EXT17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1071
Federal Circuit and Family Court of Australia
(DIVISION 2)
EXT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1071
File number(s): SYG 3432 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 21 December 2022 Catchwords: MIGRATION – Immigration Assessment Authority misapplied s 5J by considering s 5(J)(3) before reaching a conclusion about the real chance of serious harm to the applicant – whether applicant unable to reasonable steps to modify immutable foreign profile characteristics – whether fact-intensive assessment regarding relocation Legislation: Migration Act 1958 (Cth) ss 5AAA, 5H, 5J, 36
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Seeker Caseload) Bill 2014 (Cth)
Cases cited: ANC17 v Minister for Immigration and Border Protection (2020) 351 FLR 253
APE16 v Minister for Home Affairs (2020) 277 FCR 640
ARB18 v Minister for Home Affairs [2021] FCCA 1427
EUW19 v Minister for Immigration, Citizenship, Migrant Services andMulticultural Affairs [2021] FCCA 11
Leon Fink Holdings Pty Ltd vAustralian Film Commission (1979) 141 CLR 672
Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 1
MZANX v Minister For Immigration and Border Protection [2017] FCA 307
MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436
Randhawa v Minister for Immigration, Local Government & EthnicAffairs (1994) 52 FCR 437
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 21 June 2022 Place: Sydney Counsel for the Applicant: Mr A J Byrne Solicitor for the Applicant: D’Ambra Murphy Lawyers Counsel for the Respondents: Ms R Graycar Solicitor for the Respondents: MinterEllison ORDERS
SYG 3432 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EXT17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
21 December 2022
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to rely upon the Amended Application filed on 21 June 2022.
2.A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 9 October 2017 into this Court for the purpose of quashing it.
3.A writ of mandamus shall issue, requiring the Immigration Assessment Authority to re-determine, according to law, the review referred to it.
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 GIVEN:
The applicant seeks review of a decision of the Immigration Assessment Authority (Authority) made on 9 October 2017 (Court Book (CB) 654 to 680) which affirmed a decision of a delegate of the first respondent (delegate) refusing to grant the applicant a Safe Haven Enterprise visa (visa).
The background to the application is derived from the applicant’s written submissions but does not appear to be in dispute.
The applicant claimed to be a Shia Hazara from Kabul in Afghanistan whose wife and children live in Pakistan (CB 661 at [19] and [21]). The applicant and his family left Kabul for Pakistan because the security situation in Afghanistan had deteriorated under the Taliban and they feared persecution (CB 661 at [22]).
In 2012, the applicant returned to Kabul to work for a well-known stonecutting business that undertook work for government officials, business people, and other wealthy residents of Kabul (CB 661 at [23]). In November 2012, while working in the home of a prominent person the applicant received a letter from the Taliban stating that, unless he delivered explosives to that person’s home or a particular embassy, he would be seriously harmed or killed (threat letter) (CB 662 at [27] to [28]).
The applicant said that, fearing for his safety, he left Afghanistan and ultimately arrived (via Malaysia and Indonesia) in Australia by boat at Christmas Island in April 2013. He applied for the visa on 19 March 2016 (CB 42 to 44).
The applicant claims to fear harm from the Taliban on each of the following bases (CB 660 at [16]):
(a)his ethnicity and religion, as a Shia Hazara;
(b)his work as a stonemason who has worked for high profile members of the government, the military and international bodies;
(c)his refusal to aid the Taliban in its activities against the types of persons referred to at [6(b)] above;
(d)his profile as a person who has spent time living in Pakistan and Australia (foreign country profile); and
(e)his profile as a person who has sought asylum (asylum seeker profile).
The applicant also claimed that he could not safely relocate within Afghanistan (CB 660 at [16]).
In affirming the delegate’s decision to refuse the applicant the visa, the Authority relevantly found that for the purposes of s 36(2)(a) of the Migration Act 1958 (Cth) (Act):
(a)there was a real chance of the applicant being seriously harmed in Kabul, on the basis of an actual or imputed anti-Taliban or pro-government profile related to the applicant’s stonemasonry work, and his refusal to aid the Taliban;
(b)it was satisfied that the real chance of harm was confined to Kabul and did not, for the purposes of s 5J(1)(c) of the Act, extend to other parts of Afghanistan (CB 673 at [86]) such as Mazar-e-Sharif (CB 669 at [68]); and
(c)so far as the foreign country profile and asylum seeker profile were concerned, the applicant could take reasonable steps to modify his conduct to avoid any future chance or risk of harm (CB 671 at [77]).
