ESE18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 730
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ESE18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 730
File number(s): SYG 2554 of 2018 Judgment of: JUDGE OBRADOVIC Date of judgment: 18 August 2023 Catchwords: MIGRATION LAW – Judicial Review – Safe Haven Enterprise Visa – Where the Authority considered information for the purpose of risk of harm but not for reasonableness as to relocation – Whether submissions considered new information – Jurisdictional error established. Legislation: Migration Act 1958 (Cth) ss. 5J, 36(2), 36(2A), 36(2B), 473DB, 473DC, 473DD. Cases cited: BIR19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 79
CXO16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 17
ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372
ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64
Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZYQU V Minister for Immigration & Citizenship [2012] FCA 1032
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of last submission/s: 27 February 2023 Date of hearing: 27 February 2023 Place: Parramatta Counsel for the Applicant: Mr D Hughes Solicitor for the Applicant: D’Ambra Murphy Lawyers Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 2554 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ESE18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
18 August 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The decision of the Second Respondent dated 27 August 2018 be set aside.
3.A writ of mandamus issue, remitting the matter to the Second Respondent, differently reconstituted, for redetermination according to law.
4.A writ of prohibition issue, prohibiting the First Respondent and his delegates, servants and agents from acting upon or giving effect to the decision of the Second Respondent.
5.The First Respondent pay the Applicant’s costs as agreed in the amount of $7,275.
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 OBRADOVIC:
This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) who is the second respondent. The decision of the Authority was made on 27 August 2018 and affirmed the decision of a delegate (“the delegate”) of the Minister for Home Affairs (“Minister”), the first respondent, to refuse the applicant a Safe Haven Enterprise Visa (“SHEV”).
The applicant raised two grounds for judicial review which were argued in the alternative:
(a)Ground 1: that in considering, under s.36(2B)(a) of the Migration Act1958 (Cth), whether it would be reasonable for the applicant to relocate the Authority failed to consider impediments to relocation expressly raised by the applicant, or alternatively misunderstood or misconstrued the applicant’s claims, and thus fell into jurisdictional error.
(b)Ground 2: that the Authority failed to consider whether the applicant’s claims were “new information” within the meaning of s.473DC of the Act, and if so, whether exceptional circumstances existed within the meaing of s.473DD such that the information should be considered.
BACKGROUND
The applicant is a citizen of Afghanistan of Tajik ethnicity, from the Province of Logar. He arrived in Australia by boat and was detained on Christmas Island on 10 June 2013.
In January 2014, there was a data breach of people in immigration detention. The applicant was one of the subjects whose information was compromised by this data breach.
On 14 November 2016, the applicant applied for a SHEV on the basis that he feared harm from the Taliban arising from his past employment with Aryana Afghan Aryaee Pty Ltd (“AAA”) in Kabul, a contractor for the Afghan government, and by virtue of being a returnee from a western country.
The applicant participated in an interview with the delegate on 16 January 2018.
For convenience, the applicant’s claims for protection as identified by the delegate were as follows:[1]
(a)He worked at a vehicle-weighing station in Kabul for the AAA, a company that had a contract with the Afghan government;
(b)He was stopped by the Taliban once, and was beaten for not following instructions. He had given his ID to the driver of the car, and the Taliban did not find it during this incident;
(c)The Taliban would post public notices warning people against working for the government or foreign organisations;
(d)He became scared because of his employment, so he left for Australia; and
(e)He fears he would be reported to the Taliban by Pashtuns if he returned, and fears a harsher punishment because he has been in Australia.
[1] CB:116-7.
On 21 April 2018, the delegate refused the SHEV application. When making a decision, the delegate had concerns with the applicant’s credibility and made adverse credibility findings. There were three issues in particular which lead the delegate to make this finding:
(a)Firstly, the applicant had three known aliases on Facebook;
(b)Secondly, the applicant claimed to have lost their original taskera (Afghan identity card) and had provided a scan of the document before a replacement was obtained by the applicant’s brother, a process which should not have been possible based on the country information; and
(c)Thirdly, the possibility that the applicant had another identity in regard to claimed financial transactions overseas, as “credible information” before the delegate was inconsistent with the applicant’s claims of sending money to family once a month.[2]
[2] CB:115-6.
