EXC18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 38
•25 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EXC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 38
File number: MLG 2822 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 25 January 2024 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority’s consideration of country information gives rise to apprehended bias – whether Authority conclusion was unreasonable or not rationally supported by country information – whether Authority misunderstood the ‘real chance’ or ‘real risk’ tests – whether Authority failed to consider claim that was clearly articulated or clearly emerged from material – Authority decision affected by jurisdictional error – writs issued. Legislation: Migration Act 1958 (Cth) ss 5AAA, 5J, 36, 46A, 473CA, 476, 477 Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BYA17 v Minister for Immigration and Border Protection (2019) 269 FCR 94; [2019] FCAFC 44
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
DQU16 v Minister for Home Affairs (2021) 273 CLR 1; [2021] HCA 10
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 9 June 2023 Place: Perth (via Teams) Counsel for the Applicant: Dr A McBeth Solicitor for the Applicant: Clothier Anderson & Associates Counsel for the First Respondent: Mr T Reilly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2822 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EXC18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 10 September 2018.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider according to law the matter referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant, who is a citizen of Afghanistan, applied for a protection visa. His application for a protection visa was refused by a delegate of the Minister and the delegate’s decision was affirmed by the Immigration Assessment Authority (Authority). By an application filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act), the applicant seeks judicial review of the Authority’s decision.
The applicant relies on three grounds, which all relate to the Authority’s finding that the applicant did not face a real risk of significant harm from generalised violence in Afghanistan. In summary, the grounds allege that the Authority decision is affected by jurisdictional error because:
(a)in considering the country information before it, the Authority relied on parts of that information that were adverse to the applicant’s case, and overlooked parts of the information that supported the applicant’s case, in a way that gives rise to a reasonable apprehension of bias, or which might otherwise be characterised as unreasonable or irrational;
(b)the Authority misunderstood the ‘real chance’ and ‘real risk’ tests; and
(c)the Authority failed to consider how the applicant could safely access his home area after being removed from Australia.
For the reasons explained below, I have found that the applicant’s third ground establishes jurisdictional error. The Authority was required to, but did not, consider whether the applicant would be able to safely access his home area after he is returned to Afghanistan. I therefore issue a writ of certiorari to quash the Authority decision and writ of mandamus to require the Authority to reconsider the matter according to law.
BACKGROUND
The applicant entered Australia in May 2013 and he is an unauthorised maritime arrival.
On 18 October 2016 the applicant made an application for a protection visa. The application was made after the Department of Immigration and Border Protection sent to the applicant a letter inviting him to apply for a protection visa and advising him that the Minister had exercised the discretion in s 46A(2) of the Migration Act to allow him to make a valid application for a protection visa.
The applicant attended an interview with an officer of the Department to discuss his claims for protection on 4 October 2017.
On 14 February 2018 a delegate of the Minister made a decision not to grant the applicant a protection visa. The matter was then referred to the Authority in accordance with s 473CA of the Migration Act.
The applicant, via his representative, provided a submission and new information to the Authority on 21 March 2018.
On 10 September 2018 the Authority affirmed the delegate’s decision.
RELEVANT PARTS OF AUTHORITY DECISION
The Authority was not satisfied that the applicant met the criteria for a protection visa in s 36(2)(a) or s 36(2)(aa) of the Migration Act.
It is unnecessary for the purpose of this judgment to summarise all of the applicant’s claims and all of the findings made by the Authority in reaching this conclusion. This is because the jurisdictional errors asserted in the judicial review application all focus on the Authority’s findings, expressed at [33]-[39] and [52] of its reasons, in relation to the risk of harm to the applicant from the general security situation. It is convenient to set out these paragraphs in full.
In considering whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act, the Authority said at [33]-[39] (footnotes omitted):
33.I have also considered whether the applicant faces a real chance of harm due to the security situation and general levels of violence in Logar province.
34.The security situation in Afghanistan generally, and Logar specifically, is complex and highly fluid. DFAT mentions a number of population centres affected by fighting that particularly impacted civilians but none of these were in Logar province. The biggest impacts were noted in Kabul. The same report discusses conflict related abductions and again notes a number of provinces that had the majority of such incidents that made no mention of Logar province. Deaths from Improvised Explosive Devices (IEDs), a weapon that can have an indiscriminate impact on civilian populations, declined in the first half of 2016, as did targeted, deliberate killings of civilians overall. In her submission, the agent cites a [United Nations Assistance Mission in Afghanistan (UNAMA)] report that discusses violence in Kabul and other provinces. However, the report also notes an overall decrease in civilian casualties, and does not list Logar among those provinces most affected by civilian casualties.
35.Although targeting of civilians does occur, the UNHCR assesses that the highest risk was faced those with links to the Afghan Government, such as judicial staff and law enforcement personnel, and members of the Afghan and International security forces, and Afghanis working directly with foreign troops. Other groups with a heightened risk include journalists, and members of Non-Government Organisations and Civil Society Organisations (CSO), such as those involved in advocating for women’s rights. This is borne out by recent attacks by the Taliban against schools and subsequent threats of attack that resulted in widespread school closures in Kunduz and Logar. Given the overall security profile of Logar province, and the fact that the applicant has no involvement or association with the government or any of the ‘risk’ groups set out above, I find that any risk of harm faced by the applicant due to the general security situation would be remote.
