Minister for Immigration v MZZEV

[2014] FCCA 22

FEDERAL CIRCUIT COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION v MZZEV & ANOR [2014] FCCA 22

Catchwords:
MIGRATION – Application by Minister for judicial review of Refugee Review Tribunal decision – applicant asserting Tribunal erred in considering test whether it was reasonable for the first respondent to relocate to Kabul – applicant asserting Tribunal took into account irrelevant considerations – Wu Shan Liang – Tribunal’s decision well-open to it in light of the facts and circumstances of the case.

Legislation:  

Migration Act 1958 (Cth), ss.36(2B), 36(2B)(a), 36(2B)(b), 36(2B)(c)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
Januzi v Secretary of State for Home Department [2006] 2 AC 426
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

Applicant: MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent: MZZEV

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 6 of 2013

Judgment of: Judge Burchardt

Hearing date: 18 October 2013

Date of Last Submission: 15 November 2013

Delivered at: Melbourne

Delivered on: 23 January 2014

REPRESENTATION

Counsel for the Applicant: Mr Kennett SC

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Fragomen

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,646.00 (note this includes a costs order by Judge O’Dwyer on 16 July 2013). 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 6 of 2013

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Applicant

And

MZZEV

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By a further amended application filed on 11 July 2013 the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 November 2012.  There are two grounds of application. 

2. The first ground asserts that the Tribunal asked itself the wrong question and applied the wrong test in determining whether it was reasonable for the first respondent to relocate to Kabul (and there are a number of sub-particulars as to why that is said to be so). The second ground says that as a result of the matters complained of in particulars (1) (b), (c) and (d) in ground 1 the Tribunal took into account irrelevant considerations in determining whether for the purposes of s.36(2B)(a) of the Migration Act 1958 (“the Act”) it was reasonable for the first respondent to relocate to Kabul. 

3. The first respondent rejects these assertions and says that the decision of the Tribunal was open to it and the applicant is, in substance, seeking merits review.

4. For the reasons that follow, I agree with the first respondent and the application will be dismissed. 

Materials before the Tribunal

1. In order to understand the parties’ submissions about the matter it is necessary to paraphrase the materials put before the Tribunal itself and contained in the Court Book (“CB”) and in the interview with the delegate (forwarded pursuant to Court order following the hearing). 

2. At CB5 as part of his entry interview the first respondent disclosed under the heading “Employment Details”:

   “construction – roofing – have done this kind of work my whole life – I started doing this when I lived in Iran and then when I moved to Pakistan.  (I only stayed a couple of nights in Afghanistan after being deported from Iran and then moved to Pakistan).”

3. This information added to his history of where he had lived (CB3-4).  It discloses that from 1956 to 1973 he lived in Malistan in Afghanistan.  From 1973 to 1978 he migrated to Herat.  He moved to Iran in approximately 1979 and was deported back to Herat in 1994.  From 1996 to 2012 he lived in Quetta. 

4. That information is prima facie inconsistent, of course, with the assertion that he had moved promptly from Iran to Pakistan. 

5. At CB47-49 there is the applicant’s statutory declaration.  Relevantly for these purposes he said:

   “3.    I left Afghanistan a very long time ago when I was very young.  It was when the Russians were bombing our city and all the people there were in chaos.  We had to leave the city at night and I was very young so I do not recall very much.

   …

   5.    When I arrived in Iran in about 1976, I had to stay with my aunty and as soon as I was big enough I started to learn to work at construction sites, I was only given this chance to learn because I was paid very little.

   …

   6.    In about 1995, our family was deported from Iran back to Afghanistan because we could no longer work there as they were deporting all the Afghan refugees.  However when I went back to Afghanistan it was too dangerous because of the Taliban so I decided to take my family to Pakistan in hopes of starting a new life.

   …

   8.    About three years ago I returned to Afghanistan to check on my land.  Cousins of my father said that I had been away so long that I couldn’t have my land back.  He said that if saw me again he would kill me.  They have power in Afghanistan local area and the people there are supporting him so I will not be able to get my land back.