The Authority therefore determined that the applicant did not fall within the definition of refugee in s 5H(1) of the Act and did not meet the requirements of s 36(2)(a) for the visa (CB 673 at [87]).
In respect of the complementary protection criterion in s 36(2)(aa) of the Act, the Authority found that:
(a)although the applicant may face a real chance of harm if he were to return to and live in Kabul (CB 676 at [104]), it would be reasonable for him to relocate to places like Mazar-e-Sharif where there would not be a real risk that he would suffer significant harm (CB 676 at [105]);
(b)there was not a real risk that the applicant would suffer significant harm in Afghanistan (that is, on the basis that the Authority was satisfied that it was reasonable for the applicant to relocate to Mazar-e-Sharif) (CB 676 at [106]); and
(c)as such, there were not substantial grounds for believing that as a necessary and foreseeable consequence of his being returned to Afghanistan, there was a real risk that the applicant would suffer significant harm.
Accordingly, the Authority found that the applicant did not meet the requisite criteria in s 36(2)(aa) (CB 676 at [108]).
Application to this Court
By an application to show cause filed with this Court on 6 November 2017, the applicant sought review of the Authority’s decision and raised 3 grounds of review, the third of which was particularised. The applicant has been represented by solicitors since the inception of the proceedings. The matter was initially docketed to another Judge of the Court (first primary Judge) who made orders by consent on 8 December 2017 for the preparation of the matter which was initially listed before him for a final hearing in December 2019. The applicant was granted leave pursuant to those orders to amend the originating application on or by 2 April 2018. Given that his solicitors had drafted the originating application, they presumably did not find it necessary to avail themselves of the grant of leave to amend at that time. The matter was later transferred to the central migration docket where it remained until 8 June 2022, when it was brought into my docket and listed for hearing.
On 14 June 2022, the applicant’s written submissions were filed appending a proposed Amended Application in respect of which leave was sought to rely. The proposed Amended Application made some minor corrections to the existing grounds and sought to add additional grounds (being grounds 4 and 5). The first respondent met the proposed amended grounds of review by written submissions filed on 17 June 2022, but formally opposed leave on the basis that the grounds lacked merit. The parties were content for the Court to determine the question of leave as part of this judgment, given that even on the first respondent’s case, the question of merit required fulsome consideration. The first respondent’s Counsel conceded that because the proposed Amended Application added new grounds, there were no costs thrown away occasioned by the amendment, if granted. In all the circumstances of this case, leave should and will be granted. I will make orders to that effect.
Accordingly, the grounds of review are as follows (omitting particulars):
1.The Second Respondent (Respondent) fell into jurisdictional error by failing to treat those aspects of the Applicant’s profile that linked him to his time living in Australia and Pakistan as immutable characteristics for the purposes of s 5J(3) of the Migration Act 1958 (Cth) (Act).
2.The Respondent fell into jurisdictional error by failing to treat those aspects of the Applicant’s profile that link him to his seeking asylum in Australian as immutable characteristics for the purposes of s 5J(3)(b) of the Act.
3.The Respondent fell into jurisdictional error by determining that the Applicant does not have a well-founded fear of persecution for the purposes of s 5J(1) of the Act, by reason that the Applicant could take reasonable steps to modify his conduct to conceal the immutable characteristics referred to in Grounds 1 and 2 above.
4.The Respondent made a jurisdictional error under s 36(2B) of the Act by failing to form a state of satisfaction on the basis of all the materials before it.
5.The Respondent, in conducting the complementary protection assessment, made a jurisdictional error by failing to undertake “fact intensive analysis” when considering the reasonableness and practicality of the applicant relocating to Mazar-e-Sharif.
While constituting 5 separate grounds, each of the parties addressed the grounds in two groupings, namely grounds 1 to 3 which engage with s 5J(3) of the Act, and grounds 4 and 5 which address the issue of relocation. As such, the grounds will be grouped accordingly in these reasons for judgment. Given that each of the parties was represented by practitioners experienced in this jurisdiction, these reasons are able to be distilled, reflecting the parties’ respective submissions to the Court.
