SZQXE v Minister for Immigration - [2012] FMCA 643

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQXE v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 643

MIGRATION – Application to review decision of Independent Merits Reviewer – whether denial of natural justice – whether concept of “reasonableness” applies to return travel to an applicant’s home area.

Migration Act 1958 (Cth), s.91R

Fadil Dyli and Secretary of State for the Home Department (2000) Imm AR 652
Januzi v Secretary of State for the Home Department [2006] UKHL 5; [2006] 2 AC 426
Karanakaran v Secretary of State for the Home Department (2003) 3 All ER 449; [2000] EWCA Civ. 11
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jama [1999] FCA 1680
Minister for Immigration and Multicultural Affairs v Sameh [2000] FCA 578
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZATVv Minister for Immigration and Citizenship and Another (2007) 233 CLR 18; [2007] HCA 40
SZQEN v Minister for Immigration and Citizenship [2012] FCA 387
SZMCDv Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46
SZQKE v Minister for Immigration and Citizenship [2012] FCA 514

Applicant:

SZQXE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 2748 of 2011

Judgment of:

Barnes FM

Hearing date:

31 May 2012

Delivered at:

Sydney

Delivered on:

27 July 2012

REPRESENTATION

Counsel for the Applicant:

Mr Karp

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2748 of 2011

SZQXE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERIT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Background

The applicant seeks a writ of prohibition or an injunction restraining the first respondent from relying on the recommendation of the second respondent, the Independent Merits Reviewer (the IMR or the reviewer), made on 12 August 2011 that the applicant not be recognised as a person to whom Australia has protection obligations and a declaration that the recommendation was affected by an error of law.
The applicant, a national of Afghanistan, arrived at Christmas Island by boat in July 2010. On 27 July 2010 an officer of the Department interviewed the applicant. He claimed to fear that if he returned to Afghanistan he would be killed by the Taliban because he was an Hazara.
On 13 November 2010, the applicant requested a Refugee Status Assessment (RSA) on the basis that he had a well-founded fear of persecution from the Taliban in Afghanistan. He claimed that he had been born in 1973 in the Jaghori District of Ghazni province in Afghanistan and that he was an ethnic Hazara and a Shia Muslim. In about 1987 his family left Afghanistan for Iran. He lived in Iran illegally until 2010 when he was arrested and detained by the Iranian police and deported to Afghanistan. The applicant claimed that the bus on which he was travelling towards Jaghori was stopped by the Taliban, that they removed all four Hazara Shia passengers, including him, from the bus, took them to an unknown mountain area, beat and tortured them and called them infidels because they were Hazara Shia. He claimed they were accused of working for the government and told they deserved to be killed and detained. He claimed they escaped the next morning after six of their captors left and the remaining two fell asleep. After he escaped the applicant travelled through Kandahar to Pakistan. He came to Australia with the assistance of a people smuggler.
The RSA officer recommended that the applicant not be recognised as a person to whom Australia has protection obligations. On 9 February 2011 the applicant sought Independent Merits Review of the RSA recommendation. On 27 October 2011 the applicant attended an interview with the reviewer at which he further elaborated on his claim to fear persecution in Afghanistan due to being an Hazara Shia.

