SZUXT v Minister for Immigration and Border Protection
[2017] FCA 688
•20 June 2017
FEDERAL COURT OF AUSTRALIA
SZUXT v Minister for Immigration and Border Protection [2017] FCA 688
Appeal from: SZUXT v Minister for Immigration and Border Protection [2016] FCCA 2508 File number: NSD 1895 of 2016 Judge: LEE J Date of judgment: 20 June 2017 Catchwords: MIGRATION – appeal from Federal Circuit Court decision – whether primary judge erred in failing to find that the Tribunal had engaged in jurisdictional error by not applying the principles explained in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 – distinguished from SZSCA – held no expectation that the appellant would remain in a specified safe area – appeal dismissed Legislation: Migration Act 1958 (Cth), s 476 Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317
SZATVvMinister for Immigration and Multicultural Affairs (2007) 233 CLR 18
Date of hearing: 17 May 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the Appellant: Mr P Reynolds Solicitor for the Appellant: Fragomen Counsel for the First Respondent: Mr C Lenehan Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 1895 of 2016 BETWEEN: SZUXT
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LEE J
DATE OF ORDER:
20 JUNE 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the costs of the first respondent in relation to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
LEE J:
INTRODUCTION AND BACKGROUND
This is an appeal from a decision of the Federal Circuit Court dismissing an application for review of a decision of the second respondent (Tribunal), which affirmed a decision of the delegate (Delegate) of the first respondent (Minister) refusing to grant the appellant a Protection (Class XA) Visa.
The sole matter that falls for consideration is whether the primary judge erred in failing to find that the Tribunal had engaged in jurisdictional error, by not applying “the principle identified in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317”.
Prior to understanding how this error is said to arise (and in order to provide some context), it is useful to set out, in summary terms, the long procedural history that has preceded this appeal and the nature of the claim for protection.
Procedural History
It was as long ago as August 2012 that the appellant first lodged an application for a protection visa which was refused by the Delegate and which was the subject of an application for review to the Tribunal. A hearing was held in May 2013 and the Tribunal subsequently affirmed the decision of the Delegate. The appellant then applied for judicial review and (following a concession by the Minister that the Tribunal committed jurisdictional error), in December 2013, the Federal Circuit Court quashed the Tribunal decision and remitted the matter to the Tribunal for further consideration.
A differently constituted Tribunal received further submissions on behalf of the appellant and a further hearing occurred in February 2014. Submissions subsequent to the hearing were received in February and April 2014. As noted in [1] above, the Tribunal affirmed the decision of the Delegate to refuse the protection visa on 27 April 2014. Finally, on 30 September 2016, the primary judge dismissed the application for review: [2016] FCCA 2508.
The Claim for Protection
The following, taken primarily from a statutory declaration made by the appellant, summarises the appellant’s claims for protection:
(a)the appellant is a Hazara Shia man from Loman Village (Jaghori, Ghazni, Afghanistan), but he left Afghanistan for Iran when he was ten because his father considered Afghanistan to be too unsafe for Hazaras;
(b)the appellant had lived most of his life in Iran as a refugee, where he was harassed, discriminated against and verbally abused. His family’s refugee cards expired, and he was deported on two occasions (in 2007 and 2010);
(c)following the 2007 deportation, the appellant stayed in Afghanistan for three months before returning to Iran. He alleged he saw with his own eyes the persecution of Hazaras and Shias, and lived in constant fear. He claims his father stayed in Afghanistan and he was later allegedly told by his uncle that his father had been killed by the Taliban;
(d)following the 2010 deportation, after seven or so months, the appellant asserts he encountered the Taliban while travelling from his village to Kabul. They stopped the vehicle that he was in, searched all passengers (who were Hazara), and found a passenger who worked for the Afghan government (who the appellant believes was later killed). The appellant says he was taken to a nearby village where he was beaten and interrogated. He was released but was allegedly told by the Taliban that they would kill him if they saw him again. The appellant contends that this prompted him to leave Afghanistan;
(e)prior to this attack, the appellant claims he was also the subject of an armed robbery on the roads near the area of Qarabagh;
(f)the appellant asserts was easily identified as a Hazara Shia because of his distinct facial features. He contends he was at risk of harm from the Taliban anywhere that he was to live or travel in Afghanistan and that it was unsafe for him to travel in Afghanistan;
(g)the appellant asserts that his brother and brother-in-law have been missing since their return to Afghanistan and that it is possible they have been detained or killed by the Taliban;
(h)the appellant claims the Taliban targets Hazaras, being a group the Taliban believes supports the government and foreign forces.
