Erj17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 42
•8 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ERJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 42
File number(s): MLG 2262 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 8 February 2022 Catchwords: MIGRATION – Protection visa – decision of the Immigration Assessment Authority – where the issue of relocation arose for the first time before the Authority – whether the failure of the Authority to consider exercise of s 473DC unreasonable – whether the Authority failed to consider claim concerning travel on roads in place of relocation – jurisdictional error identified – application allowed. Legislation: Migration Act 1958 (Cth), ss.5J(1)(c), 36(2B)(a), 473CB, 473DC Cases cited: AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457; [2018] FCAFC 106
Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473; [2003] HCA 71
ASB17 v Minister for Home Affairs (2019) 268 FCR 271; [2019] FCAFC 38
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595; [2019] FCAFC 1321 BFH16 v Minister for Immigration and Border Protection (2020) 274 FCR 532; [2020] FCAFC 54.
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46
CHP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1818
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 2102 FOA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 170 ALD 496; [2020] FCA 815
Minister for Immigration and Citizenship v SZQOT (2012) 206 FCR 145; [2012] FCAFC 141
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40Division: Division 2 General Federal Law Number of paragraphs: 86 Date of last submission/s: 29 November 2021 Date of hearing: 29 November 2021 Place: Melbourne Counsel for the Applicant: Mr J Maloney Solicitor for the Applicant: Clothier Anderson Immigration Lawyers Counsel for the First Respondent: Mr H Bevan SC Solicitor for the Respondents:
Sparke Helmore Lawyers
ORDERS
MLG 2262 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: ERJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
8 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The decision of the Immigration Assessment Authority made on 14 September 2017 in matter number IAA16/01564 be quashed.
3.A writ of mandamus issue to the Immigration Assessment Authority requiring it to determine the applicant’s application according to law.
4.The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 Symons
INTRODUCTION
The applicant lodged an application in this Court on 19 October 2017 seeking judicial review of a 14 September 2017 decision of the Immigration Assessment Authority (“the IAA”) pursuant to s 476(1) of the Migration Act 1958 (Cth) (“the Act”). The IAA affirmed a decision of a delegate of the first respondent, the (then) Minister for Immigration and Border Protection (“Minister”) not to grant the applicant a Safe Haven Enterprise visa (“the visa”).
The applicant seeks to challenge the IAA decision on six grounds that are identified in an amended application for judicial review filed on 30 August 2021. For the reasons that follow, I have determined that jurisdictional error is established in relation to two of these grounds.
BACKGROUND
The following summary of background facts is taken primarily from the applicant’s written submissions at [2] to [14]. The Minister accepts the summary as accurate.
The applicant is a citizen of Afghanistan. He arrived in Australia on 23 September 2012. He was subsequently invited to apply for the visa and did so on 9 February 2016.
The applicant’s visa application was accompanied by detailed submissions, including submissions drafted on his behalf by his representatives, a statement of claims signed by the applicant, and various accompanying materials, including country information and a statement corroborating certain of the applicant’s claims.
The applicant’s claims identified the following matters:
(a)The applicant was born in Halu Village, in the Daichopan district and Zabul province of Afghanistan. He is a Shia Hazara, but his village was dominated by Sunni Pashtuns. He worked for a local Pashtun man and his family. The man accused the applicant’s brother of stealing from him and assaulting his daughter and kidnapped the applicant’s brother. The applicant’s brother later escaped. Fearing reprisals against himself and his family, the applicant fled to Dahmarda (Afghanistan).
(b)The applicant and his family remained in Dahmarda for seven years. During this time they “remained fearful because of what had happened to [the applicant’s] brother, but…had no choice but to stay in Dahmarda” because of regional warfare between Sunnis and Shias. However, eventually the localised conflict “came to an end or at least some peace”, and the applicant and his family – who “did not feel safe staying any longer” because of the worsening threat from the Taliban – fled to Pakistan.
(c)The applicant had a tyre repair business in Quetta (Pakistan). However, Quetta became increasingly dangerous for Hazaras. The applicant’s business partner was murdered in front of their shop. This prompted the applicant to close his business and leave Pakistan for Australia.
(d)The applicant feared that if returned to Afghanistan and to his village in Daichopan, he would face a real chance of harm as a Shia Hazara returning from Australia, including from the Taliban, ISIS, and other Pashtun and Sunni extremist groups. He also feared that he and/or his family might be harmed or killed by the Pashtun family who accused his brother of wrongdoing, that they might be harmed or killed on the roads, that the applicant’s daughter would face particular harm as an educated woman returning to Afghanistan, and a woman who does not cover her hair in the manner required by the Taliban, and that the harm he and his family might face would be compounded by the absence of support networks in Afghanistan.
On 6 December 2016, a delegate of the Minister refused to grant the applicant the visa. The delegate was not satisfied that the applicant was an Afghan national or a Hazara Shia. As a result of these findings, the delegate did not go on to consider the applicant’s substantive claims for protection, including those identified at [6] above.
On 9 December 2016, the decision of the delegate was referred to the IAA for a review. Not surprisingly, the applicant’s submissions to the IAA (prepared by his representative) and accompanying material, were directed at the question of his nationality, ethnicity and religion.
On 14 September 2017, the IAA affirmed the decision not to grant the applicant the visa.
THE IAA DECISION
The IAA resolved the question of the applicant’s nationality, ethnicity and religion favourably to him and found that the applicant was born and lived for some 20 years in the Bailogh area of Diachopan and had significant family links to the Hazara community in Dahmarda ([17]-[18] CB 355).
The IAA identified both Diacophan and Dahmarda as “home areas” for the applicant and found, in respect of a return to both locations, that the applicant would, for the foreseeable future, face a real chance of being abducted, and possibly killed by the Taliban (constituting “significant harm”), for reason of his having spent time in Australia, a western country ([25] CB 358 and [26] CB 360).
