FCW18 v Minister for Immigration
[2020] FCCA 1515
•11 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FCW18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1515 |
| Catchwords: MIGRATION – Safe Haven Enterprise (subclass 790) visa – decision of the Immigration Assessment Authority – whether the IAA made findings without evidence – jurisdictional error established – writs issued. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 36, 46A, 65, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB |
| Cases cited: BSE17 v Minister for Home Affairs [2018] FCA 1926 Buchwald v Minister for Immigration (2016) 242 FCR 65 DNQ18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 72 |
| Applicant: | FCW18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 509 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 25 March 2020 |
| Date of Last Submission: | 22 April 2020 |
| Delivered at: | Perth |
| Delivered on: | 11 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Saul-Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 4 September 2018.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 509 of 2018
| FCW18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant is citizen of Afghanistan (Court Book (“CB”) 3). On 10 May 2013, he arrived in Australia as an unauthorised maritime arrival (CB 80). At the time of his arrival, the applicant was a minor.
On 27 July 2016, the applicant was notified that the first respondent (the “Minister”) had exercised the power under s.46A(2) of the Migration Act 1958 (Cth) (the “Act”). The applicant was invited to apply for a Safe Haven Enterprise (subclass 790) visa (the “visa”) (CB 18-19).
On 22 March 2017, the applicant applied for the visa with the assistance of his migration agent (CB 20-97).
The applicant’s protection claims were detailed in a statutory declaration. In summary, the applicant claimed as follows: (CB 86-87):
23. If forced to return to Afghanistan, I fear I will be harmed / mistreated for reasons of my:
a. my ethnicity (Hazara);
b. my religion (as an imputed Shia-Muslim and as an Agnostic);
c. my political opinion (as I would be imputed with an anti-Taliban / ISIS or pro-Western political opinion); and/ or
d. my membership to a particular social group (namely, failed Afghan asylum seekers in Afghanistan).
24. I fear I will face harm/ mistreatment because I no longer practice the Shi a religion. Since arriving in Australia, I have abandoned all religion and do not practice any religion. Afghanistan is a very conservative Islamic society and I fear that I will face harm / mistreatment for being an apostate or for having abandoned my Islamic upbringing.
On 10 November 2017, the applicant attended an interview with a Ministerial delegate (CB 110-111).
On 20 November 2017, the applicant’s migration agent forwarded written submissions to the delegate (CB 115-125). Those submissions provided significant detail regarding the applicant’s claims as they relate to his atheism and agnosticism. They also addressed relocation and the applicant’s claim that his fear of harm spanned the whole of Afghanistan.
Further identity documents were forwarded to the delegate on 30 November 2017 (CB 126).
On 4 December 2017, the delegate received a personal letter from the applicant addressing why he considers himself to be an atheist (CB 127-133)
On 17 January 2018, the delegate refused to grant the applicant the visa (CB 134-156).
On 22 January 2018, the applicant’s matter was referred to the Immigration Assessment Authority (the “IAA”) (CB 156-158).
On 18 February 2018, the applicant’s migration agent provided a written submission to the IAA. That submission addressed the delegate’s findings in relation to why the applicant was not an atheist, requested that the applicant be given the right to attend an interview, provided arguments relating to whether the applicant should be expected to modify his behaviour on return to Afghanistan and addressed whether his fear of harm related to all of Afghanistan (CB 163-171).
On 4 September 2018, the IAA affirmed the delegate’s decision to not grant the applicant the visa (CB 175-199).
The IAA’s Decision
It is not disputed that the applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s.473DD of the Act.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
Here, the IAA’s decision is 25 pages long and spans 52 paragraphs.
The IAA began by confirming that it had had regard to the material referred by the Secretary pursuant to s.473CB of the Act. The IAA then found that a February 2012 article from the Telegraph that was referred to in the applicant’s submissions to the IAA was “new information” and that the requirements of s.473DD(a) of the Act were not met. Accordingly, the article, as new information, was not considered by the IAA (at [2]).
The IAA then summarised the applicant’s claims (at [3]), as follows:
• He is a national of Afghanistan and an ethnic Hazara whose family originate from the village of Kajab in the Behsud region of Afghanistan’s Wardak Province. In 2006 his father died defending the village from Kuchi nomads and the applicant’s mother took the applicant and his siblings to Herat with other fleeing Kajab villagers. In 2009 they moved to Kabul and resided there until April 2013 when the applicant departed Afghanistan for Australia after he learned that the head of Kajab villager had decided that he must be punished after the applicant had refused to pay a financial contribution to the defence of Kajab to Kajab villagers who had requested this of him in Kabul, and who had themselves threatened to harm him. He fears harm on this basis from the Kajab villagers and the head of Kajab village.
• He also fears he will face harm/mistreatment for being an apostate because he has abandoned Shia Islam, and no longer practises this religion, and because he is now an atheist and an agnostic.
• He also fears he will be harmed / mistreated by anti-Hazara and anti-Shia groups (since as a Hazara he will be seen by such groups to be a Shia Muslim) such as Taliban, Islamic State and their supporters, such as many of the Pashtun people in Afghanistan, and some Hazaras who work for them as informants.
• He fears that if he returns to Afghanistan he will be subjected to serious and significant harm including, but not limited to: intimidation and harassment; physical violence; cruel, degrading and inhuman treatment or punishment; and / or death. He fears he will be harmed / mistreated for the following reasons: ethnicity (Hazara); religion (as a Hazara he will be imputed to be a Shia-Muslim; and as an atheist/agnostic he will be seen as an apostate); political opinion (as he would be imputed with an anti-Taliban / Islamic State or pro-Western political opinion); and/ or membership to a particular social group (namely, failed Afghan asylum seekers in Afghanistan, or westernised Afghans).
The IAA accepted that the applicant is a Hazara (at [4] and [11]) and detailed various aspects of the applicant’s claims regarding his identity and familial links. The IAA expressed some doubt about the applicant’s credibility in relation to this evidence (at [5]-[7]).
The IAA further detailed the applicant’s account of events from 2006 and found various aspects of these accounts to be “difficult to believe” and not convincing. The IAA questioned the credibility of the claims (at [8]-[10]).
The IAA accepted that the applicant and his family lived in Herat and that, from 2009 until the applicant’s departure, the applicant lived in Kabul where he was employed as a shopkeeper selling groceries and owning and managing a small convenience/general store (at [11]).
The IAA also proceeded on the basis that, in 2009, the applicant’s mother had enough savings to establish the applicant as the owner operator of a small convenience/general store in Kabul (from which the applicant obtained the funds to pay for his journey to Australia) (at [12]).
The IAA then outlined the applicant’s evidence provided in relation to his claim that in 2010 he was threatened by a Kajab villager (at [13]-[14]), as follows:
13. The applicant claims that in 2010 the Kuchi attacked Kajab and as a result of this Kajab villagers came to the applicant’s family’s Kabul home and demanded that the family contribute financially for the expenses of the ongoing conflict. In his written claims the applicant stated that he initially refused to pay but after a Kajab villager threatened to harm his family if he did not contribute he paid AFR25,000 (around USD350). Following another Kuchi attack on Kajab in around 2011 the applicant (at around [x] years of age) was similarly forced to pay AFR15,000 (around USD200) as a compulsory contribution. In around 2013 the Kuchi conflict erupted again but the applicant refused to make a financial contribution and the villagers left the applicant’s family’s house threatening to return and harm the applicant. A few days later “another villager” advised the applicant’s family that the leader of Kajab village had decided that the applicant should be punished and that “they” were planning on the harming the applicant. The implication of the written claims thus appeared to be that the applicant’s family were warned by a Kajab villager in Kabul who was not involved in extorting payments from the applicant (“another villager”). Yet at the SHEV interview it was the applicant’s claim that aside from the Kajab villagers who were demanding money from him and his his family that he and his family knew no other Kajab villagers in Kabul. Further, at the SHEV interview (when the delegate asked whether the persons who came demanding money came personally) the applicant said that when he first became aware of such demands the villagers had come to the door when he was not at home and his mother had given the Kajab villagers the money. This was plainly at odds with the applicant’s account of how these matters began in his written claims where he stated, as noted above, that the villagers attended the applicant’s family’s house in Kabul to make these demands but where the applicant initially refused to pay and only did so subsequently after a villager threatened to harm the applicant’s family if he did not.
14. In his written claims the applicant has submitted that his mother referred to the leader of Kajab village as a “warlord” and that she advised the applicant to take this threat seriously as warlords have little regard for people’s lives. For this reason, in about April 2013, the applicant fled Afghanistan for Australia. It is thus the applicant’s claim that he departed Afghanistan because he had learned that his life had been threatened the leader of Kajab village who his mother considered a warlord. However, at his July 2013 induction interview when the applicant was asked why he had departed Afghanistan he made no mention of having been threatened by Kajab villagers, or by the leader of Kajab village. Instead, he referred to his area having been attacked by Kuchis and to a fear of Pashtuns more broadly. The Department’s induction interviewer asked the applicant on two separate occasions whether anything specific had happened to him to make him want to leave Afghanistan and on both occasions he said that nothing had happened to him.
