FEDERAL COURT OF AUSTRALIA

BWB16 v Minister for Immigration and Border Protection [2018] FCAFC 158

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

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 judgment of the Federal Circuit Court of Australia (Federal Circuit Court) given on 16 October 2017 which dismissed the appellant’s application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (Authority): BWB16 v Minister for Immigration [2017] FCCA 2497 (BWB16). The Authority had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Safe Haven Enterprise visa (SHEV).

2    In issue in the appeal is the Authority’s conclusion that s 36(2B)(a) of the Migration Act 1958 (Cth) (Act) applied to the appellant such that he did not meet the requirements of s 36(2)(aa) of the Act. In particular the appellant raises for this Court’s consideration in his single ground of appeal the primary judge’s treatment of the challenge made to the Authority’s finding that it was reasonable to relocate within Afghanistan in order to avoid a real risk of significant harm.

Background

3    The background to the appeal is not contentious. The summary which follows is principally drawn from the appellant’s submissions.

4    The appellant, who is a citizen of Afghanistan, arrived in Australia on 22 October 2012 and applied for a SHEV on 4 August 2015. The appellant claimed to fear harm on a number of bases including because he is a Hazara and a Shia Muslim.

5    On 2 May 2016 a delegate of the Minister refused the appellant’s application for a SHEV. The delegate set out the appellant’s history, noting that he was born in Jaghori District, Ghazni Province in Afghanistan, and had lived most of his life in Jaghori but had travelled to Iran approximately 14 times since the age of about 15 for work. The delegate accepted that the appellant was a Hazara Shia but found that he did not have a well-founded fear of persecution on the basis of race or religion. The delegate also found that the appellant could safely return to Jaghori.

6    As the decision to refuse the appellant’s application for a SHEV was a fast track reviewable decision, his case was referred to the Authority for review.

7    On 6 June 2016 the Authority wrote to the appellant inviting him, among other things, to provide further information on the question of relocation and to comment on country information provided with the Authority’s letter. On 20 June 2016 the appellant, via his former representatives, responded to this invitation by providing submissions to the Authority.

8    On 22 June 2016 the Authority affirmed the delegate’s decision. That decision was subsequently set aside by orders made by consent in the Federal Circuit Court and the matter was remitted to the Authority for reconsideration.

9    Following the remittal of the matter to the Authority, on 27 October 2016 the appellant’s current representatives provided a submission to the Authority (October Submission) which included the following under the heading “Is there a real risk that the [appellant] would suffer serious or significant harm in Mazar-i-Sharif as a Shia Hazara or as a failed asylum seeker?”:

11.    In considering the reasonableness of relocation, the Reviewer noted that the [appellant] “has previously demonstrated an ability to live apart from [his wife and children]. Decision at [52]. However, the Delegate failed to consider that following short periods of absence from Afghanistan, the [appellant] regularly returned to be with his family. This is demonstrated by the conception/birth of his children in or around 2008, 2009 and 2010. The period of time that the [appellant] has been seeking asylum in Australia is the longest that he has been separated from his family.

12.    Should the [appellant] be returned to Afghanistan, he would be compelled to travel to Jaghori to visit his wife and children to maintain familial ties (as demonstrated through his prior return trips). When considered with the [appellant’s] son's medical condition, acknowledged by the Reviewer (decision at [49]); it would be unreasonable to require the [appellant] not to make the journey to Jaghori to maintain a relationship with his family. Particularly as the [appellant] has no friends, family, communal support and has never lived in, or been to, Mazar-i-Sharif.

13.    The Reviewer has accepted that travelling to Jaghori, the [appellant] would face a real risk of being killed by insurgents (amounting to arbitrary deprivation of life). Decision at [42]. However, equally expecting the [appellant] to remain in Mazar-i-Sharif, being unable to visit his wife and children to maintain familial ties, would amount to significant harm.

10    On 16 January 2017 the Authority affirmed the delegate’s decision.

THE decision OF THE AUTHORITY

11    The Authority found that the appellant “may face a real chance of being abducted and killed by an insurgent, and/or criminal group for reason of his being a Shia Hazara while travelling the roads” from his return airport in a major city to his home area in Jaghori District. The Authority was satisfied that this would amount to a real chance of serious harm by reason of the appellant’s race and religion.

