FEDERAL COURT OF AUSTRALIA

CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Each party bears its own costs.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a decision of the Federal Circuit Court of Australia, dismissing an application for review of a decision of the Immigration Assessment Authority (Authority) made on 5 May 2017 under Part 7AA of the Migration Act 1958 (Cth) (the Act). In that decision, the Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection refusing the appellant a Safe Haven Enterprise visa.

Background

2    The background facts are set out in detail in the decision of the primary Judge.

3    The appellant, a citizen of Afghanistan, arrived in Australia on 1 November 2012 as an unauthorised maritime arrival. He is a Hazara Shi’a Muslim from Malestan District in Afghanistan. In or around 1995 the appellant’s father was killed by the Taliban while returning from having medical treatment in Pakistan. His mother died from natural causes in or around 2002.

4    From approximately 2008 the appellant worked as a private taxi driver. Around October 2010 he agreed to deliver a package for the principal of a school in Geghtu. During the journey, he was stopped by the Taliban, who found a package which contained books. They accused him of being a teacher. He was detained for three nights during which time he was severely beaten and raped, and forced to watch a fellow detainee being raped. The appellant escaped while the Taliban were at prayers, and fled to Quetta in Pakistan. His family later joined him there.

5    The appellant’s three brothers, who came earlier to Australia, have all been granted protection in Australia. The appellant claimed protection on the basis that he fears torture or death at the hands of the Taliban, Daesh or other groups because they perceive him to be an infidel and supporter of the international community/the West due to being Hazara and Shi’a, because they believed him to be a teacher and because he would be returning westernised as a failed asylum seeker.

Decision of the authority

6    The Authority found the appellant to be generally credible, and accepted his claims regarding his abduction, mistreatment and escape from the Taliban. The Authority further noted the risk the appellant took in carrying a parcel for a school principal through territory in which the Taliban was active. The Authority accepted the appellant’s account of the events, including that the appellant had a profile as an imputed school teacher with the local Taliban in Ghazni at the time of his departure.

7    The Authority questioned the appellant about why he would still be of interest to the Taliban upon his return, noting that the incident occurred in 2010. The appellant stated that the area was unsafe, that the Taliban had a “black list” on which his name would be recorded, and that people in the area would report him to the Taliban for money. The Authority accepted that the Taliban would have their own target list, and further accepted that the appellant held a genuine subjective fear about being on such a list, however:

    Country information did not support that low-profile individuals such as the appellant were traced and targeted throughout Afghanistan.

    The Authority was not satisfied that the appellant had seen or had personal experience of a “black list”.

    There was no evidence that the appellant had been so listed.

8    The Authority observed:

13.     While I accept he may come to the adverse attention of the Taliban in province if he is recognised and his presence is brought to their attention, I do not accept he has been named on a Taliban black list that has resulted in the Taliban looking for him, or that has given him a profile with the organisation nationally.

9    The Authority had regard to s 5H(1) and s 5J of the Act. These sections relevantly provide:

5H Meaning of refugee

(1)     For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well‑founded fear of persecution, see section 5J.

…

5J Meaning of well‑founded fear of persecution

(1)     For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2)     A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

…

(4)     If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)     Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)     In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

10    At [19] the Authority noted:

19.     The applicant originates from Malestan, a Hazara majority district in Ghazni province. I am satisfied on the basis of country information that Hazara Shi’a’s generally do not face a real chance of serious harm within the district itself. However, the applicant would need to travel there from Kabul and he fears that his return would be noticed, particularly as he has been away several years and would be returning westernised, and that informants in the areas will tip off the Taliban about his return for their own financial benefit. He fears he would need to leave the district from time to time for employment and other reasons and that he would face risks both in his area and travelling on the roads outside.

(Footnotes omitted.)

11    The Authority had regard to commentary, analysis, relevant reporting, DFAT assessments and UNHCR advice, and found at [20] that the appellant faced a small but real chance of serious harm through being kidnapped and/or killed or subject to physical ill-treatment by insurgents in, or in accessing, his home region.

12    The Authority next observed that s 5J(1)(c) required that the real chance of persecution must relate to all areas of a receiving country, and stated that, in that regard, it had identified another place within Afghanistan with a substantial Hazara population where the appellant could reside without a real chance of persecution, namely Mazar-e-Sharif, the capital of Balkh province. The Authority examined information relating to the political and security situation in Afghanistan, in particular Balkh province, including the presence of insurgent groups such as Islamic State and the Taliban in that area. Specifically, the Authority noted:

38.     I accept the Taliban continue to remain a significant force and present security risks throughout parts of the Hazarajat and other vast tracts of Afghanistan. I have had regard to the representative’s concerns about Taliban’s historical animosity and past persecution of Hazara Shi’as and the effectiveness of authorities providing durable state protection, particularly in light of recent events. In Balkh Province there are high confidence Taliban support zones and Taliban activity and government forces have been engaged in clearance operations. However recent security incidents in Mazar-e-Sharif have been infrequent and have also been generally targeted against government or international community institutions. I am satisfied that their recent attacks in Mazar-e-Sharif have been occasional and had no sectarian motivation. I am satisfied that the applicant does not currently hold such a pro-government/pro-security forces or international community profile, nor any proximity to persons who do, or locations that do, and nor is there information to suggest he would upon return.

(Footnotes omitted.)

13    The Authority concluded at [42] that the appellant did not face a real chance of serious harm in the reasonably foreseeable future from anti-government bodies or others in the Afghan society on the basis of being Hazara and/or Shi’a in Mazar-e-Sharif.

14    At [44] the Authority considered whether the appellant would face a real chance of persecution in Mazar-e-Sharif on the basis that he had been detained and harmed by the Taliban as an accused teacher, as a failed asylum seeker from Australia, and as a person with immediate family in Australia. The Authority referred to country information which indicated that anti-government bodies in Afghanistan systematically targeted civilians associated with the government or the international community, however in relation to the appellant the Authority noted at [45]-[46] that:

    The incident in which he was harmed by the Taliban was a single occasion and the only time the appellant claimed a personal interaction with the Taliban.

    The appellant was stopped by the Taliban on a road in a particularly volatile area of Ghazni province.

    The appellant is not a teacher or education advocate, and has no connection to schools in Afghanistan.

    There is no evidence that the Taliban came searching for the appellant in his home area or that they harmed or questioned his family.

    It has been a six and half year passage of time since he left Afghanistan.

    While country information indicates that the Taliban have the capability to track people to other locations, its targets are of higher profile than the appellant.

15    The Authority noted at [48] that Mazar-e-Sharif has a tradition of high educational standards, literacy is well regarded, and it is a university town, and further that there is no evidence of any schools, universities or actual or imputed students or teachers being targeted in Mazar-e-Sharif.

16    In relation to the question of whether the appellant could be targeted on returning to Afghanistan as a returnee/failed asylum seeker from a Western country, the Authority noted that there had been no reports of individual returnees being targeted since two sporadic incidents in 2014 (at [51]). The Authority had regard to DFAT assessments in this respect, and accorded this reporting significant weight.

17    At [52] the Authority observed:

52.     I am satisfied that the applicant is of no specific interest to AGE’s such that he would be personally targeted in Mazar-e-Sharif. I am also not satisfied the applicant would have requisite proximity to persons with a direct connection to the government or international community as to give rise to a real chance of serious harm. I am not satisfied that in a major urban area like Mazar-e-Sharif, which has a diverse ethnic population and has seen growth from returnees and Internally Displaced Persons (IDPs) over the year, that the applicant would face a real chance of being seriously harmed as a Hazara Shi’a returnee failed seeker from the west after having several years living in Australia even taking into account that he has family residing in Australia and would be returning with western mannerisms or appearance. I am also not satisfied he would otherwise face serious harm for any actual or imputed association or connection with the government/international community/the west.

