GSW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 260
•22 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GSW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 260
File number(s): MLG 3930 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 22 March 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Temporary Protection (subclass 785) visa – consideration of whether Authority misapplied ‘real chance’ test – consideration of whether Authority failed to consider whether risk of harm it had accepted satisfied complementary protection criterion – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 5J, 36, 473DD Cases cited: AON15 v Minister for Immigration and Border Protection (2019) 269 FCR 184
BCX16 v Minister for Immigration and Border Protection [2019] FCA 465
CGA15 v Minister for Home Affairs [2019] FCAFC 46
CID15 v Minister for Immigration and Border Protection [2017] FCA 780
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of last submission/s: 11 October 2023 Date of hearing: 11 October 2023 Place: Melbourne Counsel for the Applicant: Mr C Honnery Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Sparke Helmore ORDERS
MLG 3930 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GSW18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 7 December 2018. By its decision, the Authority affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) to refuse to grant the applicant a Temporary Protection (subclass 785) visa (‘temporary protection visa’).
BACKGROUND
The applicant claimed to be a citizen of Afghanistan of Hazara ethnicity and Shi’a religion.[1]
[1] Court book at page 61.
He arrived in Australia as an unauthorised maritime arrival on 31 March 2013.[2] At the time of his arrival, the applicant was around 15 or 16 years old.[3]
[2] Court book at page 1 and following; Court book at page 37.
[3] Court book at page 61.
Application for temporary protection visa on 21 September 2015
On 21 September 2015, the applicant applied for a temporary protection visa assisted by a migration agent.[4] His application annexed a personal statement dated 4 September 2015 in which the applicant sets out the basis of his claims for protection.[5]
[4] Court book at page 18 and following.
[5] Court book at pages 61 to 64.
The applicant claimed that he was born in the Ghanzi Province of Afghanistan and left Afghanistan with his family when he was approximately two years old to flee to Pakistan. The applicant says he has no memory of living in Afghanistan. He indicated that he feared returning to Afghanistan, claiming that:
(a)his family left Afghanistan due to fear of being ‘massacred’ by the Taliban, who were targeting Hazara Shi’a people;
(b)the attacks against Hazaras increased even after the applicant and his family moved to Pakistan, including bomb attacks and shootings of Hazara people;
(c)his father went missing in 2010, which the applicant believes was the result of his father being kidnapped whilst travelling for work because he is Hazara and Shi’a;
(d)the applicant eventually fled Pakistan in 2013 because it was dangerous for Hazara Shi’a to be residing and working there and he therefore made arrangements to come to Australia by boat to seek asylum.
In relation to his fear of harm upon return to Afghanistan, the applicant claimed:
16. I fear I will be killed if I return to Afghanistan by the Taliban.
17.I fear being harmed because of my ethnicity as Hazara Shi’a and because of my Muslim Shi’a religion.
The applicant’s migration agent provided the delegate with some written submissions dated 19 September 2016 addressing the delegate’s concerns in relation to the applicant’s identity and credibility.[6] Also attached to these submissions are various documents submitted in support of the applicant’s identity, including:
(a)a letter dated 17 September 2016, prepared by the President of an association where the applicant had volunteered for more than two years;
(b)an email dated 15 September 2016 from the applicant’s secondary school teacher; and
(c)an undated letter from the President of a student tuition group which the applicant had attended during his high school studies.[7]
[6] Court book at pages 77 to 86.
[7] Court book at pages 87 to 89.
On 5 April 2017, a delegate of the Minister refused the applicant’s application for a temporary protection visa.[8]
[8] Court book at pages 90 to 102.
First proceedings before the Authority
The matter was subsequently referred to the Authority and on 15 May 2017, the applicant’s migration agent submitted a written submission to the Authority in support of the applicant’s application in the Authority (‘May 2017 submissions’).[9]
[9] Court book at pages 108 to 114.
On 6 December 2017, the Authority affirmed the decision under review (‘first Authority decision’).
First proceedings in the Federal Circuit Court
On 19 September 2018, a judge of the Federal Circuit Court (as it then was) made orders by consent quashing the first Authority decision and remitting the matter back to the Authority for reconsideration according to law.[10]
[10] Court book at pages 119 to 120.
Second proceedings before the Authority
On 7 November 2018, the Authority again wrote to the applicant, via his migration agent, inviting him to provide evidence as to his nationality and make any further submissions that he wished to make in relation to the delegate’s decision ‘including issues beyond the delegate’s findings under s.91W of the Act’.[11] The applicant was invited to provide this material to the Authority by 21 November 2018.
[11] Court book at pages 129 to 130.
On 21 November 2018, the applicant provided written submissions and four supporting documents to the Authority.[12] These documents included a certificate issued by the Victorian Tertiary Admissions Centre confirming the applicant’s ATAR,[13] as well as original copies and certified translations of a ‘Taskira’ for him and his father,[14] and a statutory declaration from the applicant dated 7 November 2018.[15]
[12] Court book at page 131 and following.
[13] Court book at page 138.
[14] Court book at pages 139 to 144.
[15] Court book at pages 145 to 146.
On 7 December 2018, the Authority wrote to the applicant advising that it had determined to affirm the decision under review to refuse him a temporary protection visa (‘second Authority decision’).[16]
[16] Court book at page 151 and following.