The IMR decision

In his statement of reasons the reviewer set out the applicant’s claims as made at various times, including in submissions by the applicant’s agent. The IMR referred to country information on a number of issues. In his findings and reasons the reviewer accepted that the applicant presented “as a credible witness who [had not sought] to embellish his claims” which were “consistent over the various stages of telling his account”. On this basis the reviewer accepted that the applicant and his family left his home village in Afghanistan in the 1980s due to the factional war between various political factions. However the IMR had regard to the fact that the applicant had stated at the interview that he did not have a fear of persecution based on events at that time.
The reviewer also accepted that the applicant had resided illegally in Iran, that he was arrested and deported back to Afghanistan in 2010 and treated in a rude way by the mainly Pashtun border guards when he returned to Afghanistan, but found that this did not amount to serious harm within s.91R(2) of the Migration Act 1958 (Cth) or otherwise.
The reviewer accepted the applicant’s claim that when he returned to Afghanistan the bus he was travelling on was stopped by the Taliban close to Kandahar and that “he and three other Hazara passengers who were the only ones wearing western clothes” were removed, detained, beaten and threatened, but that they were able to escape and travel to Pakistan. The reviewer found that the applicant’s claim in this respect was consistent with 2009 UNHCR Eligibility Guidelines.
The reviewer also accepted the applicant’s claim that his mother and older brother still resided in his home village in Jaghori and that in the past armed Kuchi had caused the family trouble “by taking crops and causing damage to the farm”. The IMR observed that the family had “not reported any recent problems other than the drought and that [the applicant] commented that his family had not had problems with Kuchis in recent times”.
Under the heading “Consideration of future harm” the reviewer found that the overall weight of country information referred to in the reasons for decision, the substance of which was said to have been put to the applicant at interview for comment, indicated “that there [was] no evidence of a general campaign by the Taliban insurgency to target Hazara Shias or that Hazaras [were] being persecuted on a consistent basis”, that the latest UNHCR Eligibility Guidelines did not mention “Hazaras and Shias as being groups generally subjected to persecution by reason of their race and religion”, and that country information did not “indicate that Hazaras [were] being discriminated against in a manner that would amount to serious harm” constituting persecution. The reviewer had regard to the fact that, on the contrary, information from the Department of Foreign Affairs and Trade (DFAT) noted that “Hazaras [were] making the most of [present] opportunities … reflected in particularly high levels of education and active involvement in the political process” and that “Hazaras in Ghazni enjoy[ed] better health and educational facilities than neighbouring provinces due to the better security environment than Pashtun areas”. The reviewer found that the fact that the applicant was from Jaghori, which was “100% Hazara”, further indicated that “he would not face a real chance of persecution in the reasonably foreseeable future on account of his race and religion”.
In reaching this conclusion the reviewer had regard to the fact that there was “some information”, such as a paper written by Professor Maley (which was cited in the decision), that “paint[ed] a different picture in terms of the safety of Hazaras in all parts of Ghazni”. However the IMR gave “preference to the weight and authority of sources such as DFAT and the UNHCR” in making his assessment. The reviewer accepted that there were “areas of Ghazni province [that had] a high level of Taliban activity but found that this [did] not apply to the … Jaghori District which [was] considered relatively secure”, albeit there was some evidence of Taliban activities.
While the reviewer accepted the applicant’s account of what had happened on the bus near Kandahar and thereafter, he did not accept “that this [would] lead to [the applicant] facing a real chance of persecution now or in the reasonably foreseeable future if he were to return to his home area of Jaghori”. The reviewer had regard to the fact that “the incident occurred a long way from the applicant’s home area”, the applicant’s inability to explain why the Taliban perceived he had been working for the government and his agent’s statement that only the four Hazara men wearing western clothing were taken by the Taliban. The reviewer was of the view that, given the country information “that Hazaras [were] not being persecuted on any consistent basis”, that “Jaghori [was] relatively secure from the influence of the Taliban” and that the applicant “did not claim, and there [was] no evidence to indicate that he [was] in any way associated with the Afghan government”, it was “fanciful” to conclude that there was “a real chance, now or in the reasonably foreseeable future, that he would be targeted because of this incident in his home area of Jaghori”. The reviewer did not accept that there was such a real chance. Nor did the IMR accept that the applicant would “face a real chance of being perceived as supporting the Afghan government and international forces and agencies by the Taliban and targeted in the reasonably foreseeable future”.
In making such findings the IMR had regard to two untranslated documents the applicant said were orders by the Taliban that Hazaras must be killed that had been provided to him by a friend from the internet. However, the reviewer found that, given the authority of country information about the situation for Hazaras referred to in the decision and which the reviewer preferred, he had given these documents “little weight in [his] assessment as to the well-foundedness of the [applicant’s] fear”.
The reviewer continued:
I accept that there are insecure routes leading from Jaghori to Ghazni City but the country information from DFAT also indicates that there is a secure route through the Nawur district. The country information also indicates that there is secure (but long and arduous route) (sic) from Kabul to Ghazni City. I am therefore satisfied that the claimant could return safely to his home area without facing a real chance of persecution from the Taliban and/or criminal elements and that he could travel to Ghazni City safely. I note that the claimant’s family have a farm in Jaghori and do not accept that he has a need or would travel through Pashtun dominated areas or insecure routes where he would face a real chance of persecution from the Taliban and/or criminal elements.
The IMR also considered but rejected the applicant’s claim that he faced a risk of harm from Kuchis who in the past had come to the family farm, and taken crops and caused damage, having regard to country information about the general situation for Hazaras in the applicant’s home area and conflict between Hazaras and Kuchis. The reviewer accepted that the applicant’s village may be near Nawur District, but found that this did not alter his view and concluded that the applicant did not “face a real chance of persecution now or in the reasonably foreseeable future from the Kuchis”.