18    At [53] the Authority accepted that the appellant would face some societal discrimination at the community level against Hazaras and returnees from the west, however it was not satisfied that this would amount to persecution. In particular at [55] the Authority observed:

55.     However, country information does not support that persons with the applicant’s profile are denied basis services or a capacity to earn a livelihood. While I accept he faces a difficult situation upon return, Mazar-e-Sharif is one of the biggest commercial centres and the more stable security and greater economic opportunities will be conducive to the applicant’s ability to find shelter, employment and the basic necessities. He has experience working on the family farm and as a driver and in a tiling company in Australia. Information indicates that even with the withdrawal of international presence, manufacturing and construction are among the top five sectors of employment in Afghanistan. The applicant has industry relevant skills, he is able-bodied and of working age. Even noting the pressures on Afghanistan from IDPs or returnees from other countries and the nepotism discussed above I am not satisfied that the applicant’s capacity to subsist will be threatened. I am not satisfied that the applicant will face discrimination which will threaten his capacity to subsist, nor that it will manifest in any other way that would constitute serious harm within the meaning of s. 5J of the Act.

(Footnotes omitted.)

19    The Authority accepted at [56] that the appellant had been brutally and sexually harmed while detained by the Taliban, and that his fears of returning were genuine notwithstanding that there was not a real chance that he would be harmed by the Taliban or similar entity in the future. However the Authority noted that no medical information had been provided about the appellant’s mental health, and that it would be speculative to conclude on the evidence that the appellant could develop mental health problems on his return.

20    The Authority accepted at [58] that Mazar-e-Sharif, like all of Afghanistan, would be affected by a high level of serious crime, and that police capacity to maintain law and order was limited. However the Authority was not satisfied that protection would be withheld from the appellant, and DFAT did not report that violent crime levels were such as problem in Kabul or other urban areas so as to be a significant risk for returning Afghan nationals, including returnees from the West.

21    The Authority was satisfied at [59] that the appellant would be able to safely and legally access Mazar-e-Sharif by air after being returned to Kabul airport, and, although there had been attacks in and around Kabul airport and on the road to Kabul, the appellant need not spend more than a brief period of time in Kabul. Further there was a strong military presence in Kabul and Mazar-e-Sharif.

22    The Authority concluded:

60.     On the evidence before me, I am not satisfied that the applicant faces a real chance of being killed or otherwise suffering serious harm in Mazar-e-Sharif in relation to his previous imputed teacher profile, for his Hazara Shi’a race and religion, because he has lived outside Afghanistan for several years including in a western country such as Australia where he has resident family members and where he also sought asylum, has become westernised and adopted western mannerisms and appearance, nor for any actual or imputed connection with or support for the Afghan government, western or international community (or any contrary imputed opinion of being anti-Taliban/Islamic State/AGE). I have had regard to the fact that Mazar-e-Sharif is a place he has never resided and has no identifiable links and would need to travel there from Kabul. I have also considered the risks from generalised violence and criminality. However I am not satisfied that these various factors, nor any other circumstances of the applicant would individually or cumulatively, lead to a well-founded fear of persecution in Mazar-e-Sharif, or in accessing that city in reasonably foreseeable future upon return.

Refugee: conclusion

61.     The applicant does not meet the requirements of the definition of refugee in s.5H (1). The applicant does not meet s.36 (2)(a).

23    The Authority then considered whether the appellant was entitled to complementary protection within the meaning of s 36(2)(aa) of the Act on the basis that he would suffer “significant harm” as defined by s 36(2A) if he were removed from Australia to a receiving country (namely Afghanistan). The Authority noted its findings including that the appellant did not face a real chance of being killed or otherwise suffering serious harm in Mazar-e-Sharif in relation to his previous imputed teacher profile, for his Hazara Shi’a race and religion, because he had lived outside Afghanistan in a western country, or for any imputed opinion (at [66]). The Authority noted the appellant’s submissions concerning relocation to Mazar-e-Sharif including that the city did not offer durable safety, that it was not reasonable for him to live in a city he could only leave by plane, that he had never lived or worked in a large city and had never been to Mazar-e-Sharif, that he would not have family support or societal networks, that Hazaras were the minority group, that there was high unemployment and a high cost of living in that city, that he had a family which was dependent on him, and that he would be in a comparable position to internally displaced persons and would become destitute. The Authority had regard to UNHCR information and advice and concluded that although the appellant could face difficulties living in Mazar-e-Sharif he would be able to overcome those difficulties because he was resourceful, resilient, and had successfully lived apart from his family and settled in unfamiliar places (at [73]). The Authority was satisfied that it was reasonable for the appellant to relocate to Mazar-e-Sharif, being an area of Afghanistan where there is not a real risk that the appellant will suffer significant harm.

Decision of the Federal Circuit Court

24    Before the primary Judge the appellant relied on two grounds of review, namely:

(1)    the Authority erred in misconstruing or misapplying the test of whether it was reasonable for the applicant to relocate within Afghanistan; and

(2)    the Authority erred in failing to consider whether the completion of the withdrawal of international troops from Afghanistan would mean that the applicant faced a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future.

25    Each of these grounds of review included extensive particulars.

26    In respect of the first ground, the primary Judge noted the appellant’s submission that the Authority had made the type of error identified in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 (MZACX), and had, in substance, treated as conclusive the proposition that the appellant would not face a real chance or real risk of serious or significant harm in determining whether it was reasonable to relocate. His Honour rejected this submission, and said:

49.     The Authority’s reasons are not to be read with a keen eye for error. I do not accept that the Authority conflated the issue of reasonable relocation in the way that was identified in MZACX. The Authority’s reasons reflect a correct identification of the relevant law in respect of complementary protection and the Authority was entitled to take into account the findings made in respect of the Refugee Convention in determining the issue of complementary protection and whether it was reasonable for the applicant to relocate.

50.     It was not necessary for the Authority to make a finding that it was reasonable for the applicant to face the risk of harm that that [sic] existed in Mazar-E-Sharif as an express finding in relation to the reasonableness of relocation. It is however, apparent that the Authority took into account the findings made by the Authority in determining the reasonableness of relocation and the Authority was entitled to do so.

27    His Honour also rejected the submissions inherent in ground 1(d)(i) and (ii).

28    In relation to the second ground of review, the appellant referred to material which identified a risk of withdrawal of international troops from Afghanistan, and argued that the withdrawal of international troops was an integer of his claim that had to be the subject of an express finding. As the Authority had failed to make such a finding, it had failed to complete its statutory task of review. In relation to this ground Honour said:

56.     On a fair reading of the Authority’s reasons as referred to above, the Authority subsumed the applicant’s claimed fear of troop withdrawal in its finding in relation to government control in Mazar-e-Sharif.

57.     This is not a case where it should be inferred that the Authority has failed to take into account an integer of the applicant’s claims in relation to the withdrawal of troops. In fact, the Authority’s reasons expressly refer to the withdrawal of troops twice in the findings made by the Authority. Accordingly, no jurisdictional error as mentioned in ground 2 is made out.

Amended Notice of Appeal

29    The appellant appeals the primary judgment on the following three grounds:

1.    The FCCA constructively failed to exercise its jurisdiction in relation to, or failed to give sufficient reasons for dismissing, each ground of the application that was before it.

Particulars

a.    In relation to each ground of the application before the FCCA, the FCCA’s reasons for dismissing the ground suffer from some or all of the following deficiencies (primary judgment [47]-[58])

i.    stating significant conclusions for which no, or insufficient, reasoning is provided;

ii.    mischaracterising submissions that were put to the FCCA;

iii.    failing to respond to submissions that were put to the FCCA.

