FEDERAL COURT OF AUSTRALIA

BJI17 v Minister for Home Affairs [2020] FCAFC 58

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the costs of the first respondent of and incidental to the appeal.

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

REASONS FOR JUDGMENT

GREENWOOD J:

Framework considerations

1    These proceedings are concerned with four appeals, heard together, from orders and judgments of the Federal Circuit Court of Australia dismissing separate applications by BJI17, CNV17, CVQ17 and BYG17 for relief in the form of the grant of the constitutional writs to quash decisions of the Immigration Assessment Authority (the “IAA”) affirming, in each case, a decision of the Minister’s delegate not to grant the relevant applicant a protection visa in the form of a Safe Haven Enterprise visa (a “Safe Haven visa”), and to remit each matter to the IAA to be determined according to law.

2    In each appeal, the appellant relies upon the same single ground of contended jurisdictional error on the part of the IAA. I will turn to the text of that ground of appeal shortly.

3    Because the same point of principle arises in each appeal and substantially similar written submissions have been filed by the parties in each appeal, the four appeals were heard together. Notwithstanding that each appeal raises the same question of principle to be decided, the contextual factual circumstances within which the question arises varies according to the circumstances of each appellant. I propose to initially examine the question of principle as it arises in the circumstances of BJI17 and to then identify the points of distinction within which the question arises in the circumstances of CNV17, CVQ17 and BYG17. Each appellant is male.

4    There is also an appeal by appellant DQA17. That appeal was to be heard together with the above appeals. However, the solicitors who had been acting for appellant DQA17 withdrew with the result that the hearing of that appeal was adjourned generally to be listed before a single judge of the Court exercising the Court’s appellate jurisdiction. That matter will be the subject of a separate judgment.

5    The parties to these appeals were invited to put on submissions arising out of a judgment of the High Court in BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 published on 9 October 2019. No submissions were filed.

6    Before examining the circumstances of each appellant, the following matters should be noted.

7    Each appellant, in seeking a Safe Haven visa, contended that he is a refugee for the purposes of the definition of that term in s 5H(1)(a) of the Migration Act 1958 (Cth) (the “Act”) on the footing that, owing to a well-founded fear of persecution for reasons falling within s 5J(1)(a) of the Act, he was unable or unwilling to avail himself of the protection of his country of nationality, and thus the appellant is a person in respect of whom Australia owes protection obligations, for the purposes of s 36(2)(a) of the Act.

8    Each appellant also contended, alternatively, that he is a person in respect of whom Australia owes protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to a receiving country, there is a “real risk” that the appellant will suffer “significant harm”, for the purposes of s 36(2)(aa) of the Act.

9    In the context of the claims for protection as a refugee under s 36(2)(a) of the Act, one of the questions the IAA had to decide in exercising its statutory review function, was whether each appellant might not meet the requirements of the section on the footing that, notwithstanding whatever favourable findings might be made in relation to claims of persecution for reasons falling within s 5J(1)(a) of the Act, the IAA might not be able to be satisfied that each appellant holds a well-founded fear of persecution because a real chance of persecution could not be said to “relate to all areas of the receiving country” for the purposes of s 5J(1)(c) of the Act, and thus the appellant, in each case, could not be described as a person “unable … to avail himself of the protection of the receiving country”, in that area of the receiving country where a real chance of persecution could not be said to occur.

10    In the context of the alternative claims for complementary protection under s 36(2)(aa) of the Act, the IAA was also required to consider and decide whether each appellant failed to meet the requirements of the section, having regard to the operation of s 36(2B) of the Act. Section 36(2A) sets out the five classes of harm which, if suffered by a non-citizen, will constitute significant harm, for the purposes of the Act. However, s 36(2B) provides that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister (and thus the IAA on review) is satisfied that 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: s 36(2B)(a).

11    In order to answer the questions of whether there is an area within the receiving country where each appellant would not be exposed to a real chance of persecution (the subject of the claims in each case) or a place of relocation where relocation would be reasonable because each appellant would not be exposed to a real risk of suffering significant harm, the IAA took into account the contextual circumstances of each appellant, the claims made in each case and a range of country information concerning, put simply, the security situation in the receiving country and the security situation to which each appellant would be exposed at the place of relocation.

12    Each appellant says that an examination of the IAA’s reasons for decision in each case reveals that there is a significant “temporal disconnection” in the country information discussed by the IAA in relation to the security situation in both the receiving country and at the place of relocation. The appellants say that some of the reports addressing this topic are dated in 2015 and refer to events in 2014 and earlier, while other reports are dated 2017 and refer to more contemporary events in 2016.

13    The appellants say that not only are there reports, earlier in time, relied upon by the IAA, but more relevantly for present purposes, the later reports provide information which contradicts the earlier reports and is inconsistent with those reports. The later reports (unlike the earlier reports relied upon by the IAA) are said to suggest that the security situation in the receiving country and, relevantly, at the place of relocation, reveals that each appellant will face a real chance of persecution at the place of relocation and a real risk of suffering significant harm at the place of relocation.

14    Against that background, I now turn to the single point of contended jurisdictional error on the part of the IAA.

15    Each appellant contends that where, ultimately, there are two sets of information, going to the safety and suitability of the place of relocation, which are contradictory and inconsistent, the decision-maker must necessarily engage in a “process of evaluation” of the “reliability” of the contradictory and inconsistent sets of information so as to reach a reasoned and reasonable conclusion as to which information, or set of information, he or she will rely upon in determining the safety and suitability of the place of relocation as an element of the decision-maker “properly rejecting” claims by each appellant to be a refugee for the purposes of s 36(2)(a) of the Act, or claims for complementary protection for the purposes of s 36(2)(aa).

16    The appellants say that the decision-maker cannot simply identify two sets of contradictory and inconsistent information and then “just pick one” set of information.

17    They say that there must be a deliberative process revealing a reasoned and reasonable basis for the selection of one set of information as against another.

18    Each appellant says that the question of whether the decision-maker has acted reasonably in electing to rely on one body of information as against another contradictory or inconsistent body of information is to be determined, “in accordance with the usual test for unreasonableness” which, put simply for present purposes, is whether, upon an examination of the reasons for decision of the IAA, “[u]nreasonableness is a conclusion which may be applied to a decision [in each case, a decision that a particular set of information is reliable information about the state of safety at the place of relocation, as opposed to other conflicting information]” because it “lacks an evident and intelligible justification”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”), Hayne, Kiefel and Bell JJ at [76]. Before noting other aspects of the contentions of each appellant as to unreasonableness, it is necessary to note the text of the ground of appeal in each case, and the principal authority relied upon to support that ground.

