FEDERAL COURT OF AUSTRALIA

DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant do pay the first respondent's costs of the appeal to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant is a citizen of Afghanistan. He is a Shia Muslim of Hazara ethnicity. He was born in Ghanzi Province. He fled the area with his family as a young child and lived in Pakistan for 12 years before he came to Australia on a visa. In 2013, he was assessed to be a risk to security and his visa was cancelled and he was detained. In 2015, he applied for a protection visa.

2    In order for a non-citizen to obtain a protection visa, the Minister must be satisfied that he or she satisfies the criteria for the grant of the visa. For present purposes the relevant criteria are to be found in s 36(2)(aa) of the Migration Act 1958 (Cth) often described as the complementary protection criteria. They are expressed in the following terms:

a non-citizen in Australia … in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

3    By operation of s 36(2B) there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

4    Significant harm is defined in s 36(2A) in the following terms:

A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

5    The term 'cruel or inhuman treatment or punishment' is defined in terms that refer to an act or omission by which pain or suffering is intentionally inflicted: s 5(1). The nature and extent of the harm that meets the definition was recently considered by the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. The term 'degrading treatment or punishment' is also defined in terms of intention: s 5(1).

6    So, in general terms, there will be a real risk of significant harm (as defined) if there is a real risk that the visa applicant will be killed arbitrarily or by application of a death penalty or will suffer cruel, inhuman or degrading treatment or punishment that is intentionally inflicted.

7    Putting these matters together, a visa applicant will not meet the complementary protection criteria if the Minister is satisfied that:

(1)    there is a place in the receiving country where there would not be a real risk that the visa applicant would suffer significant harm (in the sense just described); and

(2)    it would be reasonable for the visa applicant to relocate to that area.

8    The appellant's application for a protection visa was refused by a delegate of the Minister. He sought a review of the decision in the Administrative Appeals Tribunal.

The decision of the Tribunal

9    In 2016, the Tribunal (on review of the delegate's decision) found that the appellant did not have a real chance of persecution in all areas of Afghanistan because his chances of being seriously harmed in Mazar-e Sharif, a city in the north of Afghanistan were remote (para 53). This was not the region of Afghanistan where he had been born.

10    The Tribunal then considered whether it would be reasonable for the appellant to relocate to that area (para 101). It concluded 'on the basis of the evidence before it, and having regard to the [appellant's] circumstances overall', that it was satisfied that it would be reasonable for the appellant to relocate to Mazar-e Sharif (para 109). On that basis, the Tribunal upheld the decision of the delegate not to grant him a protection visa.

11    The appellant's application to the Federal Circuit Court for judicial review of the Tribunal's decision was refused.

Grounds of appeal and outcome

12    The appellant now brings an appeal in this Court and raises two grounds.

13    First, the appellant says that the primary judge erred in finding that the Tribunal had considered all of the circumstances relevant to the appellant's relocation to Mazar-e Sharif. Rather, there should have been a finding that the Tribunal failed to bring to account the extent of the chance of the appellant being seriously harmed together with factors personal to the appellant when deciding whether it would be reasonable for the appellant to relocate to Mazar-e Sharif.

14    Second, the appellant says that the primary judge erred in finding that the Tribunal did not have to consider certain matters mentioned in UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (UNHCR Guidelines) when the Tribunal was obliged to consider those matters.

15    For the following reasons, the appeal grounds should not be upheld. As to the first ground, the primary judge correctly found that the Tribunal considered the types of harm that the appellant advanced in support of his claim that it would not be reasonable to relocate. As to the second ground, the primary judge correctly found that the Tribunal considered all the matters particular to the appellant as to whether it was reasonable for him to relocate to Mazar-e Sharif and there was no claim that was otherwise apparent on the materials before the Tribunal that it failed to consider.

Relevant principles

16    The claims made in support of the appeal are not based upon an alleged failure by the Tribunal to afford procedural fairness. Rather, they are claims of jurisdictional error on the basis that the Tribunal did not discharge its statutory task.