The IAA next addressed itself to the question of whether, for the purpose of s 5J(1)(c) of the Act, the applicant would face a real chance of serious harm in all areas of the receiving country, Afghanistan. The IAA considered submissions made by the applicant as to why he could not return to any area of Afghanistan and acknowledged the applicant’s claim that if his children and wife were to return with him to Afghanistan, the Pashtun people (the subject of the claim referred to at [6] above) would be looking for them. In this context, the IAA found that it did not accept that the applicant’s family would, within the foreseeable future, leave Pakistan to join him in Afghanistan ([29]-[30] CB 360). This finding is challenged in this application and is discussed in greater detail below
Otherwise, the IAA rejected the applicant’s submission that he was at risk of harm as a Hazara Shia in Kabul and other urban centres and found instead that it was not satisfied that the applicant would face a real chance of harm of any kind for any reason for the foreseeable future if the applicant was to return to and reside in Mazar-e-Sharif (Balkh’s urban centre) ([40] CB 364).
As part of this assessment, the IAA considered whether during the inevitable transit through Kabul that would occur before flying onward to Mazar-e-Sharif, the applicant would be susceptible to relevant harm from the Islamic State or the broader insurgency. However, the IAA was not satisfied that the applicant would, for the foreseeable future, face a real chance of harm of any kind in connection with this transit for a Convention reason ([39] CB 363-364). This finding is also the subject of challenge in this application.
The IAA next considered whether the applicant satisfied the complementary protection criterion for the grant of the visa. The IAA transposed its findings made under s 36(2)(a) and found that it was not satisfied that the applicant would face a real risk of suffering significant harm in travelling via Kabul to Mazar-e-Sharif and residing there ([45] CB 365).
The IAA was also satisfied that it would be reasonable for the applicant to relocate to, and reside in Mazar-e-Sharif with the result that the applicant did not meet s 36(2)(aa) of the Act ([46]-[48] CB 365-366). The IAA’s approach to relocation is also impugned in this application.
PROCEEDINGS IN THIS COURT
In accordance with procedural orders made by the Court on 3 November 2021, the applicant filed an amended application and outline of written submissions on 8 November 2021. On 22 November 2021, the Minister filed an outline of written submissions.
When the application came before me for final hearing on 29 November 2021, Mr Maloney, counsel for the applicant, sought leave to rely upon an affidavit affirmed by his instructor, Ms Verma, on 28 November 2021 (“Verma affidavit”). The Verma affidavit, relevantly, included a transcript of two exchanges (each of less than three minutes duration) between the delegate and the applicant during the interview conducted with the applicant by the Minister’s delegate. Although I might have been disinclined to grant leave, given the lateness of the application and in the context of a proceeding that was commenced in October 2017, in circumstances where the Minister (represented by Mr Bevan SC) did not oppose leave, I granted leave to the applicant to rely upon the Verma affidavit.
Application ground 1
Ground 1 of the amended application is as follows:
The decision of the Immigration Assessment Authority (the Authority) is affected by error in that the Authority made a finding that was unreasonable or irrational, or for which there was no evidence; or misconstrued and thereby failed to consider the Applicant’s claims.
Particulars
The Applicant claimed that his wife and children would face a real chance or real risk of harm in Afghanistan. However, the Authority found that the Applicant and his wife and children intended to permanently separate, and that the Applicant’s family would remain in Pakistan if he returned to Afghanistan: [30].
There was no evidence before the Authority capable of supporting that finding. Further, the Authority unreasonably failed to consider getting new information from the Applicant (pursuant to its discretion under s 473DC of the Migration Act 1958 (Cth) (Act) such as might have supported such a finding.
Applicant’s submissions
In his written submissions, the applicant submits that the IAA’s finding (recorded at [30] CB 360) that it was “not persuaded, and [did] not accept” that the applicant’s family would seek to join him in Afghanistan were he to return, was plainly erroneous.
The applicant submits that his claims were unambiguously premised on his family returning to live with him in Afghanistan. This was said to follow from the fact that he had fled with his family to Quetta but had never acquired Pakistani citizenship and had left for Australia when his situation became “very dangerous” and his business partner was murdered.
The applicant submits that in these circumstances, the fact that the applicant was present in Australia without his family could not rationally support the finding that he was “willing to continue living apart from his family” into the future. Equally, the fact that the applicant’s family were present in Pakistan without him could not rationally support the finding that they intended to remain in Pakistan for the reasonably foreseeable future and not return to Afghanistan with him.
In oral submissions to the Court, Mr Maloney emphasised what he described as the definitive nature of the finding recorded by the IAA at [30]. He submitted that the material upon which the IAA purported to rely for its conclusion that the applicant and his family would remain indefinitely separated, was not rationally capable of supporting this conclusion. Based on this material, it was not reasonably open for the IAA to exclude the possibility that the applicant’s family might wish to return with him to Pakistan, including because there was no basis for finding or inferring, that the family held the required subjective intention to remain apart. Mr Maloney submitted that there were parallels between the approach adopted by the IAA in this case and the approach (found to be in error) in the decisions of Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 at [82]-[83] and BFH16 v Minister for Immigration and Border Protection (2020) 274 FCR 532.
Also under ground 1, the applicant submits that the IAA’s failure to exercise or consider exercising its discretion under s 473DC of the Act to get new information from the applicant (such as might have provided a basis for its finding recorded at [30]) was unreasonable (referring to Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (“CRY16”); DPI17 v Minister for Home Affairs (2019) 269 FCR 134) (“DPI17”)).
In oral submissions, Mr Maloney referred to the “informational gap” that existed in circumstances where the IAA would have known that the delegate had not considered the applicant’s substantive claims and where (embracing the characterisation referred to above at [23]), the IAA was, on the material before it, not able to form a definitive view as to the prospective intentions of the applicant and his family.