19    I will return to the notion of unreasonableness in the exercise of the statutory review power by the IAA under the Act later in these reasons.

20    The ground of appeal, in each appeal, is framed in this way:

[The primary judge] erred in law by failing to conclude that the Immigration Assessment Authority erred in law by failing to direct itself that it had an obligation to consider, in making a choice, on a reasonable basis, as to what of conflicting information to accept and which of that information was reliable.

[emphasis added]

21    The appellants say that the source of the central proposition upon which they rely is to be found in the observations of their Honours in CRI026 v Republic of Nauru [2018] HCA 19; (2018) 355 ALR 216 (“CRI026”). They also say that there is nothing “new” in the touchstone of “reliability”, as a notion, as it is simply said to be a form of expression of the general principle that, exercising a statutory power by considering “unreliable information”, is “legally unreasonable”.

22    In CRI026, the Court (constituted by Kiefel CJ, Gageler and Nettle JJ) determined an appeal from the Supreme Court of Nauru which had dismissed an appeal brought under the provisions of the Refugees Convention Act 2012 (Nr) (the “RC Act”) against a decision of the Refugee Status Review Tribunal (the “Tribunal”). The Tribunal had affirmed a decision of the Secretary of the relevant Department made under the RC Act to reject the appellant’s application to be recognised as a refugee under the RC Act, or recognised as a person to whom the Republic of Nauru owed complementary protection obligations under that Act.

23    Section 3 of the RC Act defined a refugee as a person who is a refugee under the 1951 Convention as modified by the 1967 Protocol: Convention Relating to the Status of Refugees (1951), as modified by the Protocol Relating to the Status of Refugees (1967), (the “Refugee Convention”).

24    Article 1A(2) of the Refugee Convention defines “refugee” as a person outside his or her country of nationality who is unable or unwilling for Convention reasons (as recited) to avail himself or herself of that country’s protection. That Refugee Convention definition, taken up in the RC Act, is the definition taken up in Australia in s 5H(1)(a) of the Act. Section 3 of the RC Act defined complementary protection as protection for people who are not refugees as defined in the RC Act but who cannot be returned to territories where return would breach Nauru’s international obligations.

25    The Tribunal concluded that CRI026 was not a refugee because it was reasonable for him to relocate to a part of Pakistan, namely, the Punjab (including Lahore and Sialkot) where he could live safely, and thus he could not be described as a person who is unable, for Refugee Convention reasons, to avail himself of the protection of Pakistan.

26    The Tribunal also found that because CRI026 could live safely in the place of relocation in Pakistan, returning CRI026 to the place of relocation did not breach Nauru’s international obligations under the three nominated international instruments in issue.

27    The appellant contended that the Tribunal had erred in the determination of the claim for complementary protection by taking into account, in determining the scope of Nauru’s obligations to CRI026, the capacity of the appellant to relocate to a place of safety within Pakistan.

28    The High Court observed that the scope of Nauru’s complementary protection obligations arising under the relevant international treaties (which say nothing expressly about the matter of relocation within the country of nationality as a factor bearing upon the scope of the obligations) was to be determined according to the authorities in the international jurisprudence on that topic whereas the Court accepted, at [18], that those authorities are “unhelpful in interpreting the codified regime of complementary protection provided for in the Migration Act 1958 (Cth)”. The Court also observed that s 36(2)(aa) and (2B) of the (Australian) Act “in substance stipulate that an applicant for complementary protection must demonstrate that he or she cannot avail him or herself of the protection of the receiving country by relocating within that country” and thus it is important to “emphasise” that “each regime calls for a different technique of interpretation”: the Court at [18]. Thus, the context of the decision in CRI026 needs to be kept in mind.

29    The Court then examined extensively a range of authorities in relation to the international jurisprudence concerning complementary protection obligations arising under international treaties and the role of the capacity to relocate to a place of safety within the country of nationality of the claimant as a factor informing the scope of the obligations of the country from which complementary protection obligations are sought.

30    In that context, their Honours note that in SYL v Australia (108th Sess, United Nations Human Rights Committee, Doc CCPR/C/108D/1897/2009, 2013, Communication No 1897/2009), the Committee observed, in the context of a claim for complementary protection from harm of the kind described in Art 7 of the International Covenant on Civil and Political Rights 1966 (the “ICCPR”), that relocation to a place in Timor-Leste where the claimant would not suffer the claimed harm, was an answer to the claim for complementary protection. So too in BL v Australia (112th Sess, UN Doc CCPR/C/112/D/2053/2011, 2014), the Committee concluded that Australia was not obliged to provide complementary protection to an applicant from Touba, Senegal, against harm described in Arts 6, 7 and 8 of the ICCPR where reasonable internal relocation was available to the claimant.

31    In the context of dealing with those authorities and the scope of complementary protection obligations arising under international treaties (especially the ICCPR), the Court observed at [38] that the appellant had contended that it logically could not be the position that the availability of reasonable internal relocation is relevant to the assessment of complementary protection obligations because, if it were relevant, it would be incumbent upon an applicant for complementary protection to undertake the practically impossible task or burden of establishing that there is no place in his or her country of nationality to which the person could reasonably relocate.

32    In the context of that submission, their Honours said this at [39], upon which each of the appellants in the present cases rely:

[39]    That contention should also be rejected. Implicitly, it proceeds from the false premise that a claim for complementary protection is in the nature of an adversarial proceeding in which the burden of proof is on the applicant and, therefore, that, in the event of the applicant failing to discharge the burden of proof, the claim for complementary protection must fail. To the contrary, however, as appears from BL v Australia [United Nations Human Rights Committee, Communication No 2053/2011 (BL v Australia) 112th Sess, UN Doc CCPR/C/112/D/2053/2011, 2014], before a decision maker may properly reject a claim for complementary protection on the basis of the availability of reasonable internal relocation, the decision maker needs reliable information as to the safety and suitability of the place of relocation [citing, in particular, United Nations Human Rights Committee, Communication No 2053/2011 (BL v Australia), 112th Sess, UN Doc CCPR/C/112/D/2053/2011, 2014, at [7.4], Apps III]. Moreover, as Gummow, Hayne and Crennan JJ observed in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24] in relation to a claim for refugee protection:

“What 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.”

Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant’s personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable that the claim for complementary protection may be rejected on that basis.