The delegate found that the applicant’s claim to fear harm as a former employee of AAA was not credible, but was satisfied that the applicant may be identified as a returnee from the west.[3] Notwithstanding, the delegate was not satisfied that there was a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence if he relocated to Kabul and on this basis refused the SHEV. This was the first time Kabul arose as an option for relocation as the applicant did not raise it in the SHEV application.[4] The delegate’s decision was made on 21 April 2018.
[3] CB:120.
[4] CB:66, 69.
On 26 April 2018, the delegate’s decision was referred to the Authority for fast track review under Part 7AA of the Act.
THE AUTHORITY’S DECISION
On 27 August 2018, the Authority determined the applicant’s case and affirmed the decision of the delegate not to grant a SHEV. The Authority had regard to the review material provided by the Secretary pursuant to s.473CB of the Act, and the applicant’s submissions dated 18 May 2018 (“IAA submissions”).
IAA Submissions
The IAA submissions set out the reasons the applicant did not agree with the decision of the delegate. In summary, the IAA submissions considered/raised the following:[5]
(a)The applicant’s multiple Facebook aliases, which the delegate considered in relation to credibility, were to conceal the applicant’s true identity from the Taliban and not the Australian government or the Department;
(b)The country information before the delegate, relating to the process for the replacement of a taskera, was inaccurate. It is possible for the next of kin to obtain a replacement copy on behalf of a person not present in Afghanistan;
(c)The applicant’s overseas money transfers and remittances were to his family, and if the applicant used a different or abbreviated name this does not prove he is not credible. Furthermore, the applicant was not provided with the benefit of knowing what the “credible information” the Department possessed to prove he used an alternative name;
(d)The applicant submitted he had been truthful in regard to his employment with AAA and that the employment letter contained spelling mistakes because English was not the language of the company, and that he had asked that the letter be provided to him in English as it is a universal language;
(e)As a returnee from Australia the applicant feared harm, and that the delegate dismissed the fact that returnees have been killed as their deaths were not publicised. The applicant’s fear was significant due to the posting of the Victorian Police certificate to Facebook as his Afghan network believed he worked for the Australian police, and due to the Department data breach releasing information about the applicant which may be in the possession of the Taliban;
(f)The delegates assertion that the applicant could return to Kabul was incorrect (see below); and
(g)The applicant married an Australian woman on 28 April 2018, and that this constituted “new information” and should be considered compelling and compassionate circumstances as his wife relies on him emotionally and financially. Furthermore, having married an Australian woman he was even more of a target for the Taliban.
[5] CB:151-7.
The IAA submissions also addressed why the applicant could not return to Kabul (see [12](f) above) despite the delegate making the finding that relocation was possible (“Kabul submissions”). In summary, the applicant submitted:[6]
(a)He would have difficulty assimilating in Kabul;
(b)He possessed no desirable skill or qualification to assist in gaining employment in Kabul;
(c)He had no familial ties or friends in Kabul;
(d)He had no contacts in Kabul to find a safe home; and
(e)It is unreasonable to assume that the applicant would return to Kabul as he has nothing there, and he is more likely to find himself back in his home province where he faces harm.
[6] Applicant’s Submissions filed 14 February 2023 at 2; CB:156[26].
The Authority’s Reasons
The Authority made a number of findings. The Authority:
(a)Accepted that the applicant was an Afghan national whose receiving country was Afghanistan;
(b)Accepted the applicant’s identity as claimed for the assessment;
(c)Did not accept that the applicant worked in the position claimed for the company AAA;
(d)Accepted that the applicant was stopped at a random checkpoint and beaten by the Taliban;
(e)Made no findings in relation to the death of the applicant’s cousin, or relevance to applicant’s claim;
(f)Did not accept that the applicant is of interest to the Taliban based on his previous employment, the incident in which the applicant was beaten, his relationship with his deceased cousin, or because of any perceived support for government or foreigners, or for any other reason relating to his activities and life in Afghanistan;
(g)While accepting that the applicant posted the Victorian police certificate on Facebook, the Authority did not accept as credible the applicant’s explanation for posting the document;
(h)Did not accept the posting of the certificate gave rise to the applicant having a profile that would draw the attention of the Taliban;
(i)Accepted that there is a more than remote chance that the applicant would be imputed with a pro-western political opinion and be targeted for serious harm by the Taliban if returned to Logar;
(j)Was satisfied that there was no real chance of the applicant being targeted in Kabul as he would not be easily recognisable as a western returnee; and
(k)Accepted the applicant may face difficulties gaining employment upon being returned to Kabul.
