FEDERAL COURT OF AUSTRALIA

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the costs of the First Respondent, 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:

Introduction

1    This appeal raises for consideration the question of the duty of the second respondent, the Immigration Assessment Authority (IAA) to consider claims and/or issues that arise from its own findings. In the context of this case, the issue that was said to clearly arise from the IAA’s findings was whether the appellant, if returned to Afghanistan, would be able to find work utilising his particular skill set without disclosing certain previous employment and thereby potentially placing himself at relevant risk. The case also raises an issue as to whether there is a relevant difference between claims raised and issues arising in the course of claims being raised. For the reasons which follow, it is our view that the IAA properly discharged its duties.

Background

2    The appellant aged 28, is a national of Afghanistan and of Tajik ethnicity. He arrived in Australia by boat in December 2012 as an unauthorised maritime arrival.

3    In the Statement of Claims accompanying his application for a Safe Haven Enterprise Visa (SHEV), the appellant spoke generally of his history of receiving threats from the Taliban, but specifically of this arising from his employment, first, as a computer operator for the Independent Election Commission of Afghanistan (IEC) in 2009 and then, secondly, for a foreign company, Dish TV, providing satellite television cabling to foreigners. The appellant’s contention was that his employment had attracted the enmity of the Taliban. Specifically, the appellant claimed that when he commenced employment with the IEC, he was allocated a pseudonym, but that about one and a half months after he started employment, his family received a letter from the Taliban demanding that he leave the IEC. He received another threat by phone and shortly afterwards a work colleague was shot and killed by the Taliban after receiving threats. The appellant claimed that he had not returned to work for almost two weeks after his colleague’s death, changing his phone number and address before doing so. While the appellant experienced a few months without trouble, he then claimed to have received a threatening phone call on his mobile phone from a Taliban member. His father subsequently informed him that one of his colleagues had been taken by the Taliban. The appellant then went to New Delhi for a month and then returned to Kabul, married and left the job at the IEC when told the position was no longer available. He then started working for Dish TV, operating out of Kabul International Airport.

4    A month after commencement at Dish TV, the appellant claimed he received a threat on the phone by two men who said that he was not a Muslim. They told him that it would make no difference whether he continued to work for Dish TV or not because they had decided what to do with him and that if he wanted to stay alive he should join them for Jihad. He returned to India with his wife and found that he could not settle there, so he returned to Afghanistan. With the help of a people smuggler, he left that country and eventually came to Australia. He claimed to fear harm if returned to Afghanistan because of his employment with the IEC and Dish TV and also because he would be a returned asylum seeker from a western country.

5    Documentation submitted with the application included an Amnesty International Report with information that the Taliban were deliberately targeting people associated with the government and that there had been 150 attacks on aid workers over nine months in 2015. The appellant’s supporting documentation also included a Human Rights Watch Report which stated that the Taliban had vowed to kill government officials and Afghans working for aid organisations. The Australian government “Smartraveller” website was also submitted and reported that the Kabul International Airport, and roads leading to it, were often under attack.

6    The appellant’s application was refused on 11 October 2016 by a delegate of the Minister for Immigration and Border Protection and the matter was referred to the IAA by operation of law under s 473CA of the Migration Act 1958 (Cth).

Review by the IAA

7    By a Notification of Decision letter dated 1 March 2017, the appellant was informed that the IAA had decided to affirm the decision of the delegate under review.

8    The IAA accepted that the appellant had worked for the IEC and Dish TV, but because of significant problems with the appellant’s evidence, including the fact that the IAA did not accept that the Taliban had made any threats to him at any time, the IAA did not consider that the employment concerned would pose any difficulty in the future.

9    The findings of the IAA (at [40]-[46]) of its reasons are central:

40.    I find that inconsistencies, and the significant gap in his timeline, are further and separate evidence that these claims are not true. Having regard to my concerns with the implausibility of his actions in the face of these threats, the potential for document fraud in Afghanistan, and the irreconcilable timeframe he has provided, I am satisfied that his claims are not credible and I do not accept that he was ever threatened by the Taliban, or any other group or persons, in connection with his employment with the IEC, Dish or for any other related reason.

41.    The [appellant] claims that after he left the country his father and family were threatened several times by the Taliban. He claims his father was told by the Taliban that as the [appellant] had left the country, he should give one of his younger sons for jihad. The threats were so real that his father took his family to Dubai. The [appellant’s] wife also later [joined] them. As I do not accept the [appellant] was ever threatened by the Taliban, it follows that I do not accept that the Taliban targetted [sic] his family after his departure, or that they fled to Dubai for these reasons.