AUTHORITY REASONS
The Authority’s decision dated 7 December 2018 is at pages 152 to 171 of the court book.
At paragraphs [3] to [28], the Authority identified and considered the relevant information before it. It considered, and accepted, the materials obtained by the original Authority in the first proceedings, as well as a copy of the latest 2017 DFAT reports relating to Afghanistan.
The Authority also considered the May 2017 written submissions provided by the applicant to the original Authority. The Authority considered various claims and country information contained in those submissions which were not before the original delegate. It considered, but determined not to accept, country information relating to labour law in Pakistan,[17] as well as claims made about the applicant’s education in Pakistan[18] and payment of rent.[19] The Authority also did not accept the applicant’s new claims that his family had spent time ‘underground’ due to the Pakistani government’s attempts to return undocumented refugees.[20]
[17] Authority decision record dated 7 December 2018 at paragraphs [6] to [10].
[18] Authority decision record dated 7 December 2018 at paragraph [11].
[19] Authority decision record dated 7 December 2018 at paragraph [13].
[20] Authority decision record dated 7 December 2018 at paragraph [12].
At paragraphs [14] to [15], the Authority considered the applicant’s claim that he had not been provided with a ‘fair and equitable hearing’ in the protection visa interview, but was ultimately satisfied that the applicant had been afforded ‘many meaningful opportunities’ to advance his claims, and on that basis, declined to invite the applicant to attend a further interview before the Authority.
The Authority noted at paragraph [16] that the issue of the applicant’s identity and nationality remained unresolved and invited him to provide further submissions in relation to these issues. At paragraphs [17] to [27], the Authority identified and considered the further submissions and information provided by the applicant in response to this invitation. The Authority considered whether it should have regard to this information pursuant to section 473DD of the Migration Act 1958 (Cth) (‘the Act’).
At paragraph [29], the Authority summarised the applicant’s claims for protection.
At paragraphs [30] to [39], the Authority went on to set out its factual findings regarding the applicant’s identity and nationality. After noting various concerns regarding the documents submitted by the applicant to establish his identity and nationality, the Authority ultimately accepted at paragraph [39] that the applicant was a citizen of Afghanistan, that he was born in Jaghori District in Ghazni province and that he was of Hazara ethnicity. On this basis, the Authority found that Afghanistan was the relevant receiving country for the purposes of assessing the applicant’s protection claims.
The Authority went on to consider the applicant’s claims in relation to his employment and finances,[21] as well as in relation to his education[22] and thoughts, ideas and mannerisms.[23] The Authority did not accept many aspects of these claims, finding them to be inconsistent or vague.
[21] Authority decision record dated 7 December 2018 at paragraphs [40] to [43].
[22] Authority decision record dated 7 December 2018 at paragraphs [44] and [45].
[23] Authority decision record dated 7 December 2018 at paragraphs [46] and [47].
For example, the Authority did not accept the applicant’s evidence regarding the death of his father and the financial position of his family.[24] Nor did the Authority accept the applicant’s evidence in relation to his education whilst in Pakistan. At paragraph [45], the Authority found that ‘the applicant demonstrated a willingness to mislead or provide false evidence to the Department (and the IAA) where he deems that it will assist his claims for protection’.
[24] Authority decision record dated 7 December 2018 at paragraph [42].
Nor did the Authority accept that the applicant had clearly articulated how his ‘thoughts, ideas and mannerisms’ put him at risk. At paragraph [47], the Authority concluded that ‘this claim has been invented by the applicant in order to enhance his claims for protection in Australia’.
At paragraph [48] and following, the Authority went on to assess the applicant’s claim for refugee status. In considering the applicant’s claims for protection, at paragraph [50], the Authority made the following general adverse findings:
50.In general I find that the applicant has been evasive and has sought [to] obfuscate his true circumstances. I conclude that he has done this for the purpose of enhancing his claims for protection in this country.
At paragraphs [51] to [53], the Authority concluded that although born in the Jaghori District of the Ghazni Province, the applicant had no ongoing connection with that district and found that if returned to Afghanistan, the applicant would likely return to Kabul. At paragraph [54], the Authority also noted that the applicant’s claims to fear harm in Afghanistan did not relate to any specific incidents or threats and that he is not a Pakistani national. It therefore found that the claimed harm in Pakistan was not a relevant consideration, as the task for the Authority was to consider what harm he might face if returned to Afghanistan.
At paragraphs [55] to [60], the Authority went on to consider the applicant’s claims to fear harm due to his religion (Shi’a) and ethnicity (Hazara). After considering the applicant’s evidence and relevant country information, the Authority concluded that:
(a)because he grew up in Pakistan, the applicant had ‘no personal political or religious profile which might draw interest from insurgent groups in Afghanistan…’; and
(b)the applicant had not established that he had developed a political or religious profile whilst in Australia.[25]
[25] Authority decision record dated 7 December 2018 at paragraph [60].