Finally, the reviewer considered the claim that the applicant was at risk of persecution because he would be returning to Afghanistan “as a failed asylum seeker from a Western country” and the claim that the applicant’s photograph “would be widely distributed by the media and that the Taliban would kill him at Kabul Airport or on his way to Jaghori”. The reviewer accepted that the applicant had once been accused by the Taliban of working for the government, but observed that this had occurred near Kandahar (which is a long way from Kabul and Jaghori) and that country information from DFAT stated that “their contacts did not believe that Hazaras would be targeted upon their return to Afghanistan because they had sought asylum in the west”. The reviewer addressed the applicant’s claim at interview that 11 people had been killed upon their return, but observed that there was no independent evidence that returnees had been killed because they were returning as failed asylum seekers from a western country and that the applicant “did not claim, and there was no evidence to indicate that he was in any way associated with the Afghan government”. The reviewer did not accept that the applicant would “be accused of being a spy because he [had] sought asylum in Australia” or that he faced “a real chance of persecution now or in the reasonably foreseeable future for the reason that he would be returning as a failed asylum seeker from a Western country”. The reviewer did not accept that, even if the applicant’s photograph “was to be circulated widely through the media or if he wore Western clothing, that he would face a real chance of persecution, now or in the reasonably foreseeable future from the Taliban on account of his imputed political opinion, membership of a particular social group or his race and religion”.
The reviewer concluded that the applicant did not face a real chance of persecution on the basis of a Convention ground and that his fear of persecution was not well-founded.
The applicant sought review by application filed on 1 December 2011. He now relies on an amended application filed on 31 May 2012. There are three grounds in the amended application. However, Counsel for the applicant confirmed that the applicant did not press ground one.

Consideration of the future

Ground two in the amended application is as follows:
The Reviewer misconstrued and misapplied the term “a well founded fear of persecution” when considering whether the Applicant could avoid such chance of persecution if he were to return to his former home in Jagori (sic).
Particulars
(a) Failure to consider conditions that may pertain in the future, as opposed to those that may currently exist.
The applicant submitted that it was apparent from the language of the Refugees Convention that whether an applicant had a well-founded fear of persecution involved an assessment of the future (Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 572-574; [1997] HCA 22) and that, as Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ had observed in Guo (at 574), in determining whether there was a real chance that an applicant would be persecuted for a Convention reason, the decision-maker:
… had no choice but to form an opinion as to what was likely to occur if [the applicant] was returned to [his or her home country].
Furthermore, as their Honours continued in Guo (at 574):
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
The applicant submitted that in some cases, patterns of recent history may indicate that the future is reasonably foreseeable for a long period – perhaps years – whereas in other cases, the foreseeable future will extend for a day or a week, and that in a situation that was fluid and unpredictable it could not be assumed that the future would reflect the past. Moreover, the recognition in Guo that the introduction of new or other events may distort the cycle of regularity was said to amount to a recognition that a pattern of events could be upset and that things could change.
It was contended that in ascertaining the prospects of future persecution the reviewer was obliged to consider the chances of an unpredictable (or poorly predictable) situation deteriorating to the extent that the applicant would be in danger of Convention-related persecution. In particular, it was submitted that if a situation was fluid and unpredictable it could not be assumed that the future would reflect the past.
Reliance was placed on the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Jama [1999] FCA 1680 (Branson and Sackville JJ in the majority and Kiefel J dissenting). In Jama the majority found that while the Refugee Review Tribunal had stated the general principles governing the construction of the Refugees Convention in unexceptional terms, in considering whether the applicant’s subjective fear of persecution (in that case by reason of her membership of a particular sub-clan) was well-founded, the Tribunal had “made findings which appear to be limited to past events” (at [23]). Branson and Sackville JJ expressed the view (at [24]) that “the objective facts to be considered in reaching a determination as to whether an applicant’s fear is well-founded are not confined to those which induced the fear”:
A judgment must be made as to what may happen in the future, including any change in current circumstances.
In that context, their Honours suggested (at [24]) that:
The crucial question is whether the applicant’s fear of future persecution for a Refugees Convention reason is well-founded. There may be no current risk of persecution on a Refugees Convention ground, yet a change in circumstances may readily be foreseen that would create a significant risk of persecution on such a ground.
In Jama the applicant had claimed that her clan was being targeted by the ruling clan and that for this reason she feared being killed or raped because of her clan membership. The Tribunal accepted that the applicant’s home country (Somalia) was in a state of civil war in which there were continuing skirmishes, much of it being clan-based with shifting alliances. The Tribunal recorded the substance of a submission that even if the situation in the particular area of Somalia from which the applicant came had become generally stable, there was more than a remote chance that she would face persecution in the future by reason of her membership of a particular sub-clan. However, Branson and Sackville JJ were of the view that the reasons of the Tribunal demonstrated that while it had “considered the evidence touching on the extent and purpose of the fighting between clans in north-west Somalia at and before the date of the decision”, there was “nothing to show that the Tribunal directed its attention to the circumstances likely to prevail” in the relevant area in the foreseeable future. Their Honours stated (at [29]):
In particular, the Tribunal did not consider whether the fluid situation it described (even if relatively stable by Somali standards), might change to as to expose [the applicant] to a real chance that she would suffer serious harm by reason of her clan membership.
Their Honours were of the view that a fair reading of the Tribunal reasons indicated that it failed to address this question.