Constituting “new information”
The Authority described the process for considering new information under s.473DD of the Act as: one which prohibits the Authority considering new information unless: [7]
[S]atisfied that there are exceptional circumstances to justify considering it, and that the information could not have been provided to the Minister or is credible personal information that was not known, and had it been known, may have affected the consideration of the claims.
[7] CB:165[8].
The Authority found that the IAA submissions did not “constitute new information” generally, however, the Authority took the view that two aspects of the IAA submissions did constitute new information.[8]
[8] CB:165[5]-[6].
The first aspect was the means of obtaining a new taskera in absentia. The Authority found the IAA submissions detailing the process of obtaining a new taskera was new information, as at no time was it put to the delegate. However, as the applicant’s identity was accepted, it found “the new information [was] immaterial.”[9]
[9] CB:166[10].
The second aspect was the provision of a marriage certificate. While the Authority was satisfied that the information could not have been provided to the delegate as the certificate and fact of the marriage post-date the delegate’s decision, the Authority was not satisfied as to their relevance to the applicant’s claims. The Authority determined:[10]
[T]hey are not relevant to my consideration new information [sic] or to my ultimate findings relating to the visa criteria. … Accordingly, I am not satisfied that there are exceptional circumstances to justify considering this information.
[10] CB:166[14].
Well-founded fear of persecution (Refugee Assessment)
The Authority considered the applicant’s refugee assessment and whether the applicant held a well-founded fear of persecution. The Authority set out the components of a ‘well-founded fear of persecution’ under s.5J of the Act as including:[11]
•the person fears persecution and there is a real chance that the person would be persecuted
•the real chance of persecution relates to all areas of the receiving country
•the persecution involves serious harm and systematic and discriminatory conduct
•the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion
•the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and
•the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.
[11] CB:171[46].
The Authority did not accept that the applicant worked at AAA as claimed, and there was no evidence the applicant had any other association with the government or international community. As such, the Authority was not satisfied that the applicant would be of interest to the Taliban or other insurgents upon return to Logar on this basis.[12]
[12] CB:171[48].
As a returnee from a western country, the Authority noted that individuals identifiable as being associated with foreign (particularly western) countries may be targeted by insurgent groups such as the Taliban. The Authority accepted that the applicant, if returned to Logar, would be “returning, after a period of residence in a western country, to a small area where there is high Taliban presence and control, with minimal security or State protection.”[13] The Authority also accepted that his departure and return to Logar after a significant period of time would be known to the local community. Accordingly, the Authority determined that it was:[14]
[S]atisfied that the knowledge that the applicant has lived in a western country may become known to the local community and subsequently come to the adverse attention of the local Taliban through their networks. … I am satisfied that there is more than a remote chance that he will be imputed with a pro-Western political opinion and targeted for serious harm by the local Taliban if he returned to Logar. I am also satisfied that his imputed political opinion would be an essential and significant reason for the harm.
[13] CB:172[51].
[14] CB:172[51].
With this as a basis, the Authority then considered s.5J(1)(c) of the Act, that the real chance of persecution must relate to all areas of the receiving country. The Authority concluded that:[15]
Unlike his home area in Kolangar, Kabul is a large urban area with a diverse population and large numbers of returnees from Pakistan, Iran, and Europe and an area where he would not be easily recognisable as having lived in a western country. I am not satisfied that the applicant faces a real chance of any harm in Kabul as a western returnee.
[15] CB:173[56].