Minister’s submissions
The Minister rejects the applicant’s characterisation of the IAA’s findings and reasons expressed at [30] of the decision record. The Minister submits that while the IAA did refer to the applicant’s claims concerning risks to his family in the event they returned to Afghanistan, it properly proceeded to address whether they would in fact do so. In doing so, the IAA drew its conclusions as to the applicant’s family’s intention to remain in Pakistan in the foreseeable future based on the objective facts about (i) the location and residence of the applicant’s immediate and extended family in Quetta, including the duration of their residence and the familial and financial support available to the applicant’s immediate family; and (ii) significantly, the applicant’s evidence about his daughter’s continued study in Pakistan. The Minister submits that it is not apparent why the applicant’s separation from his family in the circumstances the IAA described did not support the conclusion that he was willing to continue to live apart, especially given the basic objective facts and the applicant’s relatively qualified evidence about what his family might do (described in [29] CB 360). The Minister submits that there was ample evidentiary foundation for the IAA’s reasoning and that the applicant’s criticisms amount in substance to no more than emphatic disagreement with the IAA’s reasoning and conclusions.
In oral submissions, Mr Bevan SC described the evidence concerning the return of the applicant’s family to Afghanistan as involving a degree of equivocation. This was reflected in the evidence given by the applicant during the interview with the delegate (as recorded in the Verma affidavit) as well as the collection of factors identified in [26] above and referred to by the IAA at [30]. Mr Bevan challenged the applicant’s characterisation of the finding as definitive on the basis that this suggested that only one finding was open when this was not the case.
In relation to the second limb of ground 1, that the IAA erred by failing to exercise, or to consider the exercise of the discretion under s 473DC(1) to get new information from the applicant “such as might have provided a basis for its finding”, the Minister submits that as there was no evidentiary lacuna for the finding concerning the applicant’s family, the premise for the challenge fails at the threshold. The Minister also submits that the applicant is not able to establish (as he must) that the IAA in fact failed to consider the exercise of the discretion. This reflects the position that the IAA was not required to give reasons for the exercise or non-exercise of a procedural power (such as s 473DC(1)) and the mere failure to mention the discretion cannot support the drawing of an inference that the exercise of the discretion was not considered (citing BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [40]) and the contention that there was nothing unreasonable in not interviewing the applicant where the express premise of the statutory scheme is a review without an interview and the IAA can make different findings of fact to the delegate.
Consideration of application ground 1
Ground 1 alleges error in paragraph [30] (CB 360) of the IAA decision. This paragraph provides as follows:
[30] The applicant has a wife and five children (a 19-year old daughter, an 18-year old son, and three sons still in their childhood) all currently living in Quetta, Pakistan. The applicant’s family have been settled in Quetta for well over a decade and receive financial support from his brother who is living in, and a citizen of, the United Kingdom. The applicant’s mother, two of his brothers, and also a sister, and their respective families are all residing in Quetta. The applicant has indicated that his daughter is currently in her twelfth year of education and that he is working so that he can send her to university in Pakistan. All of this suggests that the applicant’s family intend to remain in Pakistan for the foreseeable future. In travelling to Australia, and in applying for a temporary protection visa to stay in Australia, the applicant has demonstrated that he is willing to continued living apart from his family. Given all of this, I am not persuaded, and I do not accept that the applicant’s family would, within the foreseeable future, leave Pakistan to join him in Afghanistan if he were to return there.
Having considered this paragraph and the written reasons of the IAA more broadly, I am not satisfied that the IAA erred in the manner alleged in ground 1. To begin with, even if I was to accept that the applicant’s claims for protection were advanced unambiguously on the footing that his wife and children would return with him to Afghanistan, it was open for the IAA to reject this aspect of the applicant’s claims, provided that it did so lawfully.
In this regard, I am not persuaded that the IAA’s finding that it did not accept that the applicant’s family would, within the foreseeable future, leave Pakistan to join him in Afghanistan, involved legal error. The IAA’s conclusion, in its terms, demonstrates that it understood the basis upon which the applicant advanced his case. However, the IAA was not persuaded as to the reliability of this claim having regard to four identified matters, being: (i) the duration of the applicant’s family’s residence in Pakistan; (ii) the nature of the financial support received by the applicant’s family in Pakistan; (iii) the extent of the applicant’s family’s ties in Pakistan; and (iv) the fact that the applicant’s daughter was currently studying in Pakistan and that the applicant had indicated a desire to make provision for her future study.
While I accept that these matters did not say anything explicitly about the subjective intention of the applicant’s family members to remain in Pakistan (and refrain from relocating to Afghanistan), it is plainly the case, adopting a fair reading of the IAA’s reasons, that the IAA formed the view that the combination of these matters undermined the applicant’s claim that his family would follow him to Pakistan. Although the IAA expressed itself in a definitive sense, the use of this adjective says nothing more than that the IAA expressed its conclusion in a manner that did not invite further speculation. It is also the case that the conclusion was framed only in terms of the foreseeable future. The IAA did not find (contrary to the particulars to ground 1) that the applicant and his wife and children intended to permanently separate.
In these more qualified circumstances, the IAA’s finding was rationally made and open to it on the evidence to which it referred. In this respect, the present case can be distinguished from the cases cited by the applicant, in which the Full Federal Court in each case found that there was no probative material capable of supporting the impugned finding.
It follows that in circumstances where there was a sufficient evidentiary basis for the finding recorded by the IAA, any failure of the IAA to exercise (or consider the exercise of) the power contained in s 473DC(1) of the Act was not unreasonable.
Application ground 2
Ground 2 of the amended application is as follows:
The decision of the Authority is affected by jurisdictional error in that it failed to consider a claim which clearly arose from its own findings.
Particulars
The Authority found that the Applicant would return to Afghanistan without his wife and five children, who would remain for the reasonably foreseeable future in Pakistan: [30].