The Authority therefore concluded:
60.… The evidence before me indicates that in Kabul, the applicant and the other million or more Hazara Shia who live in the city do face hazards, but considering his particular circumstances and profile the risk faced by the applicant is a general one, rather than being specific to him. In the circumstances, I do not consider this risk rises to a real chance. The evidence also suggests that a person’s particular profile is the most significant factor in determining risk. …
The Authority therefore concluded that it was not satisfied that the applicant ‘would face a real chance of harm arising from his religion, or his ethnicity if returned to Afghanistan’.[26]
[26] Authority decision record dated 7 December 2018 at paragraph [60].
At paragraphs [61] to [67], the Authority went on to consider the applicant’s claim to fear harm as a result of his time spent in Australia, his attempt to seek asylum and imputations as being pro-western or pro-Government. In this regard, it found that the applicant only faced a remote chance of being identified as a western returnee, and suffering harm as a consequence.
At paragraph [68] to [74], the Authority considered the applicant’s claim that he would not be able to find work or make a living in Afghanistan if returned there, as a result of the fact that he does not have any relatives or support network upon which he could rely for support. The Authority accepted that the applicant ‘may suffer some disadvantage in obtaining employment in Afghanistan because he does not have a family network’, but did not consider that such disadvantage would amount to serious harm or threaten his capacity to subsist.
At paragraph [75], the Authority therefore concluded that the applicant did not meet the refugee criteria under the Act.
At paragraphs [76] to [77], the Authority turned to consider the complementary protection criteria and outlined the relevant legislative criteria to which it must have regard when making this assessment. Relevantly, the Authority’s assessment of whether the applicant met the complementary protection criteria are contained to the two following paragraphs:
78.I have found above that the applicant may face some disadvantage in securing employment should he be returned to Kabul. However, I am not satisfied there is a real risk the applicant would be arbitrarily deprived of his life tortured or would be subject to the death penalty is a consequences (sic) of the disadvantages he faces in finding employment. I am not satisfied that any disadvantage faced by the applicant finding employment would amount to cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in the Act.
79.I have otherwise found that the applicant would not face a real chance of harm arising from his ethnicity, his religion, his status as a failed asylum seeker from a western country or his time out of Afghanistan, or any combination of these claims. As ‘real chance’ and ‘real risk’ have been found to meet the same standard, it follows that the applicant would not face a real risk of significant harm arising from these factors.
Ultimately, at paragraph [80], the Authority determined that the applicant did not meet the complementary protection criteria. Therefore, the Authority determined to affirm the delegate’s decision not to grant the applicant a temporary protection visa.
PROCEEDINGS IN THIS COURT
On 24 December 2018, the applicant filed his application for judicial review of the second Authority decision in this court. On 31 May 2021, the applicant, now legally represented, filed an amended application alleging two grounds of review, each with particulars.
On 12 September 2023, the applicant filed a further amended application alleging two grounds of review, which were different from the grounds contained in the May 2021 amended application.
At the commencement of the hearing before me on 11 October 2023, counsel for the applicant sought leave to rely upon an affidavit of Mr Walid Babakarkhil affirmed on 9 October 2023, exhibiting the DFAT reports cited in the Authority’s decision.[27] Counsel for the Minister did not object to that affidavit being read in circumstances where the DFAT country material exhibited to the affidavit would ordinarily be included in the court book. On that basis, leave was granted for the applicant to rely upon the affidavit of his solicitor affirmed on 9 October 2023.
[27] Court transcript at page 2.
GROUNDS OF REVIEW
As stated, by his further amended application filed on 12 September 2023, the applicant relies upon two grounds of review.
I will consider each of these grounds in turn.
Ground 1
By ground 1, the applicant claims that:
1.The Second Respondent (Authority) misconstrued the law, asked itself the wrong question and/or erroneously conflated the real chance test to be applied in respect of the Refugee Criterion with the test to be applied in respect of Complementary Protection.
Particulars
a)In purporting to consider whether the applicant faced a real chance of harm due to his religion or ethnicity in its refugee assessment, the Authority reasoned, “The evidence before me indicates that in Kabul, the applicant and the other million or more Hazara Shia who live in the city do face hazards, but considering his particular circumstances and profile the risk faced by the applicant is a general one rather than being specific to him. In the circumstances, I do not consider this risk rises to a real chance”: CB p 166 at [60].
b)This reasoning, which materially affected the Authority’s finding that the applicant did not face a real chance of harm in Kabul, is erroneous in several respects because:
i)it misapplied the real chance test by considering the applicant’s risk relative to other Hazaras living in Kabul, rather than assessing the actual level of risk the applicant would face;
ii)it found the risk the applicant faced was not “specific to him” as it was common to all Hazara Shias residing in Kabul, when to the contrary, a risk faced by all Hazara Shia residents of Kabul was still a risk faced by each of them personally;
iii)the Authority conflated ss 5J and 36(2B)(c) of the Migration Act 1958 (Cth) (the Act), the latter of which excludes non-citizens from engaging the complementary protection criterion under s 36(2)(aa) if they face a risk that is faced by the population of a country generally but is not applicable to the refugee assessment under s 36(2)(a) of the Act (cf CB p 166 at [60]);
iv)in addition to applying s 36(2B)(c) of the Act in the wrong context, the Authority misconstrued the provision, which only operates to exclude a risk of significant harm if that risk is faced by the general population of a country (Afghanistan), and does not apply to the risk faced by a sector of a population (Hazaras) living in a part of the country (Kabul).