   9.    Without any land rights in Afghanistan, I would not be able to survive and make enough money to feed my family.

   10.  I cannot return to Afghanistan for this reason.”

6. At paragraph 13 at CB48 the first respondent deposed:

   “About a year ago my uncle’s grandson was killed at the Cemetery.  There were two cars and the people in them had an AK47 and also a rocket launcher.  They started firing at people.  I managed to run away and hide but my uncle’s nephew was shot and killed.”

7. Given that the first respondent’s evidence is that he has lived in Quetta since 1996, and given that he places himself at this last incident, it is clear that that must have taken place in Quetta. 

8. At CB70-73 there is set out an extensive account of the first respondent’s family.  This was material annexed to his application by his agent.  This shows that the first respondent’s father is deceased as is his mother.  His stepfather is apparently alive and somewhere in Afghanistan although it is not indicated where.  The first respondent’s sister and her husband, and the first respondent’s children are all in Pakistan. 

9. There is no suggestion that the information there recorded is in any way inaccurate.

10. At CB72-73 there is a record of the first respondent’s travel history and addresses.  Those are largely consistent with the earlier material to which I have referred.  On any view they would show that since 1976 or thereabouts when the first respondent went to live in Iran, he has spent only a very short amount of time in Afghanistan.  He transited Afghanistan to get from Iran to Pakistan in 1995 and went back to his home area in about 2009 on the occasion when he was threatened by his uncle, or possibly step-uncle. 

11. At CB101 there is a record of the Delegate’s record of the first respondent’s Claims for Protection.  Relevantly for these purposes the Delegate recorded:

    “The applicant claims that his father’s cousins have power with the local government and he will be unable to regain his land.  The applicant claims that without any land rights in Afghanistan he will be unable to make enough money to support his family.”

12. At CB102 the Delegate recorded:

    “In 2011 the applicant’s nephew was killed at a cemetery.  The applicant managed to escape but the applicant’s nephew was killed.”

13. As I have earlier indicated, the cousins in Afghanistan are clearly cousins in Malistan where the first respondent spent the early years of his life and the incident with the nephew clearly occurred in Quetta or somewhere nearby. 

14. The record of discussion with the Delegate is annexed to the first respondent’s Supplementary Written Submissions filed 1 November 2013. 

15. The transcript shows that there was some very brief discussion of the possibility of relocation to Kabul (P-17) and that the first respondent responded that he would be in danger wherever he was in Afghanistan. 

16. I note that at P-19 – line 4 – the first respondent’s representative asserted fear of harm in Kabul in the following terms:

    “He doesn’t believe those cities are safe.  For example:  Kabul, he always hears about the suicide bombings that take place there and the violence that takes place there, which is not general violence that he’s concerned with, it’s the violence that’s targeted towards the convention grounds of race and religion, especially near mosques.”

17. Also on P-19 – Line 14 - the representative said:

    “these kind of bomb attacks merely aimed near mosques do continue to occur, even recently.  In terms of reasonably relocating in Afghanistan, the applicant really does not have much experience setting up in Afghanistan, what life would be like there.  He’s mainly lived in Pakistan as he’s had to flee the country due to the Russian invasion.  He also has no education and perhaps more importantly has been really affected mentally by the death of his son in 2010.”

18. It is not entirely clear whether the evidence given before the Delegate in the form of transcript was available to the Tribunal but it would appear more likely than otherwise that it was. 

The Delegate’s Decision

1. The Delegate found that the first respondent was not a person to whom Australia owed either Refugee Convention or complementary protection obligations.  I think one can fairly say that the Delegate made those findings in the context of the first respondent returning to live in Malistan. 

2. The first respondent, of course, applied for review and the Tribunal’s decision commences at CB126. 

The Tribunal’s Decision

1. The Tribunal set out the Application for Review and Relevant Law at CB126-129.  Although the parties’ submissions had much to say about the relevant state of the law, no particular criticism was advanced as I understand it of the matters that the Tribunal set out, which as I read them involved a relatively orthodox assertion as to what the law is.

2. The Tribunal set out the first respondent’s Claims and Evidence and I note that the “Interview with the delegate dated 14 August 2012” appears to have been before the Tribunal (paragraph 21, CB129). 