The Authority failed to consider whether the enforced separation between the Applicant and his family was for one of the reasons set out under s 5J(1)(a) of the Act and accordingly, whether it constituted a form of persecution pursuant to s 5J(4)-(5) of the Act.
Applicant’s submissions
In his written submissions directed at ground 2, the applicant contends that the IAA failed to consider whether the “enforced and evidently permanent separation” of the applicant from his family itself constituted serious harm. The applicant seeks to derive support for this ground from two decisions; namely, SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452 (“SZTQP”) and Minister for Immigration and Citizenship v SZQOT (2012) 206 FCR 145 (“SZQOT”).
In oral argument, Mr Maloney expanded upon this ground with the submission that in circumstances where if the applicant’s wife and children did not want to return to Afghanistan this was because of the harm they might face in Afghanistan, the IAA was required to consider (adopting the approach identified in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 (“Appellant S395”) at [43] per McHugh and Kirby JJ) whether the actions taken by the applicant’s family members and/or the applicant to avoid harm (the “modified conduct”) might themselves constitute persecution.
Mr Maloney submitted to the Court that the prospect of harm to which any modified conduct was directed was a product of the applicant and his family’s ethnicity, political opinion and membership of a particular social group (the applicant and his family were raised outside of Afghanistan, were educated and desired further education and were not religious in the manner that was expected of them). It was argued that even if the modifications of behaviour were conceptualised as being undertaken principally by the applicant’s wife and children, rather than by the applicant himself, courts have repeatedly emphasised that harm done to one’s family may constitute harm to the individual applicant (referring to DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (“DCP16”) at [28]).
Minister’s submissions
The Minister submits in relation to this ground, in its original iteration, that it must fail in circumstances where the applicant did not claim that he would suffer serious harm if his family did not return with him to Afghanistan and did not (in the absence of any claim) identify a relevant nexus to the Refugees Convention: see s 5J(1)(a). Indeed, a claim framed in this way would be in direct tension with ground 1 and also the findings of the Tribunal at [30] that the applicant’s family would be unlikely to return and there was a willingness to separate. The Minister submits that both decisions relied on by the applicant – SZTQP and SZQOT – can be distinguished on their (very different) facts.
In respect of the alternative framing of the ground (identified at the hearing), the Minister submitted that the applicant’s reference to Appellant S395 was misconceived. This was because in the present case there was no suggestion that there was any modification of behaviour or that there would be a requirement to do so. What the IAA addressed was whether or not the family would return and it found that in the foreseeable future, they would not. As to the reference to DCP16, the Minister submitted that to the extent that the applicant might have a well-founded fear of persecution by reason of his relationship to family members, the IAA dealt with this at [29]-[30] of its reasons.
Consideration of application ground 2
I am not persuaded that the IAA erred in the manner alleged in ground 2. As to the first iteration of the ground (contained in the amended application), a claim of “enforced and permanent separation” from his family was not made by the applicant and did not arise on the findings recorded, or the material considered by, the IAA. As noted above (in relation to ground 1), the IAA rejected the applicant’s claim that his family would relocate with him to Afghanistan on the basis that, for principally pragmatic reasons, the family would, for the foreseeable future, remain in Pakistan.
Likewise, the applicant did not claim that he would suffer relevant harm as a consequence of any separation from his family. To the extent that the prospect of such harm might be said to have arisen (albeit, only faintly) on the findings recorded by the IAA at [30], this prospect was considered and discounted by the finding of the IAA (also in [30]) that by reason of his travel to and residence in Australia, the applicant had demonstrated an attitude to living apart from his family.
As to the second iteration of ground 2 – relying upon the concept of “modified behaviour” – as the IAA did not find that the applicant’s family did not want to return to Afghanistan because they apprehended harm in that country, the question of modified conduct (either conceptualised as emanating from the family members or the applicant) did not arise for consideration.
Application ground 3
Ground 3 of the amended application is as follows:
The decision of the Authority is affected by jurisdictional error in that the Authority failed to complete its consideration of whether it was reasonable, in the sense of practicable, for the Applicant to relocate within Afghanistan.
Particulars
The Authority found that the Applicant could relocate to Mazar-i-Sharif. However, it failed to consider whether it was reasonable for him to do so in circumstances where his wife and children would (on the Authority’s own findings) remain in Pakistan: [47].
Applicant’s submissions
The applicant submits that the IAA’s consideration of the reasonableness of his relocation to Mazar-i-Sharif (recorded at [47]) is remarkable for its simplicity and its wholesale failure to consider how that relocation might be impacted by the absence of the applicant’s wife and family. The applicant submits that the IAA’s acknowledgement that the applicant would be disadvantaged by “having no support/patronage network in Mazar-e-Sharif” should not be understood as comprehending the applicant’s family but instead directed at a distinct type of deprivation with economic, rather than emotional, consequences.
Minister’s submissions
The Minister submits that it is plain from statements recorded in [47] that the IAA addressed the issue of relocation on the basis that the applicant’s family would not be with him. Notwithstanding that separation, the IAA considered the applicant’s personal attributes and abilities in previously establishing himself in “difficult circumstances” in Quetta and in finding employment in Australia in the construction trade, with the latter also demonstrating the “acqui[sition] [of] additional urban skills”. The IAA then turned to the applicant’s family and first noted that they receive “financial support from his brother in the United Kingdom” and, in that regard, the applicant was “unencumbered of the expenses of providing for his family” even if he chose to send money to them for his daughter’s education. The Minister describes the applicant’s criticism of the word “unencumbered” as done in ignorance of the relevant context, namely, the financial support provided to the applicant’s family by his brother.
The Minister submits, in short, that the IAA did not fail to consider the impact of the separation of his family on the issue of relocation but, rather, that fact formed a part of the IAA’s discussion, together with the applicant’s skills and attributes and the country information about Mazar-i-Sharif.