36.As a Tajik, the applicant is a member of the second largest ethnic group in Pakistan. He is an observant Sunni Muslim, a religion followed by 85% of the Afghani population. The applicant does not belong to any of the groups noted above nor is there is anything in his profile to indicate he would be imputed with membership of any of these groups. The applicant is now 23 years old and would no longer be attending school. The country info does not indicate that Sunni Tajiks such as the applicant, absent any particular profile, face a real chance of harm or targeting by the Taliban or other anti-government elements.
37.I am not satisfied the applicant faces a real chance of serious harm as a Sunni Tajik.
38.While there is a general risk of the applicant being caught up in violence, I am not satisfied it raises to a real one, or that the essential and significant reason for this risk to the applicant is one or more of the grounds listed in s.5J(1).
39.I am not satisfied the applicant faces a real chance of harm as a Sunni Tajik or due to generalised violence within Logar province or Afghanistan generally.
The Authority addressed the risk of harm to the applicant for the purpose of assessing whether he met the complementary protection criterion in s 36(2)(aa) of the Migration Act at [52] of its reasons where it said:
I have concluded that the applicant was not abducted or threatened by Taliban and is not a person of interest to the Taliban, or any other group in Afghanistan, nor would he face a real chance of harm on that basis or on account of his profile as a Sunni Tajik male. I have also concluded that the applicant does not face a real chance of harm for any other reason including his time spent in Australia, the security situation in Logar province, or due to him being a returning asylum seeker who has resided in a western country. Based on the same information, and for the reasons set out above, I find that the applicant does not have a real risk of suffering significant harm in Logar or elsewhere in Afghanistan.
JUDICIAL REVIEW APPLICATION
The applicant filed an application for judicial review on 20 September 2018, which was within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant relies on an amended application, in which he advances the following three grounds:
1.The decision of the IAA was affected by a reasonable apprehension of bias, in that a reasonable observer may apprehend that the IAA did not bring an open mind to the issue, or alternatively, that its findings as to the security situation in Afghanistan were irrational, in that they could not rationally be drawn from the material before the IAA.
Particulars
(a)The IAA had before it information showing that the security situation in Afghanistan had deteriorated in 2016 and that the United Nations Assistance Mission in Afghanistan (UNAMA) had recorded the highest level of civilian casualties in 2016 since its records began in 2009.
(b)The information before the IAA further reported that key trends in the first half of 2017 were an overall decrease (from the record 2016 levels) in civilian casualties from ground engagements, but an increase in casualties from improvised explosive devices and suicide attacks.
(c)The IAA instead selectively relied upon information supposedly showing a decline in the use of improvised explosive devices and targeted killings in civilians in the first half of 2016.
(d)The selective use of extracts of certain country information, while ignoring more recent and more comprehensive country information, and in some cases other parts of the same country information, may lead a reasonable observer to conclude that the IAA had not brought an open mind to the question of the risk faced by the applicant, but was searching for information to justify its conclusion that his application should be dismissed.
(e)Furthermore, the fact that the IAA twice referred to the country of reference as Pakistan rather than Afghanistan may support an inference by a reasonable observer that the IAA was not engaging in genuine consideration of the applicant’s case.
(f)Further and alternatively, the conclusion that the risk of harm faced by the applicant was remote could not rationally be supported by the country information that was before the IAA and on which the IAA relied.
2.The IAA misunderstood the “real chance” or “real risk” tests, or alternatively, made an irrational finding at [38] by finding that there was “a general risk of the applicant being caught up in violence” but nevertheless not a real risk.
Particulars
(a)The IAA at [34]-[35] acknowledged that there was a situation of significant sectarian and generalised violence in Afghanistan.
(b)The IAA focused on a supposed decline in levels of violence during the first half of 2016, and also the proposition that Logar was not as dangerous as some of the other areas of Afghanistan, to conclude that the risk of harm faced by the applicant from violence in Logar Province was remote.
(c)The IAA failed to appreciate that the test of whether the applicant faced a real risk of significant harm from violence in his home area is not a relative test, and that the risk of harm is not objectively remote only because that risk might have been greater at a different time or in a different part of Afghanistan.
(d)Further and alternatively, the finding by the IAA at [38] that the applicant faced a “general risk” of “being caught up in violence”, but then found that the risk was not a real risk, indicates that the IAA applied an incorrect threshold to the real risk test, or alternatively, made a finding that was irrational in concluding that the risk was not a real one.
(e)Furthermore, the fact that the IAA twice referred to the country of reference as Pakistan rather than Afghanistan indicates that the IAA erred in its assessment of the real chance or real risk of harm faced by the applicant on return to Afghanistan.
3.The IAA failed to consider how the applicant could safely access his home area after being removed from Australia.
Particulars
(a)The IAA acknowledged that there were significant levels of violence in Afghanistan, particularly in Kabul.
(b)The IAA found that the applicant did not face a real chance of serious harm from generalised violence in his home area in Logar Province because the reported violence in that area was supposedly not as bad as other areas of Afghanistan, particularly Kabul.