The submissions lodged on behalf of the appellant both prior to and after the Tribunal hearing reflected these claims.
RELEVANT PRINCIPLES AND SZSCA
Before dealing with the Tribunal’s process of reasoning, and the primary judge’s review of that reasoning, given the confined nature of the appeal (see [2] above), which is solely directed at establishing a failure by the primary judge to identify error in the Tribunal not understanding or failing to apply SZSCA, it is necessary to examine, in some detail, the issues that arose in SZSCA and how they were determined.
In SZSCA, a delegate had refused an application for a protection visa, which decision was affirmed by the Tribunal on the ground that the applicant (the respondent in the High Court) would not face a real risk of persecution if he remained in Kabul, where he had lived. The Tribunal found that the risk of persecution would only arise if the applicant continued to drive a truck transporting materials between other areas in Afghanistan, and that it was not necessary for him to do so to make a living.
The central findings in the relevant Tribunal decision were that the applicant did not have a well-founded fear of persecution in Kabul where:
(a)he had relocated and where his family was living;
(b)he could remain by working as a jeweller, including in his own business; and
(c)work as a truck driver was not a sufficiently “core” aspect of his identity, beliefs or lifestyle which he could not be expected to change.
It was argued by the Minister, contrary to the conclusions reached by both the Federal Circuit Court and the majority of the Full Court, that the findings of the Tribunal were not inconsistent with the principles enunciated by the majority of the High Court in the earlier case of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (which had held that decision-makers are not permitted to impose any requirement upon those seeking protection visas to ‘act discreetly’ in order to avoid persecution).
The Minister’s submissions recognised that the appeal in SZSCA, in effect, tested the application of the principles explained in S395 to cases involving a change of occupation and imputed opinion.
In doing so, the Minister argued:
(a)that driving trucks was not claimed or found to be the expression of a characteristic protected by the Convention Relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (Convention) but rather was simply an activity that caused the applicant to have an imputed political opinion;
(b)having regard to the text and purpose of the Convention, the Tribunal was entitled to approach the matter as it did, and all the applicant needed to do was to change his occupation in a way the Tribunal found reasonable (which was said to be unlike the circumstances in S395).
By way of contrast, the applicant (as the respondent before the High Court) contended that the case was governed by the principles enunciated in S395 and that the Tribunal did not apply those principles. The contention was that the approach urged by the Minister failed to extend protection to all individuals who have a well-founded fear of persecution by failing to protect those who have undertaken conduct that has led to an adverse political opinion being imputed to them and who will engage in conduct, upon their return, which will again attract persecution. It was also asserted that the Minister’s suggested approach of affording a lesser standard of protection where the persecution is for an imputed political opinion, as opposed to other grounds, amounted to an unprincipled dilution of the protection afforded to applicants and that there was no rational basis for differentiating the degree of protection to be afforded by reference to differing Convention grounds.
Two judgments were delivered. That of French CJ, Hayne, Kiefel and Keane JJ and that of Gageler J (in dissent).
In rejecting the contentions of the Minister, the joint reasons relevantly proceeded as follows:
(a)their Honours noted (at 326 [21]) that the “internal relocation principle” is well established and, according to this principle, a person is not a refugee within the meaning of the Convention if he could avail himself of the real protection of his country of nationality by relocating to another part of that country. As the joint reasons explained, the connexion of this principle to the definition of a refugee in the Convention and the conditions for the principle’s application were explained by the High Court in SZATVvMinister for Immigration and Multicultural Affairs (2007) 233 CLR 18, which noted that any principle respecting internal relocation must be distilled from the text of the Convention;
(b)their Honours noted (at 326 [22]) that in SZATV, at relevant times the definition of a “refugee” was drawn into domestic law by s 36(2) of the Migration Act 1958 (Cth) (Act), which provided that the term “refugee” applies to any person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country…” (emphasis added); the joint reasons pointed to the words emphasised as a “causative condition”, which is the textual source of the internal relocation principle.
The joint reasons then explained (at 326 – 327) that if a person could have relocated to a place within their own country where they did not have a well-founded fear of persecution (and to where it was reasonably expected that they could in fact relocate), then the person is outside the country of his nationality because they have made a decision to leave it and seek asylum in another country; it follows that they are not outside their country owing to a well-founded fear of persecution for a Convention reason, and hence not a refugee.