[emphasis added]

33    Although each appellant places particular emphasis on their Honours’ observations at [39], the following observations at [40] should also be noted which, again, are concerned with the role of reasonable relocation to a place of safety within the country of nationality as an answer to a claim for complementary protection obligations from harm the subject of international treaty obligations:

[40]    Of course, that does not mean that it will be necessary in every case for a decision maker to identify with precision the proposed place of relocation and undertake the analysis of reasonableness in relation to that precise place. In some cases it may be that the reliable information available to the decision maker demonstrates that the risk of harm of the kind described in [Articles] 6 and 7 of the ICCPR exists only in one place or area, or a couple or few places or areas, within the applicant’s country of nationality, and that elsewhere the country is relevantly risk free. In such cases, it is accurate to say that the burden would be upon the applicant for complementary protection, once sufficiently alerted to the significance of the information available to the decision maker, to present reasons why it would nonetheless be unreasonable to expect the applicant to relocate to any place beyond the affected places or areas. Each case is fact specific and must be dealt with accordingly. The point for present purposes, however, is that treating reasonable internal relocation as a relevant consideration in the determination of a claim for complementary protection is not in any sense impracticable or unfair.

[emphasis added]

34    Returning to the “codified regime” contained in the Act in Australia (CRI026 at [18]), s 5J(1) is in the following terms:

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.

35    Section 36(2) is relevantly in the following terms:

36    Protection visas – criteria provided for by this Act

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

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

36    As to significant harm, s 36(2A) and 36(2B) are in these terms:

(2A)    A non-citizen will suffer significant harm if:

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

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

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

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

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

(2B)    However, there is taken not to be a real risk that the 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.

37    Returning to the ground of appeal, it should be noted that during the course of oral argument, I put to counsel for the appellants that the appeal rests on a proposition that “proceeds on the footing that if one assumes there is an inconsistency between earlier and later DFAT reports or other relevant reports, then your proposition is really confined to the notion that there’s an obligation to act upon reliable information” and “a failure to act upon the later rather than the earlier information is itself the embodiment of unreasonableness”. Counsel for the appellants responded by saying: “Precisely, your Honour”. However, the appellants rely on written submissions which expand upon that proposition, cross-referenced to particular parts of the written submissions before the Federal Circuit Court which are pressed before this Court. As to other aspects of the contentions of the appellants concerning “unreasonableness”, these matters should be noted.

38    Each appellant says the decision-maker’s election to rely on the particular information, as “reliable”, notwithstanding its inconsistency with information later in time, without exposing a process of reasoning leading to the decision to prefer one body of information over another, reflects a conclusion which is “so unreasonable that no reasonable authority could ever have come to it”: Li, French CJ at [28]. The appellants say that the IAA could not properly reach the relevant statutory state of satisfaction that it was reasonable for each appellant to relocate to the nominated place of safety within the receiving country, where the determination as to that matter was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”, as the IAA is said to have done, in these review decisions: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 (“SGLB”) at 998, Gummow and Hayne JJ at [37] and [38].

39    The appellants also say that where a challenge is made to a decision on the ground of unreasonableness, the process of supervisory review of the “legal reasonableness” of the decision is “inevitably fact dependent” (Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (“Singh”), Allsop CJ, Robertson and Mortimer JJ at [48]), and testing whether the ground is made out involves “scrutiny of the factual circumstances in which the power comes to be exercised”: Singh at [48]. As to the proper approach to determining whether a decision is properly characterised as “a legally unreasonable decision”, see the observations of Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [51]-[60]. The appellants also say that the “combination” of CRI026 and Singh, requires the Court to scrutinize the factual circumstances upon which the power has been exercised (for example, the factors going to relocation), to test “for reliability”. The ultimate proposition each appellant advances is this: “a decision to relocate an applicant can only be reasonably made if that decision is made with regard to reliable information” and “consideration of unreliable information is unreasonable”. It is important to note that the appellants accept the force of, and do not seek to call into question, the observations of Gray, Tamberlin and Lander JJ in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] which is in these terms:

Reliance on ‘country information’

The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

[emphasis added]

40    It is now necessary to examine the particular circumstances of each appellant.

BJI17

41    BJI17 is a Hazara Shi’a Muslim born in a village in an area of the Malistan district of Ghazni Province in Afghanistan. He is a citizen of Afghanistan. He arrived in Australia as an unauthorised maritime arrival on 1 October 2012. On 19 February 2016, the appellant lodged an application for a Safe Haven visa. The application was refused by the Minister’s delegate on 12 September 2016. The IAA’s review decision affirming that decision was given on 10 March 2017.

42    The appellant claimed that if he returned to Afghanistan he would be physically abused, tortured, detained and subjected to other forms of degrading and inhuman treatment by anti-Shi’a and anti-Hazara groups including the Taliban and Islamic State actors (IS, ISIS, Daesh and others) because he is an Hazara Shi’a Muslim who would be imputed with anti-Taliban or pro-Western political opinions and would be returning to Afghanistan as a failed asylum seeker.

43    The IAA accepted the appellant’s claims concerning his faith, ethnicity and place of origin. The IAA also accepted that the appellant had worked with United States forces under the International Security Assistance Force (“ISAF”) in Uruzgan, Afghanistan, for about three months in 2005, as claimed: IAA at [16]. His main role was guarding the base perimeter: IAA at [17]. He did not engage in field operations or fighting: IAA at [17]. The IAA accepted that the appellant had been threatened by the Taliban although the IAA was satisfied that the appellant had not had any direct contact with the Taliban and had not been named or singled out by the Taliban when Taliban members warned a village elder from the appellant’s village that the Taliban knew some villagers were working for the ISAF. The IAA accepted that the threat had issued, but the appellant was not personally or directly threatened: IAA at [18]. Nor were the appellant’s family threatened or harmed even though they remained in the appellant’s village for three years after the appellant left the ISAF base: IAA at [19].

44    At [22], the IAA observes that the appellant feared being killed by the Taliban or ISIS or other Sunni extremist groups because he is a Hazara Shi’a. The IAA notes that the appellant’s home province of Ghazni contains Hazara majority districts, citing a “DFAT Thematic Report dated 8 February 2016” entitled “Hazaras in Afghanistan” (the “DFAT 8/2/2016 Report”). This report is described by the IAA as an “update”. The IAA then observes, citing another “DFAT Thematic Report” dated 26 March 2014 entitled “Hazaras in Afghanistan and Pakistan” (the “DFAT 26/3/2014 Report”) that:

In 2014 DFAT assessed that while some districts within Ghazni Province were not considered to be safe due to Taliban and other insurgent activity, the threat level and risk of violence in Hazara majority districts including Jaghori, Nawur, Ghazni and the applicant’s district of Malistan was low and that the government maintained effective control.

