GNZ18 v Minister for Immigration

[2020] FCCA 2971

FEDERAL CIRCUIT COURT OF AUSTRALIA

GNZ18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2971

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – whether IAA considered claim

Legislation:

Migration Act 1958 (Cth), s.473CB, Pt 7

Applicant: GNZ18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 669 of 2018

Judgment of: Judge Jarrett

Hearing date: 21 April 2020

Date of Last Submission: 21 April 2020

Delivered at: Brisbane

Delivered on: 3 November 2020

REPRESENTATION

Counsel for the Applicant: Mr Guo

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the First Respondent: Ms Oliver

Solicitors for the First Respondent: Sparkle Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 7 November, 2019 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 669 of 2018

GNZ18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. By his amended application filed on 7 November, 2019 the applicant seeks judicial review of a decision of the second respondent made on 15 November, 2018 which affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Safe Haven Enterprise (Subclass 790) visa.

2. The first respondent opposes the application.  The second respondent has entered a submitting appearance.

3. I have written submissions filed by the applicant and the first respondent.  Both parties made oral submissions in addition to the written submissions.

Background

1. The applicant is from Kabul, Afghanistan.  He is of Hazara ethnicity and a Shia’ Muslim.  Relevantly, one of the applicant’s claims in support of his protection visa application was that he feared harm from extremists.  In his protection visa application he claimed that Hazara’s were being targeted by the Taliban, Islamic State of Iraqi and Syria and their supporters.  He feared the Taliban and ISIS because those extremist groups were both anti-Hazara and anti-Shia.  He feared mistreatment and harm at the hands of those groups and their supporters because of his ethnicity.

2. The applicant claimed that he no longer practiced his Shia religion.  He declared at the time he applied for his protection visa that he had abandoned practising the Shia religion and had completely adopted agnostic beliefs.  He claimed that if he was not targeted because of his imputed religion, he would be targeted because of his agnosticism. 

3. He also feared harm from Pashtuns because they tended to support the Taliban and ISIS. 

4. He claimed that the Afghan government failed to provide adequate protection to Hazaras, despite public declarations by the Taliban, ISIS or similar extremist militant groups claiming responsibility for the killings of Hazaras in Kabul and other parts of Afghanistan.  He concluded that the authorities were either unable or unwilling to provide protection to him if he were forced to return to Afghanistan.

5. He also feared the authorities themselves.  He claimed that the authorities would harm or mistreat him because he was no longer a practicing Muslim.

6. On 27 March, 2018 a delegate of the first respondent refused the visa application on the basis that Australia did not owe the applicant any protection obligations.

7. Because the applicant was an unlawful maritime arrival for the purposes of the Migration Act 1958 (Cth), the delegate’s decision was referred to the second respondent for review in accordance with Part 7A of the Act.

8. The second respondent had regard to the material referred to it by the secretary of the first respondent’s department under s.473CB of the Act.  Subject to what follows, the second respondent considered the applicant’s claims and rejected them.  There were many claims.  The present application relates only to his claims based upon his religion and ethnicity.  

9. The applicant provided written submissions and new information to the second respondent, including a table of attacks committed by ISIS (also known as, and referred to in the submissions as ISKP) and the Taliban.  The applicant submitted that the information in the table highlighted two important points. First, it was apparent that attacks against Hazaras and Shias were increasing dramatically in Kabul.  In the past 12 months, 281 people had been killed in attacks against Hazaras and Shias in Kabul, whereas only 136 people were killed in such attacks in Kabul in the preceding 12 months.  The applicant argued that all “indicators” suggested that there was a rising trend of anti-Hazara/anti-Shia violence.  Second, the violence perpetrated against the Hazaras and Shias in Kabul was not solely directed at religious ceremonies or mosques.  The applicant gave some examples of attacks that he argued demonstrated that point. 

10. The applicant contended that advice from the Department of Foreign Affairs and Trade upon which the delegate had relied to the effect that that ISKP’s attacks against Hazaras and Shias were religiously motivated was an over simplistic analysis of a complex conflict.  He argued that the ISKP-instigated attacks against Hazaras in Afghanistan were not only motivated by religious persecution but also the political opinions imputed to the ethnic Hazara community.