2.    The FCCA erred in failing to find that the second respondent (Authority) had made an error akin to that identified in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 (MZACX)

Particulars

a.    The Authority accepted that the applicant was a Hazara Shi’a: Authority’s decision [10].

b.    In answer to the Authority’s request for comments on information that was said to be relevant to whether it would be reasonable for the appellant to relocate to Mazar-e-Sharif, the appellant submitted that:

i.    the environment in Mazar-e-Sharif was “increasingly dangerous”;

ii.    country information showed that there had been many security incidents, including incidents involving deaths, in Mazar-e-Sharif in 2015;

iii.    the region was unstable for Hazara Shia;

iv.    as a Hazara Shia who was not from Mazar-e-Sharif, the appellant “would face a threat o serious harm in Mazar-e-Sharif;

v.    observations that the security and risk o serious harm in Mazar-e-Sharif was better than in the appellant’s home area or in Kabul did not sufficiently answer the question of whether it was reasonable for the appellant to relocate to Mazar-e-Sharif.

c.    The Authority

i.     accepted that the security situation in Afghanistan remained fluid and had declined nationally in 2015 and 2016: Authority’s decision [57]; and

ii.    accepted that attacks that affect civilians occur within Mazar-e-Sharif: Authority’s decision [57]; but

iii.    found that the appellant did not face a real risk of serious harm or a real chance of significant harm in Mazar-e-Sharif: Authority’s decision [60], [69].

d.    The Authority found that it was reasonable for the appellant to relocate to Mazar-e-Sharif: Authority’s decision [78]. In doing so, the only consideration given to the risk of harm that the appellant might face in Mazar-e-Sharif, and whether this bore upon whether it was reasonable for the appellant to relocate, was at [77] of the Authority’s decision where the Authority said “I note that insecurity has affected Mazar-e-Sharif, however, I found that such incidents were infrequent and that the applicant would not face a real chance or real risk of serious or significant harm on the basis of targeted harm or generalised violence or criminality either within the city or while accessing it upon returning”.

e.    In light of the above, particulars, the FCCA should have found, contrary to primary judgment [47]-[53], that the Authority had erred in a manner akin to that identified in MZACX.

3.    The FCCA erred in finding that the Authority had considered the appellant’s claim, or an integer thereof, to fear harm consequent upon the completion of the withdrawal of international troops from Afghanistan.

Particulars

a.    The appellant claimed that the security situation in Afghanistan was deteriorating, that it would get worse when international troops withdrew completely, and that the completion of the withdrawal would result in the Taliban having free reign.

b.    There was country information, in the form of a Department of Foreign Affairs and Trade Country Information Report, and a paper by the Institute for the Study of War, that supported the appellant’s claim.

c.    The Authority’s decision does not include any reference to the possibility that the security situation in Afghanistan might deteriorate once international troops had withdrawn completely, or whether the appellant face a real chance of serious harm or a real risk of significant harm in the foreseeable future on that basis.

d.    The only references in the Authority’s decision to the withdrawal of the international presence from Afghanistan are references made in the context of discussing the impact of that withdrawal on the economic situation in Afghanistan: Authority’s decision [55], [75]; cf primary judgment [57];

e.    In light of the above particulars, the FCCA should have held that the Authority had failed to consider whether the appellant faced a real chance of serious harm or a real risk of significant harm in the foreseeable future consequent upon the completion of the withdrawal of the international troops.

(Amendment formatting omitted.)

submissions of the parties

30    The appellant criticised, in detail, the reasons of the primary Judge as inadequate and conclusionary. Further, the appellant submitted that, at [51], the primary Judge rejected a submission that was never made.

31    In relation to ground 1, however, the Minister submitted that the findings of the primary Judge, in essence, reflected the Minister’s submissions at first instance, namely that the Authority’s reasons had considered all the risk of harm to the appellant when considering whether it was reasonable for him to relocate to Mazar-e-Sharif, and, having taken into account all of those earlier findings, the Authority need do no more. In relation to the withdrawal of troops, the Minister submitted that the primary Judge’s reasons constituted the “short” answer to this ground of appeal, namely that because the Authority found that the Afghan government would maintain effective control in Mazar-e-Sharif in the reasonably foreseeable future, the Authority was therefore not obliged to specifically address the general claim about withdrawal of international troops from Afghanistan when considering Mazar-e-Sharif. To that extent, the claim concerning withdrawal of international troops was subsumed by the findings of the Authority, and the primary Judge. The Minister also submitted that the Authority had taken into account “withdrawal of international presence”.

32    In relation to ground 2, the appellant submitted that the only part of the reasons of the Authority on the reasonableness of relocation to Mazar-e-Sharif was at [77], where the Authority simply referred back to its previous findings that there was no real chance or real risk of serious or significant harm, and said nothing about lesser risks of harm.

33    The Minister submitted that ground 2 fails because, on a fair reading of its reasons, the Authority had taken into account its previous findings about the risk of harm to the Appellant in Mazar-e-Sharif when considering the reasonableness of his relocation there within s 36(2B)(a).

34    In relation to ground 3, the appellant submitted that the Authority failed to consider whether the appellant faced a real chance of serious harm, or a real risk of significant harm, in the reasonably foreseeable future on account of the upcoming completion of the withdrawal of international troops. The appellant submitted further that there is no reference to the appellant’s claim, and no express consideration of it, in the decision of the Authority – only a reference to the economic effect of the withdrawal of the international presence.

35    The Minister submitted that the appellant raised no specific concern about the withdrawal of international troops when asked by the Authority to comment specifically on relocation to Mazar-e-Sharif, as opposed to concerns about his safety there. The Minister also relied on the decision in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 (CPE15) at [63] as authority for the proposition that a finding as to government forces remaining in control subsumed a contention as to the effect of withdrawal of international forces.

Consideration

36    The grounds of appeal fall into two broad categories.

37    In ground of appeal 1, the appellant claims inadequacy of reasons on the part of the primary Judge, referable to the grounds of review before his Honour. Those grounds of review are, in substance, reagitated as grounds 2 and 3 of this appeal.

38    In grounds of appeal 2 and 3, the appellant claims jurisdictional errors on the part of the Authority, and failure of the primary Judge to address these jurisdictional errors. The claimed errors of the Authority relate to the complementary protection claims of the appellant pursuant to s 36(2)(aa) of the Act (in respect of grounds 2 and 3) and to the protection claims of the appellant pursuant to s 36(2)(a) (in respect of ground 3).

Ground 1

39    It is a fundamental principle that adequate reasons must be provided by judicial officers in respect of orders given in the course of the judicial process: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641 (DAO16) at [47]. It is a heavy obligation, ensuring that, where appropriate, those reasons may be submitted to appellate consideration: Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99 at [71]. The meaning of “adequate” will, of course, vary depending on the facts – and complexity – of the particular case. Recently, in DL v The Queen [2018] HCA 26; (2018) 92 ALJR 636, the High Court explained:

33.    At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:

“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”

(Footnotes omitted.)

40    The decision of the primary Judge in this case was ex tempore. As Mason P observed in Maviglia v Maviglia [1999] NSWCA 188 at [1], an ex tempore judgment should not be “picked over” and appropriate allowance should be given for the pressures under which judges are placed by the volume of cases coming before them: see also Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 at [28], Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108; (2015) 235 FCR 464 at [57], BKL15 v Minister for Immigration and Border Protection [2016] FCA 802; (2016) 241 FCR 450 at 455-456, [16]. With this in mind, we turn to the reasons given by his Honour in rejecting the grounds of review before him.

First ground of review

41    The first ground of review before the primary Judge was set out in full at [46] of the primary judgment. As we noted earlier in the judgment, fundamentally the appellant claimed that the Authority misconstrued or misapplied the test of whether it was reasonable for the appellant to relocate within Afghanistan.

42    Primarily, the appellant claimed that the Authority had failed to follow the two-step process set out by Kenny J in MZACX. The transcript of the hearing before the primary Judge shows that Counsel for the appellant made extensive submissions relating to MZACX. We note, for example, the following exchange:

HIS HONOUR: What you’re saying is that it’s necessary to take into account on this decision the risk of harm, albeit remote, in determining reasonableness of relocation.