Grounds 1 to 3
The core of these grounds is that the Authority erred by unambiguously proceeding on the basis that aspects of the applicant’s profile which linked him to Australia and Pakistan were not innate or immutable characteristics for the purposes of s 5J(3)(b) of the Act. While it is the case that even if ground 3 were not made out, grounds 1 and 2 could still give rise to a jurisdictional error, it is most practical to consider ground 3 first.
Relevant to the grounds before the Court is ss 5J(1) to (3) of the Act (inclusive) which provide:
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3) A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
By ground 3, the applicant alleges that the Authority erred by finding that the applicant did not have a well-founded fear of persecution for the purposes of s 5J(1) of the Act because it first found that he could take reasonable steps to modify his conduct to conceal the immutable characteristics of having spent time in Australian and Pakistan. The applicant says that the Authority was instead required to first satisfy itself as to whether the applicant had a
well-founded fear of persecution as claimed, before then turning to consider s 5J(3). The applicant says that the way the Authority approached s 5J(3) in the instant case was “back-to-front”.
The central tenet of this ground is that a proper reading of the Authority’s decision, which also happens in this case to be largely sequential, reveals the aforementioned erroneous approach. It is necessary to have regard to the structure of the Authority’s decision.
By its decision, the Authority summarised the applicant’s claims as being threefold (CB 660 at [16]), the second of which was described as:
He also fears harm on the basis of an adverse profile given his time living in Pakistan, his time in the west (Australia), and as a person that sought asylum overseas.
The Authority first dealt with the applicant’s protection claims pertaining to his work as a stonemason until approximately paragraph [44] of its reasons (CB 665). Thereafter, from [44] the Authority addressed some aspects which intersect with relocation (relevant to grounds 4 and 5), and in particular on page 665 there is analysis in respect of at least a need to relocate. From [48] to [76] (CB 665 to 671) the Authority undertook an analysis in relation to other claims, including related to the ethnic qualities or characteristics of the applicant, and considered DFAT reports regarding the risks associated therewith. In particular at [59] to [60] the applicant says the Authority drew conclusions in relation to risks attendant upon the applicant by reason of his being a Shia and in Kabul.
The applicant says the key paragraphs of the Authority’s decision in respect of the first group of grounds (and in particular ground 1) are [77] to [79].
In [77] the Authority is said to first address the risks attendant upon the fact that the applicant had spent time in both Australia and in Pakistan which includes the following finding:
I am satisfied that he could take reasonable steps to modify his conduct to avoid any future chance of risk of harm, for example, by not openly discussing his time in Australia, by taking steps to protect any documentation.
before finding at [78] that he could avoid a chance of persecution by taking reasonable steps to modify his behaviour and ultimately finding at [85] that:
Considering all the evidence before me, I find there is no real chance of the applicant being seriously harmed for reasons of his religion, his ethnicity, as a person who has lived in or is returning from the west or Pakistan, as an asylum seeker, in generalised violence, or for any other related profile.
The applicant says that the Authority should be taken to have first considered s 5J(3) before reaching a conclusion about the real chance of serious harm to the applicant and, as such, misapplying the statute resulting in jurisdictional error.
The first respondent says that this reading of the Authority’s decision is misconceived.
The starting point of the first respondent’s contention is that the applicant’s grounds can only be viewed through the prism of his claims as made which, as noted above at [20], were summarised by the Authority at [16] of its reasons. The applicant’s central claim was that following an interaction with a taxi driver he received the threat letter demanding that he assist the Taliban, which he refused. The applicant said that he feared consequences of that refusal, such that he left his job and eventually, Afghanistan.
The first respondent observes that while the delegate rejected the claims altogether, the Authority (while expressing residual doubts about the genuineness of the Taliban claims) nonetheless accepted one aspect of them. Namely, that the applicant might fear harm from the Taliban based on the threat letter (CB 665 at [44]) before concluding at [45] that there was no real chance of the Taliban (whether local to Kabul or otherwise) taking an active interest in the applicant and that his subjective fear of harm did not given rise to a real chance of harm somewhere outside Kabul. Accordingly, the first respondent says that the Authority had no cause to consider s 5J(3)(b) because it found that the applicant’s fear in this regard was not well-founded. I agree with this aspect of the first respondent’s argument.