3. The Tribunal’s summary of the first respondent’s claims at paragraph 22 CB129 seems to me accurate enough.

4. The Tribunal set out extensive country information at CB130-149.  At CB149 the Tribunal commenced its Findings and Reasons. 

5. The Tribunal did not accept that the first respondent faced a chance of persecution due to the dispute with his cousins over land (paragraph 68 CB150).  The Tribunal also did not accept that there was a real risk of the first respondent suffering significant harm due to the land dispute. 

6. The Tribunal also did not accept that the first respondent faced a real chance of persecution in Malistan “on account from the Taliban, Lashkar-e-Jhangvi or any other Sunni group” (paragraph 73, CB151).

7. Nonetheless, the Tribunal turned its mind to whether the first respondent would face a real chance of persecution on the roads surrounding Malistan and found at paragraph 76 (CB152):

   “I find that there is not a real chance that the applicant in his individual circumstances would face serious harm amounting to persecution from the Taliban or anyone else for the essential and significant reasons of his race, religion and imputed political opinion whilst travelling on the roads surrounding Malistan.”

8. Having made this finding in relation to the Convention the Tribunal considered the question of complementary protection at paragraph 78 and following.  The Tribunal had already made a finding that the first respondent and his family would need to travel outside Malistan.  This finding was set out at paragraph 75, CB152. 

9. The Tribunal found at paragraph 78, CB153:

   “I have found that the applicant does not face a real chance of persecution for a Convention reason on the roads surrounding Malistan.  However, the country information indicates substantial amount of targeting of persons on the roads of persons of all ethnic groups for reasons associated with criminality by the Taliban and other groups.  Given this information and my findings regarding the applicant and his family’s need to travel outside Malistan, I find that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Afghanistan that there is a real risk of the applicant suffering significant harm on the roads surrounding Malistan.  This significant harm could include cruel or inhuman treatment or punishment or degrading treatment or punishment.”

10. Having made this finding the Tribunal went on to consider whether the first respondent might be excluded from the complementary protection provisions by the terms of s.36(2B) of the Act. The Tribunal first considered s.36(2B)(c). What the Tribunal found at paragraph 79 (CB153) was:

    “In the circumstances of this case, the country information that I have given weight to indicates that persons of all ethnic groups (i.e. the population of the country) face the real risk of harm on the roads but it is also a real risk that faces the applicant personally in his particular circumstances.  Accordingly, I find that the applicant is not excluded by the operation of s.36(2B)(c).”

11. In relation to s.36(2B)(b) the Tribunal found at paragraph 80 that state protection was not generally available, a finding not in issue in this proceeding.

12. In relation to s.36(2B)(a), the Tribunal found at paragraph 81 (CB153):

    “Section 36(2B)(a) provides that there is not a real risk a person will suffer significant harm if it would be reasonable for the person to relocate to another area of the country where there would not be such a real risk.   The harm that the applicant faces is localised to roads surrounding his home in the Hazarajat.  Having regard to the country information concerning the treatment of Hazaras and country information that indicates that the security situation is relatively good in Kabul, I do not accept that he faces a real risk of significant harm in Kabul.  Given its position as the capital city, I do not accept that the applicant would have a need to travel outside it and expose himself to the dangers of the roads.”

13. The Tribunal went on to expand its reasoning at paragraphs 82-85 as follows (CB153-154):

    “82.  I have had regard to the fact that Hazaras now constitute between 25%-40% of the population of Kabul and that there is some evidence of a growing middle class there and the views of the human rights contact that Kabul has a cohesive Hazara community and that it would be relatively easy for new arrivals to integrate.  I have also had regard to the fact that Australia has funded the IOM to provide individually tailored reintegration assistance plans for Afghan returnees.  I have also had regard to the fact that the applicant has experience living in large cities and has work skills in construction.

    83.  However, there are a number of factors that in my opinion outweigh this evidence and make it unreasonable for the applicant to relocate to Kabul to avoid the real risk of significant harm on the roads around Malistan.  These are:

    ·That the applicant has no family links in Kabul.  I note that the UNHCR Guidelines stress the importance of the availability of traditional support mechanisms, such as relatives and friends able to host displaced individuals.