[emphasis added]

45    Returning to the DFAT 8/2/2016 Report, the IAA notes that although DFAT says that there has been a decline in security across Afghanistan including in Hazara majority areas, DFAT did not revise the level of threat or risk from “low” as recorded in the DFAT 26/3/2014 Report to any higher level.

46    The IAA also notes that in September 2016, DFAT (although no reference is made to a report), made no revisions to the threat level “but noted that UNAMA [United Nations Assistance Mission to Afghanistan] had not highlighted the Hazarajat (including Ghazni) as an area of particular concern in relation to conflict-related abductions”.

47    At [22], the IAA says this:

Taking into account the applicant’s profile, DFAT and UNAMA reporting and other relevant country information I am not satisfied the applicant faces a real chance of persecution within Malistan or the other Hazara majority districts in Ghazni Province.

48    However, the IAA had regard to “commentary” concerning whether perpetrators of “recent attacks” against Hazaras on the roads linking Kabul and the Hazarajat (which includes Hazara majority areas within Ghazni) were motivated by matters of race or religion. The IAA says that it has given “weight” to the DFAT 8/2/2016 Report which suggests that ethnicity can be a contributing factor in the attacks on Hazaras on the roads between Kabul and the Hazarajat. The IAA also cites as support for that conclusion a “DFAT Country Information Report – Afghanistan” dated 18 September 2015 (the “DFAT 18/9/2015 CI Report”).

49    In addition, the IAA notes that UNHCR and DFAT both advise that anti-government elements “systematically target” civilians perceived to be supportive of (and thus imputed with support for) the Afghan Government and the international community, citing a UNHCR “Guidelines” document dated 19 April 2016 (the “UNHCR 19/4/2016 Guidelines document”) and the DFAT 8/2/2016 Report.

50    The IAA notes that, according to DFAT, Hazaras are widely perceived to be affiliated with the government and the international community (DFAT 8/2/2016 Report) and Hazaras travelling by road between Kabul and the Hazarajat are “expressly exempted” from DFAT’s otherwise “low” risk of violence assessment, unrevised from the DFAT 26/3/2014 Report.

51    At [25], the IAA says this:

In consideration of all the evidence I find the applicant faces a real chance of serious harm through being kidnapped, subject[ed] to physical ill-treatment and/or killed by insurgents on his return trip to his parents’ home district, and therefore his home region in Ghazni due to his Hazara ethnicity and/or Shi’a faith.

[emphasis added]

52    However, the decision-maker at [26] says that she has identified a place within Afghanistan with a substantial Hazara population where the appellant could reside “without a real chance of persecution”. The place is Mazar-e-Sharif, the capital of Balkh Province. The IAA notes that Mazar-e-Sharif has a population of 402,806; it is one of the largest commercial and financial centres in Afghanistan; and is regarded as the unofficial capital of Northern Afghanistan, citing a report described as the “European Asylum Support Office (‘EASO’) Country of Origin Information Report” entitled “Afghanistan – Security Situation”, dated 20 January 2016 (the “EASO 20/1/2016 Report”).

53    The IAA then returns to the DFAT 8/2/2016 Report and notes that while there is no specific information on the treatment of Hazara Shi’as within Mazar-e-Sharif, DFAT’s assessment of the overall position in Afghanistan is that the formal legal position and interests of Shi’as is largely respected, and that official discrimination on the basis of religion, including as between Sunni and Shi’a Muslims, is “low”.

54    The IAA then assesses the extent of societal discrimination against the Hazara ethnic and religious community and concludes on the basis of country information that any such discrimination as may occur, does not constitute serious harm.

55    As to the security situation and the risks facing Hazara Shi’as from anti-government elements, the IAA, citing a “DFAT Thematic Report on Security Conditions in Afghanistan: 1 January – 31 August 2016”, dated 5 September 2016 (the “DFAT 5/9/2016 Report”), says this at para 30:

I accept [that] the security situation throughout in Afghanistan is fluid and unpredictable and that it deteriorated throughout 2015 and 2016 [the DFAT 5/9/2016 Report]. I acknowledge the widespread concerns about the Afghan government’s capability and effectiveness in ensuring security and stability across Afghanistan [the UNHCR Guidelines document 19/4/2016]. Having regard to Balkh Province in particular, I note that insurgents including ISIS or their Afghanistan based Islamic State group, the Islamic Movement of Uzbekistan (IMU, who had links to the Taliban and in 2016 pledged their allegiance to ISIS), and the Taliban are active within the province.

[emphasis added]

56    As to the last sentence in the above quote, the IAA cites the EASO 20/1/2016 Report and another EASO Report entitled “Country of Origin Information Report: Afghanistan Security Situation November 2016”, dated 1 November 2016 (the “EASO 1/11/2016 Report”). The reference to “the province” in the last sentence in the above quote is a reference to Balkh Province and, as earlier mentioned, the IAA proceeded on the footing that Mazar-e-Sharif is regarded as the capital of Northern Afghanistan.

57    Having made those observations, the IAA then expresses observations at [31] about the “relative security”, over several years, in the Balkh Province and the source of that security, in these terms:

However, Balkh Province has maintained relative security for several years, attributable to a monopoly on power, even in the province’s most remote regions, held by ethnic-Tajik governor and former warlord Atta Mohammed. While this stability depends on continued relations with his traditional rival (and another former warlord) Vice President Abdul Rashid Dostum, they agreed in June 2015 to work together to restore security to Northern Afghanistan [citing the EASO 20/1/2016 Report] and there is no evidence before me to suggest this relationship is in decline. In January 2016 EASO reported that Mazar-e-Sharif had been relatively isolated from the conflict in the preceding decade [citing the EASO 1/11/2016 Report and the EASO 20/1/2016 Report]. In 2014, LandInfo described Mazar-e-Sharif as one of the safest cities in Afghanistan, much more so than Kabul [citing the EASO 20/1/2016 Report] and DFAT assessed that the government maintained effective control over the city [citing the DFAT 26/3/2014 Report]. Between 2009 and 2015 Mazar-e-Sharif reportedly had one of the lowest counts of civilian victims [citing the EASO 20/1/2016 Report].