In respect of the aspect of the applicant’s claims which pertained to his having been in Pakistan, I also accept the first respondent’s submission that the Authority found that the applicant did not face a real chance of serious harm on the basis of an adverse profile related to his time in Pakistan. That finding of the Authority is clearly made (CB 671 at [73]). To the extent that the Authority went on to refer to Pakistan in the later s 5J(3) findings which are sought to be impugned by the applicant, while those findings may be problematic insofar as they relate to the applicant’s time in Australia, I am satisfied there is no error in relation to the manner in which the Authority reasons in respect of the applicant’s claims pertaining to Pakistan. Accordingly, to the extent that there remains any allegation in relation to the Authority’s treatment of the foreign country profile (see [6(d)] above), this pertained only to Australia and not Pakistan.
This then leads to a consideration of whether the Authority failed to properly apply s 5J of the Act by reason of its approach to the applicant’s claim to fear harm as a person who had returned from the West (Australia) and potentially therefore as a person who sought asylum.
Unlike the applicant’s claims to fear harm from the Taliban, or to fear harm by reason of having a profile as a returnee from Pakistan, I accept the applicant’s submissions that the Authority did not make a finding in respect of s 5J(1) until after it first approached the question through the rubric of s 5J(3).
The final sentence of the Authority’s finding at [78] (CB 672) left open the possibility that the Authority considered there to be a prospect the applicant may be persecuted when it said (emphasis added):
…. Accordingly, I am also satisfied he could take reasonable steps to modify his behaviour to avoid a chance of persecution for the above reasons.
That chance of persecution and whether it was well-founded for the purposes of
s 5J(1) was not further addressed except by the Authority going on to immediately find that in “all the circumstances” (which had just been outlined as being the ability of the applicant to reasonably modify his behaviour) there was no real chance of the applicant being seriously harmed on the basis, inter alia, of his time living in Australia and that as a result the applicant’s fear not well-founded.
While the Authority was not required to express its findings sequentially per se (see Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 1 per Gleeson CJ at [14]), it did so. A full and contextual reading of the decision demonstrates that by concluding there was no well-founded fear because the applicant could modify his behaviour, without having first considered whether or not the applicant satisfied s 5J(1), was in error.
Next, and as is alleged by grounds 1 and 2 the applicant says that the further difficulty with the Authority’s approach in this regard was that by failing to treat the applicant’s foreign country profile and asylum seeker profile as being immutable, the Refugee Convention attributes it to have thereby misapplied s 5J(3) of the Act.
In this regard the applicant relies upon the decision in EUW19 v Minister for Immigration, Citizenship, Migrant Services andMulticultural Affairs [2021] FCCA 11 (EUW19) per Judge Driver at [54], firstly for the proposition that s 5J(3)(c) does not exhaust ss 5J(3)(a) or (b) and says that because s 5J(3)(c) expressly states that it does not limit ss 5J(3)(a) or (b), the ejusdem generis rule does not apply: see ANC17 v Minister for Immigration and Border Protection (2020) 351 FLR 253 at [24] citing Mason J in Leon Fink Holdings Pty Ltd vAustralian Film Commission (1979) 141 CLR 672.
The applicant also relies on the ratio in EUW19. In that case the Court found that while it may be open to the Authority to conclude that an applicant would not seek to publicise their time spent in Australia, it was one thing for them to choose not to reveal the fact of residence, but another thing to conceal the traces of it (see EUW19 at [56]). The Court found that it was not reasonable to expect a person to seek to conceal that which they could not control: see EUW19 at [58], that in order for the Authority to have completed the review it required more than a “bald statement” and that it:
…needed to consider whether it would be possible, let alone reasonable, for the applicant to attempt to conceal what could be a great many indicators of his cultural association with Australia. The review thus being incomplete, the veracity of the Authority’s reasoning in respect of the applicant’s other claims is not to the point.
In EUW19 it is true that the Authority finding also went beyond the language of
s 5(J)(3), describing the steps the applicant might take as not being an “unacceptable” modification of his behaviour, which is conceptually different than being “unreasonable”. However, the decision did not turn on that point. In respect of its application to the instant case, EUW19 is, in my view, relevantly indistinguishable.It was implicit within the applicant’s claim that he would have a particular profile on return which would be discernible. By the findings at [77] and [78] of the Authority’s decision the Authority appears to have assumed that the only characteristics the applicant would need to conceal were in fact capable of being so concealed. The finding at [78] that there was nothing in the evidence to suggest that the applicant would be unable to take such modification steps was an equally bald statement as was identified in EUW19, particularly when regard is had to the definition[1] of immutable which is:
Not mutable; not subject to or susceptible of change; unchangeable, unalterable, changeless.