The IAA then stated (at [15]):
The applicant was not yet an adult at the time of the induction interview and there is evidence to indicate that the applicant was not at ease during the interview’s progression; with the induction interviewer recording of the applicant’s observed demeanour during the interview that the applicant appeared to be: very much disengaged, not comfortable with the process, and that the applicant’s arms were folded and that he did not make eye contact much of the time. Nevertheless, and even if I were to place no adverse weight upon the applicant’s induction interview evidence, the credibility of the applicant’s claims would be placed in serious doubt by a number of other concerns. As noted above, at the SHEV interview the applicant’s account of how the demands for payments commenced (when he was not at home with his mother paying the money) proved inconsistent with the account he provided in his written claims (where the villagers came to the home and the applicant initially refused to pay and he only did so after his family was threatened with harm). At his SHEV interview the applicant claimed that his family had no contact with any Kajab villagers in Kabul other than the villagers demanding the money but this is at odds with his written claims where it is stated that “another villager” informed his family that the leader of Kajab villager had decided that the applicant should be punished. Doubts are also raised by the manner in which the applicant was sent abroad while the applicant’s mother and siblings remained in their Kabul home. The applicant claims that no harm came to his family because payments for defending the village were always dealt with by men, and he believes the Kajab villagers knew that he was the breadwinner for his family; the implication being that the family did not consider themselves to be at risk of harm form the villagers, and indeed were not harmed. Yet it is also the applicant’s claim that he only began to make payments of this kind after the villagers threatened to harm his family if he did not, and that the villagers had extracted a payment of this kind from his mother directly in the past. Even allowing for the fact that the applicant claims that in 2013 his family only learned of threats made against the applicant, and not against them, it seems doubtful that the applicant’s family would, in such circumstances, have sent the applicant abroad only to themselves remain in the same location.
The IAA found that, even excluding the applicant’s evidence at the arrival interview, the inconsistent and contradictory nature of the applicant’s visa application and the interview with the delegate was in itself so adverse to the credibility of the applicant’s claims that the IAA could not accept that applicant and his family were ever targeted for demands for payments from the Kajab or that the applicant and his family were ever threatened (at [16]).
The IAA then summarised the applicant’s claims and evidence to be an agnostic and an atheist (at [19]), as follows:
The applicant claims to have been born into a Shia Muslim family and this is not in dispute. The applicant claims to have abandoned his faith following his arrival in Australia. He claims that he does not hold any religious beliefs anymore and that he considers himself to be both an atheist and an agnostic. In his written claims he claimed to be an agnostic but made no express reference to his being an atheist. At the SHEV interview the delegate asked the applicant what it meant that he was no longer a practising Muslim and the applicant responded that it was because there was lots of conflict between Muslims and he did not like this and it made him think about why Muslims are like this, and Sunnis and Shias were in conflict all the time and preached hate against each other and against non-Muslims. The delegate asked the applicant what he believed as an agnostic and the applicant said that he believed in science. The applicant’s representative later explained that the applicant was also an atheist. It was arranged that the applicant would make a written declaration about what his beliefs were and what they meant to him. The applicant subsequently provided a hand written personal letter about his beliefs and attached to this was a photograph of the applicant said to show him drinking a beer at a bar in Perth. The applicant submitted that although this might have been suggested at the SHEV interview by his representative in jest that he (the applicant) had decided to provide this photograph of him drinking alcohol because he really wanted the delegate to understand that he is an atheist who no longer practises Islam in any way. While I am willing to accept that the applicant was photographed drinking alcohol as a means of demonstrating that he does not adhere to the prohibition on the drinking of alcohol which is observed by many Muslims, such a photograph is not compelling evidence that the applicant does not practice Islam in any way, nor has he explained how this would show that he is an atheist (or an agnostic) and I do not accept that it does. In his letter he has submitted that after arriving in Australia he began to lose his religion and eventually he stopped practising the Shia religion altogether because he found Australia to be a great place that was very prosperous and secular, and by the way Muslims fought each other in the Muslim world, and by the question why Allah did not destroy Shaytan if Allah was all powerful, and by the manner in which many people in Australia were good but not Muslim or religious at all, and such matters forced him to question the existence of any supernatural being of god, and Islam and all other religions made no sense to him. The applicant’s personal letter makes no express reference to his being an agnostic nor does it provide an explicit explanation of how he is both an atheist and an agnostic.
At [20], the IAA found as follows:
Although I have my doubts about the applicant’s credibility more broadly, I have no specific reason to doubt that the applicant holds the beliefs he has set forth about religion and the question of whether a supernatural being exists, and I accept that holds these views and that he has ceased to practise Islam. The applicant’s representative has submitted that applicant completely disbelieves in the existence of a god or gods. I note, however, that this is not what the applicant himself has claimed. The applicant has claimed he has questioned the existence of any supernatural being of god (with the implication that in such circumstances he cannot believe in god) but he has never stated that he completely disbelieves in the existence of a god or gods (with complete certainty). I accept that the applicant’s views are as he himself has stated them, and that these view can be described as both atheist and agnostic. Significantly, at the SHEV interview, the applicant was asked if he had told his mother about his views on religion he said he had not, and that he had not done so because this was his belief and it had nothing to do with other people. Given this, I consider that the applicant has no interest in making his views on such matters public to his mother or anyone else.
Having rejected the applicant’s claim that he was threatened by Kajab villagers, the IAA determined that it was not satisfied that the applicant would face a real chance of harm for this reason if he were to return to Afghanistan (at [23]).
Further, the IAA found that even if it had accepted that the applicant was threatened by Kajab villagers, the IAA was nonetheless satisfied that the applicant would not face a real chance of harm if he returned to Kabul (at [24]). The IAA wrote:
Moreover, even if I were to accept the applicant’s claims in these regards I would not, on his own evidence about this matter, be satisfied that the applicant would face a real chance of harm in such a regard if he were to return to Kabul. For, even if it is accepted that threats were made, on the applicant’s own evidence no harm subsequently came to him or his family. It is true that the applicant claim to have remained in Kabul for only a short period after he refused to make a payment in 2013; the applicant claims that a few days passed between the refusal and the information from “another villager”, then “a short while” passed before the applicant spoke with a smuggler, and then arrangements were made for the applicant to depart Afghanistan on his own passport, which he did in about April 2013. Even so, with all that must had to occur, including the sale of the applicant’s business, this would have to amount to the passing of several weeks during which the applicant came to no harm. Moreover, the applicant claims that after he departed Afghanistan the (Kajab) villagers returned to interrogate his mother but that once these villagers learned that the applicant had departed Afghanistan for Australia they stopped harassing his mother. As has already been discussed above, even if all of this is accepted, the applicant’s explanation that his departure from the country was determinative in stopping the harassment is not persuasive if it is accepted that, as he claims, his mother had herself previously made a payment of this kind and a threat had previously been made against the family. If the applicant’s claims about these matters are accepted it would seem that what was determinative in ending the harassment and demands for payment was a firm refusal to make any further payments, and it would also seem that, if the applicant’s account of these matters is accepted, that there was no substance to the threats which were made against the applicant and his family. Give all of this, the possibility that the applicant would suffer any harm on this basis upon return to west Kabul, or even that he or his family would ever face requests for such payments in the future, seems remote. Thus, even if I were to accept the applicant’ account of this matter, I would not be satisfied that he would face a real chance of harm of any kind on this basis if he were to return to Kabul to reside in west Kabul.
The IAA then summarised country information relating to apostasy in Afghanistan (at [26]).
The IAA noted the applicant’s submission that, on return to Afghanistan, he would be required to modify his behaviours to avoid harm (at [27]).
The IAA accepted that the applicant would not engage in the public observances of Islam (such as praying and attending mosque) but noted country information that indicated that many Afghan Muslims were not strictly observant of such matters. As such, the IAA determined, it seemed doubtful that the applicant would be perceived as someone who had abandoned Islam. The IAA further noted that the applicant had indicated that he had no interest in telling others that he had abandoned Islam (because he was an atheist and agnostic). In light of that, the IAA did not believe that the applicant would be modifying his behaviour in any way by not telling others about his beliefs (at [28]).
The IAA was not satisfied that the photograph of the applicant drinking at a bar proved that the applicant had abandoned Islam. Nor was the IAA satisfied that anyone in Afghanistan would be aware that the applicant had done so (at [29]). The IAA did not consider that the applicant would face a real chance of being perceived as anything other than a non-observant Shia Muslim.
The IAA then referred to the country information provided by the applicant’s representative and noted that this information did not provide any evidence of actual harm to Afghans who privately abandoned Islam. The IAA again referred to the applicant’s claim that he had no interest in making such view public (at [30]).
The IAA was not satisfied that the applicant would, if he returned to Kabul, be perceived by his family, other Muslims, the Afghan authorities, or by insurgent militants (like the Taliban and/or Islamic State) as having abandoned Islam and/or of having become an atheist and an agnostic (at [31]).
At [32], the IAA then stated:
I am, however, willing to accept that if the applicant were to return to Kabul there is a real chance that might be perceived as a non-observant Muslim whose practise of Islam has lapsed while he has been abroad in a western country. Given that it is the applicant’s implicit claim that, to some degree at least, he formerly did practise the Shia Muslim faith in Kabul and adhere to at least some of its public observances, and given that his former level of observance of the Shia Muslim faith would have been known by his mother and siblings, and would likely have been broadly known by many of the other residents in the Kabul neighbourhoods where he did business and resided, and given that in his own Hazara community it would likely become known to at least some persons that he has returned from Australia, a western country, and given that it would be observed that he was no longer adhering to the observances of Shia Islam to the extent that he did prior to his April 2013 departure from Afghanistan, such an outcome seems plausible. Even so, there is very little evidence within the information before me to indicate that returnees from western countries have suffered harm because of a non-observant or lapsed practise of Islam in such circumstances. The only notable evidence in this regard comes from asylum seeker advocates but is not reported more broadly. A 2013 report produced by one such advocate has claimed that of a group of surveyed young Afghans returned from the UK to Kabul that a quarter had experienced “harm or difficulties as a result of being viewed as ‘Westernized outsiders’”, which in some cases saw them report difficulties due to the fact that they were perceived as having lapsed in their practice of Islam. It has been submitted that Hazaras in Afghanistan are extremely conservative and extremely religious. I note, however, that of all Afghanistan’s ethnic groups it is the minority Hazaras who are known for having a favourable outlook upon western countries like Australia, and of migration to and seeking asylum in such countries, and that while Hazaras are nonetheless known for their commitment to the faith of Shia Islam, the evidence before me does not indicate that there has been a trend of Hazaras being attacked by other members of the Hazara community for perceived acts or lapsed Islamic behaviour, or for the perceived contravening of social mores, or that Hazara society is broadly affected by the kind of conservative attitudes with regard to religion which are often found within Afghanistan’s Pashtun community, particularly in rural areas (said to be affected by “an instinctive, well-rooted conservatism”).