(c)The IAA had before it country information to the effect that road travel was extremely unsafe and subject to kidnapping and criminal attacks by the Taliban and other insurgents.
(d)The IAA failed to consider how the applicant would travel from Australia and reach his home area, and whether he would face a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia, in light of that information.
GROUND 1
Applicant’s submissions
The applicant submitted that the Authority had before it country information reporting an extremely violent, dangerous and volatile situation in Afghanistan. Based on the parts of the country information relied on by the Authority, the parts that it ignored, and the conclusions that the Authority drew from the country information, a fair-minded lay observer might reasonably apprehend that the Authority might not have come to the task with an open mind. The applicant highlighted in his submissions the information before the Authority from the United Nations Assistance Mission in Afghanistan (UNAMA) and the Department of Foreign Affairs and Trade (DFAT) and identified parts of that information that were not addressed in the Authority reasons. The specific concerns raised by the applicant are addressed below where parts of the reports have been extracted.
Counsel for the applicant submitted that the Authority reasons give the impression of a decision-maker cherry-picking and misrepresenting country information to reach a pre-determined adverse outcome.
As an alternative to characterising the approach of the Authority as amounting to a reasonable apprehension of bias, the applicant submitted that the Authority’s approach to country information might be seen as unreasonable or irrational.
Minister’s submissions
The Minister submitted that in finding that the applicant did not have a well-founded fear of harm in Logar Province, the Authority noted the lack of country information concerning security incidents in Logar Province as opposed to other parts of Afghanistan, and that the applicant was not a member of a group with a heightened risk. The Minister submitted that there is nothing irrational in such reasoning and, on the applicant’s argument, the only conclusion that could be drawn from the country information before the Authority is that everyone in Logar had a well-founded fear of persecution, even though the country information did not go that far. The Minister submitted that reasonable minds may differ about the Authority’s reasoning and that the reasoning was not unreasonable or irrational. The Minister further submitted that there was not a reasonable apprehension of bias, noting that this will rarely be demonstrated from the Authority’s reasons alone.
Counsel for the Minister submitted that the Authority’s reasons need to be read fairly and the Authority is not expected to reproduce large volumes of country information. The ultimate issue for the Authority was whether this particular applicant had a well-founded fear of persecution in Logar Province, and it found that the applicant did not have any of the characteristics which might, according to the country information, attract such a risk of harm.
Resolution
Country information relied on by the Authority
The Authority cited the following sources in its discussion at [33]-[39] of its reasons:
(a)DFAT, ‘DFAT Thematic Report on Afghanistan Security Conditions 1 January to 31 August’, 5 September 2016 (2016 DFAT report);
(b)UNAMA, ‘UNAMA First Quarter 2017 Civilian Casualty Data’, 27 April 2017 (UNAMA report);
(c)UN High Commissioner for Refugees ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan’, 19 April 2016;
(d)‘Islamic State claims deadly school bombing in Kabul’, The Long War Journal, 16 August 2018; and
(e)DFAT, ‘DFAT Country Information Report Afghanistan’, 18 September 2017 (2017 DFAT report).
For the purposes of considering this ground, three sources are relevant: the 2016 DFAT report, the 2017 DFAT report and the UNAMA report. I consider each of these in turn.
DFAT reports
The Authority relied on the 2016 DFAT report to support the propositions that:
(a)a number of population centres affected by fighting that particularly impacted civilians were mentioned, but these did not include Logar Province;
(b)a number of provinces were mentioned as having the majority of conflict-related abductions, but Logar Province was not mentioned; and
(c)deaths from improvised explosive devices (IEDs), which have an indiscriminate impact on civilian populations, declined in the first half of 2016, as did targeted deliberate killings of civilians overall.
The applicant, in advancing this ground, relies on [2.1]-[2.4] of the 2016 DFAT report, which read:
2.1Afghanistan’s decline in security during 2015 showed no evidence of reversal during the first half of 2016, and civilians continued to suffer unprecedented harm during this period. Between January-June 2016, the United Nations Assistance Mission in Afghanistan (UNAMA) documented 1,601 civilian deaths and 3,565 injured civilians. This represents an increase of four per cent in the total number of casualties compared to the first six months of 2015, and is the highest half-year total since 2009. The casualties included 1,509 children (388 dead and 1,121 injured); and 507 women (130 killed and 377 injured). UNAMA noted that these figures are conservative and almost certainly underestimate the true numbers.
2.2UNAMA reported that anti-government elements, particularly the Taliban, were responsible for the majority (60 per cent) of civilian casualties. The Taliban specifically targeted civilian groups such as human rights defenders, journalists, lawyers and judges, aid workers and civil servants, and used indiscriminate tactics, including carrying out devastating attacks in civilian areas. The Taliban also continued attempts to control territory and engage in various efforts to provide law and order, education and other services in those territories.
2.3Ground engagements between pro-government forces and anti-government elements caused the highest number of civilian casualties in the first half of 2016. Fighting in and around population centres in Uruzgan, Helmand, Baghlan and Kunduz provinces caused extreme harm to civilian communities.