Although Gageler J was in dissent in the result, his views in relation to this matter were not materially different and are expressed at 331 – 332:
39.This case, like SZATV v Minister for Immigration and Citizenship and SZFDV v Minister for Immigration and Citizenship, is concerned primarily with the fourth element of the definition [that is, that a person is outside the country of nationality “owing to” the well-founded fear identified]. The principle for which those cases stand is that the fourth element will be absent, even though the other three elements are present, if it would be reasonable for the person concerned to return to a region within the country of nationality where, objectively, there is no appreciable risk of the persecution of which the person has the fear that is well-founded. That is the principle on which so-called “relocation” or “internal flight” cases turn, though there is no reason to confine the principle to circumstances which involve a region which is different from the region in which the person last lived before leaving the country of nationality. The principle applies to a person who could safely return to his or her home region but not go to another region in the same way as it applies to a person who could safely return to another region but not go to his or her home region.
40.Underlying the principle is a purposive understanding of the causative connection connoted by the words “owing to” within the context of the Convention. The purposive understanding is that a person is not in need of the protection of the international community, for which the Convention provides, outside the country of his or her nationality if it would be reasonable for the person to return to a region within that country where the person would be safe from persecution.
41.Questions raised by the fourth element of the definition are therefore: whether there is a region within the country of nationality in which there is no appreciable risk of the persecution of which the person has a well-founded fear; and, if so, whether or not it would be reasonable for the person to locate within that region on return to his or her country of nationality. (Footnotes omitted)
In SZSCA, the applicant had previously driven on roads between Kabul and Jaghori as a truck driver and the Tribunal found that the risk of persecution would only arise in the area constituted by those roads (where the applicant had previously encountered the Taliban). The Tribunal had also found that alternative employment in Kabul could have been found by the applicant as a jeweller and that he therefore did not need to travel as a truck driver on the route that he had previously undertaken. It followed, so the Tribunal held, that the applicant had failed to satisfy the “causative condition” in the Convention on the basis of an “expectation” that the applicant would remain in Kabul (and not travel outside that city): see SZSCA at [12] – [13], [20] and [29]. It was the failure to ask whether or not this expectation was “reasonable” that the majority found gave rise to jurisdictional error.
As the joint reasons explained at [29] – [33]:
29.The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul. The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach. Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it. An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable.
30.In Januzi, the House of Lords approved the approach of the Court of Appeal in E v Secretary of State for Home Department as to the nature of the test to be applied to determine whether an asylum seeker could reasonably be expected to move to a safe haven within his or her country of nationality – that is, to internally relocate. In the respects relevant to this matter, the Court of Appeal said:
“Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there … Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is ‘outside the country of his nationality by reason of a well-founded fear of persecution’.”
The nature of the test was said to involve “a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker”.
31.In the present case it is not just the living conditions for the respondent in Kabul – and whether he would face a real chance of persecution if he stayed there – which should have been considered by the Tribunal. Rather, it was necessary for the Tribunal to consider the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business. Addressing this question properly may have raised various issues for the Tribunal's consideration. At the least, the question clearly directs attention to the respondent's ability to earn an income from other sources and to his needs and those of his family.
32.The Tribunal did not address this question. It did not address what was necessary to an inquiry whether it was reasonable to expect the respondent to remain in Kabul and not drive trucks outside it. It made one assumption – that the respondent would be able to work as a jewellery maker in Kabul, as he had formerly done in Jaghori. This assumption does not appear to have been put to the respondent for his comment. The respondent had raised concerns about his ability to earn a living if he were to return to Afghanistan, but the Tribunal did not explore this subject with him.
33.This matter does not fall to be decided on grounds of procedural fairness. Even if the Tribunal's assumption were correct, that assumption could not provide a complete answer to the question the Tribunal should have addressed. Without addressing the question whether it would be reasonable to expect the respondent to remain and work in Kabul, having regard to the circumstances in which that would place him, the Tribunal could not make a final determination as to whether he could be said to have a well-founded fear of persecution. Failure to address this question constituted an error of law. (Footnotes omitted)
The point of difference between the joint reasons and that of Gageler J is that his Honour considered that the Tribunal had addressed the reasonableness of the expectation: SZSCA at 335 [50].