At [33], the IAA then found as follows:
On the evidence I accept that there is perhaps a real chance that the applicant might, as a perceived lapsed or non-observant Shia Muslim, face some discrimination from some conservative members of his own Hazara community in western Kabul in terms of such persons being unwilling to do business with or employ him. But given the manner in which Afghans in Kabul tend to live within their own communities, given that most Hazaras have a favourable outlook towards western countries and toward migration to and/or seeking asylum in western countries, and given the extent to which many Afghan Muslims do no strictly adhere to Islam’s public observances, and given that the applicant has never indicated that his only family is particularly conservative or a threat to him in this regard, I am not satisfied that there is a real chance that he would experience any harm from his own family in this regard (including being disowned), and I am not satisfied that any discrimination the applicant might face in this regard from (conservative) members of his own Hazara community in Kabul would be of such an extent that he would face a real chance of being somehow denied the capacity to subsist (indeed, as will be discussed further below, given that the applicant would be returning to to live with his family in west Kabul as an adult with the experience of having previously established a successful business in Kabul I am satisfied that such experience would offset the various challenges which he might face in establishing himself in Kabul including any discrimination of this kind). But beyond such discrimination, which I do not consider would amount to serious harm, I am not satisfied that the applicant would face a real chance of harm of any other kind in Kabul from other Hazaras for reason of being a perceived lapsed or non-observant Muslim, and/or because he no longer practises Shia Islam, and/or a failed asylum seeker, and/or because he has returned from a western country, and/or for reason of his having abandoned Islam for atheism/agnosticism, and/or because he would be perceived as being an apostate.
At [34], the IAA then stated:
Moreover, the evidence before me does not suggest that there is a real chance that the Afghan authorities, or that persons from outside the applicant’s own Hazara community would, in Kabul, take any interest in his decision to no longer practise Islam given that the area he would be returning to, western Kabul, is dominated by Hazaras and given that Kabul’s various ethnic groups tend to live within their own communities. There are sometimes reports of punishments being administered by the parallel justice structures of insurgent groups like the Taliban upon persons accused of a lapse in their practise of Islam, or some other kind of deemed immoral behaviour, but such incidents tend to occur in rural areas under the control or at least influence of such insurgent groups, and the evidence before me does not indicate that there is a trend of such incidents occurring in the Hazara neighbourhoods of west Kabul. The applicant has submitted that he believes that some members of the Hazara community work as informants for groups like the Taliban and Islamic State but, again, and while I accept that at least some Hazaras would come to know of the applicant’s having returned from Australia, given the extent to which Hazaras engage in such migration (and even allowing for the fact that many may conceal such associations upon return to Afghanistan) Kabul would be host to a significant number of Hazaras who are not strict adherents to the public observances of Islam, and not all of these persons would conceal their migration history, and yet the evidence before me does not indicate that there has been a trend of attacks in Kabul upon Hazaras who have returned from seeking asylum in western countries, and/or who have lapsed in or become non-observant in their practise of Islam, and/or on the basis of their being (imputed) Shia Muslims.
The IAA then considered the chance of harm for reasons of being a failed asylum seeker, being a returnee from a Western country or as a Westernised Afghan. The IAA referred to country information and concluded that any chance the applicant would face harm was remote. As such, the IAA determined, it was not satisfied that there was a real chance that the applicant would be harmed (at [35]-[36]).
The IAA accepted that the applicant would likely be perceived to oppose the Taliban and have a pro-Western opinion given that most Hazaras were considered to hold such views. However, the IAA found that the evidence did not indicate that Hazaras in Kabul were being targeted on this basis. Further, the country information indicated the trend of attacks targeting Hazaras in Kabul over recent years typically targeted Shia Muslim religious gatherings (which the applicant would not be attending). In light of this, the IAA found that the possibility of the applicant suffering harm on the basis of his being imputed to have a pro-Western opinion and to be opposed to the Taliban or Islamic State was remote (at [37]-[38]).
The IAA then considered the applicant’s claim to have been harassed and abused by Pashtun security officials because he was a Hazara. Referring to country information which indicated that there was no trend of any discrimination or abuse in Kabul, the IAA was not satisfied that the applicant would face a real chance of suffering harassment from Pashtun security officials, or of having his rights abused by Pashtuns, or of societal discrimination or abuse, or of experiencing harm of any other kind, for reason of his being a Hazara and/or an imputed Shia Muslim (at [39]).
The IAA then considered the general security situation in Kabul and was not satisfied that the applicant would face a real chance of serious harm because of any generalised violence (at [41]).
While the IAA accepted that the applicant may be perceived to be non-observant Shia Muslim and may face some discrimination from conservative members of the community, the IAA was not satisfied such discrimination would deny the applicant the capacity to subsist. At [42], the IAA continued:
Other than this, when considering the applicant’s claims in their totality (and even when considering the level of risk that would be added to this consideration if I were to include and assess, on the applicant’s own evidence, the applicant’s claim to have been threatened after refusing to pay a contribution to village defence), if the applicant were to return to the predominantly Hazara neighbourhoods of west Kabul the possibility of his suffering harm of any other kind from any other actor seems remote given that the applicant’s evidence that after he and his family refused to pay any further financial contributions such demands and threats ceased without him or his family coming to any harm, and given that he has no interest in telling others that he has abandoned Islam for atheism/agnosticism (and since in such circumstances his no longer practising Islam may at the most result in the real chance of his being perceived by others as being one of a number of Muslims in Afghanistan who do not adhere to Islam’s public observances, with there being little evidence of such persons coming to harm on this basis), and given the attitude of Hazaras toward western migration and western countries broadly, and given the extent to which many failed asylum seekers and westernised Afghans make their home in Kabul, and given the manner in which mass casualty attacks in Kabul upon Hazaras and (imputed) Shia Muslims have typically targeted Shia Muslim religious gatherings (which the applicant would not attend), and given that broader generalised violence (even allowing for the manner in which this may foreseeably continue to increase at the same rate as it has done over recent years), occurs overwhelmingly in central Kabul rather than in the suburbs of western Kabul. Given all of this, I am not satisfied that the applicant would, for the foreseeable future, face a real chance of any other kind of harm from any other actor for any other reason. I am therefore not satisfied that the applicant would face a real chance of serious harm if he were to return to Kabul to reside in west Kabul.
Overall, he IAA was not satisfied that the applicant met s.36(2)(a) of the Act.
Turning to the complementary protection assessment, the IAA accepted that if the applicant returned to west Kabul he might face a real chance of being perceived to be a non-observant Shia Muslim. It also accepted that he might, as a result, face some discrimination from some conservative members of his own Hazara community in west Kabul. However, the IAA was not satisfied that any harm the applicant faced would amount to significant harm. Further, the IAA found that it was not satisfied that the applicant would face a real risk of significant harm if he were to return to Kabul to reside in west Kabul (at [46]).
The IAA found that the applicant would be returning to Kabul and, as such, there was no reason to consider the reasonableness of relocation (at [47]). The IAA was, in any event, satisfied that it would be reasonable for the applicant to return to Kabul (at [48]).
The IAA then detailed the country information on the situation in Kabul and considered this against the applicant’s personal circumstances. It found that the applicant’s advantages in skills and experience and the fact that his mother and siblings remain in Kabul would offset any challenges the applicant might face as a result of the economic situation in Kabul or as a result of his being a non-observant Shia Muslim (at [50]).
The IAA was satisfied that the applicant would be able to earn a sufficient livelihood and would be able to reasonably provide for himself and his family (at [51]).
The IAA was satisfied that it was reasonable for the applicant to relocate to Kabul. As such, the requirements in s.36(2)(aa) we not met (at [52]).
In light of the above, the IAA affirmed the decision not to grant the applicant the visa.
Proceedings in this Court
By an amended application filed 4 March 2020, the applicant raises one ground of review, as follows:
1. The Immigration Assessment Authority (IAA) made conclusions that were not open on the evidence.
Particulars
a. The IAA concluded that:
i. Kabul is host to a significant number of ethnic Hazaras who are not strict adherents to the public observances of Islam (CB 188 [34]);
ii. most Hazaras have a favourable outlook towards western countries (CB 187 [33]); and
iii. Hazaras are not broadly affected by the kind of conservative attitudes with regard to religion which are often found within Afghanistan’s Pashtun community (CB 187 [33]).
b. However, there was no reliable evidence before the IAA to support these conclusions.
The Court had before the amended application, a Court Book (“CB”) numbering 206 pages (marked as Exhibit 1), an affidavit of Shaun Wyn-Jones affirmed 24 March 2020, written submissions from the applicant dated 4 March 2020 and 22 April 2020 and written submissions from the Minister dated 4 March 2020, 18 March 2020 and 8 April 2020.