The Authority accepted that nepotism was practised within particular ethnic and religious groups in Kabul, and that the applicant would face difficulties on return in relation to employment. However, the Authority was not satisfied that the applicant would be denied the capacity to earn a livelihood or be subject to such economic hardship that may be considered “serious harm” within the meaning of s.5J.
The Authority also considered the incidents of violence in Kabul against particular groups, but noted that the applicant has not been associated with any of the groups. The Authority was satisfied that, at the time of the Authority’s decision, the government and security forces maintained effective control and the chance of the applicant being inadvertently harmed was remote.
Real risk of harm (Complementary Protection Assessment)
As part of the applicant’s refugee assessment, the Authority considered whether the applicant faced a real risk of harm. The Authority defined “significant harm” under s.36(2A) of the Act as arising if:[16]
•the person will be arbitrarily deprived of his or her life
•the death penalty will be carried out on the person
•the person will be subject to torture
•the person will be subjected to cruel or inhuman treatment or punishment, or
•the person will be subject to degrading treatment or punishment.
[16] CB:175[67].
On this basis the Authority accepted that the applicant faced a real risk of significant harm in his home area of Logar.[17]
[17] CB:175[68].
However, the Authority defined s.36(2B) of the Act, that there is not to be a real risk that a person will suffer significant harm in a country if:[18]
•it would be reasonable for that person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm
•the person could obtain, from an authority of the country, protection such that there would not be a real risk that the person will suffer significant harm, or
•the real risk is one faced by the population of the country generally and is not faced by the person personally.
[18] CB:176[69].
The Authority considered whether it would be reasonable for the applicant to relocate to Kabul. The Authority concluded:[19]
The applicant did not suggest any other reasons why it would be unreasonable for him to relocate to Kabul and none, apart from potential difficulties finding employment, are apparent to me. … While there is no evidence before me that the applicant has family living in Kabul, I note that Kabul has a significant Tajik community. … [The applicant] has shown himself to be adaptable and resilient in travelling to and settling in a foreign country.
[19] CB:176[72].
On this basis the Authority was satisfied that it was reasonable for the applicant to relocate to Kabul where he would not face a real risk of significant harm.
DETERMINATION
Ground 1
The applicant submitted that the Authority fell into jurisdictional error by failing to consider the impediments to relocation raised by the applicant in the Kabul submissions.
The applicant submits that the Authority must consider the practical realities of relocation, including any impediments to relocation raised by the applicant. A failure to consider the impediments raised by the applicant constitutes jurisdictional error. The applicant cited Perry J where:[20]
It suffices to say that the IAA failed to consider a claim or integer of the appellant’s claims as to why he could not reasonably relocate to Kabul for the purposes of considering his complementary protection claim and thereby failed to consider a mandatory relevant consideration on the review.
[20] ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372 at [32].
In addition, the applicant submits that it is not sufficient for the Authority to consider whether the impediment to relocation amounts to “serious harm” under s.5J, as an impediment that does not rise to the level of serious harm may still affect the reasonableness of relocation. The applicant cites Wheelahan J where:[21]
[T]here are two stages of inquiry under s 36(2B)(a) of the Migration Act. If the decision-maker determines that there is no real risk of significant harm, different or lower risks of harm faced by an applicant may be relevant to the evaluation of the reasonableness of relocation.
[21] CXO16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 17 at [49].
The applicant contends that failure to consider either stage of enquiry – the “reasonableness” of relocation, and the risk of “serious harm” – constitutes jurisdictional error.
Even if the Authority picked up some of the matters raised by the Kabul submissions at [58] of the Authority’s decision, the Authority considered them for the purposes of “serious harm” but not for the purposes of “reasonableness” of relocation. The applicant submits that an impediment which does not reach the level of “serious harm” may be relevant to the reasonableness of relocation.[22] It was at this point that the Authority, as submitted by the applicant, fell into jurisdictional error as it considered the impediments raised by the Kabul submissions at [58] of the Authority’s decision in relation to “serious harm”, but after deciding that they did not amount to “serious harm” failed to consider them in relation to the “reasonableness’ of relocating.
