MZAAD v Minister for Immigration

[2015] FCCA 1132

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAAD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1132

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal hearing – whether Tribunal applied ‘real risk’ test in considering complementary protection criterion – whether Tribunal’s conclusion illogical – neither ground of application established – application dismissed. 

Legislation:  
Migration Act 1958, s.36(2)(aa)

Applicant: MZAAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 209 of 2014

Judgment of: Judge Burchardt

Hearing date: 24 March 2015

Date of Last Submission: 24 March 2015

Delivered at: Melbourne

Delivered on: 20 May 2015

REPRESENTATION

Counsel for the Applicant: Mr Albert

Solicitors for the Applicant: Clothier Anderson Immigration Lawyers

Counsel for the First Respondent: Mr Forsaith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed. 

2. The applicant pay the first respondent’s costs. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 209 of 2014

MZAAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By an amended application filed on 10 March 2015, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 January 2014.  The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a Protection (Class XA) visa. 

2. The amended application raises two grounds.  The first is that the Tribunal erred by failing to apply the “real risk” test and replacing it with a statistical analysis of past occurrence of harm to the applicant and his brother.  The second is that the Tribunal’s decision in respect of the “real risk” of significant harm in the form of arbitrary deprivation of life was legally irrational in that the evidence available to the Tribunal could only support a conclusion that there was such a real risk. 

3. Although there are aspects of the Tribunal’s decision that are troubling for the reasons that follow, I do not think that the Tribunal fell into jurisdictional error and the application will therefore be dismissed. 

The Applicant’s Claims – The Court Book (“CB”)

1. Where, as here, grounds of application assert inter alia that the Tribunal’s decision was simply not logically open on the materials before it, it is necessary to examine what those materials were.  I will start with the Court Book (“CB”) and then pay attention to the transcript of the proceeding which is annexed to the affidavit of Karyn Anderson filed 12 March 2015. 

2. The applicant’s Biodata Form is at CB1-6.  At CB3, the applicant responded to the question, “Are you seeking Australia’s protection?” with the answer, “I’ve come here out of fear of the Taliban and the Sunni people were killing us.” 

3. The applicant’s Irregular Maritime Arrival Entry Interview and identity documents are at CB7-26.  At CB17 the applicant set out his reasons for leaving his country of residence.  The reasons refer to difficulties with the Taliban and the Kurram Militia, but relevantly for present purposes the applicant asserted:

   “My brother was caught by the TALIBAN in AFGHANISTAN and they demanded a ransom from us of 1,500,000 AFGHANI – we didn’t have this money, so we couldn’t pay – he had been accused of taking supplies to SHIA people;… He used to bring dried fruit as a trader; this happened approx 9 months ago (approx December 2011); Q: What happened to him because you couldn’t pay?  I don't know – they said “if we send the money they would release him, if not they would kill him” – we were unable to pay and we haven’t heard anything since.”

4. The applicant went on to say that there were always explosions and fighting between the Shia people in Turi with resultant insecurity and that there was always discrimination and prejudice against Shia people and those who spoke Farsi.  When asked if there were any other reasons for leaving, the applicant replied “No”. 

5. The applicant also revealed that he had been to Afghanistan twice for approximately one week in each time, once to get his taskera and once to have a look at Kabul. 

6. At CB22 the applicant responded to a question as to what would happen if he returned to his country of nationality.  Under the heading PARACHINAR, he said, “I will be killed by either bomb explosion or the TURI people will come and make me fight the TALIBAN and I will be killed by them; … There is always fighting there and its a matter of time before I get killed.” 

7. Under the heading AFGHANISTAN, the applicant responded, “If I went to AFGHANISTAN I will suffer the same fate as my brother; the TALIBAN are in LOGAR and they will ask where I am from what my religion is – even if you say you are SUNNI they check to see if you have scars from self-flagellation – they will cut your head off as soon as they find out you have them; … They will give us a hard time for not being from the area.”

8. The applicant’s representative forwarded a substantial tranche of documentation which is at CB27-89.  At CB64-66, the applicant’s Statement of Claims is set out.  The applicant asserted that he was a Tajik and that his religion was Shia.  He said his family left Afghanistan for Pakistan during the Russian war and that since 2007 the Taliban had come to Parachinar area and been attacking and killing Shias in the area.  He stated that since then a group of Shia people known as Turis have been forcing Shia communities to fight against the Taliban, and that he had been asked to join them but his father had not permitted him to fight. 