11. He argued that it would be wrong to consider whether the applicant would face a risk of harm in Kabul at a particular event or place of worship alone because ISKP’s wave of violence against the ethnic Hazaras in Kabul had permeated not just religious gatherings, but also secular cultural events.

12. The submission set out expert evidence to support the proposition that the targeting of Hazaras went beyond targeting of Shia places of worship, and said that the second respondent should find that the frequency of attacks against Hazaras, as well as the broadening of targeted locations to include areas where Hazaras assemble, work, study or worship all indicates that the chance the applicant may be harmed in violence targeting Hazaras in Kabul was more than remote.

13. The second respondent accepted that there were exceptional circumstances justifying the consideration of the new information upon which the applicant sought to rely.  The second respondent considered the new country information because it post-dated the delegate’s decision, was credible and highly relevant to the applicant’s claims.

14. The second respondent accepted the applicant’s identity and found that his home area was Kabul.

15. The second respondent found the applicant’s claims regarding his faith, or lack thereof, unconvincing. The second respondent emphasised that the applicant had indicated that he was a Shia Muslim in his arrival interview and that when he was asked whether he had abandoned his faith during his interview with the delegate he responded that he still identified as a Muslim but neither practised Shia in Australia nor Afghanistan. However, in the applicant’s post-interview submissions he referred to him abandoning his religion that he practised in Afghanistan. Overall, the second respondent preferred the applicant’s oral evidence in his arrival and visa interviews.  It did not accept the applicant’s claims regarding his faith, and found that if he returned to Afghanistan he would be a non-practising Shia Muslim.

16. The second respondent considered the applicant’s fear of returning to Kabul and being imputed as pro-western/anti-Taliban/anti-ISIS, as a failed asylum seeker, and a non-practising Shia.  It considered a variety of country information including that provided by the applicant.  It accepted that the majority of attacks against Shia Muslims were carried out by ISIS, and were directed at Shias attending religious or political activities.  It accepted that Shia Muslims who attend communal worship and religious festivals are vulnerable to attack.  However, as it had found he was a non-practising Shia it did not accept that he would be involved in these activities.  Further, given the applicant’s oral evidence had been that he had not been practising Islam in Afghanistan it did not accept the applicant’s submission that he would be forced to participate in these events.

17. The second respondent considered whether the applicant would be perceived to be an atheist if he did not attend mosque or not participate in other religious rituals.  The second respondent relied on the applicant’s evidence that he had been a non-practising Shia in Afghanistan to find that he would not face harm because of imputed atheism or apostasy.  The second respondent commented that there was no evidence to suggest the applicant intended on actively denouncing or speaking out against Islam in a way that would attract adverse attention.

18. The second respondent considered the applicant’s evidence that he had never suffered harm or mistreatment in Afghanistan due to his ethnic identity.  On that basis, it did not accept that the applicant faced a real chance of harm because of his ethnicity.  The Taliban were no longer engaged in mass casualty attacks against the Hazara and/or Shia population in Kabul but there had been attacks by other groups, in particular Islamic State, in recent years in that city against Shias.  The second respondent considered that the majority of the attacks that targeted the Shia community in Kabul between 2016 and 2018 were carried out by Islamic State and directed at Shias or Hazaras attending political demonstrations, mosques, religious commemorations, or cultural centres.

19. The second respondent found that country information suggested that there was effective governmental control in Kabul.  Considering the security presence in Kabul, the size and population of the city, the frequency of attacks against Hazara and the applicant’s lack of profile, the second respondent considered that there was not a real chance the applicant would be seriously harmed or that the applicant would be imputed with an anti-Taliban or anti-ISIS opinion because of ethnicity or religion, or any other reason.  The second respondent considered a variety of country information, but overall, did not consider the applicant faced harm as a returned asylum seeker. 

20. The second respondent found that the risk of harm from generalised violence was remote, but, in any event, found there was no evidence to suggest that the applicant would face harm from generalised violence for a Convention reason. 

21. The second respondent did not accept that the applicant had a well-founded fear of persecution and was not a refugee.  The second respondent relied on its anterior findings to conclude that the applicant was owed complementary protection.

22. On 15 November, 2018 the second respondent affirmed the delegate’s refusal of a protection visa for the applicant.

The ground of review

1. The applicant relies upon one ground of review set out in his amended application filed on 7 November, 2019.  The ground is in the following terms:

   1. The Immigration Assessment second respondent (IAA) erred by failing to consider, or constructively failing to consider, the Applicant’s claim to fear harm from extremists by reason of his ethnicity.