12    However, after considering s 5J of the Act and whether the appellant could relocate, the Authority found that the appellant did not face a real chance of serious harm in Mazar-e-Sharif such that he did not satisfy the definition of refugee in s 5H(1) of the Act. The Authority thus concluded that the appellant did not meet the requirements of s 36(2)(a) of the Act.

13    The issue raised on appeal concerns the Authority’s findings in relation to the application of s 36(2)(aa) of the Act to the appellant which were addressed at [36]-[42] of its decision.

14    In that regard, the Authority found that the appellant may face a real chance of being abducted and killed by an insurgent and/or criminal group because he is a Shia Hazara while travelling from his return airport to Jaghori District and that that would amount to a real risk of significant harm. The Authority then turned to consider s 36(2B)(a) of the Act and whether it would be reasonable for the appellant to relocate to an area of Afghanistan where there would not be a real risk that he would suffer significant harm. By reference to possible relocation to Mazar-e-Sharif, the Authority concluded that it was “not satisfied that the [appellant] would face a real risk of significant harm in Mazar-e-Sharif even if all the circumstances of the [appellant] are considered in a cumulative manner”: Authority’s decision at [38].

15    Having found that to be the case, the Authority considered the reasonableness of relocation. Central to the appellant’s arguments before us and the consideration of that issue by the Authority is [40]-[41] of the Authority’s decision which we set out below:

40.    The applicant is married with three young children, but his family are currently unable to travel outside of Jaghori due to the deteriorated security situation on the surrounding roads. He would thus be arriving in Mazar-e-Sharif without his dependents in the manner of a single man of working age. Although the applicant may choose to remit some money to his family to assist them in their livelihood needs he would not be required to find accommodation or establish other livelihood needs for dependants in Mazar -e-Sharif. At the close of the interview of 17 November 2015 the applicant's former representative submitted that the applicant had exhibited signs of abuse and trauma. However, no evidence was provided of what these signs were and no evidence has been provided to substantiate such a claim. I do not accept that the applicant suffers from vulnerabilities of this or any other kind. I accept that the applicant is illiterate and that he has no family or other connections in Mazar-e -Sharif. However, the applicant has previously established himself in new localities before, in Iran, in Kabul and in Australia. I acknowledge that in Iran it was the case that his uncles usually assisted in finding him construction employment; and that he resided in Kabul for only a brief period, finding employment in construction which lasted only for a matter of days due to the actions of his uncles. But even so, the applicant is not unfamiliar with the business of establishing himself in new locations, or of seeking out accommodation and employment, or of providing support to his family while living apart from them. The applicant continued to reside and work in Iran after his uncles returned to Afghanistan in around 2004. In 2012 the applicant arrived in Kabul for the first time and found accommodation and employment despite having no relatives in Kabul other than his uncles (who provided him no assistance in this regard). On the evidence, I am satisfied that the applicant has demonstrated his ability to engage in the business of establishing himself in new localities to an extent that leads me to conclude that his past experiences and demonstrated capabilities will offset the challenges of establishing himself in Mazar-e-Sharif without-any family or other connections. While many new arrivals experience difficulties obtaining employment in Mazar-e-Sharif, and while some IDPs have lacked the financial wherewithal to live anywhere but in camps outside the city and its livelihood infrastructure, I consider that the applicant’s life experiences, skills and resilience are sufficient to reasonably offset the challenges that he would face in relocating to this city, and in establishing in an area where employment, shelter and essential services would be available to him.

41.    The applicant had, in 2012, hoped to commence living with his wife and children permanently. It is unfortunate that circumstances are such that he has had to continue living apart from them here in Australia for the past four years and that relocation to Mazar-e-Sharif will require him to continue to living (sic) apart from his family in the reasonably foreseeable future. The applicant has, nevertheless, demonstrated a capacity to live apart from his family during this time. The applicant has also demonstrated this capacity while living and working in Iran, several years of which he undertook after his uncles had returned to Afghanistan and after the applicant had married and had children. It was submitted that if the applicant is returned to Afghanistan he will be compelled to travel to Jaghori to maintain familial ties. I accept that the applicant is concerned for the wellbeing of his family, including his mother, and in particular a child who has a non -life threatening hole in the heart and who is unable to be taken to a major city for further treatment. I accept that while working in Iran the applicant made visits back to his family (twice voluntarily and on other occasions when he had been deported to Afghanistan by the Iranian authorities because of his unlawful status) and that the road security in Afghanistan is currently such that he would be unable to make such visits from Mazar-e-Sharif to Jaghori for the foreseeable future. However, the applicant has demonstrated that he is willing to remain apart from his family for an extended period to pursue his protection claims here in Australia, and to reside apart from his family in Australia thereafter should he be successful in obtaining a temporary protection visa. I do not accept that the applicant would feel compelled to return to Jaghori to maintain family ties if he were to take up residence in Mazar-e-Sharif. Considering the applicant's overall life experience, and demonstrated resilience, I am satisfied that it would be reasonable for the applicant to relocate to Mazar-e-Sharif, an area of the country where there would not be a real risk that the applicant will suffer significant harm.