58    Having set out those observations concerning the relative security over several years in the Balkh Province, and the basis for that degree of security, the IAA at [32] says that, nonetheless, “militant attacks” have occurred in the city of Mazar-e-Sharif. The IAA then sets out the history of those attacks in this way:

[EASO] reported that, between 1 November 2014 and 31 August 2015, explosives sporadically went off in the city though while many targeted government forces and institutions, the target and perpetrator was not always clear. Explosions at local markets were carried out in November 2014, October 2015 and August 2016 however the target in these incidents were not clear. In March, April and December 2015 attacks occurred targeting a court complex, family members of government officials and a police vehicle and in incidents in January, February and November 2016 attacks were aimed at the Indian Consulate, a busload of Afghan National Army [personnel] and the German Consulate. I accept from this reporting that there have been several incidents in Mazar-e-Sharif since 2014, however I find [that] they have been infrequent and have been aimed at government or international community targets or with no identifiable target. In most cases, the perpetrator was also unclear, although I accept that they were [anti-government elements].

59    Those comments are attributed to observations contained in the EASO 20/1/2016 Report and a UNAMA Report entitled “Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2016”, dated February 2017 (the “UNAMA February 2017 Report”).

60    At [33], the IAA says that it has given consideration to the activities of anti-government elements and particularly the Taliban, ISIS and IMU and whether there has been a shift in the overall security situation and/or a rise in sectarianism that would contribute to the risk of harm to the appellant in a major urban centre such as Mazar-e-Sharif. At [34], the IAA notes that in the UNAMA February 2017 Report (the most recent Annual Report of the UNAMA), there is reference to a sixfold increase in civilian casualties from attacks targeting places of worship in 2016 and that recent attacks against Shi’as have occurred in Kabul in October 2015, July 2016, October 2016 and November 2016. Attacks against Shi’as occurred in the Balkh Province in October 2016. Islamic State claimed responsibility for four of the attacks in Kabul: IAA at [35]. In claiming responsibility for the three Kabul attacks in 2016, Islamic State also released anti-Shi’a hate messaging online: IAA at [35].

61    The IAA at [36] also notes that UNAMA has noted “grave concerns” about what it describes as an emerging pattern of deliberate sectarian attacks against Shi’as, mainly claimed by Islamic State. The IAA at [36] notes that UNAMA describes Islamic State as operating with an increased capacity to strike beyond its perceived areas of influence and presence in Eastern Afghanistan which exacerbates the “escalation in conflict” and the “deteriorating security environment”. The IAA notes that UNAMA also raised serious concerns about the brutality and scale of civilian casualties caused by Islamic State’s targeted attacks on Shi’as, referring to the January 2017 attack in Herat as evidence of the wave of targeted attacks against Shi’as. At [36], the IAA says this:

Human Rights Watch has taken a similar line suggesting that the wave of Shi’a targeted attacks in 2016 underscores the increasing vulnerability of the Shi’a community beyond active battlefields and in urban areas under government control.

[emphasis added]

62    As to the observation quoted above, the IAA cites as support a document described as a Human Rights Watch Report entitled “Afghanistan: Shi’a bombing highlights need to protect” dated 21 November 2016 (the “HRW 21/11/2016 document”).

63    At [37], the IAA refers to a report from the “Jamestown Foundation, Terrorism Monitor”, submitted by the appellant’s representative which suggests that Islamic State has “consolidated its position in recent months”. The report is described as “Foreign Fighters and Sectarian Strikes: Islamic State Makes Gains in ‘Af-Pak’ Region”, Volume 14, Issue 24, 15 December 2016 (the “JF 15/12/2016 Report”).

64    The report suggests that Islamic State has strengthened its position with nearly 7,500 foreign fighters waiting to enter Northern Afghanistan.

65    At [38], the IAA says that it accepts that “there are active Islamic State cells in Kabul, that they have launched attacks in Kabul City, that they have an operational presence beyond the nascent stage and have potential for future recruitment”. That final observation is drawn from a document attributed to the Afghanistan Analysts Network entitled “With an Active Cell in Kabul, Islamic State Tries to Bring Sectarianism to the Afghan War”, 19 October 2016 (the “AAN 19/10/2016 Report”).

66    However, at [39] the IAA notes, citing the AAN 19/10/2016 Report, that the AAN estimates current Kabul Islamic State cell numbers to be in the dozens rather than the hundreds and that Islamic State as an organisation has struggled to expand beyond the four districts in Nangahar, and remains a “limited threat”. At [39], having analysed the forces opposed to sectarianism, the IAA concludes that it is not satisfied that sectarianism is likely to take hold in Afghanistan in the reasonably foreseeable future. Having regard to the AAN 19/10/2016 Report, the IAA says this at [39]:

The AAN identified “reassuring” factors working against the rise of sectarianism such as that the attacks have been widely condemned across lines in Afghanistan, including by the Taliban (discussed further below), and that the parties to the main conflict, the Afghan security forces and the Taliban, as well as Shi’a and Sunni religious leaders, and the population of the country more generally, remain opposed to sectarianism. Having regard to the Jamestown Foundation’s suggestion that the Islamic State are taking a leadership position above that of the Taliban, while I accept this may be true in some regions, I am not satisfied that its overall influence is such that the Taliban will support its sectarian slant in the reasonably foreseeable future. I am not satisfied that sectarianism is likely to take hold in Afghanistan in the reasonably foreseeable future.

67    The IAA continues to examine the scale of the threat posed to the appellant at [40] to [44] of the reasons.

68    At [40], the IAA observes that previous DFAT advice (the DFAT 18/9/2015 CI Report) has indicated that Islamic State has “limited capacity and influence” in Afghanistan and that civilians faced a low risk of violence from the organisation compared to the risks faced by high profile groups from other anti-government elements. The IAA recognises that the DFAT advice, in the DFAT 18/9/2015 Report, pre-dates the 2015 and 2016 attacks. However, the IAA observes that other sources also indicate that Islamic State is struggling to control territory and its efforts to establish itself in other parts of Afghanistan have in large part failed, citing a document published by Jane’s Intelligence Weekly entitled “Islamic State–aligned militants likely to struggle for operational foothold in Afghanistan despite first successful attack” dated 25 July 2016 (the “JIW 25/7/2016 document”).

69    At [40], the IAA says this:

Analysts accept that Islamic State will probably continue to conduct attacks in urban areas, but that these will be infrequent, and that the continued efforts of the Afghan government, international community and even the Taliban’s efforts to eliminate Islamic State and to counter its influence will likely limit any expansion in the year ahead. Specifically with regard to Balkh Province, there is [a] strong security presence in Mazar-e-Sharif and provincial and national authorities have proactively engaged in fighting insurgents including Islamic State, Taliban and IMU within the province.