In support of the proposition that the reviewer was obliged to consider the possibility of future deterioration in the situation in Afghanistan, the applicant submitted that there was considerable evidence and submissions before the IMR to support a finding, if the reviewer cared to make it, that the situation in Afghanistan was extremely fluid. Reference was made to evidence referred to by the RSA that during the Taliban regime from 1996 to 2001, Hazaras were subject to severe ethnically motivated violence, including the massacre of approximately 4,500 Hazaras in 1998, and to UNHCR Guidelines of 2010 which stated that:
Notwithstanding the comparatively stable security situations in provinces and districts where the Hazara constitute a majority or a substantial minority, such as Jaghatu, Jaghori and Malistan districts in Ghazni Province, the security situation in the remainder of the province, including on access routes to and from these districts, has been worsening. Although not able to launch widespread operations in Jaghori, there are some reports of Taliban attacks in the district. Jaghori district is increasingly isolated given that some access routes to and from the district, including large stretches of the strategic Kabul-Kandahar road, are reportedly under Taliban control. There are regular reports of ambushes, robberies, kidnappings and killings by the Taliban and criminal groups along these roads.
There was also said to be information before the RSA and the reviewer about the re-emergence of the Taliban since 2006 and their dominance in Afghanistan and evidence from a Ghazni politician from 2008 to the effect that the Ghazni security situation was “worse than ever”, although the Hazara dominated district of Jaghori was the most secure in the province. In addition, it was pointed out that a July 2010 DFAT report had referred to the views of an Afghan Member of Parliament familiar with Ghazni Province to the effect that “Hazara Districts in Ghazni (such as Jaghori) are currently safe but have come under increasing pressure recently”, including attacks on roads into Jaghori by insurgents or criminal elements, a strong Taliban presence in Ghazni’s Pashtun areas, and attacks on Hazaras in mixed Pashtun-Hazara districts such as Qarabagh. According to the MP, the Afghan National Police in Jaghori were weak and the Hazara had disarmed in accordance with disarmament programs. This was said to mean that the Taliban could capture the Hazara areas of Ghazni relatively quickly if they chose to go on the offensive.
Counsel for the applicant also referred in detail to the submission of the applicant’s adviser to the effect that there was a worsening security environment in Afghanistan as a whole, including Ghazni Province. In particular, in a written submission of 29 March 2011, the adviser had submitted that the security situation in Afghanistan continued to deteriorate with little or no prospect that it would improve in the foreseeable future and that numerous reports had documented a dramatic surge in violent attacks against civilian and government targets since 2006, with a marked deterioration in 2009 and 2010. The submission also referred to and summarised a number of items of country information, including from 2009 and 2010, suggesting that the security situation had deteriorated and information to the effect that areas where Hazaras could reside in relative safety were getting smaller and evidence that Hazara districts in Ghazni had come under increasing pressure recently and that Hazaras were directly affected by the deterioration of the general security situation in Ghazni Province.
The applicant’s adviser also submitted that numerous identified credible sources had consistently reported that since 2006 the security situation in Afghanistan had substantially deteriorated, that insurgent attacks and intimidation in particular areas, including through the Hazarajat and in Ghazni Province, had been widely reported and that this demonstrated the extent to which increasingly hostile and militant insurgent groups were able to operate with impunity and assert control throughout Afghanistan. In addition, a specific submission was made that, notwithstanding 2009 reports about the relative safety of Jaghori:
Given the fluid nature of the security environment in Afghanistan and the later views that have been expressed by Professor Maley, the UNHCR and the Swiss Refugee Council in particular, it is unlikely that the findings of the [earlier report] continue to provide an accurate assessment of the level of risk faced by the Hazara community in Jaghori and Malistan.
In addition, the applicant pointed out that on 7 October 2011 his adviser made a further submission enclosing additional updated country information in relation to the then current situation in Afghanistan, including independent information which was said to indicate that “the security situation in Afghanistan [was] poor and deteriorating”, that violence and human rights violations had increased throughout the country, including in areas previously considered safe (such as the Hazarajat) and that Ghazni was ranked as “extremely insecure” and was likely to remain so through 2011.
Counsel for the applicant also referred to the fact that in the reviewer’s statement of reasons reference was made to a number of items of country information to the effect that there was a worsening security environment in Afghanistan as a whole, including in Ghazni Province. In particular the reviewer referred to the UNHCR Eligibility Guidelines issued in December 2010, which, as set out above at [24], noted that there were reports of Taliban attacks in Jaghori and the district was becoming increasingly isolated. The same report stated:
…. given the fluid and volatile nature of the conflict, asylum applications by Afghans claiming to flee generalized violence in [parts of Afghanistan not presently characterised as in situations of generalised violence] should each be assessed carefully, in light of the evidence presented by the applicant and other current and reliable information on the place of former residence … [including] assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication.
Counsel for the applicant submitted that the IMR had erred in that in coming to a conclusion that the applicant did not have a well-founded fear of persecution the reviewer had simply relied on information that “currently” Hazara were not being persecuted on a “consistent basis” and to evidence that Jaghori was “relatively secure from the influence of the Taliban” compared to Pashtun districts. It was submitted that the reviewer simply took a snapshot of the present and failed to look at the future and in that way failed to consider lawfully whether the applicant had a well-founded fear of persecution.
In other words, it was said that the reviewer had engaged in an assessment of the present situation as it existed at the time he made his decision but that he erred in failing to consider the fluidity of the situation in Afghanistan in general, or Ghazni Province in particular, or to attempt to gauge what the future may hold for Jaghori despite the fact that the information cited by the reviewer, to which he gave preference (in particular the UNHCR Guidelines), was said to indicate that the Taliban were making inroads into many areas of Afghanistan, including areas that the Hazara inhabited. It was submitted that the IMR had to make such an assessment because the applicant’s safety from Convention-related persecution depended on Jaghori remaining free, or largely free, of Taliban incursions.
Thus, the applicant submitted that in the circumstances of this case, in order to complete the exercise of his jurisdiction the reviewer had to address the possibility that things could change. It was acknowledged that the reviewer was not bound to find that things might change or that any change would be sufficient to engender a well-founded fear of persecution, but submitted that the failure to deal with the fluid situation in Afghanistan and consider the way it may develop constituted an error of law.
The first respondent submitted that the IMR properly applied the test of whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future and specifically considered the question of future harm on the basis of what he described as “Recent information emanating from authoritative sources”. The applicant’s disagreement with the IMR’s findings of fact were said not to rise above a contest about the merits.
It has not been established that the IMR failed to form an opinion as to what was likely to occur if the applicant returned to Afghanistan (see Guo at 574). First, insofar as the applicant’s written submissions appear to take issue with the use of the phrase “reasonably foreseeable future” by the reviewer, in oral submissions it was conceded that, as pointed out in the first respondent’s written submissions, such a phrase has been used in connection with the assessment of refugee status for many years. It has the support of the High Court (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 279; [1996] HCA 6). No issue is now taken about the fact that the test for refugee status as expressed by the reviewer referred to whether the applicant had a well-founded fear of persecution in the “reasonably foreseeable future”.