9. The applicant also referred to the Kurram Militia and to the fact that because he did not have identity documents he had to pay money to the Militia to avoid imprisonment. 

10. The applicant further asserted that in approximately December 2011 his brother called his father and said the Taliban had caught him while he was returning from Kabul to Parachinar and had accused him of taking supplies to Shia people in the Parachinar area and being involved in fighting against the Taliban.  The Statement went on to say:

    “The Taliban had demanded ransom and had told my father “if you send the money, we would release him, if not we will kill him”.  We could not afford to pay the money thus have not heard from my brother since then. 

    This was when I decided to leave Pakistan as I feared I would also be killed. 

    On the one hand, the Taliban who captured my brother could have captured me; on the other; I could be forced to fight against the Taliban by the Turi people during which I would have eventually been killed too.”

11. At CB65 the applicant stated:

    “If I return to Afghanistan, I fear the Taliban will attack and kill me. 

    Because I am a Shia.  My accent indicates I am a Shia from Parachinar and will alert the Taliban.”

12. The applicant went on to say that no place is safe in Afghanistan and that Shias are being killed in all areas and referred to the difficulties he would have if he returned to Afghanistan where he has never lived. 

13. The decision of the delegate is at CB94-112.  The decision is not by any means all of present relevance, but I note that at CB95-96 the delegate recorded:

    “He claims to have returned to Afghanistan only twice: once to collect his taskera from Logar, and once to obtain a driver’s licence from Kabul.  Each time he was accompanied by his older brother, (name omitted).  The applicant claims that this brother transported goods from Kabul to Parachinar for ‘four or five years’ until he was allegedly captured by the Taliban in 2011.”

14. The delegate summarised the applicant’s claims at CB100-101.  Relevantly for these purposes they included:

    ·    In (approximately) December 2011, the applicant’s brother (name omitted) was caught by the Taliban when he was returning from Kabul to Parachinar.  He was accused of taking supplies to the Shia people in fighting against the Taliban.  The Taliban demanded the family pay a ransom for his release but were unable to afford it.  (The brother) has not been heard from since;

    ·    Approximately three years ago, the applicant’s brother in law (along with eleven other people) was transporting goods from Kabul to Parachinar.  They were stopped by the Taliban and killed;

    ·    The applicant fears the Taliban will attack and kill him because he is a Shia if he is returned to Afghanistan;

    ·    The applicant is readily identifiable as a Shia from Parachinar due to his accent.  He could also be recognised as a Shia because: he prays with his hands open, has self-flagellation marks on his body, partakes in Shia religious ceremonies, his taskera identifies him as Shia, he is from the Khoshi district which has a high proportion of Shia residents;

    …

    ·    The applicant would face a real risk of persecution on the basis of his Shia faith if he were to return to Afghanistan due to tensions between the Taliban and Shia Muslims;

    ·    The applicant fears harm as the US forces withdraw because the security situation may decline and as a Shia he would be particularly vulnerable to persecution at the hands of the Taliban;

    ·    It would be unreasonable for the applicant to relocate elsewhere in Afghanistan due to his limited education, lack of familial connections and unfamiliarity with Afghanistan.

15. The delegate accepted the applicant’s account of his brother’s disappearance but did not believe all of what was asserted about the applicant’s brother-in-law.  I note that at CB103 the delegate asserted, “I am satisfied that his (the applicant’s brother) involvement in transporting goods to Shias in Parachinar could have contributed to his death.  However, I am not satisfied that he otherwise had a profile of interest to the Taliban, particularly in Afghanistan.”

16. In the ultimate the delegate did not accept that the applicant faced a well-founded fear of persecution under the Refugees Convention on the basis of his religion, race or imputed political opinion (CB109). 

17. The delegate went on to consider the Complementary Protection Criterion at CB110-112.  The point to note about the delegate’s consideration of this matter is that while the delegate considered the risk of generalised violence in Afghanistan, it does not appear that the delegate considered any question of risk in terms of issues related to travel in Afghanistan, which suggests that that matter may not have been raised in terms by the applicant’s materials and submissions. 

