about whether he would visit his family or whether he could reasonably relocate without his family and the applicant confirmed that no such submissions were made.
The question of whether it is reasonable for the applicant to relocate to a place where he would not face a real risk of significant harm arises in the complementary protection context. The Authority was required to consider whether it would be reasonable, in the sense of ‘practicable’ for the applicant to relocate to an area within Afghanistan where he would not face a real risk of significant harm taking into account his personal circumstances: CRI028 v Republic of Nauru (2018) 356 ALR 50; [2018] HCA 24 at [26]; SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 at [24]. The objections to relocation raised by an applicant can form a framework for this consideration, although the consideration is not confined to the objections made: MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [58].
Notwithstanding that the applicant did not raise any objection to relocation based on the separation from his family, the Authority considered this anyway as part of its consideration of the applicant’s personal circumstances. The Authority’s findings were clearly expressed.
The Authority considered the applicant’s submission that he may travel overland to access Kabul and in the course of considering this, found at [17]:
Moreover, given that the applicant has demonstrated a willingness to continue to live apart from his immediate family for the foreseeable future in order to ensure his safety by applying for a temporary protection visa so as to remain in Australia, I do not accept that he would undertake an overland journey of this kind through Afghanistan, in order to visit with his family in Quetta within the foreseeable future.
The Authority addressed the reasonableness of the applicant relocating without his family at [28] where it said:
It is unfortunate that circumstances are such that the applicant has largely had to live apart from his family since 2010, and entirely apart from them since 2012. The applicant has, nevertheless, demonstrated an ability to live independently from his immediate family, and his wider relatives, for an extended period of time and he has also demonstrated a willingness to continue to live apart from his immediate family for the foreseeable future in order to ensure his safety by applying for a temporary protection visa so as to remain in Australia. Given this, I am satisfied that it would be reasonable for him to relocate to Kabul and to establish himself there without the support of his family.
To the extent that ground 2 is based on the Authority’s findings in relation to the applicant living separately from his family, it is not established.
I also find that ground 2 is not established to the extent that it is based on the particulars in the written application, namely that the Authority did not consider the applicant’s objection that it was unsafe all over Afghanistan and that it did not consider this objection in the context of his personal circumstances. To this end, I accept the Minister’s submission that the Authority considered the applicant’s claim that it was unsafe all over Afghanistan at [14] to [18] of its reasons. The Authority identified at [14] of it reasons the applicant’s submission that once someone is on the Taliban’s list, the person will be targeted wherever they go and considered country information about the Taliban’s information networks at [15]. At [16], the Authority considered the possibility that the applicant would encounter in Kabul other people from his home area who might recognise him and who might be sympathetic to the Taliban. However, given the lack of any previous direct threat from the Taliban and the five years that had passed since the applicant was told that the Taliban had made threats against him, the Authority considered that the possibility of the Taliban using its operational capacity in Kabul to target the applicant was remote. The Authority also considered the risk of harm to the applicant from the security situation in Kabul at [18] of its reasons, where it said:
I accept that citizens in Kabul have been killed and injured as bystanders to attacks upon high profile targets. However, such attacks tend to occur in areas of central Kabul where persons in the employment of the Afghan government and its foreign backers live and work, rather than in the middle and outer suburbs of Kabul where most Afghans live their day-to-day lives. DFAT assesses that, because of Kabul’s size and diversity, returnees are unlikely to be discriminated against or subjected to violence on the basis of ethnicity and religion. Given this, and given the size of the population of Kabul, a city of perhaps more than four million people, and even allowing for the risks posed by the applicant’s returning via the airport (the surrounds of which have seen occasional attacks) and even allowing for the Taliban threats previously made against the applicant, and the applicant’s circumstances as a Sunni Pashtun who would, upon return to Kabul, take up residence in an area of Kabul where other Sunni Pashtuns from his home area would also reside and would be aware that a US military base had been built on his family’s land, and of his father’s and his wider family’s actual and rumoured associations with the Afghan and US governments and security forces, and perhaps even of the applicant’s having returned from a western country where he had sought asylum, and that he has siblings living abroad in western countries, I am not satisfied that the applicant would, given the security situation in Kabul, face a real chance of harm in the capital from the Taliban or any other actor for the foreseeable future. I am therefore not satisfied that the applicant would face a real chance of serious harm in Kabul.
It is clear from this that the Authority considered the risk of harm to the applicant in Kabul, including the security situation and taking into account the applicant’s personal circumstances. The Authority relied on the same findings of fact for the purposes of its complementary protection assessment and further found that it would be reasonable for the applicant to relocate to Kabul taking into account the economic and security situation in Kabul, the employment opportunities that would be available, the living conditions in Kabul, the lack of assistance or connections that the applicant may face and his ability to be able to find employment and accommodation without assistance, and that the applicant would be relocating without his family.
I am satisfied that the Authority considered the objections to relocation raised by the applicant, including in relation to his assertion that he would be unsafe anywhere in Afghanistan, and in the context of the applicant’s own personal circumstances.
Ground 2 is not established.
Ground 3
By ground 3, the applicant asserts that the Authority failed to properly consider material facts and circumstances of his claims. The ground does not contain any particulars that identify which material facts and circumstances the Authority is alleged to have not properly considered. At the hearing, I explained to the applicant that without any identification of what material fact or circumstance he says the Authority did not consider, the ground is too unclear and vague to succeed and that I would give him an opportunity to think about it and tell me what material fact or circumstances he says the Authority did not consider. The applicant confirmed that he understood this and I stood the matter down temporarily to give the applicant an opportunity to consider his submissions.