Secondly, the reviewer specifically considered the question of future harm under the heading “Consideration of future harm”. Relevantly, the IMR stated in this context that he had “carefully considered and weighed the range of material currently available and [had] given particular attention to recent information emanating from authoritative sources including DFAT” (emphasis added).
On numerous occasions throughout his reasons, the reviewer referred to the reasonably foreseeable future in terms of what “will” happen in the future or what “might” happen in the future. Such findings involved a judgment as to what may happen in the future (Jama at [24]). Thus when addressing whether the applicant had a well-founded fear of persecution as an Hazara or Hazara Shia the reviewer stated:
The claimant is from Jaghori which is 100% Hazara which further indicates that he would not face a real chance of persecution in the reasonably foreseeable future on account of his race and religion.
The fact that the reviewer referred to the future, and indeed the reasonably foreseeable future, undermines the strength of the applicant’s argument that the reviewer did not, in fact, consider the future. In that context the reviewer went on to refer specifically to the fact that there was some information, such as a paper by Professor Maley, that painted a different picture in terms of the safety of Hazaras in all parts of Ghazni. However, he reiterated that he had given preference to the weight and authority of sources such as DFAT and the UNHCR in making his assessment. The reviewer accepted that there were areas of Ghazni Province which had a high level of Taliban activity but consistent with such authority found that this did not apply to the applicant in Jaghori district which was considered “relatively secure” (although there was some evidence of Taliban activities).
Furthermore, in dealing with the applicant’s claims about his capture by the Taliban while traveling on a bus near Kandahar the reviewer did not accept “that this will lead to him facing a real chance of persecution now or in the reasonably foreseeable future if he were to return to his home area of Jaghori”. After addressing a number of factors, including country information that Hazara were not being persecuted on any consistent basis and that Jaghori was relatively secure from the influence of the Taliban, the reviewer concluded that it was “fanciful” and did not accept that there was a real chance “now or in the reasonably foreseeable future” that the applicant would be targeted because of this incident in his home area of Jaghori or that he would face a real chance of being perceived as supporting the Afghan government and international forces and agencies by the Taliban and targeted in the reasonably foreseeable future.
It cannot be said that the reviewer only considered current prospects of harm or the current situation and ignored everything else. Rather, the reviewer properly had regard to the future and adopted and applied the appropriate and correct test as to whether the applicant was owed protection obligations by Australia.
Finally, in the particular circumstances of this case, the fact that it can be inferred that the reviewer preferred the information that the security situation in the applicant’s home area was relatively stable rather than fluid or volatile as some information before him suggested, and hence did not expressly address the possibility of a change for the worse, does not establish that he failed to consider conditions that may pertain or circumstances likely to prevail in the applicant’s home area in the future (cf Jama at [28]).
There was information before the reviewer that went to changes in the security situation in Afghanistan since 2001, since 2006 and some to the more recent situation. The reviewer referred to various items of country information in his reasons for decision (including information referring to changes in the situation in Afghanistan). However the reviewer gave preference to the “weight and authority” of sources such as DFAT and the UNHCR in making his assessment about whether the applicant would face a real chance of persecution in the reasonably foreseeable future.
It is notable that the DFAT reports cited by the reviewer in his decision of 20 November 2011 included a report of February 2010 on the treatment of Hazaras generally and also reports of September 2010 and September 2011. In the September 2010 report DFAT had stated (among other things) that:
Security challenges in Ghazni are not specific to the Hazara community. Hazara districts, including Jaghata, Jaghuri, Malistan and Nawar are relatively stable compared to Pashtun districts. Threats facing the Hazara community vary across different provinces and districts, and according to protection arrangements brokered with local commanders. There is a lack of effective protection from the state in Ghazni, but Hazara strongmen control most of the Hazara districts. Interlocutors described the possibility of wholesale violence against the Hazara community in Ghazni as unlikely, given commanders’ strength and the flexibility of their relationships with other factional and insurgency networks – including the Taliban.
Interlocutors agreed that conditions for Hazara communities in Afghanistan have improved greatly since the Taliban lost power. Hazaras are making the most of the opportunities now open to them, reflected in typically high levels of education and active involvement in the political process. While the results of the recent parliamentary election are yet to emerge, contacts point to a significant turnout among the Hazara population. The Hazara community in Ghazni enjoys better educational and health facilities than neighbouring provinces, particularly in Jaghori district. Due to their better security environment, Hazara districts in Ghazni have greater access to these services than Pashtun-dominated districts.
Limited employment opportunities, security challenges and a perception of discrimination are encouraging migration from Afghanistan. The Hazara community remains frustrated with the slow progress of development in their regions. A Hazara contact described discrimination against the community in terms of exclusion from some economic opportunities and sectors, and a reluctance to avoid scholarships or jobs on a full merit basis if this would result in a preponderance of Hazaras. Accordingly, Hazara families may invest in sending a son abroad, and are well-informed about people-smuggling routes and methods.
Conditions facing Hazara returnees vary according to circumstance. Returning to their areas of origin is more difficult if they have been out of Afghanistan for years and have no networks there. But interlocutors did not believe Hazaras would be targeted because they had sought asylum in the west.
Importantly, in September 2011 DFAT had stated that the information contained in its report of September 2010 remained accurate.
The IMR also had regard to the 2010 UNHCR Guidelines which referred to the comparatively stable security situation in Hazara districts such as Jaghori compared to Pashtun districts.
In other words, in November 2011 the reviewer had before him information that, as at September 2010 and September 2011, Jaghori, the district from which the applicant came, was relatively stable compared to Pashtun areas. Hence, when the reviewer stated that he gave particular weight to the DFAT and UNHCR information, he was giving weight to and accepting such material against the background of considering all of the information, including information that suggested a deteriorating situation since 2006 or a fluid situation.
As the first respondent submitted, it is apparent from the reviewer’s decision that he considered information which supported contentions about instability or fluidity in Afghanistan and Professor Maley’s predictions about possible deterioration in the future, but preferred information, including from DFAT, suggesting that the particular area to which the applicant would return was relatively stable and had remained stable over the course of the previous 12 months. The reviewer stated that he had considered and weighed the range of material currently available and had “given particular attention to recent information emanating from authoritative sources including DFAT” (the source of the 2010 and 2011 information about the relative stability of Hazara districts including Jaghori). The selection of and weight to be given to particular items of country information is a matter for the reviewer. It was open to the IMR on the information before him to prefer the DFAT information about the stability of the applicant’s home area. Even if a different decision-maker could have come to a different conclusion on the whole of the country information in question that does not establish reviewable error on the part of the IMR.
Insofar as the applicant disagrees with the merits of the reviewer’s findings in this respect, that would not establish reviewable error. Ground two is not made out.