It is submitted for the applicant that in considering whether the applicant faced a ‘real chance of harm’ in Kabul due to his religion or ethnicity, the Authority misapplied the ‘real chance’ test.[28] In particular, it is submitted that in considering whether any risks faced by the applicant were particular to him, or were risks faced more broadly by other Hazaras in Kabul, or by reference to whether the applicant fell within a category of persons who were common targets for insurgent attacks, that the Authority misdirected itself.
[28] Applicant’s Outline of Submissions filed on 12 September 2023 at paragraph [21].
The applicant says that the ‘real chance’ test is not a relative test, but rather, requires the decision-maker to assess the risk to the applicant in a particular place.[29] Moreover, it is submitted that whether the risk faced by the applicant was a general one faced by other Hazaras in Kabul was not the determinative issue.
[29] Applicant’s Outline of Submissions filed on 12 September 2023 at paragraph [22].
Moreover, the applicant submits that having regard to the findings made by the Authority at paragraph [60] that the applicant would face some hazards and risks if returned to Kabul, the Authority was required to consider whether these hazards and risks amounted to a real chance of harm.[30] Instead of assessing this question, it is submitted for the applicant that the Authority considered whether the risk faced by the applicant was the same as or higher than other Hazaras in Kabul, or whether the risk faced by the applicant was lower than that faced by high-profile targets for insurgent attacks. In doing so, the applicant submits that the Authority applied the wrong test and that this amounts to a jurisdictional error.
[30] Applicant’s Outline of Submissions filed on 12 September 2023 at paragraph [23] and following.
Further, it is submitted that in adopting this analysis, the Authority asked itself the wrong question and therefore failed to discharge its statutory task.[31] In circumstances where the Authority accepted that attacks in Kabul throughout 2016 and 2017 were religiously motivated against Shias, and that DFAT has assessed that Shias were particularly vulnerable when assembling in large and identifiable groups, it was not open to the Authority to then find that the applicant as a Hazara Shia in Kabul did not face a real chance of harm just because the risk he faced was no different to that faced by other Hazara Shias. Rather, the Authority was required to consider the nature of that risk in circumstances where a risk faced by Hazara Shia residents of Kabul was still a risk that the applicant would face. The Authority failed, according to the applicant, to consider the nature of this risk and therefore erred.
[31] Applicant’s Outline of Submissions filed on 12 September 2023 at paragraph [27] and following.
In support of this aspect of ground 1, the applicant relies upon the decision of Justice Charlesworth in BCX16 v Minister for Immigration and Border Protection [2019] FCA 465 (‘BCX16’) at paragraph [37]. In that case, the applicant claimed to fear harm on the basis of various convention grounds. In addition, the applicant claimed to fear harm if he were to be returned to Kabul on the basis of the worsening security situation there.
It was in this context that the court said:
34.The Tribunal did make an assessment of the likelihood that the appellant would be personally targeted in the generalised violence in Kabul, and concluded that he would not be. But that finding was not determinative of the whole of the appellant's claim. It was necessary to consider whether the appellant's residency in Kabul was, of itself, a circumstance that exposed him to a real risk of significant harm as a non-targeted citizen who may be caught up in the attacks. If the answer to that question was “no” then there would, as I have said, be no reason to consider the application of s 36(2B)(c) at all. If the answer was “yes”, then it was the risk so identified that fell to be considered under s 36(2B)(c).
35.I respectfully conclude that the primary judge erred in finding that the Tribunal made a finding that there was no real risk that the appellant would face significant harm quite apart from the operation of s 36(2B)(c) of the Act. The application of s 36(2B)(c) is front and centre in the Tribunal's reasoning in respect of the Complementary Protection Criterion. There is nothing to suggest that the Tribunal was applying the exclusionary provision as an alternative path in reasoning to its conclusion. (emphasis in original)
It was in the context of these findings and observations that the court went on to say at paragraphs [37] to [39] in BCX16:
37.As has been observed, s 36(2B)(a) contemplates a circumstance in which a person may be exposed to a real risk of harm by reason of the location of a person in an area of a country and yet is able to relocate so as not to be exposed to that risk. … Read in the context of s 36(2B)(a), the concept in s 36(2B)(c) of a risk being faced by a non-citizen personally in my view may include a risk faced by a person because of the circumstance that he or she resides in an area of a country. A risk to which a person is exposed because of the circumstance that he or she resides in a specific area of the country is, in my view, a risk that is faced by the person personally, notwithstanding that other persons residing in the same area are exposed to the same risk. …
38.Returning to the present case, the Tribunal concluded that the risk to which the appellant was exposed was the same as that faced by other residents of Kabul and so was not, the Tribunal said, a risk faced by the appellant personally. In this aspect of its reasons, the Tribunal asked the wrong question. The Tribunal construed s 36(2B)(c) on the erroneous basis that a person would not be exposed to a risk personally if the risk was one to which other persons in the same area of a country were exposed to the same degree. In my view, on the proper construction of the Act, if there was a real risk of harm faced by all citizens of Kabul by virtue of their residency there, then it was a risk faced by each of them personally.