the federal circuit court proceeding

16    In the appellant’s amended application filed on 25 August 2018, the appellant raised a single ground of review. By that ground he contended that the Authority had misconstrued the relocation test under s 36(2B) of the Act or had failed to consider whether it was reasonable to expect the appellant to refrain from travelling from Mazar-e-Sharif to Jaghori to see his wife and children.

17    The primary judge rejected the appellant’s ground of review for the following reasons:

    the Authority’s reasons should not be read with a keen eye for error. The fact that the appellant would not feel compelled to return to his home district was a relevant consideration in determining whether it was reasonable for the appellant to relocate: BWB16 at [23];

    there was no jurisdictional error in treating as dispositive the finding that the appellant would not feel compelled to return to his home district to maintain family ties: BWB16 at [24];

    the Authority’s conclusion that, there were not substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to the receiving country there was a real risk that he will suffer significant harm, took into account the appellant’s separation from his family. There was a real and meaningful engagement with the October Submission: BWB16 at [25];

    a fair reading of the Authority’s reasons reflects that it took into account that the appellant would be unable to visit his wife and children “in the dispositive findings made by [it]” and those findings were “open and cannot be said to lack an evident and intelligible justification”. The Authority considered the whole of the appellant’s circumstances in determining the question of whether or not it was reasonable for him to relocate: BWB16 at [26]; and

    the argument that the Authority failed to consider whether it was reasonable to require the appellant not to make the journey is an invitation to the court to engage in impermissible merits review: BWB16 at [27].

the appeal

18    As we have already observed the appellant raises a single ground in his amended notice of appeal, namely whether the Federal Circuit Court erred in failing to find that the Authority had erred when dealing with the application of s 36(2B) of the Act. The appellant’s ground of appeal is particularised as follows:

a.    The Authority found that the appellant faced a real risk of significant harm in travelling from his return airport to his home area of Jaghori District: Authority's decision [37].

b.    The Authority found that the appellant did not face a real risk of significant harm in Mazar-e-Sharif: Authority's decision [38].

c.    The appellant made a submission to the Authority that, if he were returned to Afghanistan, “it would be unreasonable to require the Applicant not to make the journey to Jaghori to maintain a relationship with his family”.

d.    The Authority stated that it did not “accept that the applicant would feel compelled to return to Jaghori to maintain family ties if he were to take up residence in Mazar-e-Sharif” (the Not Compelled Holding): Authority's decision at [41].

e.    The Authority concluded that it would be reasonable for the appellant to relocate to Mazar-e-Sharif: at [41].

f.    In so concluding, the Authority erred by either or both of:

i.    treating the Not Compelled Holding as dispositive of whether it was reasonable to expect the appellant not to travel from Mazar-e-Sharif to Jaghori in order to see his wife and children; or

ii.    failing to consider whether it was reasonable to require the appellant not to make the journey to Jaghori to see his wife and children.

g.    In failing to find that the Authority had erred, the Federal Circuit Court erred by one or more of:

i.    finding that the Authority had not made a jurisdictional error in its reliance on the Not Compelled Holding: Judgment [24];

ii.    holding that the Authority considered the whole of the appellant's circumstances in determining the question of whether or not it was reasonable for the appellant to relocate (Judgment [26]) in circumstances where the Authority had not addressed whether it was reasonable to require the appellant not to make the journey to Jaghori to see his wife and children;

iii.    approaching the case on the basis that the appellant had to show that the “dispositive findings” made by the Authority were not open or otherwise lacked an evident and intelligible justification: Judgment [26]; or

iv.    holding that the argument that the Authority had failed to consider whether it was reasonable to require the appellant not to make the journey to Jaghori to see his wife and children was an invitation to engage in merits review: Judgment [27].