   Particulars

   a. The claim was advanced at CB 150-151 as being independent of his religion, and supported by country information about attacks carried out by extremists on Hazara’s in a secular context, and carried out in Hazara-dominated areas.

   b. The IAA’s reasons deal with the claim at [27] but only in the context of whether the Applicant would practice his religion or be involved with politics, and at [30] but only in the context of country information that suggested Kabul was safe as a whole and which did not say anything about Hazara-dominated areas.:

2. There are a number of uncontentious principles accepted by both parties as having relevance to the present application.  It is uncontentious that the second respondent will fall into jurisdictional error when it fails to give consideration to a claim, or what has been described as an integer of a claim.  Consideration requires an “active intellectual process”, whereby the decision-maker brings his or her mind to bear on the matters advanced.  It is common ground in the present case that a decision-maker does not need to engage in a line-by-line refutation of the evidence.  Nonetheless, it may be inferred that a decision-maker has failed to consider a claim or integer of a claim if it does not mention a particular claim or part of a particular claim in its reasons.  However, a failure to mention a claim does not necessarily require the drawing of a relevant inference.  A finding that a decision-maker has not engaged in an active intellectual process will not lightly be made.  The authorities demonstrate that such a finding must be supported by clear evidence.  It is the applicant that bears the onus of making out his case for relief. 

3. So too, if the second respondent’s reasons do not refer to a particular piece of evidence, then it may be inferred that the second respondent did not consider that evidence to be material and that conclusion on materiality may in turn indicate an error.  Conversely, a mere reference to evidence or a particular claim or aspect of it may be insufficient to demonstrate that the second respondent has given active intellectual consideration to that evidence or claim.    

4. The applicant argues that to say that the applicant is a Shia is to refer to his denomination of the Muslim religion.  To say that he is a Hazara is to identify his ethnicity.  They are two different and distinct descriptors of a person – one going to religion and the other to ethnicity or race.   The applicant points out that while many Hazaras are Shias, not all Shias are necessarily Hazaras and all Hazaras are not necessarily Shias.  So much can be accepted.

5. The applicant submits that his written submissions accompanying his visa application never used “Shia” interchangeably with “Hazara”.  His submissions advanced a separate argument that the applicant would be imputed to be a Shia because of his Hazara ethnicity and that both qualities – being a Hazara and a Shia would each separately expose him to persecution.

6. The first respondent accepts that the applicant raised a claim that he feared harm if he returned to Afghanistan from extremists because of his ethnicity as a Hazara.

7. Put shortly, the applicant submits that the second respondent failed to engage with his case that he would be targeted because of his ethnicity alone rather than his religion or imputed religion.  The first respondent submits that the second respondent actively engaged with this claim and made findings that were open to it on the evidence before it.

8. There can be no doubt, in my view, that the second respondent understood that the applicant was advancing a claim to protection based on his ethnicity as a Hazara and that was a claim that was distinct to his claim based upon his religion or imputed religion.  It was his claim based on his ethnicity that led the second respondent to treat the new information provided to it by the applicant in the way that it did.  At [5] the second respondent said:

   5.  In the IAA submission, the applicant’s representative refers to several sources of country information not before the delegate that post-date the delegate’s decision.  It is new information.  As the new information was published after the delegate made her decision I am satisfied it could not have been provided to the Minister.  The representative submits that there are exceptional circumstances which justify the IAA considering the new information, specifically, because it is credible and highly relevant to the applicant’s claims for protection.  The new information reports on civilian causalities in Afghanistan in the first quarter of 2018, and on insurgent attacks on Hazaras or in Hazara areas in Kabul in the past 24 months, including on 22 April 2018 (after the delegate made her decision).  Having had regard to the new information and the nature of the applicant’s claims for protection, I am satisfied that there are exceptional circumstances to justify its consideration.  I agree with the representative that the information is from credible reports that relate to events that post-date the delegate’s decision and that are material to the issues under consideration.