39.Where, however, the risk faced by a person is the same risk that is faced by the general population of the whole of the country, then it cannot be said that the person is exposed to the risk because of his or her personal circumstance of residency in any one particular area of it. No question of relocation could arise because the real risk would be one to which the person would be exposed throughout the country. Understood in this way, it can be seen that the text in s 36(2B)(c) is a composite phrase. Underlying the phrase is an assumption that a risk faced by the population of the country generally is, by its nature, a risk that is not faced personally by any one of its citizens. (emphasis in original)
In BCX16, the failure by the Tribunal to assess whether the applicant faced a real risk of significant harm as a result of his status as a resident of Kabul, and therefore a failure to consider any such risk as part of the assessment under section 36(2B)(c), resulted in the Tribunal failing to perform its statutory task under that section. As noted by the court in BCX16 at paragraph [40]:
40.… the Tribunal compared the risk faced by the appellant with the risk faced with other citizens of Kabul and erroneously concluded that any risk of serious harm was not faced by the appellant personally because it was one faced by other people residing there. That was not the comparison which s 36(2B)(c) called for.
It was on this basis that the appeal was successful in BCX16.
In addition, the third aspect of ground 1 is that the Authority conflated its consideration of whether the applicant met the refugee criterion on the one hand, and if not, whether Australia’s obligations under the complementary protection provisions were engaged.[32]
[32] Applicant’s Outline of Submissions filed on 12 September 2023 at paragraph [30] and following.
The Minister quite properly, with respect, concedes that if the Authority’s reasons are read in such a way that it essentially discounted the risk faced by the applicant in Kabul as a Hazara Shi’a because that risk was a general risk and not one faced by him personally, this would constitute a jurisdictional error.[33] The Minister concedes that if this is what the Authority determined, then it would reflect a misapplication of the real chance test and the incorrect application of a relative test.[34]
[33] Court transcript at page 15.
[34] AON15 v Minister for Immigration and Border Protection (2019) 269 FCR 184 at [73].
The fourth aspect of ground 1 is that not only did the Authority conflate the requirements of sections 5J and 36(2B)(c), but it also misconstrued the effect of section 36(2B)(c), in that it considered whether the risk faced by the applicant was one faced by other Hazara living in Kabul (a section of the population), rather than one faced by the general population of the country.
For the following reasons, ground 1 is not made out.
The Authority’s findings in paragraph [60] of its reasons must be read in context of its findings and analysis overall. This includes the Authority’s findings that:
(a)most returnees to Afghanistan return to Kabul where there is a large Hazara Shi’a population;[35]
(b)indeed, DFAT reports put the Hazara Shi’a population at 40-50% of the population of Kabul;[36]
(c)there had been a series of sectarian attacks against Shi’a targets in 2016 and early 2017, and that these attacks appeared to be religiously motivated, and that these attacks targeted both Hazara and non-Hazara Shi’a;[37]
(d)notwithstanding this, the Tribunal noted that ‘DFAT continues to assert 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’;[38] (emphasis added)
(e)in general, security is better in urban areas than in rural settings and country information suggests that Kabul has fewer security incidents per person than most other areas in the country;[39] and
(f)the most common targets for insurgent attacks are government institutions, political figures, military forces other international and diplomatic bodies and agencies.[40]
[35] Authority decision record dated 7 December 2018 at paragraph [56].
[36] Authority decision record dated 7 December 2018 at paragraph [56].
[37] Authority decision record dated 7 December 2018 at paragraph [58].
[38] Authority decision record dated 7 December 2018 at paragraph [58].
[39] Authority decision record dated 7 December 2018 at paragraph [59].
[40] Authority decision record dated 7 December 2018 at paragraph [59].
Importantly, with regard to the last point, the Authority also found that the applicant had no history of working for any such agency, nor did he have any political or religious profile which might attract attention from insurgent groups in Afghanistan.
It was against the background of these findings that the Authority said:
60.… The evidence before me indicates that in Kabul, the applicant and the other million or more Hazara Shia who live in the city do face hazards, but considering his particular circumstances and profile the risk faced by the applicant is a general one, rather than being specific to him. In the circumstances, I do not consider this risk rises to a real chance. The evidence also suggests that a person’s particular profile is the most significant factor in determining risk. Having considered all of the circumstances and the applicant’s profile carefully, I am not satisfied the applicant would face a real chance of harm arising from his religion, or his ethnicity if returned to Afghanistan. (emphasis added)
When viewed in context, and read fairly without a keen eye to error,[41] the Authority’s reasoning makes it clear that it found that the applicant did not have a particular profile which would bring him to the attention of the authorities and that whilst there was some general risk to Shi’a Muslims living in Kabul, this general risk did not rise to the level of a ‘real chance’ of harm. This analysis does not demonstrate error on the part of the Authority.
[41] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (‘Wu Shan Liang’).
Moreover, in making this assessment, unlike the case in BCX16, the Authority was not considering whether the complementary protection obligations were engaged, and whether any risk of harm was not to be considered to be a real risk as it was one faced by the population of Afghanistan generally. Rather, it is clear from a fair and contextual reading of the Authority’s decision that the Authority found that, absent a particular profile, which the applicant did not have in this case, there was no real risk of harm to Hazara Shias in Kabul.