70    At [41], the IAA observes that Islamic State has only a limited presence in Afghanistan outside Nangahar and that in April 2016 it was said to number only in the dozens. The IAA notes that in December 2016, the United Kingdom Home Office had indicated that Islamic State’s presence was confined to the Afghanistan-Pakistan border area Nangahar (citing a report of the UK Home Office entitled “Country Policy and Information Note – Afghanistan – Fear of anti-government elements”, dated 1 December 2016 (the “UKHO 1/12/2016 Report”).

71    The IAA then observes that, in light of the UKHO 1/12/2016 Report, the IAA considered that DFAT’s assessment “about Islamic State having limited capacity and influence is still current”.

72    At [42], the IAA observes that, to date, attacks targeted against Shi’as in Balkh Province have been rare. The IAA observes that in 2011, Lashkar-e-Jangvi (“LeJ”) launched coordinated attacks on Shi’a gatherings in Mazar-e-Sharif, Kabul and Kandahar: DFAT 8/2/2016 Report. The IAA notes that in October 2016 an unidentified group attacked a Shi’a Mosque 20 kilometres outside Mazar-e-Sharif.

73    At [43], the IAA observes that with regard to the Taliban, UNAMA and DFAT and other authoritative sources indicate that the Taliban’s civilian targets, recently, have been government administrators, judicial officers, human rights defenders, journalists, community elders and aid workers (citing the DFAT 5/9/2016 Report), none of which are “profiles” relevant to the appellant.

74    At [43], the IAA observed that although the Taliban is active in Balkh Province:

… the only recent attack claimed by the Taliban in Mazar-e-Sharif was against the German consulate specifically in revenge for the Germans’ alleged role in major airstrikes in Kunduz Province. … The Taliban has not claimed responsibility for any of the attacks on Shi’as in Balkh [Province] or Kabul. It specifically condemned both the 2011 and 2016 targeted attacks against Shi’as in and near Mazar-e-Sharif and the October 2016 attack in Kabul. … There is no recent evidence of the Taliban targeting Shia’s in or around Mazar-e-Sharif.

75    At [44], the IAA seeks to draw these various considerations together by saying this:

I accept [that] insurgents operate in parts of Balkh Province and that clearance operations have been conducted against Islamic State, IMU and the Taliban in Balkh [Province] throughout 2016 [citing the EASO 1/11/2016 Report]. I note [that] EASO reported in January 2016 that attacks on civilian targets in Mazar-e-Sharif had increased [a reference to the EASO 20/1/2016 Report], however I find [that] the incidents have been infrequent and generally targeted against government or international community institutions or without a clear target. I accept that Shi’as in and near Mazar-e-Sharif have been targeted on two occasions since 2011, including recently and that Islamic State is attempting to inject a sectarian slant into the conflict and I have had regard to the concerns being raised by UNAMA, Human Rights Watch and others. However, I have found [that] Islamic State’s influence in Afghanistan is still limited and I am not satisfied that sectarianism will increase such that violence will extend beyond sporadic attacks. I am not satisfied that the presence and activities of insurgent groups in other parts of the Province are of themselves indicative of a real chance of serious harm for Hazara Shi’as, such as the applicant, living in Mazar-e-Sharif. I am not satisfied that any group has claimed responsibility for the October 2016 incident and there is no other evidence of Islamic State, IMU or Taliban targeting Shi’as in or around Mazar-e-Sharif, or any further targeting of Shi’as in the city by LeJ since 2011.

[emphasis added]

76    At [45], the IAA reaches this conclusion:

Having considered the applicant’s profile and evidence and the country information referred and provided to the IAA as well as information I obtained, I am not satisfied that the applicant faces a real chance of persecution as a Hazara Shi’a upon return to Mazar-e-Sharif in the reasonably foreseeable future.

77    At [48], the IAA reaches this conclusion:

Taking into account the applicant’s specific circumstances discussed above, I am not satisfied that the Taliban or any other insurgents maintained an interest in him in relation to his ISAF employment, nor that they have developed an interest in him for any other reason subsequent to his 2005 departure.

78    At [56], the IAA reaches this conclusion:

Most returnees are returned to Kabul. I am satisfied the applicant would be able to safely access Mazar-e-Sharif by air after being returned to Kabul. I consider that any period of time he would need to spend in Kabul would be brief and I note that there is a strong military presence in Kabul and there is likely to be so for some time. … I do not accept that past attacks [in Kabul] preclude the possibility of the applicant being able to safely use the airport to access other parts of Afghanistan such as Mazar-e-Sharif.

79    At [57], the IAA said this:

Country information does not support that persons with the applicant’s profile are targeted in Mazar-e-Sharif, including at the airport or in transit from the airport to the city. However, I have also given consideration to whether there is a chance of serious harm due to generalised violence in Mazar-e-Sharif, and on his way to the city from Mazar-e-Sharif’s airport. I have noted above that the security situation in Afghanistan remains fluid and I accept [that] it declined nationally in 2015 and 2016. However, while the country information cited above indicates that sporadic insurgent attacks do occur within the city and more broadly within the Balkh Province, there is no indication that the Afghan government or security forces are losing control of Mazar-e-Sharif. Even taking [into] account the recent security incidents listed above, I am not satisfied that incidents are occurring with such frequency as to indicate that the applicant faces a real risk of getting caught up in attacks or other violence from insurgents/[anti-government elements], or between such groups and Afghan government/international forces in the city or en route to it. I am not satisfied that [the applicant] faces a real risk of suffering significant harm through generalised violence in Mazar-e-Sharif, at its airport or in transit from the airport to the city.

80    In the result, the IAA was not satisfied that the appellant met the requirements of the definition of refugee and thus s 36(2)(a) was not engaged. As to the complementary protection, the IAA was not satisfied that the appellant met the requirements of s 36(2)(aa) because the IAA considered that, in the circumstances, it was reasonable for the appellant to relocate to Mazar-e-Sharif as an area of the receiving country where there is not a real risk that the appellant will suffer significant harm.