MR MOSTAFA: Yes, your Honour. And it’s not enough to say, “Well, there’s a risk of harm, but it’s remote,” and give no further consideration, because this decision makes it clear that the fact that harm is remote isn’t the end of the relevance of that harm to a question of the reasonableness of relocation. And that point is most clearly made, your Honour, but what’s said by her Honour at the end of paragraph 49. Her Honour says:

The tribunal’s failure to consider whether relocation was reasonable having regard to all the circumstances of the appellant’s case including whether the appellant faced a risk of harm in these cities by reason of his religion or ethnicity. The failure to address this question resulted in jurisdictional error.

So her Honour has pointed to a failure to consider a risk of harm by reason of religion or ethnicity. That is the exist [sic] harm or the exact risk of harm that the tribunal in that case had earlier said was remote, was not real.

(Transcript page 9 lines 15-29)

43    Later the following exchange occurred:

MR MOSTAFA: And can I say, the purpose of taking your Honour to these is merely to illustrate that on the holdings of the IAA, the material before it, it is clear that there is some risk of harm in Mazar-i-Sharif, albeit the IAA concluded it was remote.

HIS HONOUR: Yes.

MR MOSTAFA: That’s all.

HIS HONOUR: Yes.

MR MOSTAFA: I don’t need to take your Honour to paragraph 63 to 69, but in those paragraphs there was consideration of whether the applicant faced a real risk of significant harm in Mazar-i-Sharif, and it was concluded that he did not. And it’s from paragraph 70 to 78 that the IAA then turns to what Kenny J identified as the second question. It’s found that there isn’t what her Honour called an appreciable risk of harm in Mazar-i-Sharif, and it now turns to consider whether it’s reasonable that he relocate there. And in that sense one looks to see, what is said by the IAA about the risk of harm in Mazar-i-Sharif. In my written submissions, your Honour, I said that there was only one paragraph in there which…I will get the wording right…

HIS HONOUR: Which paragraph are you submitting is this?

MR MOSTAFA: This is paragraph 18, your Honour. I said that the only discussion by the IAA of the risk of harm to the applicant is at 77. I suppose technically that’s not correct. It should be broadened to 78, but that won’t impact on anything.

(Transcript pages 11-12)

44    Importantly this led to the following:

HIS HONOUR: Just the reference you’ve taken me at 77 identifies clearly, taking into account on one view the finding that has been made as to a risk of harm, because that’s what’s being referred to, isn’t it? So what makes it difficult to say that the tribunal didn’t take it into account in considering relocation. Isn’t that what’s being referred to in 77?

MR MOSTAFA: The tribunal takes into account its earlier finding that there is a risk of harm, the risk of harm is remote. That is all.

HIS HONOUR: But, Mr Mostafa, what is has done, though, is taken that into account in the context of having identified a much broader series of considerations starting in paragraph 70 and, in particular, I guess, the submissions relating to Mazar-i-Sharif and Durable Safety referred to in paragraph 70, and in particular the focus on the submissions on behalf of the applicant to the authority when invited to address relocation on UNHCR guidelines, and why isn’t what’s in paragraph 77 a taking into account o the finding in determining reasonableness of relocation?

MR MOSTAFA: There’s three points, your Honour. One, insofar as this is said to respond to the submission that’s made, the submission that’s made regarding the security of Mazar-i-Sharif – insofar as that is going to be relevant to the questionableness of the reasonableness of relocation, is risks that are remote that matter. Because by only answering the question of reasonableness, if there’s no appreciable risk. Yet the answer that’s given to that submission is, well, those are remote. Well, we already knew that. And just as in MZACK, where the tribunal said, well, these are remote, and I find it’s reasonable for you to relocate – they made that finding in the context of, as I took your Honour to, having considered things like family, the ability to find work and so on, as the IAA did in this case. Kenny said that’s not enough; that’s an error.

HIS HONOUR: But it would be an error not to take into account the finding in relation to the risk of harm, wouldn’t it? Isn’t that…?

MR MOSTAFA: It needs to go further, your Honour. It needs to say more than just you say you’re worried about the risk of harm; I say the risk of harm is remote. It needs to be more than that. And in this case, the language of the sentence in question makes it quite clear that the IAA proceeded on the basis that to say the risk of harm is remote is as far as it needs to go. It says:

I note the insecurities affecting Mazar-i-Sharif. However, I found such instances were infrequent and the applicant would not face a real chance or real risk of serious or significant harm

That’s not an answer. It’s not a complete answer. It’s not enough. And I think that – sorry, in my submission Kenny Js decision makes that quite clear.

(Transcript pages 12-13)

45    Counsel for the appellant then submitted that, as claimed in ground of review 1(d)(ii), the focus of the Authority’s decision at [77] was not on the risk of harm generally, but rather on the question “whether the risk of harm is real or not, whether it’s remote or not.”

46    In dealing with these submissions, his Honour said:

47.     Mr Mostafa of counsel who appeared for the applicant contended that the Authority had made two errors in relation to considering the reasonableness of self-relocation as formulated in ground 1(d)(i) and (ii).

48.     Mr Mostafa submitted that the Authority had made the type of error identified by the learned Kenny J in MZACX v the Minister for Immigration and Border Protection [2016] FCA 1212 (“MZACX”). Mr Mostafa submitted that the Authority had in substance treated as conclusive the proposition that the applicant would not face a real chance or real risk of serious or significant harm in determining whether it was reasonable to relocate.

49.     The Authority’s reasons are not to be read with a keen eye for error. I do not accept that the Authority conflated the issue of reasonable relocation in the way that was identified in MZACX. The Authority’s reasons reflect a correct identification of the relevant law in respect of complementary protection and the Authority was entitled to take into account the findings made in respect of the Refugee Convention in determining the issue of complementary protection and whether it was reasonable for the applicant to relocate.

50.     It was not necessary for the Authority to make a finding that it was reasonable for the applicant to face the risk of harm that that existed in Mazar-E-Sharif as an express finding in relation to the reasonableness of relocation. It is however, apparent that the Authority took into account the findings made by the Authority in determining the reasonableness of relocation and the Authority was entitled to do so.

51.     In relation to ground 1(d)(i), I reject the submission that the Authority treated the issue of whether the applicant faced serious or significant harm as conclusive in determining reasonable relocation. No jurisdictional error as alleged in ground 1(d)(i) is made out.

52.     In relation to ground 1(d)(ii), Mr Mostafa submitted that the Authority had failed to consider whether a risk of serious or significant harm that was remote impacted upon whether it was reasonable for the applicant to relocate as on a fair reading, the Authority’s reasons reflect the taking into account as expressly referred in the reasons of the Authority as summarised above, the findings under the Refugee Convention.

53.     The Authority’s reasons in paragraph 77 must be read in context of the whole of the Authority’s reasons concerning reasonableness of relocation. There was no failure by the Authority to take into account the risk of serious harm or significant harm in determining whether it reasonable for the applicant to relocate as contended in ground 1(d)(ii). No jurisdictional error as alleged in ground 1 is made out.

47    It is important to read the primary Judge’s reasons fairly, however it is also important that those reasons be comprehensible and coherent.

48    At [48] the primary Judge recognised the appellant’s argument based on “the type of error identified by Kenny J” in MZACX. However, the explanation given by his Honour at [49] for why the Authority did not “[conflate] the issue of reasonable relocation in the way that was identified in MZACX” is difficult to understand.

49    If his Honour meant that, although the Authority identified possible risk of significant harm to the appellant from relocation to Mazar-e-Sharif, but found that risk was remote, and it therefore followed that the Authority considered that it was reasonable that the appellant should relocate to Mazar-e-Sharif, his Honour did not say so. Even if that were his meaning, a bald statement to that effect would not adequately deal with the detailed submissions of the appellant which directly challenged a finding to that effect.