    ·There is a huge Hazara underclass in Kabul that does not have access to clean water or electricity and that it is difficult to find accommodation because rents are very high.  It is also reported by the UNHCR that there is widespread unemployment in urban areas that limit the ability of a large number of people to meet their basic needs.  There is also evidence of the deaths of children in refugee camps and the inadequate response of government and aid agencies.

    ·Notwithstanding, Kabul is safer than other parts of the country there is evidence of a number of insurgent attacks including the Ashura Day attacks.  Though this is not sufficient in itself to establish a real risk that the applicant would suffer significant harm, the existence of these attacks and the limited danger they pose to the applicant contributes to the unreasonableness of relocation.

    ·That the applicant has a wife and four children to support and accommodate making it more difficult to successfully adapt to and integrate into Kabul.

    84.  I therefore do not consider it reasonable for the applicant to relocate to Kabul and the above factors (e.g. lack of family links elsewhere, widespread unemployment limiting the ability to meet his basic needs and his family and the general lack of security) would also be applicable to other areas.  Accordingly, I find that the applicant is not excluded by the operation of s.36(2B)(a).  

    85.  Accordingly, I find that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk of the applicant suffering significant harm.”

The Grounds in the Further Amended Application

Ground 1

The Tribunal asked itself the wrong question, and applied the wrong test, in determining whether (for the purposes of s 36(2B)(a) of the Migration Act 1936 (sic)) it was “reasonable” for the First Respondent to relocate to Kabul, in that:

a)it took into account that “the applicant has no family links with Kabul”, notwithstanding the absence of any probative material capable of supporting such a finding, and thereby failed to consider whether it was “satisfied” that the First Respondent met the criterion in s 36(2) of the Act, as was required by s 65(1)(a)(ii) and s 414(1);

b)it placed reliance on general information concerning the economic situation of Hazaras in Kabul.

i)divorced from any consideration of the specific circumstances of the First Respondent and,

ii)without limiting such reliance to the issue of whether relocation to Kabul was practicable for the First Respondent;

(c)it took into account the occurrence of insurgent attacks in Kabul, a factor which was relevant to whether Kabul was “an area of the country where there would not be a real risk that the non-citizen would suffer significant harm”, not to whether it would be “reasonable” (in the sense of “practicable”) for the First Respondent to relocate to Kabul; and

(d)it took into account the occurrence of insurgent attacks in Kabul without making any finding as to how that issue bore upon the specific circumstances of the First Respondent.

1. Despite the way the ground is expressed in both the written and oral submissions advanced by the applicant, Counsel’s submissions concentrated as a first point predominantly on the proposition that the finding that the first respondent had no family links to Kabul was one made with no evidentiary support. 

2. What was submitted here was that the error made by the Tribunal in assuming in the first respondent’s favour an absence of family links in Kabul.  This did not of itself establish jurisdictional error but rather indicated that the Tribunal “misunderstood the nature of the issues which it was required to determine and its own role as an inquisitorial decision-making body” (applicant’s written submissions paragraph 19). 

3. The first respondent’s position by way of contrast was that the finding made by the Tribunal was one open on the evidence. 

4. I would commence my consideration of this matter with two quotations from Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. At page 272 Brennan CJ, Toohey, McHugh, Gummow JJ said:

   “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.”

1. At page 291 Kirby J said:

   “The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.”

2. Here the Tribunal set out, in my view, clearly and unobjectionably the nature of the complementary protection criterion at paragraphs 18-20 of its reasons (CB128-129). 

3. The Tribunal’s findings about complementary protection are at CB153-154 and I have set most of them out.  The finding the Tribunal made about the first respondent not having family in Kabul is to be seen in the context of the evidence that was before it. 

4. The first respondent was born in and grew up in Malistan.  He clearly had both close and remoter family members there.  Some family members such as uncles and cousins are still there. 

5. The first respondent left Malistan in his young adulthood and has, in effect, never lived in Afghanistan ever since.  There was no evidence of any sort to suggest any family members anywhere else in Afghanistan. 