42.    I have found the [appellant] was never threatened previously for his role with the IEC or Dish. I accept the country information before me which indicates that employees of the IEC working at polls during the election period in 2009 faced significant risk, some losing their lives in attacks. More generally, I accept that within Afghanistan there are credible threats to those that work with international and government organisations, including media organisations. Significantly, the [appellant’s] role with IEC was not at polling stations, but was a non-public role at an IEC office. He did not claim to have ever been at threat at his place of employment, in fact the [appellant] never claims to have been approached or threatened in person at all.

43.    I have found that he was never threatened for his role with IEC or Dish. Nevertheless, I accept that his role with the IEC would have carried some risk, as potentially did his role at Dish. I find those risks were likely mitigated by the low profile nature of his role with IEC (being an internal position) and the short duration of his time with the Dish [sic]. Having regard to the time that has passed since he worked at both places, I find that any limited adverse profile the [appellant] may have had in the past would pose no risk or chance of harm to him on return to the country.

44.    While I accept his work history, I am satisfied that his employment with both organisations has ceased. There was no suggestion in his evidence that he would return to either role. I am satisfied that as a question of fact, the [appellant] would not seek similar employment in the future and this would not involve any modification of his behaviour. Alternatively, I am also satisfied he could take reasonable steps to modify his conduct to avoid any future chance or risk of harm on these bases. He is experienced and has a skillset in computing and technology and I am satisfied he could find work and make a living in an industry entirely unrelated or connected to the media, government or international community.

45.    I find that taking such steps would be reasonable and relatively minor adjustments to his future employment plans. He initially claimed to have been unaware of the full extent of the risks when he commenced work with the IEC, but now understands the potential risks. The [appellant] did not claim to have any broader or ongoing interest in the democratic process or the media. I find there is nothing in his evidence that suggests he would be unable to, or could not or would not want to take such steps. Viewed together, I am satisfied that if the [appellant] took these reasonable steps to modify his behaviour, it would not conflict with a characteristic that is fundamental to his identity or conscience, or require him to conceal an innate or immutable characteristic, or require him to act in any way or do any of the things contemplated by s.5J(3)(c)(i - vi).

46.    Considering all the circumstances, I find that there is no real chance or risk of him being seriously harmed for reasons related to his work with the IEC or Dish, or on the basis of any actual or imputed profile or connection to a media, governmental or international organisation, if he were to return to Afghanistan in the reasonably foreseeable future.

(Emphasis added.)

10    From this it is apparent, that the IAA did consider whether there was any risk to the appellant if he returned to Afghanistan and considered that no real risk existed. The appellant does not suggest that this conclusion was irrational, but it is contended for the appellant that the IAA failed to examine issues squarely raised on its own findings. The way the IAA reached its conclusion was to have regard to:

(a)    independent country information;

(b)    the limited time that the appellant had worked for Dish TV;

(c)    the low profile nature of his role with the IEC;

(d)    the fact that any profile that the appellant had with the Taliban was a “limited adverse” one;

(e)    the lapse of time since the appellant’s departure from Afghanistan; and

(f)    the fact that on his return to Afghanistan, the appellant would not seek any work of a similar nature to that in which he had previously worked, that is, work for entities linked to the media, government or international communities.

11    The IAA further explained its reasons on the basis that it considered it implausible that the appellant knowing:

(a)    the risk to people in his position;

(b)    the Taliban’s alleged ability to find him despite changing his address and phone number; and

(c)    that one of his colleagues had been killed and another had been abducted,

would return to work at the IEC six weeks after being threatened with the Taliban. Further, it considered that there were significant discrepancies in the chronology given by the appellant over the course of his application. The chronological discrepancies and what the IAA saw as implausibilities also affected consideration of his claims to have been threatened while working for Dish TV. That claim was rejected. The IAA rejected that the appellant had in the past been threatened by the Taliban or any other group or persons because of his employment or for any other related reason.

12    The aspect on which the appellant focusses in the appeal is that despite these findings, the IAA found (at [43]) that his employment with the IEC and Dish TV would have carried some risk, and yet, it is said, the IAA failed to go onto deal with an “obvious issue”, namely, whether the appellant could obtain employment in his field without disclosing his previous employment which may thereby expose him to risk of persecution from the Taliban.