This matter was listed for hearing on 25 March 2020. With the consent of the parties, the matter was heard by telephone. Mr Saul-Jahnke appeared for the applicant. Ms Tattersall appeared for the Minister. The Court thanks both lawyers for their considerable assistance with what proved to be a complex matter.
The day prior to the hearing, the applicant filed an affidavit of Shaun Wyn Jones affirmed 24 March 2020. The affidavit annexed five country information documents cited in the IAA’s Decision, as follows:
a)the “UNHCR Eligibility Guideline for assessing the International Protection Needs of Asylum Seekers from Afghanistan” dated 19 April 2016 (the “UNHCR Guideline”);
b)the “DFAT Thematic Report, Hazaras in Afghanistan” dated 18 September 2017 (the “2017 DFAT Report”);
c)the “DFAT Thematic Report, Hazaras in Afghanistan” dated 8 February 2016 (the “2016 DFAT Report”);
d)the US Department of State’s “Afghanistan 2016 International Religious Freedom Report” dated 15 August 2017; and
e)the US Department of State’s “2015 Report on International Religious Freedom – Afghanistan” dated 10 August 2016.
The Minister consented to the applicant having leave to rely upon the affidavit subject to the Minister having the opportunity to put on written submissions addressing the affidavit following the hearing. The applicant raised no concerns in this regard.
Accordingly, the Minister filed further submissions on 8 April 2020 and the applicant filed submissions in response on 22 April 2020.
Applicant’s Submissions
In written submissions filed 5 March 2020, the applicant submitted as follows:
a)where the IAA makes a finding of fact for which there is no supporting evidence, this constitutes an error of law;
b)central to the IAA’s reasoning that the applicant did not face a real chance or real risk of harm for reasons of his atheist/agnostic beliefs was a determination that any such chance/risk would be mitigated below that of a real one by:
i)the applicant settling in a Hazara-dominated enclave in the western suburbs of Kabul;
ii)Kabul being host to a significant number of ethnic Hazaras who are not strict adherents to the public observances of Islam (the “First Finding”);
iii)most Hazaras having a favourable outlook towards Western countries (the “Second Finding”); and
iv)ethnic Hazaras being not broadly affected by the kind of conservative attitudes with regard to religion which are often found within Afghanistan’s Pashtun community (the “Third Finding”);
c)while it was open for the IAA to find that the applicant would likely settle in west Kabul, the IAA’s findings about the Hazara community’s levels of religiosity were unsupported assumptions;
d)throughout the decision, the IAA carefully cited a wide array of sources for the various conclusions it drew throughout its reasons but did not cite anything in support of the propositions above;
e)therefore, it was not open to the IAA to conclude on the evidence (because the evidence did not provide any basis to so find) and make the First Finding, the Second Finding and the Third Finding;
f)these findings were critical to the outcome because of the manner in which the IAA compartmentalised its assessment. The IAA found that the applicant would not face a real chance of persecution or real risk of significant harm from Hazaras in his Hazara-dominated home area in west Kabul because of the mitigating factors outlined above and as there was no evidence or trends of non-Hazaras attacking atheists/agnostics inside the Hazara enclaves of west Kabul;
g)had the IAA not made these findings about the levels of Islamic religiosity amongst west Kabul Hazaras, the finding regarding the risk of harm within the Hazara-dominated suburbs of west Kabul could not, on the evidence, be sustained. These findings therefore formed a critical step in the IAA’s ultimate conclusion that the applicant was not owed protection for reasons of his atheism/agnosticism;
h)the First Finding, the Second Finding and the Third Finding were ‘findings’ as to the ‘satisfaction’ of the criteria in s.65 of the Act. They were thus “jurisdictional facts”; and
i)these findings of fact (made without evidence in support) concern a jurisdictional fact and, as such, the IAA’s decision is vitiated by jurisdictional error.
At hearing, Mr Jahnke submitted that when one has regard to the affidavit of Mr Wyn-Jones, it is clear that that there was no basis for the finding that Hazaras have a favourable outlook in relation to Westerners. Counsel further stated that, accepting that it is open for a decision-maker to make an inference from an absence of evidence, here there was no absence of evidence.
In post-hearing submissions dated 22 April 2020, the applicant stated:
a)in relation to the First Finding:
i)the statistics cited at [28] of the IAA’s decision in no way support this finding. Rather, they express the opposite;
ii)the data at [28] makes no reference to Hazaras or to the city of Kabul and cannot form the basis of the finding;
iii)the IAA at [28] did make a conditional positive finding that Kabul would be host to a significant number of Hazaras who are not strict adherents to the public observances of Islam and that was not a finding that was open to be made;
b)in relation to the Second Finding:
i)even if the IAA was correct to find that there was little evidence that returnees to Afghanistan were being harmed for religious reasons, it does not follow that “most Hazaras have a favourable outlook toward western countries”; and
ii)none of the passages that the Minister refers to in the country information can form the basis for the IAA’s finding;
c)in relation to the Third Finding, again the applicant submitted that the passages of the country information that the Minister relies upon do not found any basis on which the finding can be made;
d)in certain circumstances, the IAA is entitled to draw inferences from the absence of evidence within the country information. However, such inference should only be drawn if there was reason to expect that such a report (or information) would, in the usual course, exist; and
e)none of the reports that the IAA cited specifically addressed the findings that the IAA has made and it was not open for the IAA to find the opposite based on only an absence of evidence.
Minister’s Submissions
The Minister submitted as follows:
a)even if the Court holds that the evidence in support of a relevant finding was “slight”, that will be sufficient to defeat a “no evidence” challenge to the finding;
b)when the IAA’s decision is read as a whole, it is clear that there was sufficient evidence to support each of the findings the subject of the applicant’s complaints;
c)the IAA relied on the results of a 2012 survey in respect of Afghanistan’s Muslims attitudes toward religion to find that it was “sufficiently evident that a significant number of Afghan Muslims are not strict adherents to Islam’s public observances”;
d)it is clear from [32] of the IAA’s decision that the IAA derived the Second Finding from the country information referred to in footnote 11;
e)the IAA otherwise relied on the fact that the country information did not indicate that there had been a trend of Hazaras being attacked by other members of the Hazara community for perceived acts or lapsed Islamic behaviour, or for the perceived contravening of social mores, or that Hazara society was broadly affected by the kind of conservative attitudes with regard to religion which were often found within the Pashtun community;
f)the IAA is entitled to draw inferences from the absence of evidence if there is reason to expect that such evidence would, in the usual course, exist; and
g)the IAA’s findings were plainly open to it on the evidence (or lack thereof) before it and it cannot be said that no other rational or logical decision maker could not have drawn the same conclusion.
At the hearing, Ms Tattersall for the Minister submitted that the applicant’s ground of review isolates three specific sentences of the IAA’s decision. She submitted that the IAA’s reasons must be read as a whole and that the IAA relied, as it was entitled to, on a lack of country information specific to the point in issue to make the conclusions it came to.
In post-hearing submissions filed 8 April 2020, the Minister submitted:
a)when the IAA’s decision is read as a whole, it is clear that there was sufficient evidence to support each of the findings which form the subject of the applicant’s complaints. The findings of concern must also be considered in the context of the IAA’s finding that it accepted that the applicant was agnostic and that he had ceased to practise Islam, the finding that the applicant had no interest in making his views on such matters public to his mother or anyone else and would not engage in the public observances of Islam (such as praying and attending mosque) and the IAA’s discussion of country information at [26]-[30];
b)in relation to the First Finding:
i)the IAA had regard to the country information referenced at [28] regarding the attitudes of Afghan Muslims towards religion and, particularly, the percentage of those who do not pray several times a day and who do not attend mosque weekly; and
ii)an important distinction must be drawn between the applicant’s assertion and the IAA’s actual findings. The IAA did not make a positive finding that Kabul is host to a significant number of ethnic Hazaras who are not strict adherents to the public observance of Islam but that it would be host to such individuals; and
iii)regardless, the inference drawn by the IAA logically flows from the country information referred to at [28];
c)in relation to the Second Finding, in reaching this finding it is apparent that the IAA had regard to the fact that the country information provided little evidence to indicate that returnees from Western countries had suffered harm because of non-observant or lapsed practises of Islam as well as the country information referred to at footnote 11 of the IAA’s decision. (The Minister referred the Court to particular passages of the country information which will be detailed below);
d)in reaching the Third Finding the IAA had regard to the country information referred to in footnote 11 as well as “an absence of evidence”. (Again, the Court will refer to particular aspects of the country information below);
e)the IAA was entitled to draw inferences from the absence of evidence within the country information, including that the evidence before it did not indicate that there had been a trend of Hazaras being attacked by other members of the Hazara community for perceived acts or lapsed Islamic behaviour or for a perceived contravention of social mores; and
f)in this matter, the IAA relied on country information specifically directed to the assessment of protection claims as well as the issue of religious freedom in Afghanistan. In doing so, the IAA was clearly cognisant of the fact that there was no information on the number of atheists and/or agnostics in Afghanistan but that the number was likely to be small. However, the IAA formed the view that, if the risks posed to atheists and/or agnostics were similar to those posed to converts, it expected that there would be at least some evidence of atheists and/or agnostics experiencing similar treatment. However, there was no such evidence. This view was clearly open to the IAA, particularly in circumstances where the country information relied upon indicated that only 1 per cent of the population followed other religions.