6. The first respondent, whose awareness of the precise details of his life was open to question, was able to give to his advisers the material set out at CB70-73.  The first respondent is scarcely aware even of his precise date of birth as the materials record.  I do not think that there is anything improper in the Tribunal finding in the circumstances as a matter of inference that the first respondent had no family in Kabul.  The history of his life gave no suggestion whatsoever that there were any other family members than those he had already described.  Those described do not live in Kabul. 

7. In the end I am satisfied that the Tribunal’s conclusion was one open to it on the materials at the very least and in my view not an unreasonable one. 

8. The way the Tribunal set these matters out does not suggest some unwitting failure to be aware of what the Tribunal’s task was.  The Tribunal made first the finding that the first respondent was at risk of significant harm.  The Tribunal went on to consider whether the various exemptions to that proposition in s.36(B) applied and decided they did not. 

9. Nothing in this suggests that the Tribunal did not properly understand the role it was being asked to perform nor that the Tribunal failed to perform it. 

10. In the circumstances I do not think ground 1 is made out. 

The Second Error (Ground 2)

By reason of the matters set out in (1)(b), (c) and (d) above, the Tribunal took into account irrelevant considerations in determining whether (for the purposes of s 36(2B)(a)) it was “reasonable” for the First Respondent to relocate to Kabul.

1. A subsidiary issue with which I should deal (I should perhaps have dealt with it earlier) is the question of what the test is for relocation.  I was quoted extensive authority on this point. 

2. The applicant submitted that the Tribunal had misunderstood the test for reasonableness.  The applicant submitted (paragraph 24 of the written submissions):

   “… However, since the terms of s 36(2B)(a) clearly reflect concepts developed in the case law on internal relocation under the Refugees Convention, it is tolerably clear that the provision was intended to operate in parallel with the principle reflected in that case law.  The term “reasonable” in s 36(2B)(a) should therefore be understood as taking its content from the internal relocation principle under the Refugee’s Convention.”

3. The first respondent’s submission was more nuanced (see paragraph 4.39, page 14 written submissions). 

4. It is clear that the applicant’s submission that the Convention cases in relation to the reasonableness of relocation should be taken to guide the debate in relation to complementary protection should be accepted. 

5. In MZYXS v Minister for Immigration and Citizenship [2013] FCA 614, Marshall J said at [39]:

   “It is accepted that ss 36(2)(aa) and 36(2B)(a) must be considered together and as a whole; see MZYYL. That is what the Tribunal did in this case. The Tribunal considered whether relocation was reasonable and practicable in the particular circumstances of the applicant and the impact upon him of relocation within his country in reliance in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51. Although those cases do not deal with the complementary protection regime, they deal with the question of the reasonableness of internal relocation, being a matter directly addressed by s 36(2B)(a) of the Act. It was appropriate for the Tribunal to draw guidance from these decisions.”

6. That decision is a decision of a Judge of the Federal Court sitting as a Full Court from an appeal from this Court.  His Honour’s remarks are clearly binding on me and I will apply them. 

7. The other area of distinction between the parties was the extent to which the law as set out in the House of Lords in Januzi v Secretary of State for Home Department [2006] 2 AC 426 had or had not been adopted by the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18.

8. The head note in SZATV (taken from the authorised reports) reads:

   “Held, (1) that a well-founded fear of persecution need not always extend to the whole territory of an applicant’s country of nationality for that applicant to qualify as a refugee under Article 1A(2) of the Convention relating to Status of Refugees; and thus, under s.36(2) of the Migration Act 1958 (Cth). However, a person will be excluded from refugee status if, under all of the circumstances, it would be reasonable to expect him or her to seek refuge in another part of the same country.

   Januzi v Secretary of State for Home Department (2006) 2 AC 426, followed. 

   (2) that what was reasonable, in the sense of “practicable”, for the purposes of the relocation principle, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”

9. At [24] Gummow, Hayne and Crennan JJ said:

   “[24]    What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

   [25] It is true that the Convention is concerned with persecution in the defined sense, not with living conditions in a broader sense. The distinction was emphasised by Lord Bingham in Januzi as follows:

   … [T]he thrust of the Convention is to ensure the fair and equal treatment of refugees in countries of asylum, so as to provide effective protection against persecution for Convention reasons. It was not directed (persecution apart) to the level of rights prevailing in the country of nationality.