When read fairly, the Authority considered whether there was a risk of harm to the applicant in Kabul and then went on to consider whether that risk rose to the requisite level, i.e. whether it amounted to a ‘real chance’ of harm. The fact that the Authority said that the applicant faced the same risk as other Hazari Shi’a Muslims in Kabul does not detract from the assessment undertaken.
This is to be distinguished from CID15 v Minister for Immigration and Border Protection [2017] FCA 780 (‘CID15’), where Justice Moshinsky found that the decision-maker had applied the wrong test, because in that case, the decision-maker compared the risk in one location to the risk in another. The decision-maker was required to assess the risk in absolute terms in the specified location. The fact that the risk may have been lower than it was in another location did not allow the decision-maker to discharge his statutory obligation to determine the level of risk in the applicant’s location.[42]
[42] See CID15 v Minister for Immigration and Border Protection [2017] FCA 780 at [36].
In CID15, Justice Moshinsky relevantly stated:
35.The “real chance” test is an objective one, whereby the decision-maker considers whether there is more than a remote or far-fetched chance of the applicant being harmed in a place. It is not a relative test whereby the decision-maker compares the chance of the applicant being harmed in one place relative to another place. I note that in SZVJE & Ors v Minister for Immigration & Anor [2016] FCCA 594, Judge Driver said: “The test of whether there is a real chance or a real risk of harm is not a relative one. It is not determinative whether the risk in one place is ‘less severe’ than the risk in another place. What matters is the actual level of risk in any particular place” (at [20]). I respectfully agree with this statement of principle.
…
37.While the abovementioned statements of principle relate to the criteria for a protection visa on Convention grounds under s 36(2)(a) of the Act, similar principles also apply to the “complementary protection” grounds in s 36(2)(aa). It has been held that the “real risk” test in s 36(2)(aa) imposes the same standard as the “real chance” test in s 36(2)(a) … In the context of “complementary protection”, the internal relocation principle is expressly prescribed by s 36(2B)(a) of the Act. Pursuant to that provision, an applicant is not eligible for a protection visa under s 36(2)(aa) in circumstances where “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”.
38.Finally, also relevant to the present appeal are the principles discussed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang … In that case, Brennan CJ, Toohey, McHugh and Gummow JJ considered the proper role of a reviewing court at 271-272. Their Honours noted that, on the face of the delegate's assessment of the first respondent's claims, the delegate had correctly directed herself to the test which she had to apply. … their Honours observed that the delegate had started and finished with the correct test, and that it was only some phraseology in between that provided the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities. Brennan CJ, Toohey, McHugh and Gummow JJ then said (at 271-272):
“When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court … collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker. The Court continued: ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
In this case, unlike in CID15, the Authority was not considering the relative safety of the applicant in Kabul compared to another part of Afghanistan. Nor, as suggested by the applicant, was the Authority considering the relative safety of the applicant compared to other Hazara Shias in Kabul.
Rather, on a fair reading of the Authority’s decision, in the sense discussed in Wu Shan Liang, the Authority was considering the safety of the applicant in Kabul. It concluded that the applicant did face some hazards in Kabul (which were also faced by other Hazara Shias living in Kabul), but went on to conclude that the hazards faced did not rise to the necessary level to constitute a real chance of harm.
Whilst the language used by the Authority may have been somewhat loose, it is apparent from a fair reading of the Authority’s reasons as a whole that the Authority formed the view that given the applicant’s particular profile (or absence of one), any risks that the applicant faced in Kabul did not rise to the level of a real chance of harm.[43]
[43] See, also, CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [23].
Nor do I find that the reference to risks arising in rural areas compared to Kabul to be determinative in this instance. It is the case that in discussing country information, the Authority noted that in general, urban areas are seen as more secure than rural areas. However, when read fairly, the findings made by the Authority in paragraph [60] cannot properly be seen as a finding that the applicant is safer in Kabul than he would be in a rural area. The observations in paragraph [59] about the relative safety of urban areas compared with rural areas is no more than a summary of the country information relevant to the issue of the level of safety in Kabul. It is also clear from the highlighted section of paragraph [60] that the Authority was ultimately assessing the risk of harm to the applicant in Kabul. It was not undertaking a comparative analysis of the risk of harm to the applicant in Kabul compared to a rural area.
That finding does not disclose any error.
Nor do I accept the applicant’s submission that the Authority conflated the test under the refugee criteria with that to be considered under the complementary protection criteria or misunderstood the test under the complementary protection criteria. The applicant has not established to the requisite standard that the reference in paragraph [60] to the risk faced by the applicant being a ‘general’ rather than ‘specific’ one to him means that the Authority applied the wrong test. It is clear from a fair reading of the Authority’s reasons as a whole that it was considering the applicant’s profile and that it concluded that he did not have a profile based on his religion or ethnicity which would put him at a serious risk of harm. This is particularly so when regard is had to the fact that the Authority expressly stated that a person’s particular profile is the most significant factor in determining risk.[44]
[44] See Authority decision record dated 7 December 2018 at paragraph [60].
Relevantly, the issue before the court in BCX16 was whether the Tribunal had erred in its consideration of section 36(2B)(c) of the Act when assessing whether Australia’s complementary protection obligations were engaged.