2.4Civilian casualties caused by improvised explosive devices (IEDS) decreased by 21 per cent in the first half of 2016. The reason for the decrease is unclear, but it may be attributable to a possible reduction in the number of IEDs emplaced by anti-government elements and/or a shift in tactical focus, and the increasing ability of Afghan security forces to detect and disarm IEDs. Civilian casualties from targeted and deliberate killings also declined significantly during the first half of 2016.
The Authority cited the 2017 DFAT report only for the propositions that Tajiks are the second largest ethnic group in Afghanistan and that 85% of the population are Sunni Muslim.
The 2017 DFAT report contained further information that may have been relevant to the assessment of the security risk in Afghanistan, including [2.31] and [2.34], which Counsel for the applicant highlighted in his oral submissions. Those paragraphs read:
2.31The security situation in Afghanistan is complex, highly fluid, and varies considerably by location, including between rural and urban areas. A number of anti-government elements, most notably the Taliban, remain engaged in a violent armed insurgency against the government and its international partners. Allegiances between groups can change quickly. Arrangements of convenience exist, even between groups generally considered adversarial. Insurgent forces contest many areas of the country, and no part of Afghanistan can be considered free from conflict-related violence. In its most recent quarterly report to the US Congress in July 2017, the Special Inspector General for Afghanistan Reconstruction (SIGAR) reported that insurgent forces controlled, influenced or contested around 40 per cent of Afghanistan’s districts.
…
2.34According to international and domestic observers, the general security situation in Afghanistan has deteriorated in recent years. According to UNAMA, 2016 saw the highest total civilian casualties recorded since it began the systematic documentation of civilian casualties in 2009. UNAMA documented 3,498 deaths and 7,920 people injured in 2016, representing a three per cent increase compared to 2015. In 2016, UNAMA documented record numbers of civilian casualties from ground engagements, suicide and complex attacks and explosive remnants of war, as well as the highest number of civilian casualties caused by aerial operations since 2009. UNAMA’s Mid-Year Report for 2017 showed continuing high civilian casualty numbers – 1,662 dead and 3,581 injured. Key trends in the first half of 2017 were an overall decrease in civilian casualties from ground engagements, increases in casualties from improvised explosive device (IED) tactics, and a high number of casualties in Kabul from suicide and complex attacks.
Counsel for the applicant submitted that:
(a)the Authority did not refer in its reasons to information in the 2016 DFAT report regarding the widespread attacks on civilians, with no evidence of reversal of that trend, and an increase in civilian casualties over the reporting period;
(b)the Authority’s reference to Logar Province not being listed amongst the four provinces where fighting in population centres caused extreme harm to civilian communities disregards the relevant context and gives the impression that Logar Province is a place where civilians are not impacted;
(c)the Authority latched onto the statistics regarding IED deaths in the 2016 DFAT report, without acknowledging that they subsequently increased again and without mentioning the assessment that there was an unprecedented level of harm to civilians and the highest number of civilian casualties since 2009, and that no part of Afghanistan is safe;
(d)the Authority picked up the first sentence of [2.31] of the 2017 DFAT report but ignored the rest of the paragraph, such as the statement that no part of Afghanistan can be considered free from conflict-related violence; and
(e)the Authority added a reference to Logar Province that was not in the report to the opening sentence of [34] of its reasons.
Counsel for the Minister accepted that it would have been preferable for the Authority to note the increase in IED deaths referred to in the 2017 DFAT report. Counsel for the Minister submitted that this does not, however, indicate that the Authority was cherry-picking information. Rather, the Authority referred to some information in the 2017 DFAT report and some information in the 2016 DFAT report.
UNAMA report
The Authority referred to the applicant’s agent citing the UNAMA report in her submissions in relation to violence in Kabul and other provinces. The Authority then noted that the UNAMA report shows an overall decrease in civilian casualties and does not list Logar among the provinces most affected by civilian casualties.
The applicant’s Counsel, in his submissions to the Court, also referred to other information in the UNAMA report, including the following:
In the first quarter of 2017, UNAMA documented 2,181 civilian casualties (715 dead and 1,466 injured), a four per cent decrease compared to the same period in 2016. Civilian deaths decreased by two per cent while civilian injuries decreased by five per cent.
…
Geographically, Kabul province had the highest number of civilian casualties due to suicide and complex attacks in Kabul city, followed by Helmand, Kandahar, Nangarhar and Uruzgan provinces.
…
Improvised explosive devices (all non-suicide switch types) remained the second leading cause of civilian casualties – responsible for 409 civilian casualties (126 dead and 283 injured) – a decrease of one per cent compared to the same period in 2016 and comprising 19 per cent of all civilian casualties.
…
Suicide and complex attacks continued to cause record levels of civilian harm. The Mission recorded a five percent increase in civilian casualties from these tactics – 374 civilian casualties (108 dead and 266 injured) – accounting for 17 per cent of all civilian casualties.
Counsel for the applicant submitted that the statement in the report that suicide and complex attacks continue to cause record levels of civilian harm was notably absent from the Authority’s reasons, and that it would not be understood from [34] of the Authority’s reasons that 2016 and 2017 showed the highest and second highest levels of civilian deaths and injuries since records began in 2009.