   The reasoning in the last sentence might be applied to such matters as differential living standards in various areas of the country of nationality, whether attributable to climatic, economic or political conditions. In Januzi²⁰ Lord Hope of Craighead added:

   … I too would hold that the question whether it would be unduly harsh for a claimant to be expected to live in a place of relocation within the country of his nationality is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic human rights.

   [26] Nevertheless, in particular cases territorial distinctions may have an apparent connection with the particular reason for the asserted well-founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for a well-founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography.”

10. The submissions of the applicant (see paragraphs 28-31) suggest that there needs to be a comparison between the place of origin and the place of relocation.  It was submitted, in essence, that if relocation to a place of poverty and hardship is possible it is prima facie reasonable if life for the asylum seeker in other parts of the country would involve similar poverty and hardship.  This drew upon the decision of Lord Bingham of Cornhill in Januzi. 

11. The applicant submitted that relocation to Kabul was not rendered unreasonable under s.36(2B)(a) by the hardships of living there unless those hardships made it unreasonable for the first respondent and his family to relocate there from Malistan. It was submitted that the Tribunal had not made this sort of comparison in relation to the existence of the large Hazara underclass in Kabul, the incidence of insurgent attacks in Kabul and the challenge of supporting his wife and children.

12. In my view the way the applicant seeks to approach this matter is one that runs the risk of trying to substitute other tests for the language of the Statute itself.  The Tribunal was obliged to consider whether if the first respondent was removed from Australia to Afghanistan there was a real risk that he would suffer significant harm.  If this was so the Tribunal was then required to consider whether this risk was not present because it was satisfied that it would be reasonable for the first respondent to relocate to “an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”. 

13. The Tribunal found clearly enough that the first respondent did face a risk of significant harm if he returned to Malistan.  That finding is not of itself challenged in this proceeding. 

14. In my view there is no error for the Tribunal then to consider whether as a matter of fact a person in the first respondent’s circumstances should relocate to somewhere else (in this case Kabul) and whether it was reasonable in the sense of practicable to do so. 

15. In considering whether it is reasonable or practicable to move to Kabul it does not seem to me to be irrelevant that the first respondent’s economic circumstances in moving there might be difficult.  Of course, it is true that they would be difficult in Malistan in any event.  But in deciding whether doing something is reasonable in the sense of practicable, a consideration of the economic circumstances the person would find upon relocation is self-evidently not irrelevant. 

16. In my view all the Tribunal was doing was deciding whether the first respondent could reasonably be required to relocate. 

17. Similarly, the way the Tribunal dealt with the possibility of insurgent attacks seems to me just to be one part of the consideration of the evidence as to whether it would be reasonable or not for the first respondent to return.  The Tribunal expressly found that the limited risks of violence being perpetrated upon the first respondent were matters to take into consideration.  This seems to me likewise to be unobjectionable.  It does not show that the Tribunal misunderstood its function or failed to apply itself properly to the statutory task before it. 

18. It is simply not accurate to assert as ground 1(d) does that the Tribunal “took into account the occurrence of insurgent attacks in Kabul without making any finding as to how that issue bore upon the specific circumstances of the first respondent”.  The Tribunal found that the first respondent might be at risk, albeit limited, of violence and this was relevant. 

19. Put in a summary way I accept the submissions of the first respondent in this regard.  The Tribunal calibrated those aspects of likely outcome in the event that the first respondent was to go to Kabul.  At paragraph 82 the Tribunal set out a number of considerations that would justify the first respondent in going to Kabul.  At paragraph 83 it set out the countervailing considerations.  Ultimately the Tribunal felt that the circumstances of the first respondent were such that it was not reasonable in the sense of practicable for him to relocate.  That finding was well-open to it. 

Conclusion

1. For all of the above reasons the application must be dismissed with costs.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  23 January 2014