[22] MZYQU V Minister for Immigration & Citizenship [2012] FCA 1032 at [58].
The applicant also delineated the Authority’s description at [58] of the Authority’s decision, where the phrasing “does not appear to have significant family links in Kabul”,[23] was not a consideration of the applicant having no family in Kabul. The applicant submitted that the phrasing of the Authority – “does not appear to” – demonstrated that the Kabul submissions relating to his lack of familial connections in Kabul were not on the Authority’s radar. The applicant contends that the Authority’s consideration at [58] only goes towards the applicant’s prospects of employment and not familial connections in Kabul.
[23] CB:174[58].
Furthermore, the applicant pointed to the Authority’s decision where it stated that “[t]he applicant did not suggest any other reasons why it would be unreasonable for him to relocate to Kabul and none, apart from potential difficulties finding employment are apparent to me.”[24] The applicant asserted that the paragraph should be read as, aside from not being able to relocate to Kabul because the Taliban would find him, the applicant did not suggest to the Authority any other reason why relocating to Kabul would be unreasonable. Also, the Authority considered the difficulties in finding employment in the abstract given all the material before it and not specifically in relation to the IAA submissions; this being based on the choice of the wording “are apparent to me.”
[24] CB:176[72].
The applicant submitted that, based on this, the Authority was of the opinion that there was nothing in the IAA submissions (which included the Kabul submissions) that contained a submission about the “reasonableness” of relocation to Kabul.[25] The Authority overlooked and failed to consider the Kabul submissions which expressly raised impediments to his relocating to Kabul. The impediments overlooked by the Authority included the difficulty of assimilation, a lack of skills or qualifications, the lack of family or friends in Kabul (including his wife and the fact he is married), and the lack of any contacts in Kabul to find a safe home.[26]
[25] Cf CB:156[26].
[26] Applicant’s Submissions filed 14 February 2023 at [24].
That the Authority needed to consider the “risk of harm” and “reasonableness” of relocation separately, and that the Authority failed to do so as indicated by the Authority’s choice of phrases “does not appear to” at [58] and “the applicant did not suggest any other reasons” at [72] of the Authority’s decision, lead it to jurisdictional error.
The respondent submits that the applicant’s understanding of the Authority’s decision did not provide a fair reading of the Authority’s decision or consider it as a whole. The respondent argues that the Authority dealt with the applicant’s submissions that Kabul was not safe for the applicant,[27] that he has no family links in Kabul and would have difficulty gaining work,[28] and that the lack of family links in Kabul did not make his relocation there unreasonable given his personal qualities.[29] The respondent claims that this strongly indicated the Authority was aware of the claims made by the applicant and dealt with them, albeit without specifically identifying them as the applicant’s Kabul submissions.[30]
[27] CB:173-4[53]-[61].
[28] CB:173-4[58].
[29] CB:176[72].
[30] CB:156.
Accordingly, the Authority’s comment at [72] of the Authority’s reasons, that the applicant “did not suggest any other reasons why it would be unreasonable for him to relocate to Kabul”, should not be read as the Authority having overlooked the applicant’s Kabul submissions. Rather, the respondent submitted that the comment likely related to the applicant’s answer to the question of whether the applicant could relocate within the country, as answered on the applicant’s SHEV application form.[31] In any case, the Authority in fact addressed the applicant’s submissions in its findings.
[31] CB:69[96]; Respondent’s Submissions filed 16 February 2023 at [33].
Determination
In essence, the applicant attacks the Authority’s alleged lack of consideration of the Kabul submissions in its determination of the reasonableness of the relocation as jurisdictional error which vitiates the Authority’s decision.
The applicant’s submission is centred on the proposition that the applicant raised in his Kabul submissions a number of impediments to relocation, but that the Authority failed to consider them.
The Court must look to the Authority’s reasons to discern its course of reasoning.[32]
[32] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64 at [63].
Relevantly, the Authority is not precluded by ss.473DC and 473DD from entertaining a “submission” directed to such matters as the information already made available to it and the consequences which it is “submitted” should flow from that already established pool of factual information.[33] The correct characterisation of the submission, which did not deal with “new information”, is that it was a new argument, not advanced to the delegate, based on the same factual evidence which was before the delegate.[34]
[33] Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 at [35].