Consideration
The applicant’s concerns largely relate to [32]-[34] of the IAA’s decision, which provide (without editing or alteration) as follows:
32. I am, however, willing to accept that if the applicant were to return to Kabul there is a real chance that he might be perceived as a non-observant Muslim whose practise of Islam has lapsed while he has been abroad in a western country. Given that it is the applicant’s implicit claim that, to some degree at least, he formerly did practise the Shia Muslim faith in Kabul and adhere to at least some of its public observances, and given that his former level of observance of the Shia Muslim faith would have been known by his mother and siblings, and would likely have been broadly known by many of the other residents in the Kabul neighbourhoods where he did business and resided, and given that in his own Hazara community it would likely become known to at least some persons that he has returned from Australia, a western country, and given that it would be observed that he was no longer adhering to the observances of Shia Islam to the extent that he did prior to his April 2013 departure from Afghanistan, such an outcome seems plausible. Even so, there is very little evidence within the information before me to indicate that returnees from western countries have suffered harm because of a non-observant or lapsed practise of Islam in such circumstances. The only notable evidence in this regard come from asylum seeker advocates but is not reported more broadly. A 2013 report produced by one such advocate has claimed that of a group of surveyed young Afghans returned from the UK to Kabul that a quarter had experienced “harm or difficulties as a result of being viewed as ‘Westernized outsiders’”, which in some cases saw them report difficulties due to the fact that they were perceived as having lapsed in their practice of Islam. It has been submitted that Hazaras in Afghanistan are extremely conservative and extremely religious. I note, however, that of all Afghanistan’s ethnic groups it is the minority Hazaras who are known for having a favourable outlook upon western countries like Australia, and of migration to and seeking asylum in such countries, and that while Hazaras are nonetheless known for their commitment to the faith of Shia Islam, the evidence before me does not indicate that there has been a trend of Hazaras being attacked by other members of the Hazara community for perceived acts or lapsed Islamic behaviour, or for the perceived contravening of social mores, or that Hazara society is broadly affected by the kind of conservative attitudes with regard to religion which are often found within Afghanistan’s Pashtun community, particularly in rural areas (said to be affected by “an instinctive, wellrooted conservatism”).
33. On the evidence I accept that there is perhaps a real chance that the applicant might, as a perceived lapsed or non-observant Shia Muslim, face some discrimination from some conservative members of his own Hazara community in western Kabul in terms of such persons being unwilling to do business with or employ him. But given the manner in which Afghans in Kabul tend to live within their own communities, given that most Hazaras have a favourable outlook towards western countries and toward migration to and/or seeking asylum in western countries, and given the extent to which many Afghan Muslims do no strictly adhere to Islam’s public observances, and given that the applicant has never indicated that his only family is particularly conservative or a threat to him in this regard, I am not satisfied that there is a real chance that he would experience any harm from his own family in this regard (including being disowned), and I am not satisfied that any discrimination the applicant might face in this regard from (conservative) members of his own Hazara community in Kabul would be of such an extent that he would face a real chance of being somehow denied the capacity to subsist (indeed, as will be discussed further below, given that the applicant would be returning to to live with his family in west Kabul as an adult with the experience of having previously established a successful business in Kabul I am satisfied that such experience would offset the various challenges which he might face in establishing himself in Kabul including any discrimination of this kind). But beyond such discrimination, which I do not consider would amount to serious harm, I am not satisfied that the applicant would face a real chance of harm of any other kind in Kabul from other Hazaras for reason of being a perceived lapsed or non-observant Muslim, and/or because he no longer practises Shia Islam, and/or a failed asylum seeker, and/or because he has returned from a western country, and/or for reason of his having abandoned Islam for atheism/agnosticism, and/or because he would be perceived as being an apostate.
34. Moreover, the evidence before me does not suggest that there is a real chance that the Afghan authorities, or that persons from outside the applicant’s own Hazara community would, in Kabul, take any interest in his decision to no longer practise Islam given that the area he would be returning to, western Kabul, is dominated by Hazaras and given that Kabul’s various ethnic groups tend to live within their own communities. There are sometimes reports of punishments being administered by the parallel justice structures of insurgent groups like the Taliban upon persons accused of a lapse in their practise of Islam, or some other kind of deemed immoral behaviour, but such incidents tend to occur in rural areas under the control or at least influence of such insurgent groups, and the evidence before me does not indicate that there is a trend of such incidents occurring in the Hazara neighbourhoods of west Kabul. The applicant has submitted that he believes that some members of the Hazara community work as informants for groups like the Taliban and Islamic State but, again, and while I accept that at least some Hazaras would come to know of the applicant’s having returned from Australia, given the extent to which Hazaras engage in such migration (and even allowing for the fact that many may conceal such associations upon return to Afghanistan) Kabul would be host to a significant number of Hazaras who are not strict adherents to the public observances of Islam, and not all of these persons would conceal their migration history, and yet the evidence before me does not indicate that there has been a trend of attacks in Kabul upon Hazaras who have returned from seeking asylum in western countries, and/or who have lapsed in or become non-observant in their practise of Islam, and/or on the basis of their being (imputed) Shia Muslims.
The bolded/emphasised findings above are matters for which the applicant states there is no evidential basis. To the extent that it is necessary for the Court to refer to other passages in the IAA’s decision, the Court will do so below.
The applicant here advances a “no evidence” ground. In this regard, the Court notes that in Buchwald v Minister for Immigration (2016) 242 FCR 65, Bromberg J stated:
33.The reasons for decision of Kenny J in SZNKV v Minister for Immigration and Citizenship (2010) 118 ALD 232 at [38] disclose what appear to be two approaches in the authorities to the “no evidence” ground. A number (there cited) suggest that jurisdictional error lies where the decision-maker “makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding”. One of the cases her Honour cited, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [19], has been many times relied upon for that proposition. On the other hand, a number of authorities (again, set out in SZNKV at [38]) stand broadly for the proposition that, for jurisdictional error to lie, the fact in support of which there is no evidence must be a jurisdictional fact. However, Kenny J expressly did not determine “whether these two approaches co-exist” nor, if a choice had to be made between then (sic), which was the preferred approach.
34.A number of High Court authorities seem to me to support the jurisdictional fact approach. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said this, at [39]:
To return to the first ground identified in the Federal Court, the “no evidence” ground, nothing in the Act made the question of whether or not the respondent suffered from PTSD a precondition to the exercise of jurisdiction. No question of a “no evidence” ground of jurisdictional error arises.
35.In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Gummow A-CJ and Kiefel J said the following, at [31]:
In Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 514, 519-520, Wilcox J carefully, and with respect correctly, distinguished a “no evidence” ground respecting the existence of a jurisdictional fact, from the more debatable question (which does not arise in this appeal, as counsel for the first respondent stressed) of defective fact finding as an independent ground of judicial review, or as indicative of an “error of law” within the meaning of the AD(JR) Act.
36.One of Wilcox J’s observations in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511, which Gummow A-CJ and Kiefel J approved in the above extract, was this (at 514):
All of the cases, of which I am aware, in which “no evidence” has been treated as a separate ground were cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact … .
37.In Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at [108], I expressed reservations as to the correctness of SFGB and the line of authority following it. That reservation was also expressed by Jessup J at [50].
38.Finally, in Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said this, at [46]:
The plaintiff also argues that there was no evidence that PNG would fulfil its assurances and would promote the maintenance of a programme which was fair to UMAs. However, there was no statutory requirement that the Minister be satisfied of these matters in order to exercise the relevant power. They do not qualify as jurisdictional facts ([SGLB] (2004) 78 ALJR 992 at 998-999 [39]; 207 ALR 12 at 21; [SZMDS] (2010) 240 CLR 611 at 622 [31]).
39.Especially in the light of what was said in the last-mentioned case by a unanimous High Court, it seems that the jurisdictional fact approach is the preferred approach to the “no evidence” ground as a stand-alone ground of judicial review. And, Mr Buchwald accepted in the course of oral submissions that in order to establish a “no evidence” ground it was necessary that the fact of which there is no evidence be a jurisdictional fact. …
A finding without evidence can constitute jurisdictional error if it is a finding that concerns a jurisdictional fact. Here, the IAA’s state of satisfaction that the relevant criterion are met is the relevant jurisdictional fact: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [20].
Here, the Minister did not dispute that the passages emphasised above were “jurisdictional facts”. Each of the passages emphasised above (at [66]) were matters that the IAA relied upon in determining that it was satisfied that the applicant did not face a real chance or real risk of harm for reasons of his atheist/agnostic beliefs.
The Minister contends that each of these findings is supported by the evidence (when considered as a whole) and in light of the absence of any evidence that there was a trend of attacks in Kabul upon Hazaras who have returned from seeking asylum in Western countries and/or had become non-observant in their practise of Islam.
More recently, the Full Federal Court in DNQ18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 72 (“DNQ18”) considered an argument that the IAA made a finding without evidence. In that case, the IAA stated that the country information indicated that children were not prosecuted for offences under the Sri Lankan Immigrants and Emigrants Act. In fact, what the country information indicated was that “Children are never subject to bail or fines”.
In finding there was no basis in the evidence for the IAA to find that children are never prosecuted and that the IAA had fallen into jurisdictional error, the Court found as follows:
50…DFAT’s advice in the key sentence is limited to what judicial orders and punishments will not be faced by children. That is all it deals with. In context, it appears in a paragraph dealing with something of a grab-bag of information about a number of topics.
51. Taking the information which is supplied by DFAT in the section we have extracted above, and upon which the Authority relied, the statement in the final paragraph extracted above says nothing about:
(a)whether children may be subjected to charges for offences under the Sri Lankan Immigrants and Emigrants Act, irrespective of whether they are liable to certain punishments if found guilty;
(b)the age of criminal responsibility;
(c)whether children may also be detained at the airport;
(d)whether children may be transported with their parents (or separately) to be brought before a Magistrate; nor
(e)whether children may also be taken to prison, if they and the adults accompanying them cannot be brought immediately before a Magistrate or if they or the adults accompanying them are charged and remanded until the adults can post bail.