50    His Honour observed at [49] that the Authority “was entitled to take into account the findings made in respect of the Refugee Convention in determining the issue of complementary protection and whether it was reasonable for the applicant to relocate”. This, however, was a conclusion rather than an informed response to the claim of the appellant that the Authority had actually failed to consider the issue of reasonableness in the context of s 36(2)(aa). Stating a conclusion, without an evident and intelligible justification, does not satisfy the requirements that adequate reasons must be given: DAO16 at [48].

51    Further, and notwithstanding the observation of his Honour at [50] of the primary decision, it is not immediately apparent what findings his Honour considered the Authority took into account in determining the reasonableness of relocation of the appellant to Marzar-e-Sharif. As the appellant submitted, if it was the finding that the risk of harm to the appellant was remote, this finding without further analysis did not engage with the submissions of the appellant referable to the principles in MZACX.

52    In relation to [52] of the primary judgment, with respect we do not understand what his Honour intended to convey.

53    The reasons given by his Honour for rejecting the appellant’s first ground of review were inadequate. Paragraphs [47]-[53] of the primary decision, which are clearly intended to set out the reasoning and findings of his Honour in respect of the first ground of review, evince no real explanation or process of reasoning as to why his Honour formed the view that the first ground was not substantiated.

Second ground of review

54    In respect of the second ground of review the primary Judge stated as follows:

54.     In relation to ground 2, Mr Mostafa took the court to the applicant’s statement dated 29 January 2016, the Institute for the Study of War paper dated 23 February 2016 and the DFAT country report dated 18 September 2015 that identified a risk of withdrawal of international troops from Afghanistan.

55.     Mr Mostafa argued that the withdrawal of international troops from Afghanistan was an integer of the applicant’s claim that had to be the subject of express finding and that as there had been a failure to make such a finding, the Authority had failed to complete its statutory task of review constituting a jurisdictional error.

56.     On a fair reading of the Authority’s reasons as referred to above, the Authority subsumed the applicant’s claimed fear of troop withdrawal in its finding in relation to government control in Mazar-e-Sharif.

57.     This is not a case where it should be inferred that the Authority has failed to take into account an integer of the applicant’s claims in relation to the withdrawal of troops. In fact, the Authority’s reasons expressly refer to the withdrawal of troops twice in the findings made by the Authority. Accordingly, no jurisdictional error as mentioned in ground 2 is made out.

55    The appellant takes issue with this aspect of the primary judgment, not only because he submits that the reasons demonstrate lack of engagement with the appellant’s submissions, but also because the appellant submits his Honour:

    erred at [56] in simply concluding that the Authority subsumed the appellant’s fear of troop withdrawal in its finding in relation to government control in Mazar-e-Sharif; and

    erred at [57] in “expressly refer[ring] to the withdrawal of troops twice in the findings made by the Authority” when the Authority made no such reference.

56    As the Full Court explained in WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47], it may be unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.

57    At the hearing of the appeal, Counsel for the Minister referred the Court to the judgment of Mortimer J in CPE15, in particular the following passage:

63.     In my opinion it is clear, particularly from [44] of the Tribunal’s reasons, that the Tribunal focused in its fact finding on the control exercised by the Afghan government over the security situation in Kabul. It did so on the basis of country information then recently available in the September 2015 Department of Foreign Affairs and Trade report, which the Tribunal clearly found persuasive, as it was entitled to. In that sense the appellant’s arguments about the impact of any reduction in the presence of international forces in Afghanistan, on the security situation in Kabul were subsumed in the Tribunal’s findings about the security situation in Kabul in the foreseeable future. I consider this was clear in the Tribunal’s reasons as expressed.

(Emphasis added.)

58    While the reasons of his Honour are lacking in detail, we are not satisfied that his Honour failed to engage with relevant submissions of the appellant. Similarly to the findings in CPE15, it was open to his Honour to conclude that, because the Authority had found the Afghan government would maintain effective control in Mazar-e-Sharif in the reasonably foreseeable future, the Authority had further concluded that that control would not be affected by any withdrawal of international troops. In particular we note the following finding of the Authority:

41.     The recent mass casualty attacks have been significant however like Kabul, Mazar-e-Sharif remains under government control and I am not satisfied that state institutions are weakened such that this will change, or that Mazar-e-Sharif will otherwise fall to the control of the Taliban, Islamic State or other insurgents in the reasonably foreseeable future. I am not satisfied that sectarianism will increase in the reasonably foreseeable future such that violence against Hazaras/Shi’a’s in Mazar-e-Sharif will extend beyond sporadic attacks. Notwithstanding the complexity seriousness and gravity of recent attacks (including on official targets the city [sic]), when having regard to the overall strong security presences in Mazar-e-Sharif and that the government maintains effective control, the limited capacity of Islamic state and its lack of territorial foothold in Balkh, the size and diversity of the population of Mazar-Sharif and the applicant’s lack of other profile or proximity connected to those government/international community groups primarily targeted by insurgents, I find the chance of the applicant being seriously harmed by Islamic State, the Taliban or any other AGE in Mazar-e-Sharif remote.

59    However, in relation to the alleged error of his Honour at [57] of the primary judgment in “twice” referring to the withdrawal of international troops, we note that the relevant “express references” of the Authority were as follows:

55.    … Information indicates that even with the withdrawal of international presence, manufacturing and construction are among the top five sectors of employment in Afghanistan. The applicant has industry relevant skills, he is able bodied and of working age…

…

75.     With regards to the applicant’s employment prospects, while unemployment is high across Afghanistan, Mazar-e-Sharif is one of the biggest commercial centres and the more stable security and greater economic opportunities will be conducive to his finding employment. The applicant has experience working on the family farm, in driving a taxi, and in a tiling company in Australia. I have taken into account the withdrawal of international presence, and the situation regarding IDPs and returnees. On the evidence, the applicant has no identified vulnerabilities and given his industry relevant skills in a key sector, that he is able-bodied and of working age, I am not satisfied the applicant will not be able to obtain employment or shelter or access basic services…

(Emphasis added.)

60    The appellant submitted that, in these statements, the Authority was making observations relating to the economic environment in Afghanistan rather than the security situation following the withdrawal of troops. We agree. While the “international presence” in Afghanistan could encompass foreign troops, the context in which the Authority refers to withdrawal of the “international presence” was referable to the effect on the economy of Afghanistan and, in turn, on the employment situation as it affected the appellant, rather than the security situation following withdrawal of foreign troops. To that extent his Honour was incorrect at [57] in attributing to the Authority statements relating to the withdrawal of troops.

Consequences of inadequacy of reasons of the primary Judge

61    The appellant has sought orders remitting the proceedings to the Federal Circuit Court of Australia, differently constituted, in the event that he was successful in the first ground of appeal. As was pointed out by Perram J in AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 at [26]:

The Federal Court of Australia Act 1976 (Cth) confers appellate, not original, jurisdiction on the Court in cases such as the present: s 24(1)(d). The exercise of appellate jurisdiction is concerned with the correction of error: Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd [2001] FCA 1833; 177 FCR 424 at [20]­[25]. It would erode the appellate nature of this Court’s jurisdiction if it were routinely to carry out the Federal Circuit Court’s work for it: SZKLO v Minister for Immigration and Border Protection [2008] FCA 735 (‘SZKLO’) at [41] per Flick J.

62    While we agree with those sentiments, detailed written and oral submissions were made by both the appellant and the Minister in relation to the second and third grounds of appeal before the Court. Before determining the appropriate course of action, we consider it appropriate to examine these grounds of appeal.

Ground 2

63    In the second ground of appeal the appellant claims error on the part of the primary Judge in failing to find that the Authority made an error akin to that identified in MZACX, in particular that the Authority wrongly found that it was reasonable for the appellant to relocate to Mazar-e-Sharif where the only consideration given by the Authority to the risk of harm that the appellant might face in Mazar-e-Sharif was at [77] of the Authority’s reasons.