17    Recently, in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24], Kiefel CJ, Gageler and Keane JJ explained jurisdictional error in a statutory decision-making process as referring to 'a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking the characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it'. Further, statutes ordinarily are to be interpreted as incorporating a threshold of materiality in the event of non-compliance before there will be a failure to meet the requirements of the statute in a manner that will be jurisdictional: at [29]. The threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if compliance 'could have made no difference to the decision that was made in the circumstances in which the decision was made': at [30]. Otherwise, the merits of administrative action, to the extent that they can be distinguished from legality, are solely a matter for the repository of the relevant power: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36.

18    In considering the review of a refusal of an application for a protection visa, the Tribunal's task 'could not be undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant' as to the circumstances on the ground in the country to which the applicant may be returned: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [38].

19    The Tribunal must deal with claims that are expressly articulated and those which clearly arise from the materials before the Tribunal. This obligation plainly includes a claim raised by the evidence and contentions before the Tribunal which if resolved in one way would or could be dispositive of the review: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [60]-[63].

20    Whether a failure to consider a matter raised in the context of an application for a protection visa goes to jurisdiction 'depends upon the circumstances of the case and the nature of the material; including the cogency of the material and its place in the assessment of the applicant's claims': Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [28] (Rangiah J, Reeves J agreeing).

21    As to those instances where a claim is made that the Tribunal should have considered a claim that arose on the materials even though it was not articulated as a claim by the applicant, the following passage in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J) was approved by the Full Court in Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 at [70]:

Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

22    These general principles have been considered in cases where review has been sought of Tribunal decisions in which an issue has arisen as to whether it would be reasonable for the applicant to relocate to an area of a country where there would not be a real risk of harm.

23    However, before going to those cases, it is necessary to consider the proper approach when considering whether it is reasonable for a person to relocate within a country of citizenship for the purpose of deciding a refugee claim to protection.

24    In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [23]-[24], Gummow, Hayne and Crennan JJ supported a formulation by the Minister to the effect that the 'relocation principle' (at that time to be distilled from the Convention relating to the Status of Refugees rather than the express language now to be found in s 36(2B)) required a consideration as to whether it was reasonable in the sense of practicable for the visa applicant to relocate to a region where objectively there was no appreciable risk of harm. However, their Honours then stated that what is reasonable in the sense of practicable must depend upon the particular circumstances of the applicant and the impact upon that person of relocation of their place of residence within the country of nationality.

25    In Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 French CJ, Hayne, Kiefel and Keane JJ stated at [25]:

The factum upon which the principle of relocation operates is that there is an area in the visa applicant's country of nationality where he or she may be safe from harm. In this matter it was found by the Tribunal that Kabul was such a place. By analogy with the internal relocation principle, given the existence of a place within his country of nationality where the respondent would have no well-founded fear of persecution, it could not be concluded that he is outside Afghanistan and unable to return to that country owing to a well-founded fear of persecution if it could reasonably be expected that he remain in Kabul and not travel outside it. As in SZATV, it is the question of what may reasonably be expected of the respondent which must be addressed.

26    Section 36(2B) was introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) and took effect from 24 March 2012. As we have noted, it included a provision to the effect that there is taken not to be a real risk of significant harm in a country for an applicant if, amongst other alternatives, it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm as statutorily defined. (For completeness, we note that different issues may arise concerning relocation when considering the refugee criterion as it arises under s 5J of the Act and amendments effected by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) but these issues do not arise for consideration in this case.)

27    So, where relocation is being considered in the context of a claim to a protection visa based upon complementary protection as provided for in s 36(2)(aa) of the Migration Act, there are two aspects that arise. Firstly, whether there is an area within the receiving country where the visa applicant will not suffer significant harm. Secondly, whether it would be reasonable for the visa applicant to relocate to that area.

28    As to the first aspect, as already noted at [6] above, there will be a real risk of significant harm (as defined) if there is a real risk that the visa applicant will die or will suffer cruel, inhuman or degrading treatment or punishment that is intentionally inflicted.

29    As to the second aspect, there may be many factors personal to the particular visa applicant which mean that it would be unreasonable for an applicant to relocate to an area even though there is the absence of a real risk of significant harm as defined. In that context, significant harm as defined is confined to quite serious consequences that may befall the visa applicant. So, the fact that it may be concluded that there is not a real risk of significant harm as defined does not mean that the area is safe or that there may not otherwise be quite serious adverse outcomes if the visa applicant was to relocate to that area. Therefore, it is necessary in considering a claim to a protection visa based upon the complementary protection criteria, for the repository of the power determining the application to maintain a clear distinction between the two aspects to which s 36(2)(aa) and the related provisions in (2A) and (2B) direct attention. Further, the risk of harm that does not amount to significant harm as defined may be advanced as part of why it is not reasonable for a particular visa applicant to relocate to a particular area.