81    BJI17’s contention is that, as to the security situation in Afghanistan and Mazar-e-Sharif, the security information concerning the extent of the IS threat described by the IAA at [39] that IS presents a limited threat and is unlikely to drive the conflict in a sectarian direction (citing the AAN 19/10/2016 Report; see [65] and [66] of these reasons); the IAA observation at [40] that IS will only likely carry out infrequent attacks in urban areas and be of limited influence as a result of the continued efforts of the Afghan government, the international community and the Taliban (citing the DFAT 18/9/2015 CI Report and the JIW 25/7/2016 Report; see [68] and [69] of these reasons); and the IAA observations at [39] and [41] that IS has struggled to expand beyond the four districts in Nangahar, remaining so far a limited threat and that Islamic State has only a limited presence in Afghanistan outside Nangahar (see [66] to [71] of these reasons), is “not reliable” and “cannot be relied upon” to reach the IAA’s conclusions about relocation, because each of those references is said to be “inconsistent with if not contradicted by”, the following information considered by the IAA (and the subject of citations by the IAA).

82    First, at [30], the IAA described the security situation in Afghanistan (as at the date of the IAA’s decision on 10 March 2017) as fluid and unpredictable and that the security situation had deteriorated throughout 2015 and 2016 citing the DFAT 5/9/2016 Report: see [55] and [56] of these reasons.

83    Second, at [30], the IAA acknowledges widespread concern about the Afghan government’s capability and effectiveness in ensuring security and stability across Afghanistan, citing the UNHCR 19/4/2016 Report: see [55] and [56] of these reasons.

84    Third, at [30], the IAA notes that insurgents, including ISIS or the Afghan-based Islamic State Group, the IMU, and the Taliban, are active within the Balkh Province, citing the EASO 1/11/2016 Report: see [55] and [56] of these reasons.

85    Fourth, at [36], the IAA notes that Islamic State is operating with increased capacity to strike beyond its areas of influence in Eastern Afghanistan exacerbating a deteriorating security environment, citing the UNAMA February 2017 Report and the HRW 21/11/2016 Report: see [61] and [62] of these reasons.

86    Fifth, the IAA, as already mentioned, observes at [30], that the security situation throughout Afghanistan deteriorated throughout 2015 and 2016, citing the DFAT 5/9/2016 Report (for the period 1 January to 31 August 2016). The appellant also emphasises a passage from the DFAT 18/9/2015 CI Report at para 2.33 which says this:

The security situation across the country deteriorated significantly over the last 12-18 months, as anti-government groups intensified their efforts and the 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 (see also the 18 September 2015 DFAT Thematic Report on Conditions in Kabul).

87    The appellant particularly emphasises the link between the deterioration in the security situation and the gradual withdrawal of the international military contingent. The appellant also refers to the DFAT Thematic Report of 8 February 2016 mentioned earlier (DFAT 8/2/2016 Report) which also contains a reference to “a gradual withdrawal of the international community” (in the context, however, of a discussion of a “general slowdown in economic growth across Afghanistan since 2014”).

88    The point of these references is this. The appellant says that these references to the withdrawal of the international contingent, coupled with the references to the fluid and unpredictable security situation; the deterioration in the security situation throughout 2015 and 2016; the concern about the Afghan government’s capability and effectiveness in ensuring security across Afghanistan; and the references to insurgent violence, renders the “conclusion” that IS will continue to have “limited influence and capability”, unreasonable.

89    The great difficulty with these propositions is that they fail to properly take into account the whole of the analytical process undertaken by the IAA as described at [39] to [78] of these reasons and particularly at [42] to [78] of these reasons concerning the fears of the appellant, the earlier discussion by the IAA of the particular claims of the appellant of likely persecution or a real risk of suffering significant harm, and aspects of the security situation in Afghanistan and particularly the Balkh Province, the Malistan District and Mazar-e-Sharif.

90    The IAA undertakes that process by noting the assessment in the DFAT 26/3/2014 Report. It examines the DFAT 8/2/2016 Report as to the level of threat or risk. It then looked at the security position for Hazaras on the roads linking Kabul and the Hazarajat. It “gave weight” to the DFAT 8/2/2016 Report and took into account the DFAT 18/9/2015 CI Report. It considered the UNHCR 19/4/2016 Guidelines document. The decision-maker accepts that the appellant faces a real chance of serious harm in the terms quoted at [51] of these reasons and then examines the contextual circumstances prevailing at Mazar-e-Sharif having regard to the EASO 20/1/2016 Report. The IAA then returns to further consideration of the position concerning the treatment of Hazara Shi’as and turns specifically to the security situation and risks facing Hazara Shi’as across Afghanistan. The IAA recognises that in the Balkh Province insurgents are active. As to these matters, see [55] and [56] of these reasons. As to these observations of the IAA noted at [55] and [56] of these reasons, the IAA’s remarks take into account the DFAT 5/9/2016 Report, the UNHCR Guidelines document 19/4/2016 and the EASO 1/11/2016 Report.

91    Having noted those matters, the IAA at [31], examines what it understands to be a state of “relative security” in the Balkh Province and the source of that relative security: see [57] of these reasons. In doing so, the IAA has regard to the EASO 20/1/2016 Report, the EASO 1/11/2016 Report and also the earlier DFAT 26/3/2014 Report.

92    Thus, the IAA is seeking to balance and evaluate, in a deliberative way, the matters the subject of its remarks at IAA [30] as earlier described, and remarks contained in the cited reports concerning the relative security as described at IAA [31]. Notwithstanding the counterpoint remarks identified at IAA [31], the IAA at [32] nevertheless recognises that militant attacks have occurred in the city of Mazar-e-Sharif and then addresses the history of those attacks. Those remarks are drawn from the EASO 20/1/2016 Report and the UNAMA February 2017 Report. The IAA at [33] gives consideration to the activities of anti-government elements and particularly the Taliban, ISIS and IMU and addresses the question of whether there has been a shift in the “overall security situation” or a “rise in sectarianism” or both, which would contribute to a risk of harm to the appellant in a major centre such as Mazar-e-Sharif. Those matters are addressed at IAA [33], [34] and [35]. They are further addressed at IAA [36] where the IAA notes the grave concerns of UNAMA in the UNAMA February 2017 Report. The IAA at [36] also notes, on this topic, the observations of Human Rights Watch citing the HRW 21/11/2016 document: see [61] and [62] of these reasons. At IAA [37] and [38], the IAA takes into account the observations set out in the JF 15/12/2016 Report and the AAN 19/10/2016 Report: see [63] to [65] of these reasons.