[1] Oxford English Dictionary; see also EUW19 at [40] citing the Macquarie Dictionary.
Guidance in a practical sense can also be gleaned from the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Seeker Caseload) Bill 2014 (Cth) (by which s 5J(3) was introduced) and which says (emphasis added):
1193. The reference in new paragraph 5J(3)(b) to an innate characteristic is intended to include inborn characteristics, which could be genetic. Innate characteristics could include aspects such as the colour of a person's skin, a disability that a person is born with or a person`s gender. The reference in new paragraph 5J(3)(b) to an immutable characteristic is intended to encompass a shared common background that cannot be changed. This could be an attribute which the person has acquired at some stage of his or her life such as the health status of being HIV positive, or a certain experience such as being a child soldier, sex worker or victim of human trafficking. For example, a person who faces persecution only for their history as a prostitute could not avoid that persecution by ceasing prostitution work in the future. New subsection 5J(3) would therefore not preclude a finding of a well- founded fear of persecution in respect of such a person.
By definition, in finding that there was nothing which would give rise to the foreign country profile which was unable to be concealed, the Authority was concluding, without any detailed consideration or analysis, that the foreign country profile and asylum seeker profile were not immutable. Without properly considering what characteristics of the applicant could give rise to the alleged discernibility of those profiles, it was not open to the Authority to conclude that the applicant would be unable to conceal said characteristics.
The failure of the Authority to properly identify the immutable nature of the applicant’s profile as a returnee from the West (Australia) and as a potential asylum seeker (see MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 per the Full Court at [40] to [42])[2] means that, quite aside from the error already identified, the Authority did not complete its review task by the findings made at [77] to [78] in applying s 5J(3)(b).
[2] albeit in a Tribunal context and in an earlier statutory regime prior to the introduction of s 5J(3)
Had either (or any) of the errors identified in grounds 1 to 3 not been made this could realistically have resulted in the Authority making a different decision. Accordingly, I am of the view that the errors are each material and the applicant has succeeded in establishing those errors as being jurisdictional. Accordingly, writs should issue and I will so order.
Grounds 4 and 5
The remaining grounds take issue with the Authority’s findings regarding relocation.
Ground 4 alleges that the Authority failed to form the requisite state of satisfaction required by s 36(2B) of the Act and ground 5 alleges that in making findings in respect of the complementary protection criterion, the Authority failed to undertake a fact-intensive assessment in the manner identified in MZANX v Minister For Immigration and Border Protection [2017] FCA 307 per Mortimer J at [51], APE16 v Minister for Home Affairs (2020) 277 FCR 640 per Kenny, Wheelahan and Anastassiou JJ at [53] to [54] and ARB18 v Minister for Home Affairs [2021] FCCA 1427 per Judge Young at [4] and [25].[3]
[3] noting that MZANX and APE16 were decisions made in a Tribunal context. ARB18 was a decision of the Authority made pursuant to under Part 7AA of the Act.
Relevantly, s 36(2B) of the Act provides that:
...
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
...
For the applicant, it was contended that for s 36(2B) to apply, the Authority must form a state of satisfaction on the basis of the materials before it which includes, inter alia, what might be reasonably known because of the decision-maker’s experience and expertise, and the material regularly provided to it for the purposes of making decisions about Australia’s protection obligations, citing MZANX (supra) at [58]. The applicant says that the assessment undertaken must be by reference to his individual circumstances and what was practical and reasonable for him, taking into account the reality of living in the place said by the Authority to be safe (which in the instant case was said to be outside of Kabul, for example Mazar-e-Sharif), citing MZANX (supra) at [50] and SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24].
The applicant submitted that the practical realities facing him were required to be “carefully considered”, citing Randhawa v Minister for Immigration, Local Government & EthnicAffairs (1994) 52 FCR 437 per Black CJ at 442. The applicant also says that regard must be had to the written submission made by the applicant’s migration agent to the delegate after his interview with the delegate (CB 195 to 218) (post-interview submission). While the applicant accepts that the Authority did undertake an assessment of some matters, he says that it failed to address a number of critical points which were squarely identified in the post-interview submission and therefore ought to have been taken into account as a matter of course because of the nature of the information which was before the Authority as part of the review material. In particular, the applicant points to the fact that his children were in Pakistan and would eventually need to be brought back to Afghanistan as being part of the analysis that the Authority failed to undertake.