18. The applicant then applied for review with the Tribunal and his agent’s submissions are at CB125-171.  At CB125 the claims the applicant made were paraphrased and included that the applicant “fears that he will suffer ‘significant harm’, as defined by section 36(2A) of the Migration Act, throughout Afghanistan”.  I note, however, that the applicant’s primary claims related to his Tajik race, his Shia faith and his imputed political opinion of opposition to the Taliban.  

19. The submissions, which were detailed and extensive, referred inter alia to the Taliban control over Logar (CB129) and the ethnic constitution of Khoshi district (CB129).  The question of complementary protection is dealt with at CB136-138.  The submission at paragraph 48 (CB136) articulates the applicant’s fear of death, assault or torture by the Taliban or other military groups and denial of access to education, healthcare and employment to such an extent that his dignity, autonomy and survival are threatened amounting to cruel or inhuman and degrading treatment or punishment. 

20. The matters set out at paragraph 56, in conclusion in relation to complementary protection, assert that the applicant’s “fear of exposure to significant harm in the future remains well-founded, in light of the following factors:

    a.  The applicant’s family members have been significantly harmed in the past;

    b.  The applicant will continue to be perceived as a Shia, Tajik from the Parachinar area upon his return to Afghanistan;

    c.  The independent country information appended to the submissions confirms that the types of significant harm feared by the applicant upon his return to Afghanistan are frequently visited upon Shia Tajiks and perceived opponents of the Taliban; and

    d.  There has been no improvement in the security situation or efficiency of the Afghan authorities in Afghanistan since the applicant’s departure.”

21. Extensive country information was appended to the submissions and runs from CB139-171.  That country information certainly addresses the question of Tajiks generally and the security situation in Logar province.  It also assessed the persecution of Shias in Afghanistan more generally. 

22. Further country information provided to the Tribunal at the hearing is at CB172-207. 

The Materials in the Transcript

1. At P-3, line 26 the Tribunal member said by way of introduction:

   “If the tribunal is not satisfied that you are a refugee as defined in the Refugees Convention, it will also consider whether you are entitled to a Protection Visa because of Australia’s complementary protection obligations.  The complementary protection leave for the grant of a Protection Visa is met if there are substantial grounds for believing that there is a real risk you will suffer significant harm if returned to another country.  “Significant harm” is defined in the law and it includes where a person will be arbitrarily deprived of their life, or have the death penalty carried out on them, or be subjected to torture, or be subjected to cruel or inhuman treatment or punishment, or be subjected to degrading treatment or punishment.”

2. At P-9 the applicant was discussing his visits to Afghanistan.  He said that he went about four years ago to get his taskera to Khoshi and then Kabul, and the second time he went with his brother to get his driving licence in Kabul. 

3. At P-11 when asked why he obtained his driver’s licence he replied:

   “Well, I liked driving so I wanted to work on the line on the route between Parachinar and Khoshi, where people are living.”

4. At P-12 the applicant related the attack on 12 people, one of whom was his brother-in-law, and it is clear from line 13 that this was in the context, at least in part, of assertions that such people (which included the applicant’s brother) might be taking goods to Shia people.  I note also at P-12 the applicant confirmed that the route between Peshawar and Parachinar had been blocked for seven years and that people had started bringing in “stuff” from Afghanistan and that his brother had been doing the transportation of goods for a number of years.  As I would read the answer at line 45, it would be reasonable to interpret this as being a period of seven years. 

5. At P-13 the applicant confirmed that his brother went to Kabul every two to three months, and when asked if his brother ever experienced problems on the numerous occasions he would have travelled to and from Kabul the applicant said, “Well, it usually happens to everyone on the way to – like between Parachinar and Kabul that they stop people and if you’re lucky enough you run away, otherwise they just ---.”

6. Nonetheless, the applicant also confirmed on P-13 that his brother had not had any contact with the Taliban prior to the incident when he was abducted. 

7. When asked at P-15 how it was that if his brother was of interest to the Taliban how he was able to go back and forth to Kabul regularly for several years without experiencing any difficulties, the applicant relied at line 30:

   “He was lucky that he was not caught and Taliban usually they are hidden there and if there are not forces around, they will block the road and they attack people and they arrest as many as they can.”

8. At P-16 in response to a question from the Tribunal about the death of his brother-in-law the applicant replied, “He was also doing the business from Afghanistan to Parachinar.”