(strike out and underlining omitted)

The appellant’s submissions

19    The appellant contended that at [11]-[13] of his representative’s submissions (see [9] above) he made two distinct submissions. First, that if he returned to Afghanistan he would be compelled to travel to Jaghori to visit his family; and secondly, that it would be unreasonable to require the appellant not to make the journey to Jaghori to maintain a relationship with his family, particularly when he had submitted that he had “no friends, family, communal support and has never lived in, or been to, Mazar-i-Sharif”.

20    The appellant accepted that the first submission was addressed by the Authority at [41] where it said that it did “not accept that the [appellant] would feel compelled to return to Jaghori to maintain family ties if he were to take up residence in Mazar-e-Sharif”. It is the second submission with which the appellant contends the Authority did not engage.

21    The appellant submitted that the Authority accepted that he lacked family or other connections in Mazar-e-Sharif and expressly addressed the relevance of lack of family or other connections to the appellant’s economic circumstances and ability to establish himself in Mazar-e-Sharif. The appellant submitted that its recognition and consideration of these issues stand in contrast to the absence of any consideration of the impact these matters had on the reasonableness of the appellant relocating to an area where he could be separated from his family.

22    The appellant submitted that a comparison of the circumstances faced by him in his home region and those that would be faced by him in Mazar-e-Sharif could not be complete without focusing on the “practical reality” of the appellant’s family being in Jaghori and being unable to join him in Mazar-e-Sharif. He further submitted that this issue was not only relevant to whether the appellant could establish himself in Mazar-e-Sharif or obtain the bare necessities there but was also relevant because of the obvious distress that indefinite separation from his family would cause him. The appellant contended that that distress would be compounded by his lack of other connections in, and familiarity with, Mazar-e-Sharif.

23    The appellant submitted that the Authority’s finding that the appellant would not be “compelled” to make the journey to Mazar-e-Sharif did not answer the question of whether it was reasonable for him to relocate. The appellant submitted that, given the significance of his indefinite separation from his family, it could not be said that the issue was somehow addressed in the Authority’s concluding sentence at [41] of its decision (see [15] above).

24    The appellant contended that, absent express consideration of whether it was reasonable for him to relocate in circumstances where his doing so meant that he would be separated from his family for the reasonably foreseeable future, it must be inferred that the Authority did not address the significant difference in circumstances between the conditions for the appellant in Jaghori and Mazar-e-Sharif.

25    The appellant also made submissions about the primary judge’s findings and the alleged errors in his reasoning. Among other things, the appellant submitted that, for the reasons summarised above, the primary judge erred in finding that “the Authority considered the whole of the [appellant’s] circumstances in determining the question of whether or not it was reasonable for the [appellant] to relocate”: BWB16 at [26]. The appellant submitted that the Authority did not give all of his circumstances the careful consideration that was required.

consideration

26    It was not in dispute between the parties that in the October Submission the appellant raised two claims, the second of which was whether it was unreasonable to expect the appellant to remain in Mazar-e-Sharif and live apart from his family.

27    The relevant principles in relation to internal relocation were also not in dispute. Those principles were recently considered in CRI028 v Republic of Nauru (2018) 356 ALR 50; [2018] HCA 24 where at [25]-[26] Gordon and Edelman JJ said:

25.    Whether a person could reasonably be expected to relocate to another area in the country of their nationality involves a comparison between the circumstances or conditions that prevail in the person's existing area of residence and those circumstances or conditions that prevail in the other identified area, with a view to assessing the impact of the relocation on the person. The assessment is not concerned with comparing a person's quality of life in the other identified area with the basic norms of civil, political and socio-economic human rights recognised in international human rights instruments. Importantly, the reasonableness of relocation "depend[s] 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".