Getting to Jaghori

The final ground in the amended application is as follows:
The Reviewer erred in his assessment of whether the Applicant could physically return to his former home in Jagori (sic).
Particulars
( a) Failure to consider whether it would be physically possible for the Applicant to follow the “long and arduous” route to Jagori (sic) via Parwan, such consideration to involve inter alia:
(i)The length of the journey,
(ii)The means of travel,
(iii)The availability of basic overnight accommodation, if that were necessary.
The applicant submitted that there was an analogy between the requirements for finding that a person could relocate to an area of safety within their country and for finding that a person could find safety in a place where they may have lived before. It was pointed out that the question of relocation involved a consideration of whether it was reasonable in all the circumstances to expect a person to relocate. Relevantly, in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442, Black CJ observed that the question of relocation involved a consideration of whether the applicant could reasonably be expected to relocate to another area of his country and stated (at 442):
… notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.

In Randhawa it was also made clear (at 442) that the range of practical realities that had to be considered included (albeit was not limited to) physical and financial barriers preventing an applicant from reaching safety. Counsel for the applicant submitted that this approach applied not only to relocation but also to a return to a particular area in a country and, in particular, the need to consider whether the area in question was reasonably accessible to the applicant. There was said to be no reason to impose a different test in a situation where it was found that a person could be safe in an area in which they had lived previously, as the applicant still had to get to the safe area.
Reliance was placed on the decision of Cowdroy J in SZQKE v Minister for Immigration and Citizenship [2012] FCA 514 in relation to an IMR decision about an Afghani citizen from Bamyan Province. The reviewer had found that based on independent country information, Hazara in Bamyan Province did not live in fear of persecution (at [44]) and, despite accepting that travel into Bamyan could be dangerous, was not satisfied that the appellant faced a real chance of serious harm amounting to persecution for any Convention reason in relation to his travel into and out of Bamyan.
Cowdroy J found no reviewable error in this approach. His Honour was of the view that the IMR had “clearly assessed the risk of persecution resulting from the appellant’s potential return to Afghanistan” in what was said to be “a clear statement to the effect that the appellant [would] not be exposed to a risk of persecution if he return[ed] to Bamyan, because Hazaras [were] not subject to persecution in that province” (at [45]).
In addressing whether the Federal Magistrate had erred in concluding that the appellant would not be exposed to a real risk of persecution if he were to travel by road to Bamyam, His Honour referred to authorities in relation to relocation, including Randhawa, which were said to have “recognised that the place to which a claimant for refugee status [was] to be returned must be reasonable” (at [51]). While acknowledging (at [49]) that the case before him did not raise a question of relocation because it was “accepted that the appellant’s only destination in Afghanistan were he to be returned would be Bamyan”, Cowdroy J expressed the view (at [49]) that the relocation cases were “useful for emphasising that a decision-maker is required to take into consideration the practicality of a claimant for refugee status relocating somewhere within their country of origin”. His Honour also expressed the view (at [53]) that “consideration of ‘reasonableness’ for the place of return, and by analogy, the means of return, [were] considerations for the decision-maker”, but found that such consideration had been specifically addressed by the reviewer (at [54]).
Cowdroy J referred with approval to the approach adopted by the Asylum and Immigration Tribunal of the UK in Fadil Dyli and Secretary of State for the Home Department (2000) Imm AR 652 at [32]-[33] in which the Tribunal had suggested (at [33]) that even if there was a safe area, an applicant:
…cannot properly be returned to his own country if he cannot reach the safe area, or if he cannot do so without being at risk of persecution on the way there – either immediately on arrival or on his subsequent journey within the country… [and] he cannot be returned if the safe area is one in which it would be unreasonable or unduly harsh to expect him to live.
The applicant submitted that in this case the IMR had to address the reasonableness of travel to the applicant’s home area from Kabul (which it was said would be his place of arrival in Afghanistan).
It was contended that a test of practicality had to be applied by the reviewer as to whether the applicant could actually get to his home area or whether it was reasonable for him to try to get there. There was said to be information before the reviewer that all people were in danger from brigands on the roads in and out of Jaghori (from Ghazni City), although one route was considered safer, and that of two well-established routes from Kabul (where it might be expected that the applicant would land if returned to Afghanistan by air) to Ghazni (the capital of the province in which Jaghori is situated) one route was short and insecure while the other (via Parwan) was “secure but long and arduous”.
Counsel for the applicant submitted that the route from Kabul to Ghazni via Parwan was clearly extremely circuitous and that just because a route was secure did not mean it was reasonable or practical to use it. There were said to be real questions which the reviewer did not attempt to answer were the applicant to attempt that route, including what transport was available and at what cost, how long the journey would take, what food or accommodation would be available and what dangers, apart from the Taliban, may be lurking. It was submitted that it was not sufficient for the reviewer simply to find that there was a secure route as this was the beginning of the question, not the end. The applicant contended that the reviewer should necessarily have gone on to make findings as to the practicality of access from Kabul to the applicant’s home area and whether it was reasonable for the applicant to attempt the journey.
The first respondent submitted that the applicant’s argument was based on a misunderstanding of the definition of “refugee” in the Refugees Convention, in particular as to how the relocation principle arises from that definition. It was submitted that the issue concerning travel back to Jaghori only arose insofar as there was some risk of Convention-related harm and that that possibility was addressed by the IMR.
Reference was made to the decision of Yates J in SZQEN v Minister for Immigration and Citizenship [2012] FCA 387. In that case the applicant had initially lived in Jaghori district, but from 1996 had lived in Helmand Province while in Afghanistan. The IMR accepted that if the appellant were to return to Helmand Province he might face a real chance of harm, but in considering the appellant’s ability to return to Afghanistan more generally (SZQEN at [13]) found that he could safely return to his own district of Jaghori where he had lived for most of his life. The IMR was not satisfied the applicant would be targeted in his home area in the Hazara controlled Jaghori District.
According to Yates J (at [34]) the applicant in SZQEN had submitted that:
…. the notion of relocation, and hence the requirement of “reasonableness”, always arises if the place of return is different from the place of persecution. This argument was developed in the following way: (a) the appellant lived in Helmand province where he had a well-founded fear of persecution; (b) the IMR reasoned that the appellant could be returned to Jaghori district in Ghazni province; (c) even though the IMR had found that Jaghori was the appellant’s own home district, it was nevertheless necessary for the IMR to consider whether it was “reasonable” for the appellant to return there; (d) the IMR did not consider that question of reasonableness.
Relevantly, the question before the Federal Court on appeal was described by his Honour as an argument:
…. that the question of the appellant’s return to Jaghori was really one of relocation, not merely of return, and that the IMR failed to consider the reasonable of that relocation (at [26]).
The first respondent submitted that SZQEN was relevant insofar as the applicant appeared to contend that the IMR had to consider the question of reasonableness even though what was in issue in this case was return to the applicant’s home district.
It was pointed out that Yates J had observed (at [35]) that it was in the context of relocation to an area other than the applicant’s home region that the specific requirement of “reasonableness” had come into play and that in the authorities in relation to relocation what was in issue was “whether it was reasonable for [an applicant] to be relocated to a place within the country of nationality that was not [his] home region”.
In SZQEN, Yates J was not persuaded that the Federal Magistrate was in error in finding that the relocation principle had no application to the applicant’s return to Jaghori as that had been found by the IMR to be his home district.
On this basis the first respondent submitted that the issue of reasonableness did not arise for consideration in this case as no issue of relocation arose. It was acknowledged that in SZQEN, Yates J went on to find, in any event, that he was not persuaded that the IMR did not “consider the reasonableness of the appellant’s return to Jaghori in light of the matters that the appellant chose to put before the IMR in that regard” (at [41] consistent with Randhawa at 443 and SZMCD at [124]).
It was also submitted that SZQKE did not assist the applicant because in that case Cowdroy J found (at [57] – [58]) that the reviewer had considered the correct issue, namely that once there was a safe place within a country, whether the travel there would be impacted by Convention-related persecution. It was submitted that the same issue arose in this case and was dealt with on that basis and that to the extent Cowdroy J considered the practicality issue or reasonableness, these matters were limited to the application of the relocation principle (at least where no issue arose as to whether there was a complete inability to return to a safe home area).
There was said to be no authority to support the proposition that the reviewer was obliged to consider whether a person could get to his or her home area or whether it would be reasonable to expect them to do so in the manner contended for by the applicant.
In any event it was pointed out that the applicant had never claimed that he would face the suggested practical obstacles referred to in the amended application or that it would be unreasonable to expect him to travel to his home area from Kabul for any reason other than the presence of robbers and the Taliban on the roads. The reviewer was said to have considered whether the issues the applicant did raise gave rise to a well-founded fear of persecution for a Convention reason in relation to travel to Jaghori.