Counsel for the applicant also referred to a report accessible from the UNAMA report by hyperlink. The main information that Counsel for the applicant highlighted from the information accessible by hyperlink, which was not otherwise set out in the other country information, was an example of a witness account of an IED attack in Logar Province.
I have significant concerns about whether information contained within a hyperlink in country information before the Authority is properly considered as evidence before the Authority. When I invited the parties to address this at the hearing, Counsel for the Minister referred to the Authority’s Practice Direction which indicates that the Authority will not accept lists of publicly available information or hyperlinks to publicly available information and Counsel for the applicant referred to BYA17 v Minister for Immigration and Border Protection (2019) 269 FCR 94; [2019] FCAFC 44, in which both parties and the Court apparently proceeded on the basis that news reports provided by way of hyperlink in the applicant’s submissions to the Authority was information before the Authority.
Neither of these submissions are directly on point, as they both address hyperlinks in submissions, whereas the present case relates to hyperlinks within a country information report. As I indicated to the parties at the hearing, the question of whether information accessible by hyperlink from other information before the Authority is properly considered to be evidence before the Authority is a potentially complex question in the context of Part 7AA of the Migration Act. It is undesirable to express a view on that issue, in circumstances where it has not been the subject of detailed submissions, unless it is necessary to do so to resolve this ground. I do not consider that it is necessary to resolve that issue in the present case. My conclusion in relation to this ground is the same whether or not the information accessible from the hyperlink in the UNAMA report was properly considered to be information before the Authority. The trend evident from the statistics referred to in the information accessible from the hyperlink is also addressed in the 2017 DFAT report, even if it is presented in a slightly different way. The first-hand account of an incident in Logar Province shows that security incidents do happen in Logar Province, which the Authority accepted in any event.
Reasonable apprehension of bias
The Authority decision will be affected by apprehended bias if a fair-minded, well-informed lay person might reasonably apprehend that the Authority might not have brought an impartial mind to the conduct of the review: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [17] (Kiefel CJ and Gageler J); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15 (QYFM) at [37] (Kiefel CJ and Gageler J); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
This ‘double-might’ test does not impose a high bar, as explained by Edelman J in QYFM, where his Honour said at [175]:
…The “double might” test in the application of the construct of the fair-minded lay observer is relatively undemanding once sufficient facts exist to raise the possibility of actual bias or apprehended bias. It does not matter if the possible apprehension of a fair-minded lay observer involved only the possibility of a mind affected in a small degree by bias. A perception of only a little bias will invalidate a decision. Once the line of bias is crossed, there are no degrees of permissible judicial bias.
The Minister referred the Court to Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 to support the proposition that it will be a rare case where one can infer apprehension of bias from reasons alone. In that case, North and Lander JJ said at [18]:
Ordinarily a party would need to show some conduct on the part of the decision maker, apart from the decision maker’s expression of the decision maker’s reasons, which would indicate that the decision maker has been guilty of pre-judgment or was in any way biased.
In my view, the use of country information by the Authority in the present matter does not indicate apprehended bias. A well-informed lay person would be aware of the statutory context in which the decision was made, including that the Authority had to consider the risk of harm to the particular applicant before it.
The Authority acknowledged information that showed that there were security concerns in Afghanistan and in Logar Province, that the situation was complex and highly fluid and that there was some risk of harm from generalised violence. I acknowledge that there was some information before the Authority that represented a less favourable security situation than that described in the Authority’s reasons. I also acknowledge that it may have been preferable for the Authority to refer to the 2017 statistics on IED deaths in circumstances where it referred to the 2016 statistics, and to note the increase in those deaths. However, this does not indicate that a fair-minded lay observer might reasonably apprehend that the Authority might not have brought an impartial mind to its decision-making task, or that the Authority cherry-picked information that would lead to a decision adverse to the applicant. The Authority considered country information from a range of sources and considered both the situation in Logar Province and the applicant’s individual circumstances in reaching its conclusion. The observations that the Authority made based on country information do not amount to a misrepresentation of country information such that a fair-minded lay observer might think that the Authority might not have approached its task with an open mind.
I acknowledge that at two points in its reasons, the Authority referred to Pakistan, rather than Afghanistan. Counsel for the applicant submitted that this would set off alarm bells in the mind of a reasonable observer. I disagree. The references to Pakistan are typographical errors. The country information cited for the propositions referred to is clearly country information relating to Afghanistan. In my view, a fair-minded and well-informed lay observer would be able to recognise that the references to Pakistan were made in error. There is no basis for concluding that a fair-minded lay observer might reasonably apprehend that the Authority might not have brought an impartial mind to the consideration of the applicant’s claims because it erroneously referred to Pakistan in two places in its reasons.
Unreasonableness
In submitting that the Authority’s approach was unreasonable, Counsel for the applicant referred to the judgment of Stewart J in EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518, where his Honour said at [148]:
The apparent ease and willingness with which the Authority found each and every one of the appellant’s claims to be fabricated, the inconsistencies which it must be taken to have considered highly significant without any reasoning, and the evidence, which it either ignored, overlooked or considered to be so obviously damaging to the appellant such that it provided no detailed reasoning, bespeaks a process of reasoning that is highly unreasonable and that can only be described as what the learned authors of The Law of Refugee Status (at 138) call a “quest to disbelieve”.