26.    Put in different terms, the assessment of whether a person can relocate is not answered only by reference to the risk of harm. The assessment also requires consideration of the individual circumstances of the person, and what is practicable and reasonable for that person. As this Court said in SZATV, "[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". The practical realities must be carefully considered. And, as will be explained, the particular circumstances may include the person's family situation. …

(footnotes omitted)

28    Resolution of the appeal requires an examination of the Authority’s reasons in order to determine whether it assessed the reasonableness of relocation taking into account the appellant’s claims in relation to his circumstances. Those circumstances include the claim that it was unreasonable to expect the appellant to remain in Mazar-e-Sharif and not visit his family, particularly given the appellant’s lack of family and communal support in Mazar-e-Sharif. In our opinion, it is apparent that the Authority did assess the reasonableness of relocation, taking into account the appellant’s claims in relation to his circumstances. Our reasons for reaching this conclusion follow.

29    As noted at [14] above, in considering the question of complementary protection, at [37]-[38] of its reasons the Authority first considered whether the appellant would face a real risk of significant harm and concluded that he would not do so in Mazar-e-Sharif. It then considered, as it was required to, whether it was reasonable for the appellant to relocate.

30    The Authority’s assessment of the reasonableness of relocation commenced at [39] of its decision with a summary of country information concerning the factors relevant to relocation in Afghanistan and general information about Mazar-e-Sharif. At [40] the Authority referred to the fact that the appellant is married with three young children but that his family are unable to travel outside of Jaghori due to the security situation on surrounding roads and acknowledged that the appellant would be arriving in Mazar-e Sharif without his family. The Authority also accepted that the appellant “is illiterate and that he has no family or other connections in Mazar-e-Sharif”. That is, the Authority was clearly aware that the appellant would have no family in Mazar-e-Sharif.

31    In the concluding sentence of [40] the Authority referred to the appellant’s “life experiences, skills and resilience” which it considered were “sufficient to reasonably offset the challenges that he would face in relocating to [Mazar-e-Sharif], and in establishing himself in an area where employment, shelter and essential services would be available to him”. Its reference to “life experiences”, “skills’, “resilience” and “challenges” should not be read as confined to economic circumstances. A fair reading of the Authority’s reasons requires that concluding sentence to be read having regard to the whole of [40], including the Authority’s references to the appellant’s separation from his family, for example its findings that the appellant would be arriving in Mazar-e-Sharif without his family and that he had been able to establish himself in new locations and was not unfamiliar with living apart from his family.

32    At [41] the Authority again recognised that relocation to Mazar-e-Sharif would mean that the appellant must continue to live apart from his family for the reasonably foreseeable future. The Authority noted that the appellant had demonstrated a “capacity” to live apart from his family both while in Australia and while working in Iran. The Authority then addressed the submission that the appellant would feel compelled to return to Jaghori to “maintain his familial ties” and found that he would not. In its conclusion at [41] the Authority said that “[c]onsidering the [appellant’s] overall life experience, and demonstrated resilience” it was satisfied that it would be reasonable for the appellant to relocate to Mazar-e-Sharif. Contrary to the appellant’s submission that conclusion was not a reference back to that part of [40] in which it made its findings about the appellant’s ability to establish himself in a new locality and survive in an economic sense. It was a finding that it was reasonable for the appellant to relocate to Mazar-e-Sharif having regard to all of the appellant’s circumstances, including that he will be living apart from and will not be able to see his family for the reasonably foreseeable future.

33    The Authority asked itself the correct question. That is, was it reasonable, in the sense of practicable, in the appellant’s circumstances for him to relocate to Mazar-e-Sharif. As the Minister submitted, in answering that question the Authority had regard to the prospect that the appellant might face harm in Mazar-e-Sharif and the logistical and practical considerations of relocating away from his home region that would bear on whether it would be reasonable for him to relocate. That is, fairly read, it is evident from the Authority’s reasons that it considered the effect of the appellant’s inability to travel safely to see his family and that he would not see his family in the reasonably foreseeable future in determining the question of whether it was reasonable for him to relocate. The Authority did not misapply s 36(2B) of the Act.

34    The Court was taken through the primary judge’s reasons in some detail. In our opinion, there are aspects of those reasons which do not clearly address (in the sense of answer) the appellant’s arguments. We would not be disposed to characterise the appellant’s argument as an invitation to engage in impermissible merits review as the primary judge did. Nevertheless, the primary judge found that the Authority had addressed the appellant’s claim, a conclusion with which this Court agrees for the reasons we have given. In those circumstances it is not necessary to examine the primary judge’s reasons any further.

conclusion

35    The appeal should be dismissed and costs should follow the event. We will make orders accordingly.

Associate:

Dated:    19 September 2018