9. It can be seen from that paragraph of the second respondent’s reasons that the second respondent was acutely aware that the applicant was advancing a claim based on his Hazara ethnicity alone.  To underscore the point, the second respondent specifically referred to the applicant’s claim that he feared, if he returned to Afghanistan, that he would be harmed or mistreated due to “his Hazara ethnicity”.  At [6] the second respondent said (footnotes omitted, my emphasis):

   6. In support of his SHEV application, the applicant provided a statutory declaration, dated 12 August 2017 (SHEV statement). The claims outlined in his SHEV statement can be summarised as follows:

   • The applicant is a Hazara male from Kabul, Afghanistan. His family originate from Bamyan Province;

   • In around 1998, the applicant’s father joined the Hezb-e Wahdat Party in Bamyan Province but was killed when conflict broke out between warring factions of the party.  The applicant’s father’s cousin was the local Hezb-e Wahdat commander;

   • Following the conflict in Bamyan, the applicant’s uncle (Rajab), who was not involved in the conflict, occupied the applicant’s father’s home and farm land because he was next of kin. He threatened the applicant’s family not to return to Bamyan Province because he did not want another conflict;

   • The applicant lived outside of Kabul between 1999 and 2003 (Pakistan), 2005 and 2007 (Iran), and 2008 and 2010 (Iran);

   • In the years prior to him leaving Afghanistan, the applicant felt the security situation had deteriorated and the insurgencies were occurring regularly. Hazaras were frequently being targeted by the Taliban, Islamic State, and their supporters;

   • On 30 March 2013, the applicant left Afghanistan with the assistance of a people smuggler;

   • Since arriving in Australia, the applicant has completely abandoned the Shia faith and identifies as agnostic;

   • If returned to Afghanistan, the applicant fears harm from his uncle in Bamyan Province.  His uncle will think that he has returned to Bamyan to reclaim family land;

   • If returned to Afghanistan, the applicant also fears he will be harmed or mistreated due to:

   - his Hazara ethnicity

   - his imputed Shia faith

   - him being an apostate and abandoning his Islamic upbringing

   - his agnostic beliefs

   - his imputed anti-Taliban / Islamic State political opinion

   - his imputed pro-western political opinion

   - his profile as a failed asylum seeker.

10. Further recognition of the separate claim made by the applicant based on his ethnicity is apparent in [8] of the second respondent’s reasons.

11. The second respondent was clearly aware that one of the aspects of his claim to a protection visa was that if he returned to Afghanistan, he would be harmed or mistreated due to his Hazara ethnicity.  It is uncontroversial that the evidence before the second respondent showed that extremists attacked not only places of worship frequented by Hazaras, but also gatherings of Hazaras that were entirely secular. 

12. Two questions then remain.  First, did the second respondent impermissibly conflate that claim with the applicant’s claim based upon his religion (or lack thereof)?  The applicant argues that the second respondent made the same error as the delegate by conflating his claims based on his imputed religion or his agnosticism with his claims based upon his ethnicity.  Second, did the second respondent give that separate claim based upon his ethnicity active intellectual consideration?  The applicant argues that the second respondent did not deal with this separate claim. 

1. The applicant advanced a case that there were places in Kabul where he would face a real risk of harm because of his ethnicity.  He identified in his written submissions two specific kinds of gatherings and places in “Hazara dominated suburb[s]” as having been the targets of extremists. The first were gatherings and places where cultural (as distinct from religious) celebrations occurred.  The submissions gave the specific example of an attack on Nowruz (Persian New Year) celebrations and stated that it was carried out by ISKP extremists even though “[t]his event is not a religious event; rather it is a secular holiday”.  However, the table in the submissions noted that the attack took place at a Shia shrine in a Hazara dominated area of Kabul.  The second was an identified “attack on the voter registration centre … in the Hazara-dominated suburb of Dasht-e-Barchi [which] was not carried out at a place of worship but a place where ordinary ethnic Hazaras were exercising basic civic duties”.

2. The applicant argues that these examples of secular activities were not the subject of any express reasoning by the second respondent.  Whilst there is a reference to the targeting of the “voter registration centre in a Hazara populated area of Kabul” at [26] of the second respondent’s reasons, the applicant argues that reference is insufficient to engage with the applicant’s claim in this respect.  He argues that the lack of any engagement with these pieces of evidence demonstrate a broader problem with the second respondent’s approach to the review – namely that it did not consider the applicant’s claim based upon his ethnicity.