[34] BIR19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 792 at [20].
While the Authority specifically referred to the Kabul submissions in its reasons,[35] the reasons of the Authority do not indicate that those submissions were considered by the Authority in its determination that it was reasonable for the Applicant to relocate to Kabul.
[35] CB:165[5].
The reasons of the Authority must be read as a whole, they should be considered fairly and not be read critically and one should not read the reasons with a fine tooth-comb attempting to find fault.[36]
[36] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291.
The Kabul submissions, which the applicant submitted to this Court, dealt with the issue of reasonableness of relocation, and which are in summary form referred to at [13] above, can be found in the following paragraph, which is reproduced in full:[37]
The Case Officer also differentiates the attacks on returnees which were publicised by stating those people were not attacked in Kabul and therefore as my client is likely to return to Kabul he will be safe. Kabul is not safe. The Taliban has been able to infiltrate areas of Kabul deemed ‘safe’. What chance does my client have if even officials are getting attacked in their bullet proof compounds? My client has instructed that he has no family or friend networks in Kabul. The Case Officer has formed an assumption that given his age and because he is a man, he will have no issues assimilating in Kabul. However, my client has no desirable skill or qualification that will help him gain employment easily if at all. He has instructed that he has no family ties or friends in Kabul. If he is forced to return to Afghanistan, he is returning to nothing and a struggling economy. My client has no skill that is in demand nor does he have any contacts in Kabul to help him find a safe home and employment. The assumption that he will return to Kabul is unreasonable given he has nothing in Kabul. Most likely my client will naturally find himself back in his birth province with his family and the target of the Taliban.
[37] CB:156[26].
The submissions did not, strictly speaking, address specifically the reasonableness of the relocation, but they were made at large in respect of whether it would be safe for the applicant to return to Kabul.
The Authority dealt with the issue of Kabul not being safe for the applicant,[38] that he has no family links in Kabul, and that he would have difficulty gaining work.[39] These issues were dealt with in the context of whether the applicant would face a real risk of significant harm in Kabul and not whether it was reasonable for the applicant to relocate to Kabul.
[38] CB:173-4[53]-[61].
[39] CB:173-4[58].
The Authority summarised its findings about real risk of harm in Kabul as follows:[40]
I have found the applicant does not face a real chance of serious harm from the Taliban in Kabul or from any other insurgent groups operating in Kabul for reasons of past employment, his ethnicity, his religion, generalised violence, or his seeking asylum and time spent in a western country, or the release of personal information, or from having posted on social media evidence of participation in a police-run youth leadership course. ‘Real chance’ and ‘real risk’ have been found to equate to the same threshold. For the reasons given above, I find he does not face a real risk of significant harm in Kabul.
[40] CB:176[71].
This was a separate consideration that the Authority was obliged to undertake, and which it did undertake. In doing so, it considered the matters raised in the Kabul submissions.
The Authority then went on to consider whether it was reasonable for the applicant to relocate. The entirety of its reasons in respect of this issue are as follows:[41]
I have considered whether it would be reasonable for the applicant to relocate to Kabul. He told the delegate that he could not relocate to Kabul because the Taliban would find him; however I do not consider, for the reasons already given, that he has a profile that would cause him to be targeted by the Taliban. The applicant did not suggest any other reasons why it would be unreasonable for him to relocate to Kabul and none, apart from potential difficulties finding employment, are apparent to me. Many returnees from western countries relocate to Kabul, including many accessing the greater opportunities there for employment. DFAT advises that traditional extended family and tribal community structure are the main source of protection or coping mechanisms for successful relocation.13 While there is no evidence before me that the applicant has family living in Kabul, I note that Kabul has a significant Tajik community. The applicant has worked in different jobs in Australia and lived at different address. He has shown himself to be adaptable and resilient in travelling to and settling in a foreign country. He is a young man with no known health issues or vulnerabilities. I am satisfied it is reasonable for the applicant to relocate to Kabul where he does not face a real risk of significant harm.