64    Before turning to this ground of appeal in further detail it is helpful to examine relevant passages from MZACX.

MZACX

65    In MZACX the visa applicant claimed to be a person in respect of whom Australian had protection obligations under the 1951 Convention relating to the Status of Refugees (opened for signature 28 July 1952, 189 UNTS 137, entered into force 22 April 1953) as amended by the 1967 Protocol relating to the Status of Refugees (opened for signature 31 January 1967, 606 UNTS 267, entered into force 4 October 1967) and to satisfy the criteria in s 36(2)(a) or s 36(2)(aa) of the Act. The Administrative Appeals Tribunal (Tribunal) in that case accepted that the visa applicant faced a real chance of persecution for reasons of his religion and ethnicity if he were to return to his home region in Pakistan, but did not accept that his fear of persecution was well-founded throughout Pakistan. Rather, the Tribunal found that:

    There was not more than a remote chance that the visa applicant would face persecution on account of his religion, ethnicity or former residence;

    Taking into consideration independent information and an assessment of the visa applicant’s particular circumstances it would be reasonable, in the sense of practicable, for the visa applicant to relocate to Islamabad or Rawalpindi.

66    This finding was referable to s 36(2B) of the Act which provided, in relation to the requirement in s 36(2)(aa) that 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 was a real risk that the non-citizen will suffer significant harm:

(2B)    However, 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.

67    The issue before the Court relevant to the present appeal was whether the Tribunal fell into jurisdictional error in its application of the legal test for relocation. In particular, the visa applicant argued that the Tribunal erred in its application of the relocation test by failing to give proper consideration to the risk of harm established to the Tribunal’s satisfaction, and conflating the two limbs of the relocation test.

68    Kenny J examined principles of relocation taken up in s 36(2) of the Act, noting that a person is not a refugee within the meaning of the Convention if he or she could obtain real protection in his or her country of nationality by relocating to another part of the country, and it may be reasonable for the person to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Her Honour observed:

25.     The issue of relocation does, however, raise the separate and distinct issue of reasonableness since “[w]hat is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”: SZATV [2007] HCA 40; 233 CLR 18 at [24]; see also SZFDV [2007] HCA 41; 233 CLR 51 at [14]; and SZSCA [2014] HCA 45; 254 CLR 317 at [25].

26.     Clearly enough, whether relocation to a particular place is reasonable can raise different issues to those raised by the question whether a visa applicant faces a “fear of persecution”. Unlike fear of persecution, the reasonableness of relocation imports a question of practicability, the boundaries of which are different from fear of persecution for a Convention reason and in the Convention sense, even though the question of persecution in the Convention sense remains…

69    The visa applicant submitted inter alia that, by its findings, the Tribunal accepted that there existed some residual risk in respect of politically motivated terrorist and sectarian violence in various areas across Pakistan, including the putative relocation areas. Even accepting that there was no appreciable risk of the persecution feared by the appellant in Islamabad or Rawalpindi, the Tribunal was required, in the visa applicant’s submission, to consider the whole of his claims in relation to relocation, including the other risks for him when considering the practicability of relocation. The visa applicant argued that the Tribunal had failed to consider the practicability of relocation for him, by reference to sectarian and generalised violence that it found existed, and had wrongly conflated:

    the question whether there was an appreciable risk of the feared persecution in the putative safe havens of Islamabad and Rawalpindi; with

    the question whether relocation to those places was reasonable, in the sense of practicable, given his particular circumstances.

70    Her Honour observed:

35.     In considering the possibility of relocation within a visa applicant’s country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk, then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is “reasonable”, in the sense of “practicable”, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus. Jurisdictional error may arise where a Tribunal conflates the two stages of the inquiry, as MZYQU [2012] FCA 1032; 206 FCR 191 and MZZJY [2014] FCA 1394 illustrate.

36.     In MZYQU [2012] FCA 1032; 206 FCR 191, Dodds-Streeton J held (at [61]) that there was jurisdictional error in treating a risk of serious harm (within s 91R(1)(b) of the Migration Act) as the only kind of harm that could affect the reasonableness of relocation. Her Honour explained (at [55] and [60]):

Consistently with SZATV, factors such as “other and different risks in the propounded place of internal relocation” ... may be relevant, albeit not mandatory, considerations when determining the reasonableness of a proposed relocation.

...

The I[ndependent] M[erits] R[eviewer] did not consider the impact of the risk of harm in the form of generalised violence or harm (of an unspecified nature or level) due to personal circumstances on the reasonableness of the appellant’s relocation. By inference, the IMR proceeded on the basis that unless the harm were serious within the meaning of s 91R(1)(b), it was unnecessary to do so.

37.     In MZZJY [2014] FCA 1394 Davies J held that the Tribunal had erred in considering whether the applicant in that case could relocate within Pakistan to avoid persecution. Her Honour said (at [16] and [21]):

The applicant’s primary contention in support of the proposed ground of appeal is that the FCC erred in not finding that the Tribunal, in assessing the reasonableness of the applicant relocating to Karachi, was obliged, but failed, to consider the risk of the applicant suffering harm having regard to the particular circumstances of the applicant. It was argued that the Tribunal wrongly conflated the two limbs of the relocation test, namely “appreciable risk” and “reasonableness”, by failing to address the personal circumstances of the applicant in addressing the question whether it was reasonable, in the sense of practicable, for the applicant to relocate to Karachi in the face of a risk of the applicant suffering sectarian and generalised violence, however remote...

I accept the submission for the applicant that the Tribunal conflated the two limbs of the relocation test, namely “appreciable risk” and “reasonableness”, by finding that the applicant could be reasonably expected to relocate to Karachi “where there is not an appreciable risk of the occurrence of the feared persecution”. In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 Gummow, Hayne and Crennan JJ stated that what is “reasonable” in the sense of practicable must depend upon the particular circumstances of the visa applicant and the impact upon that person of relocation of the place of residence within the country of nationality. This criterion was recently affirmed by the High Court in Minister for Immigration and Citizenship v SZSCA [2014] HCA 2014. In the present case, the Tribunal dealt with the position of Shias generally in Karachi but did not consider the practical realities facing the applicant, as a person at risk of attack in Karachi because of his religion. In so doing, the Tribunal wrongly elided the question posed by the “reasonableness” criterion with the inquiry, is there a lack of “appreciable risk” of harm? The conclusion that the chance of harm is not more than remote dealt only with the consideration as to whether objectively there is an appreciable risk of persecution for a Convention reason in Karachi, but did not deal with the question as to whether it is reasonable, in the sense of practical, to expect the applicant to live there faced with a risk of violence and where he would lack protection from the authorities, as the Tribunal accepted. The same considerations do not necessarily apply to both limbs. The fact that the risk of harm may be remote does not necessarily answer the question whether it is reasonable, having regard to the personal circumstances of the applicant, to expect the applicant to face that risk. The Tribunal was obliged to consider the practical realities for the applicant in determining whether it is reasonable to expect him to relocate. It did not do so, and in failing to do so fell into jurisdictional error.

71    Her Honour noted at [39] that whether the Tribunal erred depended, in part, on the claims made by the visa applicant before the Tribunal concerning the reasonableness of his relocation to Islamabad or Rawalpindi, including the harm he claimed to face there. The visa applicant submitted, inter alia, that in Islamabad and Rawalpindi, he would face a heightened risk because of his status as a Turi Shia Muslim and his “profile as a renewed Turi shopkeeper”; that the level of sectarian fuelled violence in those cities was expected to increase dramatically; and that he would face a risk of harm as a result of ethnically and religiously motivated attacks if he were to relocate to those cities and that this circumstance was relevant to the reasonableness of his relocation there.