30    There have been a number of cases in which consideration has been given to the circumstances in which the failure to maintain the required distinction between the two aspects of a claim based upon the complementary protection criteria may amount to jurisdictional error.

31    In MZACX v Minister for Immigration and Border Protection [2016] FCA 1212, Kenny J considered a claim that there had been jurisdictional error in relation to the approach by the Tribunal when considering the question of relocation in a case where s 36(2B) applied. In MZACX it was claimed that the Tribunal 'had wrongly conflated the question whether there was an appreciable risk of the feared persecution in the putative safe havens [being the places where the visa applicant might relocate] with the question whether relocation to those places was reasonable, in the sense of practicable, given his particular circumstances': at [27]. Reliance was placed upon the decisions in MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; (2012) 206 FCR 191 and MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 where claims of that kind had been upheld.

32    Before the Tribunal in MZACX, the visa applicant had identified a number of matters that were said to make it unreasonable for him to relocate to the putative safe havens that had been identified: at [40]-[42]. Ultimately, on appeal, Kenny J found that there had been a failure to consider separately whether relocation was reasonable having regard to all the circumstances of the appellant's case as advanced and the failure to address that question resulted in jurisdictional error: at [49].

33    In MZACX and in the cases relied upon before Kenny J in that case, jurisdictional error was found because there was a failure to undertake the statutory task which required a consideration of whether it was reasonable to relocate and to do so by reference to the material presented to support the claim. If it had been the case that the Tribunal had undertaken that task but reached conclusions that might be criticised in the sense that they may be conclusions with which a court might disagree, even disagree strongly, that would not provide a basis for jurisdictional review on the basis advanced in the present appeal. The assessment of the merits is entrusted only to the Minister and the Tribunal on review.

Material before the Tribunal concerning relocation

34    In the course of the Tribunal hearing it was suggested that Mazar-e Sharif might be a viable place of relocation for the appellant. After the hearing, a further submission was lodged by the appellant dealing with that aspect (amongst other matters). It did so under two headings; 'Significance of family and social networks' and 'Safety of Hazaras in Mazar-e-Sharif'.

Significance of family and social networks

35    Immediately under the first heading, it was said to be 'the most important consideration'. The appellant then described himself as 'essentially a new-comer to Afghanistan with absolutely no background or links after more than 25 years: different language, different habits, different customs and no local knowledge'. He said 'I would have absolutely no-one to turn to'. He then quoted an expert statement of Prof Monsutti and said that the views were 'precisely in line with the latest UNHCR Guidelines on the viability of relocation in Afghanistan'. The submission then set out the following:

Whether an IFA/IRA is reasonable must be determined on a case-by-case basis, taking fully into account the security, human rights and humanitarian environment in the prospective area of relocation at the time of the decision. In particular, the poor living conditions and precarious human rights situation of Afghans who are currently internally displaced in Afghanistan are relevant considerations that need to be taken into account in assessing the reasonableness of a proposed internal flight or relocation alternative. UNHCR considers that a proposed IFA/IRA is reasonable only where the individual has access to (i) shelter, (ii) essential services such as sanitation, health care and education; and (iii) livelihood opportunities. Moreover, UNHCR considers an IFA/IRA as reasonable only where the individual has access to a traditional support network of members of his or her (extended) family or members of his or her larger ethnic community in the area of prospective relocation, who have been assessed to be willing and able to provide genuine support to the applicant in practice.

36    The emboldened passage was so emphasised by the appellant in his submission. In context, it is evident that the focus of the quotation of the passage from the UNHCR Guidelines was to support a claim that it was not reasonable for the appellant to relocate to Mazar-e Sharif because he would not have networks of family and social support.

37    The submission then quoted other materials to support the importance of ethnic, tribal or family connections. It concluded by stating that '[a] newcomer with no connections cannot count on being supported or protected, let alone embraced'.