3. To properly consider the applicant’s argument, it is necessary, I think, to set out the salient parts of the second respondent’s reasons.  Between [22] and [36] of its reasons, the second respondent considered the applicant’s claims that he feared harm from anti-Hazara and anti-Shia groups if he was to return to Kabul.  At [22] the second respondent recognised that they were two separate claims.

4. At [23] and [24] the second respondent considered the risk of harm to the applicant in Kabul from the Taliban by reason of his ethnicity and religion  (footnotes omitted):

   23. Kabul is Afghanistan’s capital and largest city. Country information before me indicates that Kabul’s Hazara population is estimated at around 1.2 million to 1.5 million (or 40-50 per cent of Kabul’s population), making Hazaras the largest ethnic group in the city.

   24. There are no recent reports before me of the Taliban carrying out mass casualty attacks against the Hazara and/or Shia population in Kabul, although there have been attacks by other groups, in particular Islamic State, in recent years in that city. Country information indicates that other recent attacks carried out by the Taliban and other anti-government elements (AGEs) in Kabul have been primarily against government and security personnel, and the international community. In October 2016, Afghanistan Analysts Network (AAN) reported that the Taliban had convincingly spoken out against sectarianism and stayed away from violence that could stir sectarian hatred.

5. It can be seen that in [24], the second respondent deals with the prospect of the applicant being the subject of sectarian violence at the hands of the Taliban by reason of his Hazara ethnicity.

6. At [25] the second respondent noted country information to the effect of that Shias may now be vulnerable to being targeted based on the religious identity by Afghanistan-based groups.  It noted that Shias (Hazara and non-Hazara) were at risk of being attacked by Islamic State based on the religion and that she is were particularly vulnerable to attacks when assembling in large identifiable groups, such as during demonstrations when attending mosques during major Shia festivals.

7. At [26] the second respondent specifically referred to the information contained within the submission made by the applicant’s representative to the second respondent for the purposes of the review.  It noted that the four recent attacks in Kabul highlighted in that submission.  The second respondent then went on to state:

   27.  I accept that the majority of the attacks that targeted the Shia community in Kabul between 2016 and 2018 were carried out by Islamic State and directed at Shias or Hazaras attending political demonstrations, mosques, religious commemorations, or cultural centres.  I also accept that practising Shia Muslims who attend communal worship and religious festivals in Kabul are vulnerable to attacks by certain groups.  However, in the applicant’s circumstances, his evidence, which I have accepted, is that he is a non-practising Shia Muslim who has never practised or applied his religion and, given this, I find he will not practise his faith if returned to Kabul.  Further, the applicant has not claimed to have ever been involved in politics and nor has he expressed a desire to do so if returned to Afghanistan.  I consider the applicant is not politically active and a low-level adherent of the Shia faith.  I do not accept the applicant’s representative’s post-SHEV interview submission that the applicant would be ‘forced to participate in Shia religious gatherings’ on return to Afghanistan, which is inconsistent with the applicant’s evidence in the SHEV interview that as a Shia Muslim he did not practise his faith when he lived in Kabul.

8. It can be seen from this paragraph that the second respondent has dealt separately with the risk of harm to Shias and Hazaras.  So much is apparent from the use of the word “or” in the first sentence of the paragraph where the second respondent deals with attacks directed at Shias or Hazara’s attending political demonstrations, mosques, religious commemorations or cultural centres. 

9. At [28] the second respondent discusses and projects the applicant’s claim that he might be perceived as an atheist or an apostate should he return to Afghanistan.

10. At [29] the second respondent deals with the applicant’s claim that he might be discriminated against or suffered discriminatory treatment by reason of his Hazara ethnicity.  The second respondent rejected that claim.

    At [30] the second respondent said:

    30.  I have accepted there have been occasional attacks by Islamic State against Shias in Kabul.  However, country information indicates that the despite a number of security incidents the Afghan government retains effective control of Kabul and the Afghan security forces are generally capable and effective at protecting the major population centres.  Having regard to the information above and considering the security presence in Kabul, the size and population of city, the frequency and size of the attacks against Shias and Hazaras there, and the applicant’s lack of other profile or proximity connected to those in high profile or other vulnerable groups, I find the chance that he would be seriously harmed in Kabul due to his ethnicity or religion, or as a Shia Hazara, to not rise to a real chance.  Further, I am not satisfied that the applicant will be imputed with a political opinion of being anti-Taliban and/or anti-Islamic State, arising from his ethnicity and religion, or for any other reason.