The Minister submits that this aspect of ground 1 is premised on an incorrect reading of the Authority’s reasoning. That is to say, that the Authority did not find that the risk faced by the applicant was the same as that faced by other Hazaras in Kabul and therefore, even though it may have amounted to a real risk, could nonetheless be discounted.[45] Rather, it was submitted for the Minister that properly understood, the Authority found that:
11.… absent a particular profile – the risk facing Hazara Shias in Kabul did not rise to the level of a real risk. In other words, the Authority found that, generally, Hazara Shias living in Kabul did not face a real chance of harm, and the applicant fell within this general category.
[45] See Court transcript at page 15.
I agree with this submission.
For each of these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant alleges that:
2.The Authority failed to address whether the applicant’s general risk of non-targeted harm in Kabul engaged the Complementary Protection criterion under s.36(2)(aa) of the Act.
Particulars
a)In the refugee assessment, the Authority accepted (CB pp 165 – 166 at [57] – [60]):
i.a series of deliberate sectarian attacks against Shia targets in late 2016 and early 2017, including in Kabul, raised concerns that Shia may be vulnerable to being targeted based on their religious identity: CB p 165 at [57];
ii.Islamic State in Khorasan Province (ISKP) “had claimed responsibility for all of the attacks in Kabul” and “[i]n claiming responsibility, ISKP emphasised that the attacks were religiously motivated, using derogatory languages against Shia and calling for further attacks on them”: CB p 165 at [57];
iii.the number and scale of the attacks in late 2016 and early 2017 demonstrate that Shi’a now face a risk of being attacked by ISKP based on their religious affiliation: CB p 166 at ([58]);
iv.Kabul “experiences high-profile attacks on a regular basis” and anti-government elements move through the city: CB p 166 at [59];
v.Hazaras living in Kabul “do face hazards” but “the risk faced by the applicant is a general one, rather than being specific to him”: CB p 166 at [60].
b)The Authority’s finding that the applicant was not at risk due to his religion and ethnicity in the refugee assessment was based on the applicant not having a personal risk profile and instead facing a “general” risk (CB p 166 at [60]), which not dispose of his risk of arbitrarily being deprived of his life for the purposes of a 36(2A) of the Act.
c)Given the Authority accepted that Hazara Shias living in Kabul did face hazards, and that the risk faced by the applicant was a general one, it was necessary for the Authority to consider in its complementary protection assessment whether the applicant’s residency in Kabul was, of itself, a circumstance that exposed him to a real risk of significant harm as a non-targeted citizen who may be caught up in attacks;
d)The Authority adopted, but did not relevantly elaborate upon, its findings under the refugee assessment to find the applicant does not meet the complementary protection criteria under s 36(2)(aa) of the Act: CB pp 170 – 171 at [78] – [80];
e)The Authority therefore failed to address whether the risk of generalized violence it accepted the applicant would face in Kabul gave rise to a real risk of significant harm in the complementary protection assessment.
By ground 2, the applicant asserts that the Authority failed to consider whether the risk of harm to the applicant that it accepted in paragraph [60] satisfied the complementary protection criterion.
First, it is said for the applicant that, for the reasons discussed above in relation to ground 1, the Authority misapplied the ‘real chance’ test in considering whether the refugee criteria was satisfied.[46] For reasons discussed in relation to ground 1, I do not agree. This aspect of ground 2 therefore also fails.
[46] Applicant’s Outline of Submissions filed on 12 September 2023 at paragraph [38].
Moreover, it is submitted for the applicant that in this case, the assessment of the real chance test for the purposes of section 36(2)(a) was not determinative of all issues arising in relation to the complementary protection criteria in section 36(2)(aa).[47] In particular, it is submitted that having found that the applicant faced a generalised risk of harm as a Hazara Shi’a living in Kabul (if he were to return), albeit that this risk did not rise to the level of a real chance of harm on the basis of his religion or ethnicity, the Authority was required to go on and consider whether this risk gave rise to a real risk of significant harm for the purposes of the complementary protection provisions.
[47] Applicant’s Outline of Submissions filed on 12 September 2023 at paragraph [39].
In particular, it is submitted for the applicant that on the basis of the material before the Authority:
43.… the Authority was required to consider whether his residency in Kabul exposed him to a real risk of significant harm under s.36(2)(aa) of the Act as a non-targeted citizen who may be caught up in attacks. … This issue was left hanging in the complementary protection assessment.[48]
[48] Applicant’s Outline of Submissions filed on 12 September 2023 at paragraph [43].
The applicant says that at paragraph [79] of its reasons, the Authority relied upon its findings that the applicant did not face a real chance of harm based on a convention reason, but did not consider whether the applicant faced a real chance or real risk of harm having regard to the generalised risks in Kabul. It is submitted for the applicant that the Authority’s own reasons raise the issue of the applicant facing harm as a result of generalised non-targeted violence in Kabul. In particular, it was submitted that when regard is had to paragraph [60] of the Authority’s reasons, it is apparent that ‘the issue of whether he could be arbitrarily deprived of his life as a result of non-targeted violence for no particular reason was not addressed’.[49]
[49] Court transcript at page 9.
In support of this ground, the applicant again relies upon the decision in BCX16, discussed above.