9. At P-18 the Tribunal asked why he didn’t mention anything about his brother-in-law’s death in his statutory declaration and at P-19 the applicant said, “Because you didn’t ask anything and whatever I was asked, I just answered.”

10. There are no other aspects of the transcript that strike me as being of immediate present relevance. 

The Tribunal’s Decision

1. The Tribunal set out the application for review and the relevant law at CB211-213.  No matters arise at this stage relating to the Tribunal’s treatment of the refugee criterion. 

2. The Tribunal introduced the complementary protection criterion at paragraph 16 in terms that, in my view, accurately reflect the terms of s.36(2)(aa) of the Migration Act 1958 (“the Act”). 

3. The Tribunal set out the meaning of significant harm, once again in my view unobjectionably, at paragraph 17 of the decision (CB213).  No case law was set out in either paragraph, nor, indeed, was any case law referred to in consideration of the refugee criterion. 

4. The Tribunal then proceeded to traverse the applicant’s claims, including setting out the applicant’s statement of claims at CB213-215, which included mention of the complementary protection criterion. 

5. The Tribunal, correctly, in my view, said at paragraph 24 (CB215):

   “The primary issue in this review is whether there is a real chance that, if he returns to Afghanistan, the applicant will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.”

6. For the reasons set out at paragraph 26 and which are not the subject of criticism, the Tribunal assessed the applicant’s claims against Afghanistan as the receiving country.  The Tribunal accepted the applicant is an ethnic Tajik and a Shia Muslim (paragraph 27, CB216).  It considered whether the applicant would face a real chance of persecution as a Tajik Shia in the Logar province of Afghanistan from where his family originated.  On the basis of country information put to the applicant in the hearing, the Tribunal concluded at paragraph 28 “there is nothing to suggest that the Taliban or other non-state actors are specifically targeting Tajik Shias for attack or harm”.  In the same paragraph the Tribunal concluded the applicant did not have a profile that would draw the attention of the Taliban or any other group. 

7. The Tribunal went on to consider the applicant’s claims as a Shia but noted at paragraph 30:

   “As the Tribunal put to the applicant in the hearing, the independent information indicates that sectarian attacks remain a rare occurrence in Afghanistan, an exception being the December 2011 Ashura attacks in Kabul.”

8. The Tribunal went on to conclude at paragraph 30 that:

   “However, considering the totality of the information before it, including the independent information provided by the applicant and his adviser, the Tribunal does not accept Shia in Afghanistan are being specifically targeted for harm by the Taliban.”

9. The Tribunal went on to deal with matters that have formed the kernel of this application at paragraphs 31 and following as follows:

   “31.  The Tribunal has considered the applicant’s claims regarding the kidnapping and disappearance of his brother in December 2011, while travelling between Kabul and Parachinar for business purposes.  The Tribunal notes that according to the applicant’s evidence in the hearing, his brother had been doing this business for about seven years, travelling from Parachinar to Kabul and returning, every two to three months.  The Tribunal also notes the applicant’s evidence that despite being usual that everyone is stopped when travelling between Parachinar and Kabul, his brother had not been stopped over the extensive period he had been regularly and routinely travelling back and forth, until December 2011 and had never had any contact with the Taliban prior to this incident.

   32.  Considering all the circumstances of the incident and the fact the applicant’s brother had been travelling between Parachinar and Kabul every two to three months over a period of seven years for business purposes, the Tribunal does not accept the kidnapping of his brother was in any way related to his Shia religion or Tajik ethnicity.  The Tribunal does not accept the applicant’s brother was questioned about taking goods to Shia people.  Rather, the Tribunal finds that this incident was a criminal act aimed at extorting money.  The Tribunal accepts the applicant’s evidence that the same thing was done to many other people.  The Tribunal notes the information it put to the applicant in the hearing, which was cited in the delegate’s decision, that whilst kidnapping can be common in many parts of the country, criminal gangs are usually responsible and where the Taliban is involved in such activities, it is often to finance the insurgency or gain leverage over prisoner releases. 

   
   

   The Tribunal finds the applicant’s claim that a ransom was asked for his brother’s release consistent with this information and does not accept the essential and significant reason for his brother being targeted was his religion or because he was believed to be fighting against the Taliban, as he claimed in his statutory declaration attached to his protection visa application. 