In the Federal Circuit Court

13    The appellant’s application for judicial review was heard in the Federal Circuit Court of Australia and dismissed. In addressing the obvious issue ground, the primary Judge said (at [28]-[33]):

28.    It is well established that the AAT consider all claims made by an applicant and the essential component integers of that claim. However, as was made clear in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1, the Tribunal is only required to consider such claims where they either are:

a)    the subject of a substantial, clearly articulated argument line on established facts; or

b)    a claim that clearly emerges from the materials.

It was not suggested that the IAA had any different duty to that of the AAT.

29.    The threshold question is whether the claim (that the [appellant] would not be able to find work utilising his skill set without disclosing his previous employment and therefore putting himself at risk) squarely arose from the materials.

30.    The [appellant] refers to Tharmalingam v The Minister for Immigration [1998] FCA 537 as authority for the proposition that the present claim did arise from the materials. However, I am of the view that Tharmalingam (Supra), while being a proper statement of law, is a different factual case from the present one. In that case, the Tribunal had made a finding about that [appellant] being a “bagman”. Having made that conclusion, the Tribunal was obliged to consider whether that [appellant] feared persecution in the future.

31.    The present case is quite different. While the IAA found that the [appellant] had been employed by the IEC and Dish TV, it did not find that there had been threats made by the Taliban. The IAA did note that there was a risk in such employment. But the [appellant] did not suggest that he might be harmed because he would have to disclose this work history to future prospective employers and did not suggest that he could not obtain employment without disclosing this employment history.

32.    There was no suggestion, or any inference that could be made from the evidence, that any future employers would disclose to the Taliban that the [appellant] had previously been employed by the IEC and [D]ish TV.

33.    The claim, that is now being made, is extremely speculative. The IAA made a finding that the [appellant] had a role with these organisations that was of “a low profile nature”.

14    By way of distinguishing Tharmalingam v Minister for Immigration & Multicultural Affairs [1998] FCA 537, the primary Judge noted that the appellant had not suggested that he might be harmed because he would have to disclose his work history to future employers and did not suggest that he would not obtain employment without disclosing his employment history. His Honour also found that the “claim” that a future employer would disclose his past employment to the Taliban was extremely speculative.

15    His Honour also opined that it was difficult to imagine any position involving computer technology that would not be influenced by western culture and that there was no evidence to support an inference that any work in computer technology would be seen unfavourably by the Taliban. His Honour said (at [35]-[36]):

35.    It seems then that the [appellant] is complaining that the IAA did not consider that, in applying for work in a field that would naturally be an anathema to the Taliban, employers who were running such organisations would need to know about the [appellant’s] previous employment and that such information would be disclosed to the Taliban and thereby put the [appellant] at risk.

36.    Clearly such a scenario does not emerge from the material. This ground therefore fails.

In this Court

16    It is common ground that the issue, which the appellant contends the IAA should have explored, was not expressly raised by him by way of a claim or otherwise. However, the appellant contends that having found the appellant would seek employment in his chosen field and having regard to the probability that it would be necessary to disclose previous employment background, the IAA failed to explore an obvious risk arising, namely, whether such disclosure of work experience could give rise to release of that information to the Taliban and a consequential relevant risk from the Taliban.

The principles

17    By s 473CC of the Migration Act, the IAA is required to “review” the decision referred to it pursuant to s 473CA. In performing its review the IAA is provided the material identified in s 473DB of the Migration Act.

18    It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

    The Tribunal is only required to consider such claims where they are either:

(a)    the subject of substantial clearly articulated argument, relying on established facts; or

(b)    clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).

    These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

(Emphasis added.)

    As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a)    such a finding is not to be made lightly (NABE at [68]);

(b)    the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c)    to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37        While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38        Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)    while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

(e)    understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

19    In this appeal, the appellant argues that while NABE dealt with circumstances in which claims arising from materials before the Tribunal must be considered, the Tribunal must also consider issues which arise from its own findings, which it has already made. There is a special need for this consideration because such findings may not be known to an applicant. Nor may they be predictable during the course of the IAA review and may raise further questions about whether a visa applicant has a well-founded fear of persecution.

20    The appellant relies particularly on Tharmalingam, arguing that the primary Judge incorrectly dismissed the applicability of Tharmalingam. Rather than his Honour’s conclusion as to the threshold issue articulated at [29] of his Honour’s reasons (see [13] above), the proper threshold question, the appellant says, is whether the issue of the visa applicant not being able to find work utilising his skill set without disclosing his previous employment, clearly arose from the materials before the IAA or from the IAA’s own findings.