72    Her Honour continued:

45.     Paragraph [47] of the Tribunal’s reasons set forth the Tribunal’s conclusion about relocation to Islamabad or Rawalpindi. The paragraph commences with the statement that the Tribunal considered that “there is not more than a remote chance” that the appellant would “face persecution on account of his Shia religion, his Turi ethnicity, being a former resident of Parachinar in Kurram Agency” if he returned to Islamabad or Rawalpindi. This statement also addressed the issue whether there was an appreciable risk of the feared persecution in these cities.

46.     There is only one statement in paragraph [47] that touches on the second issue of whether, given some level of risk, it was reasonable in his circumstances to relocate to one of the cities. This is the stated conclusion that:

While the Tribunal considers that there is less than a remote chance of the applicant being targeted on the basis of his Shia religion or as a member of the Turi tribe from Parachinar or being caught up in generalised or sporadic violence which may occur in the country including in Islamabad and Rawalpindi, the Tribunal finds it is reasonable for the applicant to relocate to these urban centres in these circumstances.

47.     There is, however, no prior acknowledgement in the Tribunal’s reasons that a risk of harm as a result of ethnically and religiously motivated violence might, as the appellant claimed, militate against relocation, bearing in mind all the circumstances of his particular case. It is true that the Tribunal in fact stated that it did not accept that, in Islamabad or Rawalpindi, the appellant would face a heightened risk because of his status as a “renewed Turi shopkeeper in Parachinar”. As noted above, however, the appellant relevantly claimed that he would face a risk of harm as a result of ethnically and religiously motivated attacks if he were to relocate to Islamabad or Rawalpindi and that this circumstance was relevant to the reasonableness of his relocation to those places. It will be recalled that the Tribunal accepted that: (1) the appellant faced “a real chance of persecution” in his home area of Pakistan because of his religion and ethnicity (and thus had a well-founded fear of persecution on those grounds in that area); (2) the appellant’s religion, ethnicity, tribal identity and origins were identifiable from his accent, identity documents, spelling of his name and the way he practised his religion; (3) there had been attacks, including in November 2013, on Shias in Rawalpindi; (4) there may have been some instances of the kidnapping of Turis in Islamabad and Rawalpindi in 2011; and (5) there had been incidents of violence against Shias and there will be further attacks against Shia targets in various parts of the country. As to (4), the Tribunal stated that it did not accept that there was a “real chance” that the appellant would be the victim of such crime, having regard to the size of the population and the limited number of reports over time. The Tribunal also referred to the existence of Turi political rallies as the basis for not accepting that the appellant’s profile as a Turi or Turi Shia would lead to a “real chance” of serious harm away from his home region or “adversely impact on his ability to relocate”.

(Emphasis added.)

73    Importantly, her Honour said:

48.     The fact that a risk of serious harm, or that a person may be the victim of ethnically motivated crime, is remote does not answer the question whether it is reasonable, having regard to all the circumstances of a visa applicant, that the applicant face that risk. Further, the Tribunal did not directly address the appellant’s claim that he would face a risk of harm, particularly during attendance at Shia Muslim mosques or participation in religious festivals. In considering whether or not it was reasonable for the appellant to relocate to Islamabad or Rawalpindi, the Tribunal was obliged, as Davies J said in MZZJY [2014] FCA 1394 at [21], to consider the practical realities for him.

49.     Instead, in this case, the Tribunal’s analysis persistently confused the issue of whether there was no appreciable risk of the occurrence of the feared persecution in Islamabad or Rawalpindi with the different issue of whether the risk of harm by reason of his Shia Muslim or Turi identity militated against relocation in all the circumstances of his case. The conclusion in paragraph [47] cannot be untied from this confusion. Indeed, the extent of the confusion is emphasised by the fact that the statement set out in [17] above (that there is less than a remote chance of the appellant being targeted on the basis of his Shia religion or as a member of the Turi tribe from Parachinar or being caught up in the generalised or sporadic violence which may occur in the country including in Islamabad and Rawalpindi) does not appear to flow out of the Tribunal’s preceding analysis. Instead, this further confusion only emphasises the Tribunal’s failure to consider whether relocation was reasonable, having regard to all the circumstances of the appellant’s case, including whether the appellant faced a risk of harm in these cities by reason of his religion or ethnicity. The failure to address this question resulted in jurisdictional error.

74    The principles set out by Kenny J in MZACX are not disputed by either party, and further were given limited consideration recently by the Full Court in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526. In particular we note [108] of that decision where the Court said:

108.     For these reasons, the Authority’s reasoning was not at odds with MZYQU, MZZJY and MZACX insofar as they stood for the proposition that a risk of encountering violence in a putative place of relocation of an unspecified nature or level (that is, below the threshold of serious harm) may be relevant to the reasonableness of relocation.

75    Further, the Court observed:

110.     Thirdly, the question of reasonableness is one that required a factual inquiry to be undertaken and an evaluative judgment to be made. While the practical realities facing an applicant will be relevant, s 36(2B)(a) did not specify any mandatory relevant considerations. As Allsop J observed in SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 at [22], a decision-maker is not required in addressing relocation “to elaborate on every aspect of its practical application.” Insofar as MZYQU, MZZJY and MZACX, if considered to apply equally to the relocation test under s 36(2B)(a), may suggest that consideration must always be given to the risk of generalised violence when assessing the reasonableness of relocation, they were, with respect, wrong as they descended to a greater level of particularity than was called for by the Migration Act, and should not be followed.

76    For present purposes we accept the principles set out in MZACX as correct.

Did the Authority err?

77    The appellant submits that the reasoning of the Authority relevant to the reasonableness of relocation of the appellant were found only in [77] and [78] of its decision:

77.     I note the representative’s concerns about the relocation options being a durable solution and economically viable. I note that insecurity has affected Mazar-e-Sharif, however I found that such incidents were infrequent and that the applicant would not face a real chance or real risk of serious or significant harm on the basis of targeted harm or generalised violence or criminality either within the city or while accessing it upon returning. I have considered the applicant’s personal circumstances and I am satisfied it is reasonable for the applicant to remain in Mazar-e-Sharif, a place where he will be able to secure shelter, employment and services upon return even in the absence of an initial familial or otherwise familiar support network.

78.     I am satisfied that in the circumstances it is reasonable for the applicant to relocate to Mazar-e-Sharif, which I find is an area of the country where there is not a real risk that he will suffer significant harm.

78    In respect of this issue we make the following observations.

79    First, the Authority gave detailed consideration to the question arising under s 36(2)(aa), namely whether there was a substantial ground for believing, as a necessary and foreseeable consequence of the appellant being removed from Australia to Afghanistan, that there was a real risk that the appellant would suffer significant harm. At [64] of its reasons the Authority referred back to its findings that the appellant would face a real chance of being seriously harmed if he returned to his home region in Ghazni province. However the Authority then turned to the question of relocation of the appellant to other parts of Afghanistan in relation to s 36(2B), in particular Mazar-e-Sharif, and the definition of “significant harm” under s 36(2A). At [66]-[68] the Authority examined the elements of the definition in s 36(2A) as applied to the appellant relocating to Mazar-e-Sharif, and concluded that none of those elements were satisfied – in summary, the appellant would suffer no significant harm if he relocated to Mazar-e-Sharif. In so reasoning, the Authority considered the first limb of the relocation test, namely whether the appellant would be subject to an appreciable risk of significant harm in relocating to Mazar-e-Sharif.