There is nothing in the Authority’s reasons to indicate that the Authority was on a ‘quest to disbelieve’ or to find against the applicant. The Authority accepted that there was a level of risk from generalised violence in Afghanistan generally and in Logar Province. The Authority considered information about the groups that are targeted for violence or who have a heightened risk and considered the particular profile of the applicant, finding that the applicant did not have any involvement or association with those at a heightened risk of being targeted, and in these circumstances found that the risk of harm to the applicant from generalised violence was not at a level that engaged Australia’s protection obligations. This approach of the Authority was acceptable, particularly in circumstances where, as the Minister submitted, the country information when read as a whole did not go so far as to suggest that every single person in Afghanistan or Logar Province would face a real chance of serious harm or a real risk of significant harm from generalised violence.
Irrationality
As Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135]:
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
I do not accept the applicant’s submission that the Authority’s findings at [34]-[38] and [52] were irrational because the findings could not rationally be drawn from the country information relied on by the Authority when read fairly and as a whole. To the contrary, the Authority’s findings were open to it on the evidence before it. The Authority could have provided a more comprehensive summary of the country information, but this was not a matter where the country information, when read as a whole, could support only one conclusion and the Authority did not reach that conclusion. Nor is it a matter where there was no logical connection between the country information and the conclusion reached based on that country information, namely that the risk or chance of harm faced by the applicant from generalised violence in Logar Province did not amount to a ‘real’ risk or chance.
Conclusion in relation to ground 1
Ground 1 does not establish jurisdictional error.
GROUND 2
Applicant’s submissions
The applicant submitted that the Authority’s finding at [38] that there was a ‘general risk of the applicant being caught up in violence’ is by its terms a finding that there is a risk of harm that is not remote or far-fetched and is therefore a real risk. The applicant submitted that there is nothing in the Authority’s reasoning that could rationally support a conclusion that the risk of harm was remote. Having accepted that ‘targeting of civilians does occur’, the fact that the applicant was not among the highest risk groups does not preclude the applicant from still facing a real risk of harm, albeit a risk that might be lower than the risk faced by some others.
The applicant submitted that the real risk test is not a relative assessment. Rather it is an objective assessment of the harm faced by this particular applicant, irrespective of whether the risk faced by another person or the risk prevailing in another area might be greater. The applicant submitted that the Authority’s conclusion that there was not a real risk to the applicant cannot rationally be reconciled with its own findings that targeting of civilians occurred and that there was a general risk of the applicant being caught up in violence. The only possible explanations for that conclusion are, in the applicant’s submissions, that the Authority fundamentally misunderstood and misapplied the concepts of real risk and remoteness or, alternatively, that its reasoning was irrational.
Minister’s submissions
The Minister submitted that there is nothing in the Authority’s reasons to indicate that the Authority misunderstood the ‘real chance’ test referred to in s 5J(1)(b) and the ‘real risk’ test referred to in s 36(2)(aa) of the Migration Act. The Authority did not indicate that the test was other than objective, or suggest that it involved a probability of harm. The Minister submitted that the Authority’s assessment that the risk of harm to the applicant in Logar Province did not rise to the level of a real chance of harm was a factual matter for the Authority, subject to the applicant demonstrating that the Authority’s decision was legally irrational or unreasonable. However, the Minister again submitted that, given the applicant’s lack of profile, that would be equivalent of demonstrating that every person in Logar had a well-founded fear of persecution on the country information before the Authority. That the Authority accepted that ‘targeting of civilians does occur’ does not indicate otherwise, as the assessment of a real chance of harm is always a matter of fact and degree and can never require a guarantee of safety.
Resolution
There is no dispute between the parties as to the relevant test to be applied in determining whether a chance of harm amounts to a ‘real chance’ or a ‘real risk’. Both parties accept the test is that stated by the High Court most recently in DQU16 v Minister for Home Affairs (2021) 273 CLR 1; [2021] HCA 10 (DQU16) at [10], where the High Court said:
A “real chance” is a prospect that is not “remote” or “far-fetched”: it does not require a likelihood of persecution on the balance of probabilities.
Rather, the dispute between the parties relates to whether the Authority properly applied that test in circumstances where it accepted that ‘targeting of civilians does occur’ and that there was a ‘general risk of the applicant being caught up in violence’, yet found that the risk of harm faced by the applicant due to the general security situation was ‘remote’ and did not amount to a ‘real’ risk.
I accept the Minister’s submissions in relation to this ground.
The approach of the Authority was to acknowledge that a risk of harm from generalised violence exists. The applicant’s case appears to be that simply because the Authority acknowledged such a risk, the risk must be a real one. However, the mere existence of a risk does not necessarily mean that the risk is a ‘real’ one for the purposes of the Migration Act. In this regard, I accept the Minister’s submission that a guarantee of safety is not required.