Consideration

First, as the first respondent submitted, the relocation principle had no relevance in this case as the reviewer was satisfied that the applicant had no well-founded fear of persecution in his own home area (see SZQEN at [34]-[35]). This was not a case in which a claim was made or arose on the material before the reviewer that the applicant was unable to return to his home area (cf. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263).
The relocation principle arises from the causative element of the definition of refugee in Article 1A of the Refugees Convention (see Januzi v Secretary of State for the Home Department [2006] UKHL 5; [2006] 2 AC 426 per Lord Bingham of Cornhill referred to with approval in SZATVv Minister for Immigration and Citizenship and Another (2007) 233 CLR 18; [2007] HCA 40 at [19]). As Yates J pointed out in SZQEN (at [28]):
The question of relocation arises when a claimant for refugee status, having a well-founded fear of persecution in his or her home region, can nevertheless avail himself or herself of real protection elsewhere within that person’s country of nationality.
It is in that context that the relocation principle requires that the relocation be reasonable (SZQEN at [31] and see Randhawa per Black CJ at 440-442 and Januzi at [7] per Lord Bingham of Cornhill).
This case is not on all fours with SZQEN as the issue is not whether Jaghori is the applicant’s home district. However, SZQEN does make the point that the specific requirement of “reasonableness” comes into play where what is in issue is relocation to a place within the applicant’s country of nationality that was not his or her home region (at [35]). Yates J did not accept the proposition that it was necessary for the IMR to consider whether it was reasonable for an applicant to return to his or her home area.
It is the case that in SZQEN Yates J did go on to state (at [41]) that:
Quite apart from this conclusion, I am not persuaded that the IMR did not, in any event, consider the reasonableness of the appellant’s return to Jaghori in light of the matters that the appellant chose to put before the IMR in that regard.
However, it is not apparent that in so doing his Honour was accepting that a reviewer must in all cases consider the reasonableness of travel to an applicant’s home area in the manner contended for by the applicant.
Both Yates J in SZQEN and Cowdroy J in SZQKE referred with approval to the approach taken in Fadil Dyli in which the Immigration Appeal Tribunal discussed the rationale for and application of the relocation principle at [32] – [35] as follows:
It may be assumed that a person who fears persecution will seek protection within his own country first. The signatories to the Convention expect him to, because his own country has obligations to him arising out of his citizenship or residence: it is only if his own country fails him that the surrogate protection of the international community is engaged through the medium of the Convention. Thus arises the notion of ‘internal flight’. By the time a person’s status as a refugee comes to be considered, however, internal flight is no longer a possibility. The claimant is already outside the country of his nationality or former habitual residence. But the principle remains. He is not entitled to be considered as a refugee merely because he has a well-founded fear of persecution in some part of his own country, if there are other parts of that country where he would be safe from persecution.
A person cannot be removed to a place where he is at risk of persecution. But if he is at risk of persecution in his own home area, he can be expected, on return to his own country, to live in a different area, in order to avoid the risk. There will then be no breach of the Convention in returning him to his own country, despite the risk of persecution in part of it. At this point two further factors enter the equation. The first is that, even if there is a safe area, he cannot properly be returned to his own country if he cannot reach the safe area, or if he cannot do so without being at risk of persecution on the way there – either immediately on arrival or on his subsequent journey within the country. Secondly, he cannot be returned if the safe area is one in which it would be unreasonable or unduly harsh to expect him to live. This is the factor described by Brooke LJ as tempering the definition of a refugee “with a small amount of humanity” (Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11; [2000] Imm AR 271 at 279).
Thus the expectation of internal flight is transformed into a rule of internal relocation: on return to his own country a person may have to live in an area that is different from his own home area. It is, however, important to remember the origins of the rule. The question of internal flight only arises when a claimant has a well-founded fear of persecution in his own home area. If he has no such fear there, the possibility of his movement elsewhere simply does not arise. He is not a refugee. If, on the other hand, he has such a fear in his own home area, he may be a refugee: but only if he can show that there is no other part of his own country where he would be safe, which he can reach in safety, and where it would be reasonable (that is to say, not unduly harsh) to expect him to live. A person who has discharged the positive burden of showing that he is at risk of persecution in his own area has still to establish that internal relocation is not feasible in his case.
The concepts of reasonableness and undue harshness have to deal with a person who will have to move to an area that has not been his home. No questions of unreasonableness or undue harshness arise if the claimant has no well-founded fear of persecution in his own area. That is so even if there are other areas of his country where he might have such a fear. Such a person will be a refugee only if he cannot reach his own area without being at risk of persecution on the way.
It is notable that the observations in Fadil Dyli related to the relocation principle and that as set out above the Immigration Appeal Tribunal stated (at [35]) that no question of unreasonableness arose if a claimant had no well-founded fear of persecution in his own area. Further, the Tribunal’s remarks in Fadil Dyli, referred to with approval in SZQEN (at [36]) made the point that a person who had no well-founded fear of persecution in his own area “will be a refugee only if he cannot reach his own area without being at risk of persecution on the way”.
SZQKE does not assist the applicant in the manner contended for in submissions. In SZQKE the reviewer had found that the applicant had no well-founded fear of harm in his home area and considered whether the applicant faced a real chance of serious harm amounting to persecution for any Convention reason in relation to his travel into and out of his home area in Afghanistan. The applicant sought review on the basis that the reviewer had erred in finding that because he was not a member of a group which faced a greater risk than others on the roads to his home area, he did not have a well-founded fear of persecution in attempting to return to his home area (where the reviewer had found he would be safe). At first instance (see SZQKE v Minister for Immigration & Anor (No. 3) [2011] FMCA 878) Driver FM found that the reviewer had consider the risk faced by the applicant in travelling to his home area in addressing whether he faced a real chance of serious harm amounting to persecution for any Convention reason in relation to such travel.
The appeal to the Federal Court was dismissed. As Cowdroy J recognised, a factor to be taken into account in circumstances where an applicant had to travel to his home area and there was information about risks of travel was whether “transit will expose an applicant to a well-founded fear of persecution” (SZQKE at [35] referring to Driver FM at [40]). Similarly in this case it was necessary for the reviewer to consider whether travel to the applicant’s home area of Jaghori would expose him to a well-founded fear of persecution for a Convention reason. The reviewer addressed this issue.
Relevantly, in dismissing the appeal in SZQKE, Cowdroy J stated that the only issue on appeal was whether the Federal Magistrate had “erred in his conclusion that appellant would not be exposed to a real risk of serious harm constituting persecution as defined in s.91R of the [Migration] Act if he were to travel by road to [his home area]” (at [38]). After rejecting the contention that the reviewer had failed to assess the risk of persecution resulting from the appellant’s potential return to Afghanistan (at [45]), Cowdroy J referred to a number of authorities in relation to relocation which emphasised the need to take into account the practicality of a claimant for refugee states relocating somewhere within their country of origin (at [49]). His Honour acknowledged that relocation cases had recognised that “the place to which a claimant for refugee status is to be returned must be reasonable” (at [51]) and suggested (at [53]) that these cases of relocation “serve to remind decision-makers that consideration of ‘reasonableness’ for the place of return, and by analogy, the means of return, are considerations for the decision-maker”.
What was meant by this remark has to be seen in light of what his Honour said thereafter at [54]-[55]:
In the present appeal, it is apparent from the Reviewer’s observations set out at [22] above that this consideration was specifically addressed. The Reviewer was not satisfied that the appellant faced a real chance of serious harm amounting to persecution for any Convention reason in respect of his return travel to Bamyan. Insofar as the Reviewer referred to the fact that the appellant would not be at ‘greater risk’ than others on the roads, since he was not associated with he (sic) government or the international community, the Reviewer recognised that the appellant would be at no greater risk than any other civilian using the road. There may be risks associated with the use of the road but those risks were not such as to amount to persecution.
The Reviewer’s findings accord with the approach adopted in Fadil Dyli v Secretary of State for the Home Department …