…
53. Contrary to the Minister’s submissions, and accepting the Authority’s reasons must be read fairly and in their context, it is not possible to see the passages in the DFAT report as probative of the finding made by the Authority. The passage in the DFAT report had a much more limited scope, and was somewhat ambiguous in any event. The Authority’s finding reached well beyond the material before it, and in doing so it made a finding for which there was no evidence.
In this matter, there were also submissions made about the IAA’s reliance on an “absence of evidence”. The applicant did not dispute, and the Court accepts, that the IAA may rely on an absence of evidence in the country information in order to draw an inference: QAAH of 2004 v Minister for Immigration & Multicultural Affairs [2004] FCA 1448 at [45]. However the applicant argues that this conclusion must be qualified.
Relevantly, the applicant referred to SZDIK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1252 at [14] where it was stated:
…The RRT was entitled to draw inferences from the absence of any report to this effect if there was reason to expect that such a report would, in the usual course, exist…
These principles guide the Court in its assessment of the applicant’s concerns in relation to the First Finding, Second Finding and Third Finding below.
The First Finding
For ease of reference, the First Finding provides as follows:
…Kabul would be host to a significant number of Hazaras who are not strict adherents to the public observances of Islam…
The IAA does not cite any sources for this finding.
Although not entirely clear, the Minister seemed to submit that the IAA did not find that Kabul is home to a significant number of Hazaras who are not strict adherents to Islam. Rather, the IAA found that Kabul would be host to a significant number of Hazaras who are not strict adherents to Islam.
The Court disagrees. In the Court’s view, the First Finding is an “inference” drawn by the IAA. An inference nevertheless must be supported by evidence. This is particularly the case where the inference was the basis upon which the IAA found that the absence of evidence of attacks in Kabul on non-strict adherents to Islam indicated that there was not a real chance or risk of harm to the applicant.
In BSE17 v Minister for Home Affairs [2018] FCA 1926 at [33] (“BSE17”), it was stated:
The “no evidence” ground cannot be made out unless it is established that there was no evidence capable of supporting the impugned finding or inference. Even a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59]. Further, evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [39]-[41] per Gummow and Hayne JJ; see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J.
The Minister submits that it is apparent the IAA had regard to the information summarised at [28] of its decision when making the First Finding. In this regard, [26] is also relevant.
These paragraphs provide as follows:
26. Article 1 of Afghanistan’s 1976 Penal Code states that those committing crimes of ‘hudud’ (offences specifically referenced in the Koran) should be punished in accordance with the provisions of Islamic religious law. The Penal Code does not specifically define or describe hudud crimes, but apostasy and blasphemy are generally included in this category, as is conversion from Islam. The prescribed mandatory sentences for hudud crimes are extremely harsh and include the death penalty. However, prosecutions and convictions for apostasy or blasphemy have been relatively uncommon since 2001, and where these have occurred it would appear that the persons involved have abandoned Islam to convert to another faith, or are persons accused of proselytising other faiths to Muslims in Afghanistan, or are journalists or other publishers who have published articles critical of the role of Islam in Afghan society in some way. There have also been instances where persons accused or suspected of insulting Islam have been harmed in mob attacks with the most notable instance of this being the March 2015 killing of a woman in Kabul by a mob after she was falsely accused of burning a copy of the Koran. However, it would not appear that this attack, or any other such incident or instance of mistreatment in the reporting before me, has had anything to do with the victim’s personal (and unpublicised) abandonment of Islam to become an atheist or an agnostic. There is no information on the number of atheists and/or agnostics in Afghanistan but given that observers of Afghan religious demography estimate (there are no reliable census figures in this regard) that 99% of all Afghans are Muslim while the remaining 1% follow other religions, the number of atheists and/or agnostics is likely very small. Nevertheless, it should also be noted that even though instances of conversion from Islam to another faith are said to be rare in Afghanistan there have, nonetheless, been reported instances of such persons being prosecuted or otherwise mistreated for having converted from Islam to another faith. If the risks posed to atheists and/or agnostics (who have abandoned Islam) were similar to those posed to converts (who have abandoned Islam) I expect that there would be at least some evidence of incidents in which atheists and/or agnostics had similarly experienced mistreatment. There is no such trend of evidence.
…
28. However, as has been noted above, the applicant has stated that his beliefs have nothing to do with anyone else, and so I do not consider that the applicant would be modifying his behaviour in any way by not telling others about his beliefs since, on the evidence, he has no interest in doing so. I do not accept that, in choosing not to pray when he sees others doing so, he would say aloud: “No, I don’t want to be part of this”. I accept that the applicant would not engage in the public observances of Islam such as praying and attending mosque (where the shahadah is professed) but given that many Afghan Muslims are not strictly observant of such matters, as is evidenced by the results of a 2012 survey of Afghanistan’s Muslims attitudes toward religion, it seems doubtful that this would result in his being perceived as having abandoned Islam. The survey found that the vast majority of Afghan Muslims, some 92%, considered religion to be a very important part of their lives but, even so, some 8% of Afghan Muslims said it was not. Asked if they prayed several times a day some 9% of Afghan Muslims said that they did not, and the same percentage said that did not give alms (zakat). Asked if they went to mosque weekly some 39% said that they did not (the larger size of this figure is inflated by the extent to which, in Afghanistan, women are much more likely to say they never attend mosque at all), and a smaller but still significant number of Afghan Muslims, some 4%, said that they did not fast during Ramadan, while the vast majority said that they had not undertaken the Hajj (the rarity of Hajj performance being a result of the expense of this pilgrimage, and the limited opportunities available). It is true that the 2012 survey does not provide an indication of the number of Afghan Muslims who do not pray at all, nor does it provide a firm indication of the number of men who do not attend mosque weekly or at all, but from this study it is nonetheless sufficiently evident that a significant number of Afghan Muslims are not strict adherents to Islam’s public observances, and that for a significant number of Afghan Muslims some such matters are not adhered to at all. In such circumstances, it is difficult to see how there is a real chance that the applicant would be perceived as being any different from such non-observant Muslims given that he has no interest in telling others that he has abandoned Islam for atheism and agnosticism.
To summarise, the statistics in [26] and [28] of the IAA’s decision provide as follows:
a)99% of Afghans are Muslim. 1% are non-Muslim and there is no indication as to the number of atheists or agnostics;
b)92% of Afghan Muslims consider religion to be a very important part of their lives. Accordingly, 8% do not;
c)91% of Afghan Muslims pray several times a day and “give alms (zakat)”. Accordingly, 9% do not; and
d)61% of Afghan Muslims attend Mosque weekly. Accordingly, 39% do not (the IAA noted, however, that this latter figure is “inflated” because of the number of women who say that they never attend Mosque).
The IAA states at [28] that the statistics sufficiently evidence that “a significant number of Afghan Muslims are not strict adherents to Islam’s public observances, and that for a significant number of Afghan Muslims some such matters are not adhered to at all.” While the Court might not have interpreted these statistics in the same way, the IAA’s reasoning was nevertheless open to it. In any event, that reasoning is not the subject of any illogicality or unreasonableness argument.
Here, the finding made by the IAA that is in issue specifically states that there would be a significant number of Hazaras in Kabul who would not be strict adherents to Islam. Having reviewed the country information provided to the Court, there is no basis for this finding.
However, the IAA appears to have inferred that there would be a significant number of Hazaras in Kabul that were not strict adherents to Islam “given the extent to which Hazaras engage in migration”. It is not entirely clear to the Court how the extent to which Hazaras might migrate can support a finding that there would be a significant number of Hazaras in Kabul who would not be strict adherents of Islam.
There was evidence before the IAA that Hazaras comprised a large proportion of Kabul’s population: 2017 DFAT Report at [2.4]. The IAA may have been suggesting that in circumstances where a large proportion of Hazaras live in Kabul, it only follows that, given a significant number of Afghan Muslims are not strict adherents to Islam’s public observances, there would be a large proportion in Kabul who were Hazara and who were not strict adherents.
The question is whether there was enough evidence to support the inference that Kabul would be host to a significant number of Hazaras who are not strict adherents to the public observances of Islam.
With respect, this was an inference that was made without evidence. The data and statistics referred to in [28] (which the Minister relies upon) provides no more than a “grab bag” of information about religious views generally. It says nothing about:
a)the proportion of Hazaras or other ethnicities that are non-strict adherents of Islam;
b)whether “non-strict adherents” reside in rural or urban locations; and
c)whether “non-strict adherents” are, generally, those who have returned from Western countries.
The data the IAA refers to (and upon which the Minister relies to say that there was evidence to support the First Finding), was, critically, not specific to Hazaras. Nor was it specific to Kabul.
Reading the IAA’s reasons as a whole, it is apparent that the IAA’s reference to their being an “absence of evidence” that there had been a trend of attacks in Kabul against Hazaras who had returned from seeking asylum in Western countries, and/or who had lapsed in or become non-observant in their practise of Islam, was based on an erroneous inference that Kabul would be host to a significant number of non-strict adherents to Islam. This was a critical aspect of the IAA’s finding that the applicant would not be at risk or chance of harm because of a lack of religiosity and was an inference made without evidence.
The Second Finding
For ease of reference, the Second Finding provides as follows:
…most Hazaras have a favourable outlook towards western countries…
This finding was made in the context of the IAA considering whether the applicant would face any harm from the Hazara community for reasons of his atheism or agnostic beliefs.