21    The appellant argues that on a proper application of the principles, where a potential refugee has a well-founded fear of persecution within the meaning of s 5J(1) of the Migration Act for reason of imputed political opinion, much may depend on the way he will conduct himself or herself on return. It is argued for the appellant that the finding by the IAA, that he could be expected to seek employment in the field of computers or technology for an employer unrelated to media, government or the international community, was not a predictable finding and so it is unsurprising that the consequence of such behaviour was not addressed by the appellant in his submissions to the delegate of the Minister or to the IAA. Of course, a practical difference between the procedure before the Tribunal and the procedure before the IAA is that an applicant will not automatically be entitled to a hearing before the IAA to be informed that such a finding may be made. Mr Karp for the appellant submits that (assuming that such employment were available on his return to Afghanistan) the question, which was obvious, was how he could obtain such employment without revealing his past employment. He contends it is unrealistic to think that the appellant would not be required to tell a prospective employer of his previous experience in the field. This was an obvious matter not considered or evaluated by the IAA. The appellant contends that as a matter of common experience and common sense, an employer would ask a prospective employee for a skilled position about his previous employment experience in the field and the appellant, if answering honestly, would be obliged to tell a prospective employer of his experience in government and media. The appellant contends that if “word got around” and if the employer himself was sympathetic to the Taliban, he may place himself in danger. The appellant says that the fact that he may not have a profile with the Taliban now does not mean that he may not acquire one in the future.

Consideration

22    In Tharmalingam, the applicant had been forced to act as a “bagman” for the Liberation Tigers of Tamil Eelam (LTTE) in his capacity as a bank employee. The Refugee Review Tribunal (as the Tribunal then was) accepted that he had acted as a bagman, but did not accept that he had already been persecuted because of that role. Lindgren J found that one of Mr Tharmalingam’s fears was that his role might be discovered. His Honour noted that the Tribunal found it “extremely implausible” that the bank’s officers in Colombo did not know of his activities. Lindgren J held (at 20-21) that the Tribunal was required to consider “in the light of the claims it did accept” whether Mr Tharmalingam’s role as an LTTE bagman may lead to his facing persecution in the future should that role become more widely known, especially to the police.

23    In Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 (at [42]), the Full Court (Mathews, Tamberlin and Mansfield JJ) cited the majority (Wilcox and Madgwick JJ) in Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 to the effect that the Tribunal is required to address all substantial matters which might bear upon whether the applicant meets the criteria for a grant of a protection visa. The Tribunal’s conclusion in that case, summarised (at [10]) of the decision was that Mr Sameh, a stateless Bedoon did not have a well-founded fear of persecution in Jordan. The Full Court observed, however, that the Tribunal had failed to take into account how, in Mr Sameh’s particular circumstances, he would be able to re-enter Jordan at all.

24    In the current case, the delegate found that the appellant had not been personally threatened in the past and that this would not change as he would not otherwise be at any real risk if he were to return to Afghanistan. The appellant then swore, in a statutory declaration, that he indeed had been threatened in connection with his employment at the IEC and Dish TV. Like the delegate, the IAA rejected that those threats had occurred at any time and for any reason. In this reasonably comprehensive statutory declaration, responding to the delegate’s findings, there is no suggestion at all that other employment would not be possible to obtain without revealing not only the previous employment with the IEC and/or Dish TV, but also exposing himself to a risk that prospective employers would reveal his past employment to the Taliban and that the Taliban would respond adversely against the appellant. Unfortunately for the appellant, the IAA’s summary conclusion (at [43]), set out above, namely, “I find that any limited adverse profile the [appellant] may have had in the past would pose no risk or chance of harm to him on return to the country”, disposes of any such possibility even if it had been raised. Having rejected the making of the threats, that was probably sufficient to deal with the appellant’s claims. The IAA went further, however, and said that (based, at least implicitly, on country information) it accepted that the previous employment “carried some risk” (at [43]), but that there was no real risk of harm arising in the future.

25    Tharmalingam is distinguishable as held by the primary Judge. The problem in Tharmalingam was that the Tribunal did not assess whether the applicant could be harmed by the “CID” on account of his imputed political opinion as an LTTE supporter, bearing in mind the Tribunal’s acceptance of his bagman activities and the knowledge by the CID of such matters. The Court concluded that the Tribunal’s approach was erroneous. Lindgren J held that having regard to the findings made, the Tribunal’s failure to address the question as to whether or not he would be harmed by the CID because of his political opinion, was a jurisdictional failure. In our view, this decision is consistent with NABE. It does not extend it. In Tharmalingam, Mr Tharmalingam put forwards claims before the Tribunal and clearly articulated his fear of being persecuted by the CID because of his imputed profile as an LTTE supporter. Even if not clearly articulated, those claims certainly squarely emerged on the materials before the Tribunal.