Safety of Hazaras in Mazar-e Sharif

38    The appellant's written submissions then dealt separately with matters of safety. In the course of those submissions it was said that against the background of recent Department of Foreign Affairs and Trade (DFAT) information 'it cannot be denied that at face value the centre of Mazar-e Sharif, capital of Balkh province in the far north, seems relatively safe'. It was then submitted that security was not guaranteed very far beyond the city. The submissions referred to some past security-related incidents on roads and an event where insurgents 'had got right to the centre of Mazar-e Sharif in 2011. It included a reference to reports of an increase in attacks that were almost exclusively directed against the national security forces.

39    These submissions were not couched in terms of matters to be weighed together with other factors personal to the appellant as to why it was not reasonable for him to relocate to Mazar-e Sharif. Rather, they were advanced as qualifications to the statement that the city seems relatively safe.

40    Further, the submission was to be read in the context of the appellant's own statement that the 'most important consideration' being advanced by him concerning relocation to Mazar-e Sharif was his lack of connections because it was 25 years since he had lived in Afghanistan and he had left the country as a young child.

Conclusion

41    The submission as to relocation concluded with a summary in the following terms:

Whatever the case in relation to security issues, I would have little hope of survival in Mazar-e Sharif, as an isolated Hazara with no family or community links, with an inevitable reputation as a person who had lived in a Western country for many years and adopted Western ways, with all the marks of foreignness (such as ingrained habits and accent), and facing the likelihood of accusations of apostasy, spying and anti-Afghanistan sympathies. I certainly could not hide and become "low-profile"; my need to register and obtain a new taskera would see to that.

42    It can be seen that the security issues were not presented at the forefront of the submission concerning relocation. Further, it is to be noted that no written submission was presented by reference to any concerns about shelter, essential services and livelihood. As to the UNHCR Guidelines no reliance was placed on other matters in those guidelines which comprise a very long document.

Reasons of the Tribunal

43    In its reasons, the Tribunal dealt with the risk as to whether the appellant would suffer significant harm in Mazar-e Sharif in some detail (paras 38-87). The Tribunal concluded that it was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Migration Act (para 87). The Tribunal then dealt with the appellant's claim based upon complementary protection. It then stated its conclusion that it had found that it would be reasonable for the appellant to relocate to Mazar-e Sharif (para 98). After that it set out its reasons for that finding.

44    The Tribunal's reasoning was as follows:

(1)    it referred to its earlier reasoning concerning the risk of substantial harm (paras 37-80) and on that basis concluded that there would not be a real risk that the applicant would suffer significant harm in Mazar-e Sharif (para 99);

(2)    it then turned to consider whether it would be reasonable for the appellant to relocate to that area (para 101) and began by stating that Mazar-e Sharif is among the most secure areas in Afghanistan and that incidents of violence are uncommon (para 102);

(3)    it is to be noted that the Tribunal considered first (and separately from its earlier conclusion that there would not be a real risk of the appellant suffering significant harm), the security risk and thereby included it in the evaluation as to whether it was reasonable to relocate to Mazar-e Sharif;

(4)    the Tribunal then dealt with evidence that the appellant was young and resilient and had been able to work and run a business in Australia and the evidence from the appellant that he speaks a different accent and does not know the places at Mazar-e Sharif (para 103);

(5)    it found that the appellant is young and literate and while he will face economic challenges his past experience shows that he has acquired skills in a number of fields which will no doubt assist him in his quest to find the means to support himself upon his return (para 105);

(6)    the Tribunal then quoted from the appellant's written submissions to the effect that he had been absent for the past 25 years and if returned would be a new-comer with 'different language, different habits, different customs and no local knowledge' (para 106);

(7)    the Tribunal then stated that the appellant had referred to the opinions of Prof Monsutti and the UNHCR Guidelines (para 106);

(8)    the Tribunal then noted the submission by the appellant that as a new-comer 'with no connection, he would be unable to count on being supported or protected' (para 106);

(9)    it is to be noted that the above reasons by the Tribunal follow precisely the matters raised in written submissions by the appellant (referred to above) and deal with each of them;

(10)    the Tribunal then stated that the UNHCR Guidelines 'identify persons with the applicant's characteristics as having the potential to relocate without external supports, or, as in this instance, reside in Mazar-e Sharif without the support networks referred to' (para 107); and

(11)    the Tribunal then concluded the appellant could subsist without the family network structure that is discussed by the UNHCR Guidelines and the appellant would have a relatively large population of Hazaras living in Mazar-e Sharif among whom he could seek to integrate, finding work and accommodation (para 107).