The applicant further submits that the issue of whether Australia’s complementary protection obligations are engaged in this case also arises from the delegate’s decision in this matter.[50] It is submitted that the delegate noted that whilst the predominant targets of attacks in Kabul have been high profile targets, they have also caused extensive civilian casualties. It is submitted that whilst the Authority was required to conduct a de novo review, the delegate’s findings in this regard were sufficient to raise this issue as part of its complementary protection assessment for the Authority’s consideration. It was submitted for the applicant that in departing from the delegate’s conclusion in this regard, the Authority was required to grapple with the generalised violence issue and the risk, if any, this posed to the applicant.[51]
[50] See Applicant’s Outline of Submissions filed on 12 September 2023 at paragraph [42].
[51] Court transcript at page 11 and following.
Furthermore, it is submitted that this issue arises from the DFAT reports which were before the Authority.[52] In particular, the applicant relies on paragraph 2.23 of the first DFAT report annexed to the affidavit of Mr Walid Babakarkhil affirmed on 9 October 2023. That paragraph refers to Kabul being the target of attacks on both civilians and non-civilians, which are often indiscriminate and result in civilian casualties.
[52] Court transcript at page 12.
Moreover, at paragraph 2.26, the DFAT report further states:
2.26… Hazaras, like other Afghans, are vulnerable to the threat posed by indiscriminate methods of attack against specific targets in Kabul. However, ordinary Hazaras who reside in Hazara-majority areas of Kabul and do not have open affiliations with the government or international community … are unlikely to face any greater threat than are Afghans of other ethnicities.
The applicant also refers to other aspects of the DFAT report which similarly contain information which it is submitted for the applicant clearly raised the risk of generalised non-targeted violence to civilians simply as a result of living in Kabul.[53]
[53] Court transcript at page 12 and following.
Moreover, it is further submitted that the issue of the risk of arbitrary loss of life for the purposes of the complementary assessment also arises from the Authority’s assessment of the refugee criteria.[54] Having found that Kabul does experience high profile attacks on a regular basis and that the applicant faced hazards, the applicant submits that the Authority was required to, but did not, go on to consider whether the applicant faced a significant risk of harm as a non-targeted citizen. That is, it is submitted that the Authority failed to consider an integer of a claim that clearly arose on the material before it and its failure to do so, it is said for the applicant, amounts to a jurisdictional error.
[54] Court transcript at page 14.
In reply, the Minister submits that the Authority did not accept that there was a general risk of harm to the applicant as a Hazara Shi’a living in Kabul.[55] In support of this primary submission, the Minister relies upon the interpretation of the Authority’s reasons as explained above in relation to ground 1.
[55] Minister’s Outline of Submissions filed on 27 September 2023 at paragraph [19].
Moreover, the Minister submits that this ground also fails on the basis that:
(a)no such claim was expressly made by the applicant;
(b)nor did one clearly arise from the material before the Authority; or
(c)if such a claim did arise from the material, it was expressly dealt with by the Authority.[56]
[56] Court transcript at page 21 and following.
I agree that the applicant did not expressly raise any fear of harm from generalised violence in Kabul. The applicant’s claims were consistently to fear harm due to his ethnicity and religion. This included claims of violence in Kabul, those claims being linked to a profile relating to ethnicity and/or religion.
Moreover, I do not accept that such a claim clearly arose from the material before the Authority.
To the extent that the applicant relies upon the delegate’s decision as a basis for such a claim, that is not supported by the evidence. As noted by the Minister, the delegate’s comments under the heading ‘Whole country threat’ relate to the delegate’s consideration of whether the applicant would be safe in Kabul as a Hazara Shi’a.[57] Whilst it is the case that the delegate’s decision does refer to the fact that some of these attacks have resulted in extensive civilian casualties,[58] the delegate’s reasons were focused on whether the applicant would be safer in Kabul and whether Kabul would:
… offer a safe alternative location in which the applicant would not experience a real chance of persecution due to his race and religion, or furthermore, his imputed political opinion as a person living in a government controlled area.[59]
[57] See Court book at page 100.
[58] See Court book at page 101.
[59] Court book at page 101.
Similarly, when one considers the relevant excerpts of the DFAT report,[60] no claim can be said to arise that the applicant might face a fear of harm due to general risk other than from the risk that he faced as a Hazara Shi’a.
[60] Affidavit of Mr Walid Babakarkhil affirmed on 9 October 2023 at Annexure 1.
In any event, it is submitted for the Minister that the risk of harm identified in the DFAT report was expressly dealt with by the Authority at paragraphs [55] to [60] of its reasons.[61] I agree with the Minister’s submissions in this regard. The DFAT report raises the fact that there have been attacks directed at specific targets which have often resulted in civilian casualties. The Authority dealt with this claim at paragraphs [55] to [60] of its decision, as identified by the Minister. The reference in paragraph [60] to ‘hazards’ can properly be understood to be a reference to indiscriminate violence or generalised risk.
[61] Court transcript at page 24.
Ultimately, however, at paragraph [60] the Authority concludes that this risk does not rise to the level of a real chance of harm. This finding is then relied upon in the consideration of the complementary protection criteria at paragraph [79].
For these reasons, ground 2 is not made out.
CONCLUSION
For each of these reasons, I make the orders as set out at the commencement of these written reasons for judgment.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 22 March 2024
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