80    Next, however, at [70] the Authority turned to the question whether, having regard to the appellant’s personal circumstances, it was reasonable for the appellant to relocate to Mazar-e-Sharif. The Authority referred to the information on the issue provided by the appellant to the Authority and continued:

70.    … I have taken all of this information into account, in particular, it has been submitted that that [sic] Mazar-e-Sharif does not offer durable safety and is it [sic] not reasonable for him to live in a city he can only leave by plane; he has never lived or worked in a large city and has never been to Mazar-e-Sharif, he would not have family support or any tribal/clan or social networks and Hazaras are the minority group; that his education is limited and he doesn’t have a specific trade or employment skill; he is married with children and his family are dependent on him; there is high unemployment and high cost of living, predictions indicate slow growth in the city and it is not financially/economically viable; he would be in a comparable position to IDPs and would become destitute. I have had regard to these factors, as well as the country information provided in support.

81    At [71]-[72] the Authority referred to country information, including that of the UNHCR and the Department of Foreign Affairs and Trade. At [73] the Authority referred to difficulties the appellant could face in relocating to Mazar-e-Sharif, including that there was unemployment and underemployment; many people live in informal settlements and there was pressure on labour markets, infrastructure and services from returnees and internally displaced persons; the appellant had never lived in any part of Afghanistan apart from his home region and had never been to Mazar-e-Sharif; and the appellant did not know anyone in Mazar-e-Sharif. However the Authority concluded:

73.    … I am not satisfied these are difficulties he cannot overcome. While not the dominant group, there is a large Hazara community and the applicant has demonstrated that he is resourceful and resilient and has successfully lived apart from his family and settled in unfamiliar places.

82    At [74]-[75] of its reasons the Authority recited the economic circumstances in Mazar-e-Sharif in accordance with country information, noting high unemployment but also the greater commercial opportunities in the city, and concluded:

75.    …On the evidence, the applicant has no identified vulnerabilities and given his industry relevant skills in a key sector, that he is able-bodied and of working age, I am not satisfied the applicant will not be able to obtain employment or shelter or access basic services. I am not satisfied the applicant’s fear or anxiety is a vulnerability which would prevent him from obtaining employment in Mazar-e-Sharif. I am satisfied that in Mazar-e-Sharif the applicant would be able to earn a livelihood and that he would have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life.

83    At [76] the Authority considered the appellant’s family arrangements, including his current separation from his wife and children, and concluded that the appellant could establish himself in Mazar-e-Sharif and then arrange for his family to join him. The Authority also considered that it would be reasonable for the appellant to remain in Mazar-e-Sharif during this time.

84    The consideration by the Authority of whether it would be reasonable for the appellant to relocate to Mazar-e-Sharif was detailed, appearing not only at [77] as submitted by the appellant but from [66]-[77] of the Authority’s reasons. The conclusion of the Authority at [77] must be read against the background of its analysis in those preceding paragraphs. The Authority clearly considered drawbacks for the appellant in relocating to Mazar-e-Sharif but concluded that, against the backdrop of the political and economic environment in the city as well as the personal circumstances of the appellant it had outlined, it was nonetheless reasonable for the appellant to relocate there.

85    The appellant submitted that the Authority accepted that there was risk to the appellant in relocating to Mazar-e-Sharif, as noted in the reasons of the Authority at [25] (militant attacks occur in Mazar-e-Sharif) and [39] (certain aspects of the conflict with the Taliban would affect Mazar-e-Sharif). However the conclusion of the Authority set out at [77] must be read taking into account the possible risks, as well as the view of the Authority that, notwithstanding some risk to the appellant in Mazar-e-Sharif, the appellant was not at risk of significant harm if he were to relocate to Mazar-e-Sharif (including both travelling to and remaining in Mazar-e-Sharif). This analysis, read further with the detailed examination of the Authority as to whether it was reasonable for the appellant to relocate to Mazar-e-Sharif, negates the appellant’s claim that the Authority failed to address the second limb of the relocation test in s 36(2B) of the Act, or that the Authority had erred in a manner akin to that identified in MZACX.

86    The Authority did not conflate the two limbs of the relocation test as claimed by the appellant. The second ground of appeal is not substantiated.

Ground 3

87    In his third ground of appeal the appellant claims, in summary, that the primary Judge should have held that the Authority had failed to consider whether the appellant faced a real chance of serious harm or a real risk of significant harm in the foreseeable future consequent upon the completion of the withdrawal of international troops. This ground of appeal relates to the appellant’s claims of protection pursuant to sub-ss 36(2)(a) and 36(2)(aa) of the Act.

88    It is clear that, before the Authority, the appellant claimed that the security situation in Afghanistan was deteriorating and would get worse when international troops withdrew completely. In his statement of 29 January 2016 the appellant claimed:

34.     There is nowhere in Afghanistan I can live safely. Even Kabul is not safe. The security situation is deteriorating and will only get worse when the international troops withdraw completely. The Taliban will then have a free reign.

89    The appellant relied on a DFAT Country Information report relating to Afghanistan dated 18 September 2015 which included the following:

2.33 Insurgent forces contest many areas of the country and no part of the country can be considered free from conflict-related violence. The situation remains fluid. While the government retains control of much of the country, particularly in the provincial and district centres, some areas are openly contested, with varying levels of control exerted by the government and by insurgents. The security situation across the country deteriorated significantly over the last 12-18 months, as anti-government groups intensified their efforts and international military contingent gradually withdrew. The security situation is better in areas where government forces maintain strong control, such as major urban areas like Kabul, but attacks remain a common occurrence even in these areas …

…

5.3 Security in Afghanistan is the responsibility of the ANDSF, made up of the Afghan National Army (ANA), the Air Force, the Afghan National Police (ANP) and the National Directorate of Security (NDS). The ANDSF is also supported by other forces such as the Afghan Local Police (ALP) and the Afghan Border Police (ABP) – which operate under the Ministrey o the Interior – and other small pro-government local militia groups. The various arms of the ANDSF differ in terms of their effectiveness. The ongoing reduction in the international forces is having an impact on the ANDSF’s ability to maintain government control across the country, particularly in rural areas, and casualties from the conflict have increased significantly…

90    Further, in a publication of the Institute for the Study of War published 23 February 2016 on which the appellant relied before the Authority the following appeared:

Key Takeaway: Security in Afghanistan has been deteriorating since U.S. force levels dropped from a high of 100,000 in 2011 to the current force size of 9,800 reached in June 2014. Lt.Gen. John W. “Mick” Nicholson, the incoming commander of Operation Resolute Support and U.S. Forces in Afghanistan, agreed with the remark that “the security situation in Afghanistan has been deteriorating rather than improving” in a Senate Armed Services Committee (SASC) hearing on January 28. Outgoing Resolute Support Commander General John Campbell reiterated this concern on February 2, stating that the ability to train Afghan security forces will be “very limited” if U.S. forces are reduced to 5,500 by the end of January 2017 as planned. Taliban militants are capitalizing on the overextension of the Afghanistan National Security Forces (ANSF) and dearth of U.S. and NATO forces to increase attacks, particularly in Helmand Province.

91    As we noted earlier, the primary Judge misstated the findings of Authority concerning the withdrawal of the international presence. However, as we also noted earlier, the findings of the Authority in respect of the withdrawal of foreign troops were subsumed into its findings concerning Afghan government control in Mazar-e-Sharif, the absence of risk of significant harm to the appellant if he relocated to Mazar-e-Sharif, and the reasonableness of his relocating there.

92    In our view the third ground of appeal is not substantiated.

Conclusion

93    Unfortunately, the reasons of the primary Judge were inadequate, necessitating what was effectively a rehearing of the application for review, and a waste of costs incurred by all parties. However while the appellant has been substantially successful in respect of his first ground of appeal, we consider that the second and third grounds of appeal – which reagitate the original grounds of review – have not been substantiated. It follows that it would be futile to remit the proceedings to the Federal Circuit Court. The appropriate order is to dismiss the appeal.

94    Ordinarily costs follow the event. However, in circumstances where the appellant was, in substance, required to prosecute an appeal in order to have his grounds of review of the Authority’s decision properly examined, we consider the appropriate order is that each party bears their own costs of and incidental to the proceedings.

Associate:

Dated:    6 September 2018