11. It can be seen that in this paragraph, the second respondent deals with the applicant’s claim is based on his religion and ethnicity.  It considered the “frequency and size of the attacks against Shias and Hazaras”, the applicant’s profile (or lack thereof) and made a finding about the chance that the applicant would be seriously harmed in Kabul due to his ethnicity or religion or both as a Shia Hazara. 

12. At [35], after having considered the security situation in Kabul more broadly, the second respondent reached the following conclusions:

    …While I accept that civilians have been victims of attacks from time to time, taking into account the general security situation, and the size and diversity of the city, I find the chance that the applicant would be harmed as a bystander, or inadvertently caught up in an attack, or otherwise harmed through generalised violence is remote.  I am also satisfied that any harm the applicant may possibly face in relation to generalised violence would not be for the essential and significant reason or reasons of his race, religion, nationality, membership of a particular social group or political opinion, but rather as a consequence of any ongoing insurgency or insecurity present in the country overall.  …

13. Whilst the applicant identified in his written submissions two specific kinds of gatherings and places in “Hazara dominated suburb[s]” as having been the targets of extremists for reasons not of religion but ethnicity, the applicant argues that these examples were not the subject of any express reasoning by the second respondent.  However, the second respondent referred to both of these examples, although perhaps not in the detail desired by the applicant.  Nonetheless, it is trite, as the applicant submits, that a decision-maker does not need to engage in a “line by line refutation” of the evidence. 

14. There is no warrant in the present case to infer that the second respondent did not consider the evidence relied upon by the applicant to demonstrate that he was at risk in Kabul by reason of his ethnicity. 

15. Moreover, as the second respondent submits a claim is to be assessed in the context in which it is made.  The applicant’s claim to fear harm on the basis of his Hazara ethnicity was made against the background of his own evidence that he had never been harmed, mistreated or discriminated against due to his Hazara ethnicity.  His case was that he faced a risk of harm from extremists and more generalised violence in Kabul as a Hazara and as an Hazara who was a non-practising Shia Muslim.  That is what the second respondent did.

16. I do not accept the applicant’s submission that the second respondent did not consider his claim based upon his ethnicity.  I accept that a fair reading of [27], as informed by [25]-[26], perhaps suggests that in those paragraphs the second respondent was more focused upon the applicant’s religion based claim, but it was not to the exclusion of his ethnicity based claim.  I reject the applicant’s submission that to the extent that the paragraphs did deal with ethnicity, they did not appreciate that ethnicity was put forward as an independent basis for fear of the Taliban and ISIS. 

17. That the second respondent appreciated that the applicant was advancing separate claims based on his religion and ethnicity is also clear from [40] of its reasons:

    40.  I have concluded that the applicant is not a person of interest to the Taliban, Islamic State, or any other person or group in Afghanistan, on account his religion or ethnicity, due to an imputed opposition to the Taliban or Islamic State, or as a Shia Hazara, and does not face a real chance of harm on this basis.  I have also concluded that the applicant does not face a real chance of harm in connection with his familial links to the Hezb-e Wahdat Party in Bamyan.  I have further concluded that the applicant does not face a real chance of harm for any other reason including from generalised violence, the general security situation in Kabul, his time spent in Australia, due to any perceived westernisation, or due to him being a returning asylum seeker who has resided in a western country.  Based on the same information, I find that the applicant does not have a real risk of suffering significant harm in Kabul.

18. Although this passage appears in that part of the second respondent’s reasons dealing with the applicant’s claim to complementary protection, the reference to the second respondent’s antecedent conclusions clearly includes a reference to the applicant’s claim based on ethnicity.

Conclusion

1. In my view, the second respondent’s reasons demonstrate that it considered the applicant’s claim that there was a real risk of harm to him as a Hazara.  The second respondent’s decision record demonstrates that it actively engaged with the applicant’s claims to fear harm from extremist on the basis of his ethnicity as a Hazara, in the context in which that had been advanced. 

2. No jurisdictional error is evident in the second respondent’s consideration of this aspect of the claims advanced by the applicant.  The application must be dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 November, 2020.

Associate:

Date: 3 November, 2020