It is true that the IAA had previously noted that there had been an absence of any trend of Hazaras (or returning Hazaras) being attacked by other members of the Hazara community for lapsed Islamic behaviour or for any perceived contravention of social mores (at [32]). It is also the case that there was an absence of evidence that atheists or agnostics had suffered mistreatment (at [26]). Nevertheless, this absence of evidence has, in the Court’s view, no correlation to whether Hazaras have a “favourable outlook” towards Western countries.
Thus, it must be assumed that the IAA sourced the Second Finding from the country information. No specific paragraphs or pages were cited. Each of these reports have been annexed to Mr Wyn Jones’ Affidavit.
The Minister refers to the following passages in the country information to submit that, when read as a whole, there was an evidentiary basis for the IAA to find that Hazaras have a favourable outlook towards Western countries.
The UNHCR Guideline provides:
Individuals perceived as “Westernized”
AGEs reportedly target individuals who are perceived to have adopted values and/or appearances associated with Western countries, due to their imputed support for the Government and the international community. There are reports of individuals who returned from Western countries having been tortured or killed by AGEs on the grounds that they had become “foreigners” or that they were spies for a Western country. Individuals who fall under other profiles, such as profile 1.e (humanitarian workers and development workers) and profile 1.i (women in the public sphere) may similarly be accused by AGEs for having adopted values and/or appearances associated with Western countries, and may be targeted for that reason.
From the 2017 DFAT Report:
…
Education
2.15 Hazaras have traditionally placed a high value on educational achievement, including for girls (see ‘Women’), which has represented a means to escape marginalisation in Afghan society. While reliable statistics are unavailable, credible sources report that a considerably higher percentage of Hazara children receive formal education than do the children of other Afghan ethnicities. Hazara children are generally encouraged to consider further education options where family circumstances allow. There are currently more than 350 schools operating in Bamiyan and Daykundi, attended by approximately 160,000 students of whom almost 50 per cent are girls Bamiyan also hosts a small university with approximately 3,600 students, although the university has struggled to attract qualified lecturers.
2.16 Hazaras operate a number of private schools in Kabul for the benefit of their community. The quality of these schools tends to be higher than many other schools in Afghanistan, demonstrated by relatively high university acceptance rates. Some families from the Hazarajat reportedly send their children to Kabul for instruction during the winter months.
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Women
3 14 Hazaras are regarded as progressive by Afghan standards in relation to women’s rights. As noted in ‘Education’, Hazara girls are far more likely to be able to access education than girls are of other ethnicities. Hazara women and girls are also far more likely to be able to participate in sport and the workforce than women and girls of other ethnicities. Because of their educational qualifications and the support of their community, Hazara women are particularly likely to be able to pursue employment opportunities with the international community, or with the government, police and army (see ‘People associated with the government or the international community’). The current governor of Daykundi province is a Hazara woman, and Bamiyan has previously had a female Hazara governor. The Independent Election Commission also includes a female Hazara commissioner.
…
People associated with the government or the international community
3.16 The overall situation of Hazaras in Afghanistan has improved dramatically since the removal of the Taliban in 2001. Due to these improvements, most Afghans perceive Hazaras to be affiliated with the government. As noted in ‘Economic Situation - Kabul’, many Hazaras have employment with either the government or the international community. This is particularly the case for Hazara women, who anecdotally make up a disproportionate percentage of female recruits in the police and army, notwithstanding the relatively small numbers of women actually serving in these roles. In addition, the large Hazara communities residing outside of Afghanistan mean that a higher percentage of Hazaras are likely to have an international connection of some kind than Afghans of other nationalities.
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Treatment of Returnees
4.7 Returnees from western countries almost exclusively return to Kabul. There are no tracking mechanisms for returnees, so it is difficult to assess the conditions they face. DFAT understands that many returnees choose to remain in Kabul for economic or security reasons rather than return to their home provinces. DFAT assesses that Kabul’s size and diversity mean it would be unlikely for Hazara returnees to be more vulnerable to violence based on their ethnicity or religion than for other Hazaras living In Kabul, or returnees from other ethnic groups (see DFAT Country Information Report on Afghanistan of 18 September 2017).
The 2016 DFAT Report provides:
Background Information
…
2.2 While demographic data for Afghanistan is unreliable, it is estimated that around three million Hazaras live in Afghanistan-approximately nine per cent of the population and the third largest ethnic group. Sizeable Hazara communities are also found in Pakistan, Iran, the Gulf states, Australia, Europe and the US. Because of the importance of family and ethnic community networks in Afghan life, the presence of Hazara diasporas abroad often acts as a significant factor in the decision of Hazaras to leave Afghanistan, and in their choice of destination.
…
Areas with large Hazara populations
…
2.7 Kabul is the largest city in Afghanistan, and the nation’s capital. Data on the population of Kabul is unreliable, including information on the city’s ethnic composition. However, there are credible reports that the current population of the city and surrounding area is more than four million, around 13 per cent of the estimated population of Afghanistan, having grown rapidly over the last decade. Estimates of the Hazara population in Kabul vary between around 1.6 million to two million, or 40-50 per cent of Kabul’s population. This would make Hazaras the largest ethnic group in Kabul, alongside significant numbers of Tajiks, Pashtuns and minority ethnic groups. Most Hazaras in Kabul live in the west of the city, including many who live in informal and illegal settlements.
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Education
3.24 Access to education in Afghanistan has improved greatly since 2001, particularly for girls. Traditionally, many Hazaras have placed a high value on education, including for girls and women. Almost 90 per cent of Hazara children receive education and are generally encouraged to consider further education options where family circumstances allow. Girls constitute almost 50 per cent of students in Bamiyan.
3.25There are currently more than 350 schools operating in Bamiyan and Daykundi, attended by 160,000 students. Bamiyan also hosts a small university, reportedly with 3,600 students, but has struggled to attract qualified lecturers.
3.26 Some families from the Hazarajat send their children to Kabul for courses during the winter, where the Hazara community operates a number of private schools. The quality of Hazara-run schools tends to be better than many other schools in Afghanistan, demonstrated by relatively high university acceptance rates.
…
People associated with the government or the international community
…
3.30 Due in part to improvements in the situation of the Hazara community since 2001, Hazaras are widely perceived to be affiliated with both the government and the international community. Many Afghans, including Hazaras, travel abroad to Iran, Pakistan, Europe or other western countries to seek employment or educational opportunities. There are also large communities of Hazaras living overseas, including in Australia. This is not to suggest that all Hazaras face the same level of risk as those working for the government or the international community. Rather, the perception of Hazaras having disproportionately benefitted from the ousting of the Taliban regime, or the perception of links with the international community, may in some circumstances be a contributing factor in the choice of target for an attack that would have happened anyway. These concerns are particularly evident with regard to Hazaras travelling by road between Kabul and the Hazarajat (see ·security situation’ above).
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Treatment of Returnees
4.11 Returnees from western countries are almost exclusively returned to Kabul. While some families are returned, most returnees tend to be single men travelling alone. While men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, the lack of family networks for single men can also impact on their ability to reintegrate into Afghan community. The relatively better economic opportunities available mean returnees often choose to remain in Kabul. There are no tracking mechanisms for these returnees, so it is difficult to assess the conditions they face. There are plausible, but anecdotal, reports of returnees from western countries turning up in drug communities. DFAT assesses that, because of Kabul’s size and diversity, returnees would be unlikely to be discriminated against or subject to violence on the basis of ethnicity or religion. There is a large Hazara population living in Kabul.
The applicant’s submissions address each of these country information extracts and note that none of those extracts state that Hazaras have a favourable outlook toward Western countries.
The applicant’s submissions in this regard are accepted. Nothing referenced above identifies Hazaras as having a favourable outlook in relation to Western countries.
Again, however, evidence to support a finding need not be direct. It may be found in material that permits the decision-maker to reasonably infer a particular matter: BSE17.
The Minister’s submission appears to be that the above country information (and the scant evidence that indicates that returnees from Western countries had suffered harm due to not observing Islamic practises) was an evidentiary basis upon which the IAA could reasonably infer that most Hazaras have a favourable outlook in relation to Western countries.
In effect, the relevant question here is whether an inference could be drawn that most Hazaras have a favourable outlook about Western countries based on the information before the IAA.
The information extracted above suggests that Hazaras are likely to have “international connections”. This is because there are a higher percentage of Hazaras residing outside of Afghanistan than other ethnicities. It also suggests that many Hazaras travel abroad. The Minister’s submissions draw particular attention to matters concerning the “progressive” traits of Hazaras (noting the effect of women’s rights and education).
Here, taken as a whole, the Court is satisfied that there was no evidence whatsoever to suggest that Hazaras have a favourable outlook about Western countries.
As the applicant states in his submissions, it is not the case that because Hazaras value education or women’s rights that Hazaras necessarily view Western countries more favourably.
The information indicates that Hazaras are likely to have an international connection because Hazaras, “like many Afghans”, travelled abroad for employment and education opportunities. Notably, when considered in context, the countries identified in the country information as to where Hazaras travelled or where there was a “sizeable population” of Hazaras were not restricted to Western countries. They included Gulf States, Pakistan and Iran. Hence, it is not the case that there was a “trend” as to Hazaras and their “international connections” being Western country specific.
Further, the IAA states that of all Afghanistan’s ethnic groups, Hazaras are known to have a favourable outlook upon Western countries like Australia and to migrate to and seek asylum in Western countries. There is no comparative analysis in any of the information currently before the Court that indicates that Hazaras were known for, more than any other ethnic group, having a favourable outlook towards Western countries. Nor is there any information that most Hazaras had a “favourable outlook” in this regard. Again, the fact that Hazaras are more “progressive” than other ethnicities does not provide an evidentiary basis, nor a basis on which an inference could be found, that most Hazaras have a favourable outlook in relation to Western countries.