Having explained the facts in SZSCA, what was in issue in that case and the principles that emerge from it, I will first turn to the way in which the appellant in this case contends that the Tribunal failed to have regard to those principles (and contends that the primary judge erred in concluding otherwise). I will then deal separately below with the reasoning of the Tribunal and the primary judge, in the process of considering these allegations of error.
THE ALLEGATION OF ERROR
The appellant in his written submissions contends that the primary judge fell into error for reasons which all come back to an alleged failure to apply SZSCA.
First, it is said “the Tribunal plainly misunderstood the law”. The basis of this assertion is that it is said the Tribunal assumed that the relocation principle did not apply to “home area” cases, which is incorrect. It is contended the primary judge distinguished SZSCA in a way “not considered by the Tribunal and … by way of ex post facto explanation rather than reflect[ing] the reasoning process adopted by the Tribunal” (appellant’s submissions at [35]).
Secondly, it is asserted that the primary judge did not correctly identify what was described as the relevant “trigger” for the internal relocation principle. The “factum” that attracted the operation of the principle was simply that there is an area in the visa applicant’s country of nationality where he may be safe from harm. This was, it is said, met in the present case, given that the Tribunal concluded (at [51] of the Tribunal decision) that “Kabul was relatively good and stable”; this reasoning, it is contended, is implicitly premised “on Kabul being the proposed area of safe return” (appellant’s submissions at [31], [36]).
Thirdly, it is said the primary judge (at [28]) found that a point of distinction in the present circumstances was that the Tribunal, in this case, did not assess the appellant’s claims on the basis that he would need to alter his activities. This was said to be a false distinction because SZSCA was not a case “where the Tribunal required the applicant to do something different” (appellant’s submissions at [38]).
Fourthly, it was asserted that the approach of the primary judge reflected the heresy of disposing of the case by simply engaging in a comparison with the facts in SZSCA with the facts in this appeal, and that this approach impermissibly involved identifying “some factual check list” that confines the application of principle (appellant’s submissions at [40]).
As can be seen, the contentions of the appellant are interconnected. This is hardly surprising given the narrow nature of the appeal.
CONSIDERATION
The primary contention of the Minister is that it is a misconception to assert that the Tribunal’s decision involved the application of the internal relocation principle, or, more particularly, the analogous principle identified in SZSCA. It follows that the grounds of appeal proceed on a misapprehension and the appeal should be dismissed.
At the outset of the hearing, I requested further, specific submissions focused on whether or not the Tribunal applied any expectation of the nature identified in SZSCA that the appellant would remain in any particular locality or area. The Minister submits that there is no such expectation in the present case, which is why it can be distinguished from SZSCA. Following the direction of focus to this issue, the appellant accepted that, in order to attract the operation of the principle in SZSCA, not only was it necessary for there to be an identified area in the visa applicant’s country of nationality where he may be safe from harm (as put in the written submissions), but also that it also must be demonstrated that there was “an expectation that the appellant would remain within a particular area, described as a safe area” (T 3) (emphasis added).
This highlights the importance of understanding what is meant by expectation when it is used by the appellant (a matter to which I return below). I pause to note that, in SZSCA, the Court used expectation in the context of framing the question of what may reasonably be expected of an applicant in circumstances when considering relocation, or, in the facts of the case, restriction to a particular area within an applicant’s home country where the applicant could be safe from harm. As explained above, the reason this question arose was because the Court in SZSCA explained: (a) that although the respondent had lived in Kabul, he had not been confined to that area and his work had taken him outside it and the expectation that he now remain within Kabul raised considerations analogous to the internal relocation principle; and (b) the Tribunal had failed to consider the reasonableness of the expectation that the applicant would remain where he would be safe from harm.
Returning to the Tribunal decision in the present case, the key passage for consideration is at [50], which is in the following terms:
As I put to [the appellant], I consider it appropriate to assess his application on the basis that Kabul is his ‘home area’. He left his village in the Jaghori district when he was aged 10 in 1997 and since then he has only been back for three brief visits. At the hearing before the first Tribunal he said that when he had been deported to Afghanistan in 2010 he had been sick of Iran. He said that he had wanted to build a house on the land his father had bought in Kabul, to live in Kabul, to get married there and to pass the rest of his life there. He said that he had wanted to bring his mother and sisters and nephews to live in Kabul. At the hearing before me he was more equivocal about his intentions but he said that he had considered that it was not possible for him to settle in his village because the hospital in Jaghori was not a proper hospital and there were no good teachers at the local school. I find that Kabul is the place in Afghanistan with which [the appellant] has the strongest ties and that it is his ‘home area’ for the purposes of the assessment of his application. No question of relocation therefore arises in this review.