[41] CB:176[72].
The Authority, in considering whether it was reasonable for the applicant to relocate, was obliged to consider the practicalities of relocation. The principles relevant to the assessment of reasonableness of relocation have been summarised as follows:[42]
[I]n determining whether it is reasonable for a person to relocate to another area for the purposes of s 36(2B) of the Act, the decision maker must not confine itself to whether the person faces a real risk of significant harm. It must also consider the practical realities for, or impact on, the visa applicant of relocation from her or his place of residence to an area of the receiving country where she or he would not face a risk of significant harm
…
The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognised.
…
… the scope of the enquiry which the IAA must undertake into the practical realities of relocation is not free-ranging but will be determined by reference to the issues raised by an applicant with respect to the question of relocation and on the material before it…
(citations omitted)
[42] ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372 at [18]-[21] citing Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 442 and adopted in BIM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 453 at [49].
The Authority’s comment that the “applicant did not suggest any other reasons…” must be read in context. While the Authority did not need to refer to each and every matter in the submission seriatim in its reasons and by reference to the submissions, in its consideration of whether it was reasonable for the applicant to relocate, it was obliged to consider the issues raised by the applicant with respect to the question of relocation.
At [72] the Authority clearly only considers a very limited number of issues with respect to relocation. It refers to the applicant raising with the delegate that he could not relocate to Kabul because the Taliban would find him, and dismisses this concern “for the reasons already given” and finds that the applicant does not have a profile that would cause him to be targeted by the Taliban.
The Authority then states “the applicant does not suggest any other reasons why it would be unreasonable for him to relocate to Kabul and none, apart from potential difficulties finding employment are apparent to me.”
Clearly, the Authority did not consider the matters raised by the applicant in the Kabul submissions when it considered whether it was reasonable for the applicant to relocate to Kabul, and so fell into jurisdictional error.
Ground 1 is established.
Ground 2
Ground 2 was argued in the alternative to Ground 1.
The applicant submitted that the Authority fell into jurisdictional error as the Authority failed to consider whether the Kabul submissions were “new information” within the meaning of s.473DC of the Act, and accordingly, did not appropriately consider the Kabul submissions. Specifically, the applicant submits that the Authority ignored or overlooked the Kabul submissions and did not consider whether there were exceptional circumstances for considering them.
The respondent submitted that the Authority correctly considered the entirety of the IAA submissions, including the Kabul submissions. The respondent submitted that this ground is based on a false premise that the Authority did not properly consider the IAA submissions. The respondent submitted that the only matters the Authority considered to be “new information” were those dealt with; namely, the obtaining of the taskera, and the marriage certificate.[43]
[43] CB:165-6[6]-[14].
Determination
While Ground 2 was only pressed in the alternative, it is the Court’s view that the Authority did consider the entirety of the IAA submissions and whether what was contained in them was new information. In particular, the Authority considered whether the information relating to the taskera and the marriage certificate was “new information” within the meaning of s.473DC, and it came to the conclusion that it was not, in that, while it had not been before the delegate when the delegate made his decision, the Authority did not consider it relevant.
The applicant’s submission that the Authority considered that parts of the IAA submissions amounted to “new information” within the meaning of s.473DC of the Act but did not consider the Kabul submissions to that extent, and that the Kabul submissions did not appear to be referred to where the issue of “new information” was considered, is misconceived.[44] These matters were not “new information” for the purposes of s.473DC, rather they were submissions relating to the information which had already been before the delegate.
[44] CB:165[4]–[15].
What the applicant does not raise, is that the Authority erred in the exercise of its jurisdiction, when it determined that the information relating to the applicant’s marriage was not relevant, given that these matters clearly go to the question of the reasonableness of the applicant’s relocation to Kabul.
Noting that this ground was argued in the alternative only and given that Ground 1 has been established, the Court does not determine Ground 2.
CONCLUSION
The applicant has established jurisdictional error by the Authority.
As such, orders quashing the decision of the Authority will be made and the matter is to be remitted to the Authority to be determined in accordance with the law.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 18 August 2023
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