In oral submissions, Mr Bevan SC also advanced the argument that it was noteworthy that the applicant had not identified the prospect of separation from his family as an objection to relocation, so as to form part of his “framework of objections”.
Consideration of application ground 3
In the context of an argument which seeks to impugn the IAA’s determination of whether it was reasonable for the applicant to relocate to Mazar-i-Sharif, I accept that the assessment of whether a person who has been found to have a well-founded fear of persecution in one, or in this case, two parts, of his country of nationality, can relocate to another region or part of that country is not to be approached only by reference to the risk of harm, but is also to be assessed by reference to the individual circumstances of the person concerned, and what is practical and reasonable for that person. So, in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24] the plurality said:
…What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. [Emphasis added]
In MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [51], Mortimer J explained that what is practicable and reasonable for a person to do, or not to do, involves a fact intensive assessment. It has also been recognised that the question of whether it is reasonable to expect an applicant to return to a particular part of his country of nationality will depend to some extent on the framework set by the claims made by the applicant about why it is not safe or not reasonable for him to return to a particular location(s) (refer, AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457 at [27]).
However, it is also the case that the level of detail required by the decision-maker is partly a function of how the applicant for the visa has raised the point and the detail given by him. In the context of this ground, the application of this principle operates against the applicant. However, it produces different consequences in relation to ground 4 (discussed below).
The IAA dealt with the question of relocation at [47] (CB 366) of its written statement. This paragraph provides:
[47]The applicant claims that it would be unreasonable for him to relocate to anywhere in Afghanistan because this would expose his daughter and other members of his family to harm if they were to join him in Afghanistan. For the reasons already given above, I do not accept that the applicant’s family would join him in Afghanistan within the foreseeable future. Further, in applying for a temporary protection visa to remain in Australia the applicant has demonstrated that he is willing to continue living apart from his family for the foreseeable future. I accept that while living in Australia he has had the support of his cousin from Dahmarda, and that in establishing himself in Quetta he had the support of wider family and community ties, and that the applicant would not have support of this kind in Mazar-e-Sharif. Even so, in what were nevertheless difficult circumstances the applicant was able to establish a tyre repair business with a partner in Quetta, and was able to find employment in Australia as a labourer learning the construction trade of rendering. It has been submitted that Samuel Hall Consulting research indicates that Afghan returnees from abroad often find themselves in as vulnerable a situation as IDPs; with research finding that, contrary to expectations, many returnees come back to Afghanistan without the advantage of additional urban skills from their time in exile, often because these persons had spent their time living in Afghan refugee camps in Pakistan or Iran. As in other urban centres of Afghanistan, some IDPs and returning refugees have found themselves living in informal settlements and sometimes in slum conditions owing to such disadvantage. The applicant, however, has been learning the trade of rendering in Australia and has thus acquired additional urban skills in way that most returnees have not. The applicant’s family receive financial support from his brother in the United Kingdom. Even if the applicant does choose to send some money to his family for the purpose of sending his daughter to university in Pakistan, he will be largely unencumbered of the expenses of providing for his family. Although the applicant will face the disadvantage of having no support/patronage network in Mazar-e Sharif, I am satisfied that he has the skills and experience to offset this disadvantage in the favourable economic circumstances of Mazar-e Sharif, and that he would be able to earn a livelihood and find accommodation that would provide him with the necessities of life.
Having regard to the reasons identified by the IAA in this passage and the manner in which the applicant articulated his case and objections against relocation, I am not satisfied that the IAA erred in the way that is identified in ground 3.
Instead, I accept the Minister’s submission that the IAA clearly approached the question of whether relocation was reasonable, not in ignorance of the fact that the applicant would be moving to Mazar-i-Sharif without his family, but precisely on that basis. However, the IAA also reasoned, having regard to the time spent by the applicant in Australia away from his family, that he had demonstrated a willingness to continue living apart from them for the foreseeable future. This reference and consideration was, having regard to the case advanced by the applicant which did not, even tangentially, advert to the emotional consequences of separation, sufficiently directed at the question of the reasonableness of relocation as it related to the absence of the applicant’s family in Mazar-i-Sharif.
Application ground 4
Ground 4 of the amended application is as follows:
The Authority unreasonably failed to exercise or consider the exercise of its discretion pursuant to s 473DC of the Act, and so failed to discharge its statutory task.
Particulars
The Delegate was not satisfied the Applicant was from Afghanistan, and so did not consider whether he would face a real chance or risk of harm on return to Afghanistan. The Authority was satisfied that the Applicant was from Afghanistan, and also satisfied that he would face a real chance of harm on return to his home region; but found that he could relocate to Mazar-i-Sharif: [17]-[18], [25], [28], [47]. In circumstances where the Applicant’s relocation, generally or to Mazar-i-Sharif, had not theretofore been in issue, it was unreasonable for the Authority to make that finding before at least considering the exercise of its discretion to get new information from the Applicant.
Applicant’s submissions
The applicant submits that in the “unusual circumstances” of this case, he was not on notice that relocation, generally or to Mazar-i-Sharif in particular, was under consideration and that it was not therefore reasonably open to the IAA to find that the applicant could reasonably relocate to Mazar-i-Sharif without at least considering the exercise of its discretion pursuant to s 473DC of the Act (citing CRY16 at [76], [82]-[87] and DPI17 at [45]-[47]).
Minister’s submissions
The Minister submits, including by reference to the IAA’s decision, that the issue of relocation was specifically raised at the interview with the delegate and in subsequent written submissions (referencing CB 360 [29], 360 [31] and 362 [35] and CB 117-157). The Minister submits that in these circumstances and where the applicant contended that there was no area of Afghanistan to which he could safely return and that issue was explored at the interview and was the subject of written submissions before the delegate, there was no error in the IAA proceeding to determine the review without getting new information from the applicant on that topic.