When the hearing resumed, the applicant made submissions in relation to grounds 2 and 3 together. It appears that the applicant’s complaint again relates to the Authority’s findings in relation to whether he would travel to see his family and whether it would be reasonable for him to relocate in circumstances where he would not have the support of his family. The applicant also submitted that the Authority did not consider the impact on him in relocating without his family.
As indicated above, the applicant did not make any submissions or representations to the delegate or to the Authority about whether he would travel overland to visit his family and he did not make any objection to relocation on the basis that it would be unreasonable for him to relocate without his family. The closest the applicant came to raising these issues is in the submission prepared by his representative and given to the Authority, where the representative complained that the delegate did not consider how the applicant would get to Kabul in order to relocate there and submitted it was insufficient to simply assume that the applicant would be able to fly into Kabul rather than travelling overland, for example from Pakistan. The submission also noted that if the applicant were to return overland, in all probability he would travel from Quetta where his wife and children reside. This submission only appears to address accessing Kabul in order to relocate there and does not suggest that he would, once established in Kabul, travel to and from Quetta to visit his wife and children.
The Authority clearly addressed this submission at [17] of its reasons and, in making findings that the applicant would not travel overland to see his family in Quetta and that it would be reasonable for him to relocate without the support of his family, the Authority had regard to all relevant information and evidence before it. The Authority cannot be criticised for not considering any additional information or evidence that the applicant did not advance before it, including in relation to his own views of the impact on him of relocating without his family.
I have also considered the evidence in the court book in relation to how the applicant’s claims were advanced before the delegate and the Authority and I have not independently identified any material fact or circumstance raised by the applicant that was not addressed by the Authority.
Ground 3 is not established.
Other matters raised in the applicant’s oral submissions
There were three matters raised by the applicant in his oral submissions that warrant separate consideration. Those three matters are:
(a)an assertion by the applicant that the Authority’s findings that he would not travel overland to visit his family in Pakistan and that it was reasonable for him to relocate without his family were illogical, irrational or unreasonable; and
(b)a submission that since the Authority’s decision, the Afghan government has fallen and the Taliban now controls the whole of Afghanistan so it would be unsafe for him to return; and
(c)a submission that even in 2017, the security situation was dangerous in Kabul.
I address these additional matters in turn.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, Crennan and Bell JJ explained when an administrative decision will be illogical or irrational. Their Honours said at [131] and [135]:
[131] … 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] … 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…
I am not satisfied that the Authority’s finding that the applicant would not travel overland to see his family and its finding that the applicant could reasonably relocate without his family and in circumstances where he may not be able to see his family in the foreseeable future were illogical, irrational or otherwise unreasonable. The findings were based on the evidence that was before the Authority, including that the applicant had mostly lived separately from his family for the two years prior to his departure from Afghanistan, that he had been completely separated from his family in the five years prior to the Authority decision and had apparently been willing to maintain that separation to pursue his claims for protection. While other decision-makers may have reached a different view on this evidence, it cannot be said that a logical or rational person could not have reached the same conclusion as the Authority on the evidence before it. This is not a matter where there was only one conclusion open on the evidence and the Authority did not reach that conclusion, or where the decision of the Authority was not open on the material before it. I therefore find that the applicant’s assertion of irrationality, illogicality or unreasonableness in the Authority’s findings is not established.
The second further issue raised by the applicant relates to the significant change of circumstances in Afghanistan that has occurred since the Authority decision. The impact of the change of regime in Afghanistan on the judicial review of decisions made prior to that change of regime was considered by the Full Court of the Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 (EGZ17). In that case, the Full Court confirmed that the consideration of whether the Authority’s decision was made in accordance with the authority conferred by statute, or whether it exceeded the limits of its decision-making authority, or whether it failed to comply with an express or implied condition of conferral of statutory decision-making authority, is answered by reference to the circumstances as they existed at the time the decision-making authority was exercised, and not by reference to circumstances that did not exist at the time of the decision: EGZ17 at [28]. The Full Court further held that the situation in Afghanistan at the time of the Court’s hearing on judicial review was irrelevant to the question of whether the Authority had made a jurisdictional error: EGZ17 at [29].
Those same observations are relevant to the present case and the judgment in EGZ17 is binding on this Court. The Court is unable, in considering whether the Authority decision is affected by jurisdictional error, to take into account the change in the circumstances that now exist in Afghanistan. Therefore, the applicant’s observations about the change of government in Afghanistan and the potential impact that change of government may have on the risk of harm he would face upon return do not establish jurisdictional error in the Authority decision.
The final submission made by the applicant was that even in 2017, it was not safe in Kabul. As discussed in relation to ground 2 above, the Authority clearly considered and made findings in relation to the security situation in Kabul in 2017. Those findings were made taking into account country information that was before the Authority. The applicant has not identified any way in which these findings were not open to the Authority based on the evidence before it and rather appears to simply express disagreement with the finding of the Authority. Disagreement with a finding made by the Authority, even emphatic disagreement, is of itself insufficient to establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40]. The submission raised by the applicant regarding the security situation in Kabul in 2017 does not establish jurisdictional error.
CONCLUSION
I have found that the applicant has not established jurisdictional error in the Authority decision. It follows that the application for judicial review made to this Court must be dismissed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 26 June 2023
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