Appellant's contentions based upon UNHCR Guidelines

45    The submissions advanced for the appellant before the primary judge and on appeal sought to place reliance upon other aspects of the UNHCR Guidelines which were not quoted in the written submissions by the appellant to the Tribunal. A copy of a number of some pages from the UNHCR Guidelines was before the primary judge on the basis that they had been referred to by the Tribunal. However, there was no evidence that the pages relied upon had been presented to the Tribunal by the appellant in support of his submission. The pages included statements to the effect that there should be an assessment of access to shelter in the proposed area of relocation, availability of potable water and sanitation, health care and education and the presence of livelihood opportunities.

46    The passage relied upon in support of submissions before the primary judge and on appeal was not quoted or cited in the submissions advanced to the Tribunal and concerned all areas of Afghanistan that were not affected by active conflict nor controlled by anti-government elements. The information was not particular to the circumstances in Mazar-e Sharif.

47    Therefore, the argument advanced for the appellant was developed by reference to parts of the UNHCR Guidelines that were not quoted in the submission to the Tribunal by the appellant and were part of an extract from a long document which was not presented to the Tribunal by the appellant.

Ground 1

48    As to ground 1, the contention raised was that the Tribunal had failed to undertake the second aspect of its task in evaluating the claim based upon complementary protection criteria. The submission made was that the Tribunal did not consider the appellant's personal circumstances in combination with the fact that there was still a risk of harm (albeit not significant harm as defined) when considering whether it was reasonable for the appellant to relocate to Mazar-e Sharif. Rather, the Tribunal only dealt with his personal circumstances.

49    In the circumstances we have described, this ground should not be upheld for the following reasons. First, the appellant did not advance submissions to the Tribunal on the basis that risks of harm that might be viewed as being less than the substantial harm defined in the Migration Act was a significant part of why it would not be reasonable for him to relocate to Mazar-e Sharif. Second, the submissions made to the Tribunal accepted that Mazar-e Sharif was relatively safe. Third, the Tribunal began its consideration as to whether it was reasonable for the appellant to relocate to Mazar-e Sharif by first considering the question of safety (having already concluded separately that there was no real risk of substantial harm in relocating to the city). Fourth, the materials that were before the Tribunal did not expose a significant separate issue of harm that was less than substantial harm as defined such that a reasonable Tribunal would be expected to consider that lesser harm in discharging its statutory function. Fifth, this was not a case where the appellant had a strong personal association or connection with another place in Afghanistan to which comparison was to be made as part of process of evaluating whether it was reasonable to relocate. Rather, the question was whether the relative safety available in Mazar-e Sharif for a person returning to Afghanistan who had no real close association with any other part of the country meant that the complementary protection criteria had not been met. In that context, the statutory task did not require a comparison with another location in Afghanistan of a kind that might arise in different circumstances.

50    Therefore, the primary judge was correct to find at [57] that there was no suggestion of any residual type of harm or lower levels of harm that remained to be considered by the Tribunal in determining whether relocation was reasonable.

Ground 2

51    Ground 2 alleges that there was jurisdictional error in the failure to consider particular matters in the UNHCR Guidelines. As to the matters the subject of ground 2, the primary judge found, correctly, that issues relating to potable water, sanitation and other topics referred to in the passage from the UNHCR Guidelines relied upon by the appellant before the primary judge (and on appeal) were not mentioned before the Tribunal: at [60]. Further, as the framework set by the particular objections raised concerning relocation did not include those matters, the Tribunal was not obliged to deal with them expressly: at [60]. In the context of the circumstances described above, the matters advanced to support the ground were not raised before the Tribunal and they could not be said to have been an apparent but unarticulated claim that a reasonably competent Tribunal should have appreciated and considered. Accordingly, no error has been demonstrated as to these conclusions by the primary judge.

Conclusion

52    It follows that error has not been demonstrated in the refusal by the Federal Circuit Court of the application for review and the appeal should be dismissed with costs.

Associate:

Dated:    16 October 2018