In oral submissions, Mr Bevan SC distinguished the present case from that which was considered by a Full Court in CRY16 on the basis that here (unlike in CRY16), the IAA had information concerning the applicant’s attributes and skills (including information concerning the applicant’s business in Quetta and employment in Australia) and had placed before the IAA country information that concerned the whole of Afghanistan, including the place of relocation.
Consideration of application ground 4
While each case must be assessed on its merits, I am unable to discern in the facts of this case, any matter of substance which operates to distinguish it from the case that was the subject of the Full Court’s analysis in CRY16. Here, like in CRY16, the transition from delegate assessment to IAA review, involved the introduction of a new paradigm, being the issue of whether the applicant could relocate within Afghanistan and whether he could do so reasonably, to the specific location of Mazar-i-Sharif.
In this respect, I do not accept the submission made on behalf of the Minister that the issue of relocation was specifically raised at the interview with the delegate and in subsequent written submissions. The information before the Court (contained in the Verma affidavit) instead discloses that at interview the closest that the delegate got to the question of relocation consisted of the following exchange:
D:Now if your application for a protection visa is refused, you will be required to return to Afghanistan – can you tell me why you cannot return to any area in Afghanistan?
A:The first point I cannot return to Afghanistan because of that incident, and you know about Pashtun people, if they find you anywhere and anytime, they will kill you. And if I return back to Afghanistan, anywhere of Afghanistan, maybe my children, my wife they don’t want to come with me, if they do, maybe the Pashtun people looking for my [daughter], or my wife or my another children.
D:Okay, is that all you want to say?
A:The another problem because of my ethnicity and religion, I am Shia Hazara, I cannot go anywhere and if I go from one place to another place for travel they will stop us and kill us.
What is absent from this exchange is any identification of the proposed area of relocation and the applicant’s responses are correspondingly framed in general terms and with an emphasis on matters that go to his personal safety and that of his family. The broader issues that are comprehended in the inquiry of whether relocation to a particular location for a particular individual is reasonable and practicable, are simply not canvassed.
Likewise, although the applicant made submissions directed at relocation within Afghanistan for the purposes of satisfying s 5J(1)(c) of the Act (the real chance of persecution relates to all areas of a receiving country), he did not make submissions directed at the conceptually different question of whether, for the purposes of s 36(2B)(a) of the Act, “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”. The submissions made on his behalf by his representative (reproduced at CB 117-157) were directed exclusively at the former question and largely concerned the urban centre of Kabul. The reference to an absence of patronage networks (referred to at CB 165) was, likewise, identified as a matter that had the potential to compromise the safety of any relocation within Afghanistan generally.
At [82] of CRY16 (a paragraph relied upon by the applicant) the Full Court (Robertson, Murphy and Kerr JJ) said as follows:
[82]Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 73DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that statutory power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
As foreshadowed above, I consider that these reasons operate here to compel the same outcome as in CRY16. The IAA can be taken to have known that it did not have, but the applicant was likely to have and, having regard to the substantial submissions directed at other matters, was likely to furnish, information concerning how relocation to the specific location of Mazar-i-Sharif, would engage with his particular circumstances, beyond the matters the IAA gleaned from the applicant’s conduct in operating a business in Quetta and time spent in Australia.
The decision of CRY16 must now be read in light of the decisions in ASB17 v Minister for Home Affairs (2019) 268 FCR 271 (“ASB17”) (at [46]-[49]) and BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 (at [16] and [40]) so that the applicant bears the onus of proving that the IAA member did not consider exercising the power in s 473DC and in doing so, must confront the reality that the IAA is not required to give reasons for the exercise or non-exercise of a procedural power, such as that conferred by s 473DC(1) of the Act.
I consider however that in the circumstances of this case, the onus has been discharged. That is because, on an analogous basis with the decision of FOA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 170 ALD 496 [at 46]-[47] the reference at [2] of the IAA written statement of reasons to the IAA having had regard to the material given by the Secretary under s 473CB of the Act, together with the identification at [4] to [6] of other information (submissions and country information) that the IAA considered was properly before it, suggests that the IAA member was taking some care to indicate the material which had been considered and the justification for doing so. Given this approach, had the IAA member turned his mind to the question of whether to exercise the power to obtain information from the applicant on the topic of relocation to Mazar-i-Sharif, it is natural to expect that it would have been mentioned in this context and section (under the heading “information before the IAA”). The inference arises from the absence of any mention, that the question was not considered. Further, the consequence of what was not said at [2], namely, “no further information was obtained or received”, means that the contrary inference that the IAA did consider whether to exercise the statutory power, does not arise (compare ASB17 at [48]-[49]).
Application ground 5
Ground 5 of the amended application is as follows:
The Authority’s decision is affected by jurisdictional error in that it failed to consider a claim or essential integer of a claim, advanced by the Applicant.
Particulars
The Applicant claimed to fear harm from the Taliban and others while travelling on the roads in Afghanistan. The Authority found that the Applicant could safely and reasonably relocate to Mazar-i-Sharif, but did not consider whether he would face a real chance or risk of harm on the roads outside Mazar-i-Sharif: [38].
Applicant’s submissions
The applicant submits, including by reference to the Verma affidavit, that an essential integer of his claims was that he apprehended he would suffer harm on the roads of Afghanistan should he be returned there. The applicant accepts that the IAA considered his safe passage to Mazar-i-Sharif (by air) immediately on his return to Afghanistan, but submits that it gave no consideration to whether the applicant faced a real chance or risk of harm on the roads around Mazar-i-Sharif in the reasonably foreseeable future. The applicant contends that the IAA’s finding rests on an implied expectation that the applicant will spend the foreseeable future entirely within the confines of one town. However, there was no basis for this expectation, and so no basis for the IAA’s failure to consider the applicant’s fears of harm on the roads (citing CHP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1818 (“CHP16”)).