26    We can accept the appellant’s contention that the NABE principle in relation to claims or issues clearly arising from materials before the Tribunal or IAA would extend to materials which are actually the Tribunal or IAA’s own findings. An unarticulated claim might “clearly emerge” before a decision-maker, having regard to his or her own findings and the material before the decision-maker upon which those findings are reached. This proposition was also accepted by Bromberg J in ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 (at [27]) where his Honour said:

While I respectfully agree that a Tribunal’s obligation to determine a claim extends only to those claims which arise squarely from the materials before the Tribunal, and would also agree that those materials ought to include the Tribunal’s own findings of fact, I consider that the debate misses the point in this case.

27    The appellant also contends that the Minister has failed to distinguish between a “claim” and an “issue”. The point being made is that a “claim” is an assertion of fact made by an applicant (for example, see Htun (at [42])) or one which arises clearly on the evidence before the decision-maker: NABE (at [63]). An issue, on the other hand, is a topic or question to be resolved in determining whether a person meets criteria for a particular visa. In the context of Pt 7 reviews see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (at [47]) and SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 per Flick J (at [22]-[27]).

28    While the appellant says the difference between a claim and an issue is a great deal more than semantic, the Minister submits that on a proper understanding of authorities, it is a difference without a distinction. While it is unnecessary to express a view on this topic for present purposes, we accept that consideration of an issue may well be a different matter from consideration of a claim. For example, an issue in this case might be the issue which the appellant contends the IAA failed to address, whereas the fundamental claim was a fear of persecution from the Taliban for reasons of imputed political opinion. Equally, there are probably other cases where the terms have been used more interchangeably. The distinction, however, on the facts of this case is not of significance because on any view of the matter, the issue which the appellant complains the IAA failed to consider was not an issue expressly raised or squarely arising on the materials before the IAA, including the IAA’s own findings.

29    The appellant in the present instance articulated his fear of the Taliban. He articulated this to be a fear based on the Taliban actually knowing his previous occupations and having threatened him in such a context. He did not, however, proffer a fear of persecution on the basis that were he to return to Afghanistan and seek work (which we accept would be presumed), he would have to disclose his previous occupation to prospective employers (which we also think may be assumed). Further, at no time was there any suggestion that such prospective employers would enable such information to come to the knowledge of the Taliban or that there would be relevant repercussions therefrom.

30    In our view, this cannot be said to be an integer or an issue squarely or clearly arising on the materials before the IAA, either from its own findings or from the claims or facts accepted and advanced by or on behalf of the appellant. The delegate had expressly found that the appellant would not be harmed by the Taliban were he to return to Afghanistan and the IAA made available to the appellant the relevant practice direction stating that he could make submissions as to why the delegate’s decision was wrong. Having made further submissions and made a further statutory declaration, the appellant did not articulate those matters. He was represented by a migration agent before the delegate and before the IAA and, as noted, in such circumstances it is more difficult to persuade the Court an articulated claim has clearly emerged from the materials. The primary Judge was correct to think that there was no reason for the IAA to conclude that the appellant’s future prospective employers would cause information about his former employment to be disclosed to the Taliban. His Honour was correct to note that this was a matter of pure speculation and far from being based on established facts. The established fact was that the IAA had reached the conclusion that “any limited adverse profile the [appellant] may have had in the past would pose no risk or chance of harm to him on return to the country”. This appears to embrace an all-encompassing view that even if the Taliban became aware of his return and his previous employment, on the assessment on the merits of the IAA and for reasons rationally stated, the appellant would still face no real risk of being harmed.

31    The fundamental threshold requirement is that such a claim or issue must “clearly emerge” from such materials. In light of the opportunities that the appellant had to challenge the delegate’s finding that he would be at no risk on return to Afghanistan, there was ample opportunity for the appellant to make clear a particular concern that “might” arise should he seek alternative employment, be required to disclose his past employment history, that history be released to the Taliban and there be a response from the Taliban. Those matters were not articulated. There is no doubt, and nor is it raised on appeal, that the appellant did have an opportunity to raise these matters in support of his claim if they were a concern.

Conclusion

32    For all those reasons, the appeal must be dismissed with costs.

Associates:

Dated:    18 June 2018