   33.  The applicant claimed that in addition to his brother being kidnapped and his whereabouts being unknown since his family did not pay the ransom, his brother-in-law was also killed between Parachinar and Afghanistan approximately three years ago whilst he was doing business.  According to the applicant’s evidence in the hearing, his brother-in-law was travelling in a ute with eleven others to buy goods in Afghanistan and on the way back, in the same area his brother was kidnapped, a small car opened fire on them and ran away.  The Tribunal does not accept the applicant’s claims regarding the death of his brother-in-law.  The Tribunal has taken into consideration the fact that the applicant made no mention of his brother-in-law’s death in his statutory declaration attached to his protection visa application, although he had purportedly raised this particular information during an interview while he was on Christmas Island, according to his adviser’s written submission dated

   
   

   4 November 2011.  While the applicant claimed in the hearing, in response to the Tribunal’s concerns, that he had answered whatever he had been asked, as instructed by his adviser, the Tribunal has difficulty accepting that the applicant would refer to his brother’s kidnapping but not his brother-in-law’s murder given the seriousness of this incident.  The Tribunal also finds the applicant’s evidence regarding how he learnt about what happened to his brother-in-law inconsistent.  The Tribunal notes in the hearing the applicant claimed that one of the twelve passengers was injured despite initially claiming all twelve passengers were killed, and that when this injured passenger returned to Parachinar he told him what had happened.  However, in the delegate’s decision, which the applicant provided the Tribunal a copy of, the applicant was recorded as stating that the entire group was killed and he found out about what happened from Khoshi people.  As the Tribunal put to the applicant in the hearing, there was no mention of one person surviving the attack.  While the applicant responded that the person who survived was from Khoshi, the Tribunal finds the applicant’s evidence inconsistent and is further satisfied the applicant’s brother-in-law was not killed as the applicant claimed.”

1. The Tribunal went on consider the applicant’s claims further and it is sufficient for the present purposes that the Tribunal was not persuaded that the applicant was a person to whom Australia owes a Convention protection obligation.  The Tribunal went on at paragraphs 43-51 (CB221-222) to consider the applicant against the complementary protection criteria.  The Tribunal repeated the test in paragraph 44 as follows:

   “the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.”

2. It is sufficient for present purposes to say that at paragraph 45 the Tribunal traversed difficulties the applicant might face in returning to his village in the Logar district.  The Tribunal was not satisfied on the basis of the country information that the applicant would face significant harm within the meaning of s.36(2A) nor would he face such harm as a failed asylum seeker or returnee from Parachinar. 

3. At paragraph 46 the Tribunal went on to reject any such claims arising out of the applicant’s Tajik ethnicity or his Shia Muslim beliefs.  In paragraph 47 the Tribunal said:

   “The Tribunal notes the applicant’s adviser’s reference to information from UNHCR’s Eligibility Guidelines which asserts that ‘certain parts’ of Afghanistan are subject to generalised violence and Afghan asylum seekers formerly residing in these areas may be in need of international protection under broader international protection criteria including complementary protection and their submission that this recommendation should not just apply to people physically resident in these areas but also to Afghans who are reliant on transport and travel thought areas suffering generalised violence. However, having regard to the applicant’s brother’s experience of travelling between Parachinar and Kabul for a period of seven years without any difficulties except for when he became a victim of a criminal act and the fact the applicant travelled twice to Afghanistan from Parachinar including to Khoshi and did not report experiencing any problems, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.”

4. The Tribunal went on to find that the applicant was not a person to whom the complementary protection criterion applied. 

The grounds of the amended application

Ground 1

The Second Respondent erred by failing to apply the ‘real risk’ test and replacing it with a statistical analysis of past occurrence of harm to the Applicant and his brother. 

1. The oral and written submissions of the applicant submitted strongly that the Court should conclude that the Tribunal failed to apply the real risk test and that this could be inferred from three factors.  First, it was submitted the Tribunal never referred to case law as to the real risk test and there was no indication that the Tribunal understood it.  Second, it was submitted that paragraph 47 of the Tribunal’s reasons was a statistical assessment not involving any proper evaluative process.  Third, and this interrelated with ground 2, it was submitted that the Tribunal’s conclusion did not flow from its own findings. 