The first respondent says that the process contended for by the applicant would have required the Authority to go beyond what the applicant actually claimed to be impediments he may face on relocating within Afghanistan, specifically by moving to Mazar-e-Sharif on return.
It is necessary to have regard therefore, to the matters which the applicant says were not properly considered by the Authority. These are said to arise from [77] and [80] to [81] (CB 217 to 218) of the applicant’s post-interview submission made to the delegate by his migration agent. By paragraph [77] of the post-interview submission the following was said (errors in original, emphasis added):
Having the applicant has a wife and children who are currently living in Islamabad, and they have not lived in Afghanistan for more than a few months, and with reference to the DFAT assessment, it would not reasonable for the Application to live in any parts of Afghanistan including, Kabul, Herat and Mazar-e-Sharif.
Paragraphs [80] and [81] of the post-interview submission discussed difficulties encountered by people who sought to relocate without family networks, in particular “unaccompanied women and children”. Significant emphasis was also placed on the applicant’s lack of financial means and lack of family and social support networks in parts of Afghanistan other than Kabul.
From this, the applicant says that while the Authority did refer to the applicant’s wife and children in its s 36(2B) analysis (CB 675 at [102]), it limited its consideration to the “emotional and practical impact” on the applicant which would be caused by a further period of separation from his family (before they re-joined the applicant in due course once he had settled and determined it was safe for them to do so). The applicant says that what the Authority was required to do was to interpret the matters raised by the applicant concerning his wife and children in [77] of the post-interview submission and undertake a fact-intensive analysis of the practical challenges which they would face on relocation (specifically education and health care).
It was not in dispute between the parties that the formation by the Authority of a state of satisfaction regarding the reasonableness of relocation can be formed only on the basis of the contentions/claims made by the particular applicant, albeit they may be supplemented by information before the Authority such as country information.
Nothing said in MZANX counters that general proposition and at [57] Mortimer J said:
How these inquiries are to be made will be informed, of course, by the nature of the claims made by an applicant, and what he or she says about the practicalities of relocation. This includes what has come to be described as “objections” to relocation. Recently, Markovic J in SZVRA v Minister for Immigration and Border Protection [2017] FCA 121 said at [18]:
Whether a claimant can reasonably be expected to relocate depends upon the framework set by an applicant’s particular objection to relocation.
In the present case, the post-interview submission did not give rise to the need for analysis beyond that which the Authority undertook. Specifically, the claims relating to the applicant’s wife and children in [77] of the post-interview submission were directed specifically to a submission that the applicant could not return to Afghanistan at all, including to Kabul. The applicant’s contention that no place in Afghanistan was suitable for his wife and children to live because they had not been there for more than a few months, was not a contention that required the Authority consider detailed matters such as schools, health care and housing in relation to their relocation, moreso given than none of them was an applicant before the Tribunal.
The question of whether the applicant’s wife and children would re-join him in Afghanistan was one in respect of which very little was said such that any more detailed consideration would have been pure hypothesis on the part of the Authority. The applicant made no specific claims in relation to those matters (see s 5AAA(2) of the Act) and, as such, the Authority was not required as part of its assessment of the practical realities which the applicant might face in respect of relocation to speculate broadly as to every permutation of situation which may occur.
In relation to the other matters referred to in paragraphs [80] to [81] of the post-interview submission, the Authority acknowledged the applicant’s submissions about the economic situation and employment prospects for returnees (especially unskilled returnees), but was not satisfied that the applicant, who is in fact a skilled tradesman, would experience those difficulties (CB 674 to 675 at [99]).
Overall, the Authority’s analysis in respect of relocation did consider the matters advanced by the applicant as being relevant to his circumstances. The Authority did give specific and meaningful consideration to the matters raised by the applicant and which were otherwise cast by the material before it.
Neither of grounds 4 or 5 gives rise to a jurisdictional error.
Conclusion
The applicant has established jurisdictional error as detailed above and arising from allegations contained in grounds 1 to 3 of the application, as amended. Accordingly the matter should be remitted to the Authority for determination.
I will hear the parties as to costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 21 December 2022
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