The Minister argues that the above passage represents a factual finding by the Tribunal as to the likely location in which the appellant would reside, were he to return to Afghanistan; it says nothing about the appellant being actually restricted to Kabul (in contradistinction to the position in SZSCA). Mr Lenehan, who appeared for the Minister, submitted that the above finding was based upon the evidence summarised in that paragraph (being the appellant’s previously expressed desire to live in Kabul and the view expressed by the appellant at the hearing that it was “not possible for him to settle in his village” in Jaghori).
The appellant disputes this characterisation of that part of the Tribunal’s reasoning, instead suggesting that “it is part of an illustration that [the Tribunal] was proceeding on the basis that the appellant could be expected to live in Kabul. And this doesn’t rise through [sic] a finding” (T 3).
I now return to how the appellant (in contending the Tribunal failed to apply the principle in SZSCA) used the notion of expectation in oral submissions.
The appellant contends that in describing Kabul as the appellant’s “home area”, the Tribunal was not engaged in the exercise of making a factual finding as to where the appellant will actually live (T 4 – 5). Put another way, he contends that the Tribunal was not making a simple finding as to what was likely to occur in the future based on the evidence before it. Rather, in the appellant’s contention, the Tribunal member was identifying an expectation that the appellant would live in Kabul upon his return to Afghanistan as it was a “safe area” within which the appellant was expected to remain (which, as explained in [31], was how the notion of expectation was used in SZSCA). The appellant contends that, in finding Kabul to be the appellant’s “home area”, the Tribunal was “engaging in the task of identifying an area of safety and considering all of the claims with respect to that area” (T 42). This expectation triggered the application of the principle in SZSCA, that is, the need to consider whether or not it was reasonable to expect the appellant to behave in that way, in all of the circumstances.
I reject this submission. It presupposes that in describing Kabul as the appellant’s “home area”, the Tribunal was doing more than working out where the appellant will actually live, consistently with the case he presented. I accept the Minister’s submission, recorded at [33] above, that the Tribunal’s reasons at paragraph 50, properly characterised, represented a factual finding by the Tribunal as to the likely location in which the appellant would reside, were he to return to Afghanistan. It did not represent a finding of the type made in SZSCA that the appellant would be expected to remain in an area where he could be safe from harm.
Read fairly, paragraph 50 cannot be divorced from the context in which the Tribunal examined the case of the appellant. After dealing, from paragraph 18, with the appellant’s submissions made in the context of his first application, the Tribunal noted, at [26], the submission on behalf of the appellant’s legal representatives that “relocation was not a viable option” for the appellant. At [32] – [33] the Tribunal turned to a discussion of the appellant’s claims. Paragraphs 32 and 33 were in the following terms:
32.At the hearing before me I asked [the appellant] what he had intended to do when he had been deported to Afghanistan the second time. [The appellant] said that he had thought that there had been no life for him in Iran so he had been trying to live in Afghanistan, in Kabul or Jaghori. I asked him if he had in fact considered returning to his village to live. [The appellant] said that on the first occasion he had wanted to live in Kabul and on the second occasion he had wanted to live in his village but neither of these things had happened. I noted that he had said that on the first occasion when he had gone back to his village he had spent only one or two weeks there and that on the second occasion he had spent only three or four days there. [The appellant] said that first he had been thinking of settling in Kabul but then this had not happened. He said that then he had thought of moving to his village and this had not happened either. I asked [the appellant] why he had thought that he could not move to his village. [The appellant] said that he had realised that this was not possible because there was not a proper hospital in Jaghori. I put to him that there was a proper hospital in Jaghori. [The appellant] said that there were not such good doctors there that an illness would be treated properly. He said that there was a school in his village at which people studied to Year 12 but there were no good teachers.