Minister’s submissions
The Minister accepts, including by reference to the Verma affidavit, that in his submissions and country information provided to the IAA, the applicant identified (at least in general terms) that there were dangers associated with road travel in Afghanistan. The Minister does not accept however, that a claim was squarely raised that comprehended the roads outside Mazar-i- Sharif, characterising this as a “very particular claim”. The Minister submits that the IAA plainly was aware of claims directed at the dangers of road travel, as can be seen from [27] of its reasons (in the context of considering access to Dahmarda) but that the IAA was not required to confront this question when it considered relocation to Mazar-i-Sharif as it was evident from its findings that the applicant would remain in the urban centre. In this respect, the present case could be distinguished from CHP16, which concerned travel within and around a village environment in Pakistan.
Consideration of application ground 5
The IAA was required to consider all claims made by the applicant and their essential components or integers. However, in giving effect to this obligation, the IAA was only required to consider such claims where they either were the subject of substantial, clearly articulated arguments, relying on established facts or where they clearly emerged from the materials (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] and [58]).
It is therefore necessary to determine the nature and breadth of any claims made by the applicant concerning travel by road in Afghanistan and whether in any iteration, they required the IAA to consider the safety of road travel in the context of the applicant’s relocation to Mazar-i-Sharif.
The applicant relies on three references in the court book which he says expose a claim that he would suffer harm on the roads in Afghanistan should he be returned (anywhere) within that country.
The first reference is part of an extensive written submission made by the applicant’s representative in support of the visa application (CB 164 [11.2]). So far as is relevant, it provides:
[11.2]…The applicant fears serious harm….[from] the Taliban, Hizb I Islami and other insurgent groups such as Islamic state and Pakistani and other foreign militants. This serious harm will befall him as a necessary and foreseeable consequence of his return to Afghanistan, as he will need to return through the oft-targeted Kabul International airport, travel along dangerous roads in Kabul and travel along dangerous roads outside of Kabul. We submit that the country information provided in this submission in relation to harm upon all the roadways leading out of Kabul is relevant to an assessment of harm to the applicant as he attempts to live and work in any other part of Afghanistan.
The second reference (CB 169 [22]) forms part of the applicant’s statement of claims submitted with his application for the visa. It provides:
[22]I cannot return to Afghanistan. I cannot return to my village because it is a Pashtun village and all that area is under the control of the Daichopan Taliban….My home area is very dangerous for Hazaras. If I were to return there I would have no one to help support me or protect me. I have no family there and I have no house or land there. The roads in Afghanistan are very dangerous and are controlled by the Taliban. I am scared that I would be hurt on the roads because of my ethnicity and religion if I was forced to return to Daichopan.
The third reference (CB 271-272) is an extract from a DFAT Thematic Report – Hazaras in Afghanistan - which the IAA provided to the applicant following a request from his representative. The relevant extract is concerned with road safety and notes (amongst other things) that Afghanistan’s road network is generally poor. It contains (amongst others) the following paragraph:
[2.26]Insecurity compounds the poor condition of Afghanistan’s limited road network, particularly those roads that pass through areas contested by insurgents. The Taliban, other anti-government groups and criminal elements target the national highway and secondary roads, and unofficial checkpoints manned by armed insurgents are common. Official checkpoints – operated by Afghan National Army (ANA) or Afghan National Police (ANP) with the aim of improving the security on the roads – can be operated by poorly-trained, poorly-paid personnel, and corruption is common. There are reports that, in some cases, Hazara truck drivers are prevented from passing through these checkpoints; only Pashtun drivers are allowed to pass.
The applicant also relies upon the following exchange from the applicant’s interview with the delegate that is set out in the Verma affidavit. It provides as follows:
D: In your statement, you mentioned that you would be hurt on the roads in Afghanistan should you return due to your ethnicity.
A:That’s true.
D:Okay so what do you mean by that?
A:The first point I left my home country because of the problem which I had and they blaming us to [indistinct] something, and the second point I am Hazara, and now maybe nowadays you know better than us Hazara people in danger and they don’t like Hazara people, on the way Hazara cannot travel from one province to another province.
D:Okay, so that’s your response?
A:If I go back to Afghanistan?
D:Mm-hmmm
A:As I have said before, the person who blamed my brother, because of him we cannot go back to Afghanistan, if we go they will kill us.
D:Now I just want to talk a little bit more about the roads because I think this has been mentioned in your statement with your application, and also in a recent statement. How will you be identified as a Hazara if you were to travel on the roads?
A:Everyone knows I am Hazara – Talib, Daesh, Pashtun, everyone
D:How do they know this?
A:From my face, from my language when I’m talking, from my religion, from everywhere…everything, sorry
I consider, having regard to these four references, that the applicant articulated a claim before the IAA of sufficiently broad compass to include travel on roads in all parts of Afghanistan. Although in the first reference, the focus, perhaps not surprisingly, is on the roads in and around Kabul, it nonetheless contains a statement in explicit terms that the applicant apprehends harm, as a consequence of road travel, in any part of Afghanistan and as an incident of life and work. The claim articulated by the applicant in his responses to questions asked during the interview is likewise not geographically limited and depends instead on the applicant being targeted in Afghanistan based on his Hazara ethnicity.
The Minister accepts that the IAA did not consider the impact of road travel when it came to consider the risks associated with a return to Mazar-i-Sharif (arguing that the consideration was not required). I likewise cannot discern any consideration directed at road travel in the paragraphs of the IAA’s reasoning concerning this part of Afghanistan. Where a claim comprehending Mazar-i-Sharif was squarely raised and supported by country information before the IAA it was not sufficient in my view for the IAA to say nothing on the topic. To the extent that the IAA’s findings contained or were premised on an implied expectation that the applicant would spend the foreseeable future living and moving entirely within Mazar-i-Sharif (thereby avoiding road travel), it was nonetheless incumbent on the IAA to explain, by reference to probative evidence, the basis for this expectation. I uphold ground 5 of the amended application.