In the present case, the Authority found that the risk was ‘remote’ and was therefore not ‘real’. It was a matter for the Authority to determine whether the risk that existed was sufficiently low to properly be described as ‘remote’. The Authority did this by acknowledging that civilians are targeted but finding that this particular applicant does not have any of the characteristics of, or association with, groups or people who have been identified in the country information as having a heightened level of risk. This does not amount to the Authority adopting a relative risk assessment, as submitted by the applicant, or finding that the risk is not real because others face a higher risk. Rather, it is an assessment of the level of risk to this particular applicant taking into account his particular characteristics. The Authority’s finding that the risk was remote and therefore not real was open to it on the evidence. This is particularly so in circumstances where, as the Minister submitted, there was no indication in the country information that every person was in need of protection from generalised violence in Logar Province, and the Authority found that there was nothing in the applicant’s profile to suggest that he was at a heightened risk of being targeted.
The Authority’s finding at [38] was expressed in the context of its consideration of the refugee criterion in s 36(2)(a) of the Migration Act. The Authority expressed two reasons for finding that the applicant did not meet this criterion on the basis of the risk of harm from generalised violence. The first, which is the focus of this ground, is that the chance of harm did not amount to a real one, and the second reason is that the chance of harm was not for one of the reasons in s 5J(1)(a) of the Migration Act. Given that a real chance and a real risk amount to the same standard (see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 at [246]), the finding that the chance of harm did not amount to a real one is sufficient to support the Authority’s findings for the purposes of the complementary protection criterion in s 36(2)(aa) of the Migration Act, notwithstanding that s 5J(1)(a) does not apply to the complementary assessment and the Authority did not make any findings for the purposes of s 36(2B) of the Migration Act (including that the risk of harm faced by the applicant from generalised violence was one faced by the population generally).
Ground 2 does not establish jurisdictional error.
GROUND 3
Applicant’s submissions
The applicant submitted that it was necessary for the Authority to consider how he would access Logar Province as part of its assessment of whether he would face a real risk of significant harm as a necessary and foreseeable consequence of his removal from Australia to his home area of Logar Province. In finding that the applicant did not face a real risk of significant harm from generalised violence in Logar Province, the Authority relied heavily on the assertion that it was Kabul, not Logar, that was the most violent area. The applicant further submitted that the 2017 DFAT report specifically noted that the Taliban, other anti-government groups and criminals targeted travellers on the roads, especially in areas contested by insurgents. In those circumstances, the applicant submitted that it was incumbent on the Authority to consider whether the applicant would face a real risk of significant harm in arriving in or travelling through Kabul on his way from Australia to his home area. By failing to do so, the Authority failed to complete its statutory task.
In oral submissions, Counsel for the applicant relied on the High Court’s judgment in DQU16, where the majority said at [18] (emphasis added):
As is self-evident, the text of s 36(2)(a) and s 36(2)(aa) is different and therefore, unsurprisingly, the statutory questions are different: they are not interchangeable. And they are different because the purpose of the inquiry under each provision is different. Determining whether a person has a well‑founded fear of persecution for a Convention reason under s 36(2)(a) is a fundamentally different inquiry to the question in s 36(2)(aa). Section 36(2)(a) seeks to define when a protection visa will be granted to a person seeking refuge. Under s 36(2)(aa), the question is whether a person can be returned to a particular State: and the provision is formulated by reference to the consequences of a non‑citizen's removal to a particular State.
Based on this passage, Counsel for the applicant submitted that the focus on the complementary protection assessment is on the consequences of removal, which focuses on practicalities and is not bound by the specific claims made by the applicant.
Minister’s submissions
The Minister submitted that, while it can be accepted that the applicant would be likely to be returned to Kabul by air, and from there would seek to return to Logar, the applicant did not claim that he would be unable to access Logar Province from Kabul, as opposed to arguing that Logar itself was unsafe. The general comments in the 2017 DFAT report at [2.38] say nothing about accessing Logar Province from Kabul. The applicant was represented before the delegate and the Authority and it was for him to articulate a claim that he could not access Logar Province from Kabul if he wished. There was no clearly articulated claim, and no unarticulated claim clearly arising from the material before the Authority that the applicant would face harm travelling from Kabul to Logar, and therefore the Authority was not required to specifically address this issue.
In oral submissions, Counsel for the Minister submitted that the ground must fail because the applicant did not claim that he would be unable to safely access Logar Province from Kabul, referring to s 5AAA of the Migration Act, which provides that it is the responsibility of a non-citizen claiming protection to specify all particulars of his or her claims to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish the claims.
Resolution
Given the submissions advanced by the parties based on s 5AAA of the Migration Act and the High Court’s judgment in DQU16, I will commence my consideration of this ground by addressing those submissions.
Section 5AAA of the Migration Act provides:
(1)This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2)For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
…
(4)To remove doubt, the Minister does not have any responsibility or obligation to:
(a)specify, or assist in specifying, any particulars of the non-citizen's claim; or
(b)establish, or assist in establishing, the claim.
It can be seen from this that the applicant is responsible for specifying the particulars of his claims for protection and for providing sufficient evidence to establish the claims. The section does not distinguish between claims for protection under the refugee criterion and claims for protection under the complementary protection criterion and the use of the words ‘however arising’ in s 5AAA(1) suggests that the applicant is responsible for providing the particulars and evidence of his claims for protection arising under both the refugee and complementary protection criteria.