2. The submissions of the first respondent took a preliminary point of objection.  This is articulated at paragraph 37 of the written submissions and following where it is put that the applicant’s claims for complementary protection never extended to the claim articulated at paragraph 12 of the applicant’s written submissions that:

   “This claim was based on the experience of his family on roads in a small area of central, eastern Afghanistan and country information about violence in parts of Afghanistan.  It was also based on the Applicant’s need to travel the same road to go from Kabul to Khoshi, and from either of those places to Parachinar to see his wife and children, who are 3 and 6 years old.”

3. It was strongly submitted that this claim was never in fact advanced before the Tribunal.  Each party’s counsel had much to say about the authorities relevant to consideration of this matter, and managed to differ in significant aspects as to what the authorities meant and as indeed as to whether some were correct or not.  Without doing any disservice to the very able submissions made, I think that in this particular instance the matter can be better addressed by first principles. 

4. First, I do not think that the Tribunal can be inferred to have fallen into error because the Tribunal member failed to refer to copious case law.  The Tribunal expressly set out at paragraphs 5-19 (CB 211-213) the gravamen of the law in relation to the application.  In my view there is nothing in those passages to suggest that the Tribunal did not adequately and properly understand the law and the task that the application of the law involved. 

5. Likewise, taking the Tribunal’s decision fairly and as a whole, it is structured in such a fashion as to suggest that the Tribunal was well aware of the nature of the Convention protection criterion and the complementary protection criterion.  It applied the relevant tests and in my view was clearly aware of the terms of the complementary protection criterion, which the Tribunal expressly returned to at paragraphs 44-45 (CB221) in terms that in my view suggest a competent familiarity with the relevant law. 

6. Insofar as it is asserted that the Tribunal’s conclusion at paragraph 47 (CB222) is asserted to be an arithmetical rather than an evaluative process, once again, I think that this matter may be dealt with relatively shortly.  The submissions of the applicant sought to extrapolate from the Tribunal’s reasons, a series of statistics to how frequently it might be thought that the applicant’s brother had travelled on the roads to Kabul.  It is sufficient for these purposes to say that on the evidence in the transcript a finding that the applicant’s brother had been travelling for seven years would have been open and on any view he had been travelling “for several years” on that route. 

7. The Tribunal’s assertion to this effect was not misconceived or not open on the evidence, but rather wholly reasonable.   The Tribunal was at paragraph 47 clearly considering a claim:

   “that this recommendation should not just apply to people physically resident in these areas but also to Afghans who are reliant on transport and travel through areas suffering generalised violence.”

8. The reference to the applicant’s brother’s experience in travelling between Parachinar and Kabul was an analysis by the Tribunal of the likely risk of harm in the future based upon the brother’s experiences in the past together with the applicant’s two visits to Afghanistan from Parachinar.  Given that it is clear that the experience of the past may assist in an assessment of the likely risk of future harm, it does not seem to me that the Tribunal fell into jurisdictional error in this instance. 

9. The Tribunal was simply assessing the applicant’s future risk by reference to past experience, an exercise that seems to me wholly unobjectionable.  To the extent that particular arithmetical calculations have entered into this case, they have entered only through the written and oral submissions of the applicant. 

10. The final matter raised to support the inference for which the applicant contends is effectively ground 2 and although I do not ignore it for these purposes, I will deal with ground 2 separately.

Did the applicant raise his claims before?

1. I have already adverted in passing to this matter.  Counsel for the first respondent strongly submitted that the claims to suffer potential significant harm as a result of travel had simply never been articulated before the Tribunal.  It is certainly true that the way in which the applicant put his claims, which I have set out in considerable detail earlier, did not in many ways clearly articulate a claim that the applicant would face risk in travelling in Afghanistan as such.  Nonetheless, as I think I pointed out during the hearing, the fact is that the Tribunal was moved to assess and evaluate such a risk. 

2. This can only be because the risk was sufficiently clearly articulated or inferred for the Tribunal to feel it appropriate to address it.  To the extent that the first respondent seeks, in effect, a dismissal of the application because the claim had not previously been articulated, the submission must fail. 

3. Where the first respondent’s submission is on stronger ground is in relation to the assertion that the applicant faced a risk of significant harm as a result of travel to get to Khoshi or, more particularly, to visit his family in Parachinar.  Although it is clear, as the applicant submits, that for the applicant to get to Khoshi, he would have to travel there, the fact is that there was no evidence as to how the applicant would get there.  The Tribunal, in my view, did not have this articulated as a fear with sufficient clarity to have erred by failing to consider it. 