33.I asked [the appellant] where he would live if he returned to Afghanistan now. [The appellant] said that he did not know because he had never thought of this situation. I explained to him that for the purposes of assessing his application I had to look at what might be his home area or his home district in Afghanistan. I put to him that on the basis of the evidence he had given I might consider that Kabul was his home area or his home district. I put to him that this was the area where he had spent most time and it was the area where he had been building a house. [The appellant] agreed. He said that apart from the two incidents which he had described which had happened when he had been travelling between Jaghori and Kabul he had not had any other problems with the Taliban or other similar groups while he had been in Afghanistan. He said that the Taliban had tortured him and had detained him on this one occasion. (Footnotes omitted)
The discussion of the appellant’s claims at paragraph 50 of the Tribunal decision, under the heading “Conclusions” (as extracted at [32] above), represents the Tribunal member’s conclusion following the discussion of his claims. This context explains why the Tribunal member reached the conclusion that no question of relocation arises in the circumstances of the review, which was the way in which the appellant articulated his claims. It followed logically that the Tribunal, having made this finding, also came to the view that “no question of relocation therefore arises” (emphasis added).
The appellant contends that this comment reflects an error of law in that the Tribunal assumed that relocation principles did not apply to “home area” cases, which the appellant contends is plainly an error of law in view of SZSCA (appellant’s submissions at [33]). However, considered in context, it seems to me plain that the comment reflected the fact that the Tribunal dealt with the matter on the basis of the appellant’s claims as to where he would be present in Afghanistan, that is, Kabul. As explained by the Minister at [22] in his written submissions, “nothing said by the Tribunal could be taken to have excluded the possibility that an analogous inquiry might be required in a case in which the Tribunal applied reasoning involving an “expectation” of the kind identified in SZSCA”.
Importantly, having accepted that the appellant would likely live in Kabul upon his return to Afghanistan, the Tribunal also expressly accepted that the appellant might wish to travel from Kabul to his village in Jaghori from time to time: see AB 409 at [41] and AB 418 – 419 at [69] – [70]. The Tribunal then concluded (at AB 419 [70]), having regard to the material before it, that it did:
.... not accept that there is a real chance that [the appellant] will be persecuted by the Taliban or Pashtuns more generally for one or more of the five Convention reasons if he travels from Kabul to his village in Jaghori now or in the reasonably foreseeable future.
As mentioned in [30] above, it was accepted by the appellant, if not prior to hearing then certainly in oral submissions, that in order to demonstrate inconsistency with SZSCA, it would need to be shown that there was, in the present case, an expectation that the appellant would remain within a particular area.
The appellant’s case is that the primary judge failed to identify the Tribunal's error in not asking the question as to whether it would be reasonable to expect the appellant to remain in a particular locality, having regard to the circumstances in which that would place him. However, contrary to the submissions of the appellant, the Tribunal member did not reach his conclusions on the basis of an expectation that the appellant would not travel to other places in Afghanistan (as he previously had done). Put simply, the problem for the appellant’s argument is that the Tribunal clearly did not approach its task on the basis that there was a “safe area” in which the appellant was expected to remain. As the primary judge correctly appreciated, in distinction to SZSCA, the Tribunal did not proceed on the basis that the appellant would “now remain within Kabul”; indeed, on the contrary, as noted above at [41], the Tribunal expressly accepted that the appellant might wish to travel from Kabul to his village in Jaghori from time to time.
At the hearing, consistently with his characterisation of the Tribunal’s decision, the appellant sought to argue that the Tribunal only considered the appellant’s claim with respect to Kabul, and did not properly address his claims with respect to the whole country (T 42 lines 40 – 45). The appellant argued this implied that the Tribunal was proceeding on the basis that the appellant would be confined to what had been defined as the “safe area” of Kabul. Again, I reject this argument on the same basis as explained above; the Tribunal was considering the appellant’s claims on the basis of where he would likely be present in Afghanistan based on his evidence, and did not proceed on the basis that there was a “safe area” within which the appellant was expected to remain.
Returning to the contention the primary judge fell into error for the reasons identified at [23] to [28] above, it is incorrect, for reasons I have explained, to assert the primary judge erred by distinguishing SZSCA. The primary judge did not engage in impermissible ex post facto reasoning in correctly characterising the Tribunal’s finding and pointing out (as I have explained) that the Tribunal did not assess the appellant’s claims on the basis that he would need to alter his activities. Further, his Honour’s analysis of SZSCA did not involve identifying “some factual check list” but rather pointing out, at [28], the differences between the facts found by the Tribunal (which were correctly characterised by the primary judge) and the facts in SZSCA.
CONCLUSION AND ORDERS
For the foregoing reasons, the appellant has failed to establish any error in the way in which this matter was approached by the primary judge, and the appeal must be dismissed. The appellant should pay the Minister’s costs of the appeal.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 20 June 2017
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