The applicant primarily relies on the passage of DQU16, extracted above, to suggest that the applicant did not need to claim that he would be unable to safely access Logar Province from Kabul. It is implicit in the applicant’s submission that the applicant is suggesting that the onus was on the Authority, in considering complementary protection, to identify the reasonably foreseeable consequences of the applicant’s removal to Logar Province, unrestrained by the claims advanced by the applicant.
I do not accept that DQU16 supports that proposition. In DQU16, the High Court was considering whether the principles in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (Appellant S395) apply in a complementary protection context, and the High Court’s observations about the different statutory tests for the purposes of assessing whether an applicant meets the refugee or complementary protection criteria were made in the context of explaining why the principles articulated in Appellant S395 do not apply in a complementary protection context. There is nothing in the context of DQU16 to suggest that the High Court was addressing whether the requirements in s 5AAA, or the principle that the decision-maker is only required to consider claims that are expressly articulated by an applicant, or which clearly emerge from the material before the decision-maker based on established facts, apply to complementary protection claims. In these circumstances, I do not accept that the High Court’s observations at [18] of DQU16 should be interpreted to mean that, in addressing complementary protection, the Authority is required to consider the consequences of an applicant’s removal to a particular area, in a way that is not confined to the claims made by the applicant, or which clearly emerge on the materials before the Authority.
I consider it is more appropriate to view the question of whether the Authority was required to consider whether the applicant was able to safely access Logar province from Kabul in accordance with orthodox principles that the Authority is required only to consider claims that are clearly articulated by an applicant or which clearly emerge on the material before the Authority based on established facts: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58], [60]-[61]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 (AYY17) at [18].
The following summary of these principles was articulated by the Full Court (Collier, McKerracher and Banks-Smith JJ) in AYY17 at [18] (emphasis in original):
It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
(a)the subject of substantial clearly articulated argument, relying on established facts; or
(b)clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).
•These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
Taking into account these principles, for the following reasons, I consider that a claim arose in the present case and the Authority was required to consider whether the applicant would be able to safely access Logar Province if returned to Afghanistan.
In addressing this ground, both parties accepted that:
(a)the applicant would most likely be returned to Afghanistan via Kabul, and would then travel to Logar Province; and
(b)Logar Province is immediately south of Kabul.
Curiously, neither party in advancing their submissions on this ground referred to the applicant’s written claims for protection. The applicant provided with his protection visa application a statutory declaration dated 15 October 2016, setting out his claims for protection. Four paragraphs appear under a heading ‘What I fear might happen if I go back to my country’. The first two of these paragraphs, numbered 9 and 10, address the security situation in Logar. The applicant then proceeds at [11] (emphasis added):
The roads are also not safe. I fear I will be abducted again by the Taliban if I try to return to the area. The government authorities have limited presence in the area and will not protect me.
It seems to me at least arguable that this amounts to an express claim that the applicant fears he will be abducted by the Taliban if he returns to Logar Province by road, but neither party addressed this ground on the basis that the claim was clearly articulated by the applicant.
In any event, even if it is not an express claim, in considering whether a claim to the effect that the applicant would be unable to safely access Logar Province clearly emerged from the materials before the Authority, it is appropriate to take into account how the applicant’s claims were presented over time. I therefore take into account that when he first articulated his claims, the applicant expressed concerns about safety on the roads and his fears that he will be abducted by the Taliban, and there is nothing before me to suggest that the applicant subsequently withdrew or changed this evidence.
The applicant relies on [2.38] of the 2017 DFAT report to support his submission that the Authority was required to consider whether the applicant would be able to safely access Logar Province, which is directly south of Kabul. That paragraph reads:
Insecurity compounds the poor condition of Afghanistan’s limited road network, particularly on 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. Officers operating official checkpoints – drawn from the Afghan National Army (ANA) or Afghan National Police (ANP) with the aim of improving the security on the roads – can be inadequately trained and poorly paid. Corruption at these checkpoints is common.
I accept the Minister’s submission that this does not expressly say anything about accessing Logar Province from Kabul. However, when this extract is read in conjunction with:
(a)the applicant’s previously raised concern that the roads were not safe;
(b)the accepted position of both parties that the applicant would most likely be returned to Kabul and would then travel to Logar Province; and
(c)the Authority’s finding at [34] that the biggest impacts from fighting that affected civilians were in Kabul,
I find that there was a claim before the Authority, emerging from the materials if not expressly articulated, that the applicant may not be able to safely access Logar Province.
It was therefore incumbent on the Authority to consider how the applicant would access Logar Province on his return to Afghanistan, and whether he would face a real risk of significant harm in accessing Logar Province from Kabul. The Authority did not do so, and its failure to do so amounts to jurisdictional error.
Ground 3 is therefore established.
CONCLUSION
In circumstances where I have found that one of the applicant’s grounds establishes jurisdictional error, it follows that his judicial review application is successful and writs of certiorari and mandamus will issue.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 25 January 2024
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