4. This is all the more clearly so in relation to the asserted fears as to travel to see his wife and family.  The Tribunal was not asked to approach the matter on this footing and did not fall into error in failing to do so.

Ground 2

The Second Respondent’s decision in respect of the ‘real risk’ of ‘significant harm’ in the form of ‘arbitrary deprivation of life’ was legally irrational in that the evidence available to the Tribunal could only support a conclusion that there was a ‘real risk’ of significant harm in the form of arbitrary deprivation of life.

1. Put shortly, what the applicant submits here is that the Tribunal made three findings in relation to this matter.  It was submitted that the Tribunal had found that the applicant’s brother had been abducted by the Taliban and not heard of again.  The Tribunal further found that it accepted “the applicant’s evidence that the same thing was done to many other people.”  The Tribunal also found that kidnappings were common through Afghanistan (see paragraph 32 CB217). 

2. This matter requires careful attention.  There is no doubt that the Tribunal accepted that the applicant’s brother was kidnapped, in effect for ransom.  What the Tribunal then found in the same paragraph was:

   “The Tribunal does not accept the applicant’s brother was questioned about taking goods to Shia people.  Rather, the Tribunal finds that this incident was a criminal act aimed at extorting money.  The Tribunal accepts the applicant’s evidence that the same thing was done to many other people.  The Tribunal notes the information it put to the applicant in the hearing, which was cited in the delegate’s decision, that whilst kidnapping can be common in many parts of the country, criminal gangs are usually responsible and where the Taliban is involved in such activities, it is often to finance the insurgency or gain leverage over prisoner releases.  The Tribunal finds the applicant’s claim that a ransom was asked for his brother’s release consistent with this information and does not accept the essential and significant reason for his brother being targeted was his religion or because he was believed to be fighting against the Taliban, as he claimed in his statutory declaration attached to his protection visa application.”

3. The question then becomes what the Tribunal was referring to when it said, “The Tribunal accepts the applicant’s evidence that the same thing was done to many other people.”  When one looks at the transcript, the relevant extracts of which have been set out earlier, what has been done to many people is that they are stopped, their papers examined and they are asked questions.  It seems to me that it is, at the very least, arguable that what the Tribunal accepted was that persons are often stopped, harassed and questioned by the Taliban. 

4. Against that, the Tribunal also accepted that kidnappings were common through Afghanistan and, indeed, it characterised the applicant’s brother’s kidnapping in that way.  The question then becomes whether the Tribunal’s conclusion that the applicant would not face significant harm was an illogical one in the context of the findings just discussed.  It should be noted that the findings originally made were clearly directed to whether or not the applicant would face Convention harm in the event that he was to suffer the sort of detention and ill treatment that his brother had suffered. 

5. I confess that in circumstances where the applicant’s brother had been apparently detained by the Taliban for ransom and thereafter killed, and as such, kidnappings and inferential deaths were not uncommon throughout Afghanistan, I would have considerable doubt as to whether a person such as the applicant returned to Afghanistan would not face a real risk of significant harm.  However, the question is not whether I myself would have drawn that conclusion but rather whether that of the Tribunal was, as a matter of law, open to it. 

6. The fact is that there was evidence that persons, including the applicant’s brother, could routinely travel and not suffer serious risk of harm.  The Tribunal was considering the matter against a presumption that the applicant would return to Khoshi.  The applicant had never articulated the claim that he would travel routinely on the roads where such harm would occur. 

7. In the circumstances, while I would have come to the opposite conclusion, on balance I do not think it can be fairly said that the Tribunal’s decision was illogical in the legal sense.  Accordingly, this ground is not made out either as a freestanding ground or as an inference supporting ground number 1. 

Conclusion

1. Given that the applicant’s claims have not been made out, it follows that the application must be dismissed.  I will so order. 

2. It will be noted that I have not dealt in these reasons for judgment at all with the numerous assertions made by counsel as to the state of the law.  Given the conclusions I have reached, it is not necessary or appropriate to do so.  The cases quoted, in my view, stand for general propositions that are not in doubt and, further, in many cases depend very much upon their own precise facts. 

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

Associate: 

Date:  20 May 2015