Application ground 6
Ground 6 of the amended application is as follows:
The Authority’s decision is affected by jurisdictional error in that it misapplied the ‘real chance’ test and made a finding that was not supported by evidence.
Particulars
The Authority found that the Applicant would not be harmed if he was returned to Afghanistan and spent time in Kabul. It accepted that there was continuing violence directed towards Shia Hazaras in Kabul, but noted that Shia Hazaras ‘make up as much as half of a population of some four million inhabitants’; such that the Applicant would not face a real chance of serious or significant harm: [33], [39].
In so finding, the Authority impermissibly adopted a ‘statistical’ approach to the ‘real chance’/’real risk’ test.
Further, the Authority found that the attacks in Kabul ‘primarily affected central Kabul’: [39]. However, there was no evidence concerning whether the Applicant would or could avoid central Kabul if he went there.
Applicant’s submissions
The applicant submits that the IAA’s finding (recorded at [39]) that the applicant faced no chance or risk of harm in Kabul (prior to his arrival in Mazar-i-Sharif) involved the IAA reasoning, implicitly, that: (i) the applicant would not be in central Kabul, where the risk of an attack was highest; and (ii) he would not face harm because the size of the Hazara population was so large and the chance of any one person being harmed was remote.
However, on the applicant’s submission, this reasoning lacked an evidentiary basis; no reasons were given as to why the applicant would or would be able, to avoid central Kabul. Further, the fact that there might be a large Shia Hazara population in Kabul did not rationally entail that the applicant did not face a real chance or risk of being harmed. Among other matters, the prospect of harm faced by Shia Hazaras in Kabul would vary depending on specific circumstances and characteristics including, where the individual lives and whether they attend places or events more likely to be targeted. Equally, it was said, the likelihood of the applicant being harmed in Kabul would depend upon, among other things, what he did and where he went in Kabul, and his other characteristics (including his being a returnee from the west who had not lived in Kabul and had no networks or supports). The fact that he would be one among many Shia Hazaras in Kabul was not probative and certainly not a basis for determining that he did not face a real chance or risk of harm (referring to CGA15 v Minister for Home Affairs (2019) 268 FCR 362 (“CGA15”) at [51]-[57]).
Minister’s submissions
The Minister submits that contrary to the applicant’s criticisms, the IAA’s reasoning at [39] was sound. The Minister emphasised in particular, the IAA’s identification of the areas of central Kabul “where Afghan government and foreign personnel work and live, rather than the western neighbourhoods where Hazaras live and work” as supporting its finding that the applicant did not face a real chance of harm. This was because the applicant did not fit the description of those likely to be in central Kabul which, having regard also to the nature of the attacks and the size of the city, had the consequence that the applicant did not face a real chance of harm. This reasoning was open to the IAA on the material before it.
Consideration of application ground 6
The impugned reasoning appears at [39] of the IAA’s written statement in the following terms:
[39]Returnees from western countries are almost exclusively returned to Kabul, and the applicant will likely be required to transit Kabul before flying onward to Mazar-e Sharif. The applicant may be required to spend a few hours or a few weeks in the capital. As has already been discussed above, and although I accept that Kabul may see future occasional Islamic State perpetrated attacks upon the Shia Hazara community, and also ongoing attacks from the broader insurgency which target Afghan government and foreign institutions and their employees and security personnel causing civilian casualties, I am not persuaded that the applicant would face a real chance of harm in Kabul given the size of Kabul’s Shia Hazara population, and given the manner in which insurgent attacks have primarily affected central Kabul where government and foreign institutions are located. As has been discussed above, on the evidence the risk posed to the applicant as a low-profile Shia Hazara on the basis of his have returned from a western country where he has spent time and sought asylum is low in a government controlled urban centre like Kabul. Given all of this, and given that the applicant’s time transiting Kabul would be brief, on the evidence I am not satisfied that the applicant would, for the foreseeable future, face a real chance of harm of any kind in transiting Kabul on his way to Mazar-e Sharif, for reason of his being a Shia Hazara who has no support/patronage networks in Kabul and/or who has returned from Australia, a western country, where he has sought asylum, and who has also lived in Pakistan, and/or as a consequence of more generalised violence, and/or for any other reason, from the Taliban or Islamic State, and/or any other religious extremist militant group, and/or from Pashtuns or Sunnis more generally and/or from any other actor for any other reason.
Having regard to this reasoning, I do not accept that the IAA erred in the manner alleged by the applicant. In the first place, the decision relied upon by the applicant of CGA15 does not apply by way of analogy to the approach adopted by the IAA in this case. In CGA15, the error identified by the Full Court reflected the failure of the decision-maker to identify the percentage or proportion of persons of Shia religion within the particular geographic region upon which the assessment operated; instead, the decision-maker had regard to the Shia population across the whole of Pakistan. Here, instead, the IAA’s reasoning involved (in part) the proposition that the applicant as one of an identified proportion (up to as much as half of a population of some four million inhabitants) of the Shia Hazara population within Kabul, would be less likely to be exposed to harm in the form of attacks carried out by Islamic State. I consider that this statistical, probability-based reasoning was open to the IAA, especially in the context of what the IAA found was likely to be a short-term transit in the range of between a few hours or a few weeks.
I am also not convinced that the IAA erred by reasoning as it did in relation to attacks being carried out in the centre of Kabul. Although the IAA did not record a finding as to why the applicant might be in a position to avoid central Kabul and any insurgent attacks carried out in the area, it is implicit from the IAA’s reference to this area being the location for government and foreign institutions (neither institution being one to which, on the evidence, the applicant had affiliations), that the IAA considered the applicant would unlikely to be present in this area during his brief transit in Kabul.
DISPOSITION
As two of the applicant’s grounds have been successful, the decision of the IAA will be set aside and a writ of mandamus will issue. The Minister will be required to pay the applicant’s costs.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 8 February 2022
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