In this case, as in SZQKE, the issue addressed by the reviewer was whether on the applicant’s return to Afghanistan there was a risk he would be harmed for a Convention reason. In SZQKE, the reviewer had concluded that while he accepted that travel into and out of Bamyan could be dangerous, it was civilians associated with or perceived to be associated with the government or the international community who were at greater risk than others on the road, and that there was no evidence to suggest such association on the part of the applicant. In that context the reviewer had concluded that she was not satisfied that the claimant faced a real chance of serious harm amounting to persecution for any Convention reason in relation to his travel into and out of Bamyan. Cowdroy J found that the observations in Fadil Dyli coincided with the approach taken by the reviewer. As his Honour stated (at [57]):
The reviewer considered the very question whether the appellant would be at risk of persecution in returning to Bamyan and concluded that she was not satisfied that such risk existed. The Reviewer also considered the question of physical access and found that the appellant would be exposed to no greater risk than any other person.
In other words, Cowdroy J found that the reviewer had considered the correct issue, namely once there was a safe place for an applicant to be within a country the issue was whether the travel there would be impacted by Convention-related persecution. Similarly in this case the correct issues were considered.
It is the case that in SZQKE Cowdroy J appeared to approve of the fact that the reviewer’s findings about the absence of a real chance of persecution in respect of the applicant’s return travel to his home area accorded with the approach adopted in Fadil Dyli in relation to relocation to a safe area other than his home area (and to travel to that area). However it is notable that the remarks in Fadil Dyli in that respect drew attention to whether the applicant could not reach the safe area or whether he or she could not do so without being at risk of persecution on the way (apart from the issue of whether such safe area was one where it would be unreasonable or unduly harsh to expect him to live). This does not amount to acceptance of the proposition that the reviewer must consider the reasonableness of travel to an applicant’s home area in which there would be no well-founded fear of persecution (as distinct from whether he or she would be at risk of persecution in returning to such a home area).
I also note that insofar as the applicant referred to Minister for Immigration and Multicultural Affairs v Sameh [2000] FCA 578 in post-hearing submissions intended to address SZQEN, Sameh does not establish a general principle that in every case where there is no well-founded fear of persecution for a Convention reason in an applicant’s home area, the decision-maker falls into error if the reasonableness of return to the home area is not expressly addressed. In Sameh what was in issue was Article 33 of the Refugees Convention and whether an applicant had been afforded effective protection in a country other than Kuwait which was his country of former habitual residence There was extensive material before the Tribunal about the difficulties of getting to Iraq (through Jordan) where the applicant could obtain effective protection. The Full Court (at [39]) found that to address the question of whether Mr Sameh could obtain access to effective protection in Iraq the Tribunal had to consider whether he was reasonably able to get to Iraq. As the Full Court stated at [40]:
The issue which, in our judgment, the Tribunal has failed to address is how Mr Sameh can reasonably travel to Iraq to access the effective protection which the Tribunal found was there available to him. It is not sufficient for the Tribunal to have found that Iraq would have admitted Mr Sameh within its boundaries if he is not reasonably able to reach those boundaries. The Tribunal found that he would be admitted to Iraq, but did not address how he might reasonably travel to those boundaries. In the particular circumstances of Mr Sameh's claim, that was a matter which the Tribunal was obliged to address. It was one of a series of critical factual matters which the Tribunal had to address to determine whether Mr Sameh has effective protection in Iraq.
In other words, in the particular circumstances of that case, to determine whether an applicant had effective protection in a third country the Tribunal had to address the issue of whether he was reasonably able to reach the boundaries of that third country where he would be afforded protection.
Nonetheless, even if it is the case that a decision-maker is obliged to consider the reasonableness of travel to an applicant’s home area, having regard to the approach taken by Black CJ in Randhawa in relation to relocation, the extent of the decision-maker’s task in that respect would be determined largely by the case made by the claimant. As the Full Court of the Federal Court stated in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [124], whether relocation is practicable “depends upon the framework set by the particular objections raised to relocation” (see SZQEN at [43]).
In this case the applicant (who had the assistance of solicitors in relation to the IMR review) raised a concern that he would be killed by the Taliban on the roads. The RSA referred to country information about attacks on certain roads into Jaghori by insurgents, criminal elements and the Taliban. The applicant’s adviser also referred to information to this effect.
The reviewer recorded that at the interview with the applicant on 27 October 2011 he raised with the applicant that one of the matters he needed to consider was whether he would face a real chance of persecution for a Convention reason on the roads surrounding Jaghori and in that context put to him country information that travel was dangerous for all ethnic groups in September 2010. The IMR also put to the applicant a September 2011 report noting that locals were generally able to travel between Ghazni and Hazara districts without incident and that the reporter was not aware of targeting of any particular ethnic groups on the roads.
The IMR’s account of the interview with the applicant indicates that he not only raised with the applicant the possibility of his return to Jaghori, but also put to him the issue of whether he would face a real chance of persecution for a Convention reason on the roads surrounding Jaghori, as well as information about the dangers of travel on such roads, the existence of secure routes (including a “long and arduous” route) from Kabul to Ghazni and the fact that the country information suggested that he would be able to return to his home village without facing serious harm. The applicant had an opportunity at that stage to raise any issues in relation to his travel back to Jaghori. He did not do so, except insofar as he responded to the reviewer’s suggestion that any harm he may face would “not be because he was an Hazara Shia but because of personal gain and robbery”, by stating that “Jaghori [was] a small area and he had to get through to it” and that “robbers only [took] things and possessions but the Taliban [took] lives”.
In particular, the reviewer put to the applicant for comment the specific evidence from the September 2010 DFAT report that there was a secure route from Jaghori to Ghazni city through the Nawur District and the September 2011 report that there was a secure route from Kabul to Ghazni, though long and arduous, using the Parwan road through Bamyan. The reviewer again suggested this may suggest that the applicant would be able to return to his home village without facing serious harm, to which the applicant’s only comment was that he still had to be able to pass through areas to get to Jaghori.
Furthermore, the reviewer put to the applicant the issue of whether, if he did face a real chance of serious harm on the roads, but not for a Convention reason, he would be discriminately withheld protection by the state because he was an Hazara Shia or for any other Convention reason and discussed country information to the contrary. The applicant’s reply was that when the state cannot provide protection it is not a government and that it could not protect itself or secure the roads.
There was no suggestion made to the IMR by the applicant, either in the interview or otherwise, that there were physical or financial obstacles to travelling home such as those raised now in the particulars to this ground. No issues about lack of transport or the length or difficulty of the journey through the suggested secure route to the applicant’s home area were raised by him. Insofar as there is now a suggestion that the reviewer had to consider the matters set out in the particulars to this ground as relevant considerations, such matters were not raised before the reviewer and there is no evidence of any material before the IMR to support any conclusion that these issues had to be addressed by the reviewer.
As the applicant did not advance as matters to be considered by the IMR the issues raised in this ground (such as the length of the “long and arduous” journey to Jaghori via Parwan, the means of travel and the availability of basic overnight accommodation) there was no obligation on the reviewer to address such issues. The issue of return to Jaghori by the “long and arduous” road via Parwan was raised with the applicant by the IMR. There was no suggestion by or for the applicant that it was not physically possible to follow this route. Nor is there evidence of other material before the review such as to warrant a consideration of reasonableness beyond the objections the applicant raised with the IMR. The reviewer considered issues of the risk to travellers from the Taliban and criminal elements that were raised by the applicant, but was of the view that he could return safely to his home area without facing a real chance of persecution from the Taliban and/or criminal elements and without travelling through Pashtun dominated areas or on insecure routes.
It has not been established that the IMR erred in failing to consider the reasonableness of the applicant’s return to Jaghori. Ground three is not made out.
As neither of the grounds relied on by the applicant has been established the application must be dismissed.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 27 July 2012