As in DNQ18, it is not possible to see how the passages the Minister relies upon (nor any of the information the Court has itself reviewed) are probative of the finding that most Hazaras have a favourable outlook about Western countries. The IAA’s finding extended well beyond the material before it. A reasonable inference simply cannot be drawn from the materials that most Hazaras have a favourable outlook about Western countries.
The Second Finding was, accordingly, a finding made without evidence.
The Third Finding
The Third Finding provides as follows:
…the evidence before me does not indicate… that Hazara society is broadly affected by the kind of conservative attitudes with regard to religion which are often found within Afghanistan’s Pashtun community…
The Court does not accept that the mere absence of evidence that Hazara society is broadly affected by the kind of conservative attitudes with regard to religion which are often found within Afghanistan’s Pashtun community provides a basis for an inference or finding that Hazaras are not broadly affected by such attitudes.
As such, there needs to have been “something more” in the country information that provided a basis for this finding.
Again, the Minister identified extracts from the country information that were submitted to be evidence in support of the Third Finding.
Relevantly, the UNHCR Guideline provides:
6. Individuals Perceived Contravening AGEs’ Interpretation of Islamic Principles, Norms and Values
The Taliban have reportedly killed, attacked and threatened individuals and communities who are perceived to contravene the Taliban’s interpretation of Islamic principles norms and values.
In areas where the Taliban are trying to win the hearts and minds of the local population, the Taliban have reportedly softened their stance. However, once areas are under its effective control, the Taliban are reported to enforce a strict interpretation of Islamic principles, norms and values. There are reports of officers of the Taliban’s Ministry for the Promotion of Virtue and the Prevention of Vice patrolling the streets, and people are reportedly detained for shaving their beards or for having haircuts that are deemed to be vain. Women are reportedly only allowed to leave their homes when accompanied by their husbands or male family members, and only for a small number of authorized purposes such as visiting a doctor; women and men who violate the rules have reportedly been punished by public lashings.
In areas controlled by groups affiliated with ISIS, a puritanical way of life is reportedly enforced with strict decrees and punitive actions. Displaced families in the Eastern region of Afghanistan have reported that strict rules, including dress codes, and reduced freedom of movement have been applied to women.
…
For analysis of the situation of religious leaders who are at risk from AGEs, see Section III.A.1.h. For analysis of the situation of women and men who are perceived to contravene social mores, see Section III.A.8. For analysis of the specific situation of individuals of diverse sexual orientations and/or gender identities, see Section III.A.12. Imams who advocate for perceived modern ideas, such as the use of contraception, reportedly receive death threats and are at risk of abductions from the Taliban…On 11 December 2014 a suicide attack against the French Institute of Kabul caused 12 casualties (2 killed and 10 injured) during a theatre performance. The Taliban claimed responsibility stating the performance was targeted because it attempted “to humiliate Islamic values and spread propaganda about our jihadi operations”. The Taliban also stated the attack was a warning to others organizing such events… Some individuals who returned to Afghanistan after having lived in western countries as a refugee for a number of years reported difficulties due to the fact that they were perceived as having lapsed in their practice of Islam. A research project tracking the fate of young Afghans returned from the UK to Kabul found that a quarter of those tracked had experienced “harm or difficulties as a result of being viewed as ‘Westernized outsiders’”, which in some cases was reportedly due to a perceived lapse in their practice of Islam.
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Systematic Denial of Access to Education
In 2015 UNAMA and UNICEF documented 19 incidents where AGEs directly or indirectly limited girls’ access to education…The Taliban particularly targets girls’ education by, for example, distributing leaflets with serious threats against students and intimidating female teachers… In July 2014, the Head of the Herat Education Department announced that all schools in Shindand district of Herat province would remain closed for girls, thus depriving nearly 40,000 girls from education because of Taliban pamphlets threatening to burn down schools and commit suicide attacks if girls continued to attend school… In March 2014 an expert from the AAN Claudio Franco, was quoted as saying, “[In the Pashtun belt in particular] there have been attempts by the Taliban to curtail or pre-empt girls’ education, and these attempts have been largely successful. The local populace is very often sympathetic towards this kind of stance, simply because of an instinctive, well-rooted conservatism. [...] As a consequence, there have been attacks on girls travelling to and from school, or on teachers and/or administrators who did not comply with this ban”… In some areas of the country, such as Kunduz province, the number of girls attending private madrassas (religious schools), where only a strict interpretation of Islam is taught, is reportedly increasing… In late August/early September 2015, hundreds of schoolgirls were hospitalized in Herat province for gas poisoning, after having inhaled toxic fumes. No group claimed responsibility for the incidents, but authorities suspected that they were deliberately caused… In July 2015, assailants threw acid in the faces of three teenage girls on their way to school in Herat province, telling the girls that this was punishment for going to school.
(References omitted)
The 2017 DFAT Report provides:
…
Education
2.15 Hazaras have traditionally placed a high value on educational achievement, including for girls (see ‘Women’), which has represented a means to escape marginalisation in Afghan society. While reliable statistics are unavailable, credible sources report that a considerably higher percentage of Hazara children receive formal education than do the children of other Afghan ethnicities. Hazara children are generally encouraged to consider further education options where family circumstances allow. There are currently more than 350 schools operating in Bamiyan and Daykundi, attended by approximately 160,000 students of whom almost 50 per cent are girls Bamiyan also hosts a small university with approximately 3,600 students, although the university has struggled to attract qualified lecturers.
2.16 Hazaras operate a number of private schools in Kabul for the benefit of their community. The quality of these schools tends to be higher than many other schools in Afghanistan, demonstrated by relatively high university acceptance rates. Some families from the Hazarajat reportedly send their children to Kabul for instruction during the winter months.
…
Women
3 14 Hazaras are regarded as progressive by Afghan standards in relation to women’s rights. As noted in ‘Education’, Hazara girls are far more likely to be able to access education than girls are of other ethnicities. Hazara women and girls are also far more likely to be able to participate in sport and the workforce than women and girls of other ethnicities. Because of their educational qualifications and the support of their community, Hazara women are particularly likely to be able to pursue employment opportunities with the international community, or with the government, police and army (see ‘People associated with the government or the international community’). The current governor of Daykundi province is a Hazara woman, and Bamiyan has previously had a female Hazara governor. The Independent Election Commission also includes a female Hazara commissioner.
…
The 2016 DFAT Report provides:
Areas with large Hazara populations
…
2.7 Kabul is the largest city in Afghanistan, and the nation’s capital. Data on the population of Kabul is unreliable, including information on the city’s ethnic composition. However, there are credible reports that the current population of the city and surrounding area is more than four million, around 13 per cent of the estimated population of Afghanistan, having grown rapidly over the last decade. Estimates of the Hazara population in Kabul vary between around 1.6 million to two million, or 40-50 per cent of Kabul’s population. This would make Hazaras the largest ethnic group in Kabul, alongside significant numbers of Tajiks, Pashtuns and minority ethnic groups. Most Hazaras in Kabul live in the west of the city, including many who live in informal and illegal settlements
…
Security Situation
…
2.18 The government maintains effective control over Kabul, although insurgent and criminal violence is common. Insurgents regularly conduct high-profile attacks in Kabul. DFAT assesses that the primary targets for insurgent attacks are government institutions, political figures, the Afghan National Defence and Security Forces, personnel associated with NATO’s Resolute Support Mission and other coalition forces, other security services, the diplomatic representatives of some countries, and international organisations. Such attacks often cause significant casualties amongst civilian bystanders in addition to those being specifically targeted. Kabul saw a marked increase in the number of incidents in 2015 compared to 2014. According to a Mission Resolute Support report for January-April 2015, insurgent attacks in Kabul were up around 60 per cent on the same period in 2014. For more information on the security situation in Kabul, see the 18 September 2015 DFAT Thematic Report on Conditions in Kabul.
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Treatment of Returnees
4.11 Returnees from western countries are almost exclusively returned to Kabul. While some families are returned, most returnees tend to be single men travelling alone. While men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, the lack of family networks for single men can also impact on their ability to reintegrate into Afghan community. The relatively better economic opportunities available mean returnees often choose to remain in Kabul. There are no tracking mechanisms for these returnees, so it is difficult to assess the conditions they face. There are plausible, but anecdotal, reports of returnees from western countries turning up in drug communities. DFAT assesses that, because of Kabul’s size and diversity, returnees would be unlikely to be discriminated against or subject to violence on the basis of ethnicity or religion. There is a large Hazara population living in Kabul.
The IAA’s finding that the evidence did not indicate that Hazara society was affected by the kind of conservative attitudes with regard to religion which are often found within Afghanistan’s Pashtun community overstates the information before the IAA.
The information before the IAA indicated that the rural Pashtun community had been particularly sympathetic toward the Taliban’s stance to deprive females of the opportunity to attend school. The information before the IAA also indicated that, in some respects, Hazaras supported a woman’s right to education.
Again, the fact that Hazaras might hold “progressive views” in relation to access to education does not mean that Hazaras are “less inclined to view apostasy or agnosticism as acceptable” (which was the basis of the applicant’s claim). Nor is it enough to imply that Hazaras view or consider apostasy or agnosticism more favourably than those Pashtuns with an “instinctive, well-rooted conservatism” (such that the risk or chance of harm is less).
The Third Finding was not a finding that could be reasonably inferred from the material before the IAA.
Conclusion
The sole ground of review has established that the IAA has fallen into jurisdictional error. The IAA’s finding on the way to reaching its state of satisfaction went beyond the material and information before it. The findings were made without evidence.
The application is to be allowed. The IAA’s decision will be set aside and the matter remitted for reconsideration.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 11 June 2020
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