93    Having addressed those matters, the IAA then turns again to the AAN 19/10/2016 Report and notes the observations at [66] of these reasons concerning the extent to which Islamic State has struggled to expand beyond the four districts in Nangahar and the extent to which IS remains a limited threat. On the topic of forces opposed to sectarianism, the IAA at [39] notes the observations contained in the AAN 19/10/2016 Report: see [66] of these reasons. The IAA then examines the scale of the threat at [40] to [44] noting all of the matters described at [68] to [75] of these reasons.

94    The point of all these observations is that it is perfectly clear that the IAA has done two things.

95    First, it has identified a wide body of information drawn from many sources which are recognised as capable of properly informing the IAA about aspects of Afghanistan relevant to the appellant’s claims and especially the security situation across Afghanistan and within the Balkh Province and particularly within the city of Mazar-e-Sharif. It cannot be suggested that the IAA has called in aid of its analysis discredited sources of information. The appellant does not contend otherwise.

96    Second, the IAA has extensively isolated and considered a wide-range of observations directed to the security situation in Afghanistan and the Balkh Province. That information recognises a plurality of views. On one hand the DFAT 5/9/2016 Report, the UNHCR 19/4/2016 Report, the EASO 1/11/2016 Report, the UNAMA February 2017 Report, the HRW 21/11/2016 Report, the JF 15/12/2016 Report and the AAN 19/10/2016 Report, suggest the matters described at [82] to [87] of these reasons (as more fully described in these reasons) concerning, put simply, factors suggesting a higher or more pronounced risk for someone in the circumstances of the appellant. On the other hand, those factors are balanced by the IAA against considerations drawn from reports commencing with the DFAT 26/3/2014 Report and taking into consideration the DFAT 8/2/2016 Report, the DFAT 18/9/2015 CI Report, the EASO 20/1/2016 Report, the EASO 1/11/2016 Report, the AAN 19/10/2016 Report, the JIW 25/7/2016 Report, the DFAT 5/11/2016 Report, which suggest the matters at [44], [45], [52], [53], [57], [65], [66], [68] and [69] to [79], and which are relied upon by the IAA to support the conclusions at [66], [70], [71] and [75] to [79], of these reasons.

97    When the whole of the reasons are read, it can be seen that the IAA is comprehensively engaged in a process of isolating, considering and weighing up the various observations drawn from the many cited reports so as to form a view about whether it can be satisfied that the appellant meets, or fails to meet, the elements of s 36(2)(a) or s 36(2)(aa). The IAA is engaged throughout its reasoning (as explained at [41] to [79] of these reasons) in a process of evaluation of the weight to be attributed to the cited information and the varying emphases within that information. There is an exposed process of reasoning leading to the ultimate conclusions.

98    The proposition that the repository of the statutory obligation to conduct a review of the delegate’s decision has exercised the statutory function by reaching a decision which is “so unreasonable that no reasonable authority could ever have come to it” or a decision that “lacks an evident and intelligible justification” and is thus unreasonable, is simply not open on the exposed reasoning of the IAA as described in these reasons. Nor can it be said that the decision, reached on the footing as described, reveals a decision rooted in “unreliable information”.

99    The proposition advanced by the appellant, ostensibly placed within the rubric of Li, SGLB and Singh (and calling in aid CRI026) is, in substance, an emphatic disagreement with the findings of the IAA on the merits of the decision with the result that the appellant, in truth, cavils with the outcome of the deliberative process of evaluation of the many cited reports which address the relevant security circumstances “across Afghanistan” and “within the Balkh Province, Malistan and Mazar-e-Sharif”, in the context of the claims of the appellant.

100    It follows that the appellant has failed to make good the claims of jurisdictional error on the part of the IAA and has failed to demonstrate error on the part of the primary judge.

101    It is now necessary to examine the circumstances concerning CNV17.

CNV17

102    The IAA has also undertaken an evaluative balancing process in reaching its decision concerning appellant CNV17 in exercising its statutory review function. However, the Full Court has been taken to the contended points of inconsistency (and contradiction) between the information relied upon by the IAA in reaching its decision concerning the appellant, and other information which is said to render reliance by the IAA on the information upon which it reached its decision, as unreliable and unreasonable.

103    Thus, it is necessary to examine those matters and I now turn to those matters.

104    The appellant lodged an application for a Safe Haven visa on 2 September 2016. The Minister’s delegate refused to grant that application on 9 February 2017. On 16 May 2017, the IAA affirmed that decision. The appellant is a Hazara Shi’a Muslim from a village in Uruzgan Province, Afghanistan. There are large populations of Pashtun and Taliban in his village and in the Province. He claimed to fear harm in his own village or on the roads in Afghanistan from the Taliban and particularly a Taliban Commander who had sent him a warning letter about particular matters arising out of claims made by that person that the appellant “hand over the appellant’s interests in a property in the village” and that the appellant “leave the village”. It is not necessary to examine the content of these claims in any detail. It is sufficient to note these matters at [10] of the IAA’s decision:

I find [the appellant’s] claims are credible. … I am prepared to accept that the applicant did find himself in a land dispute with a local Taliban Commander who repeatedly demanded the applicant present himself and the title deeds and that his brother went missing when he tried to investigate the situation. I accept the applicant and his brother were personally targeted by the Taliban Commander and that he departed Afghanistan because he feared that his refusal to meet their demands had resulted in his brother’s death and he feared he would also be killed. I am also prepared to accept that they [the Taliban] sought him afterwards and that his sister’s children suffered harm with one being killed during one of the Taliban’s visits.

105    The IAA also notes that the appellant was questioned during the Safe Haven visa interview about whether he had friends or family currently living in Kabul or who had previously lived in Kabul. The IAA notes that the appellant said that it was possible people from his village had relocated to Kabul, but that he knew of only one person who had been a friend of the appellant from the appellant’s village and who had relocated to Kabul “a long time ago”. The IAA examined with the appellant evidence that he had been transferring money to various people in Kabul and that he appeared to have friends or family in Kabul. As to these matters, the IAA at [15] made this finding:

I find that the applicant has been transferring money to people he knows in Kabul. I find he has personal links in Kabul and I do not accept … his claims that his parents have been travelling there for temporary stays for medical treatment or that the money was transferred for that purpose.

106    As to the security situation in Uruzgan Province, the IAA notes that EASO indicates that Pashtuns and Hazaras lived in an “uneasy co-existence” in parts of Uruzgan. The IAA says this at [19]:

The Hazara represent a minority (10%) in the province. There is evidence of a significant Taliban presence in the area and the insurgency has resulted in intense and violent clashes in the province, including the applicant’s district of Khas Uruzgan [citing the EASO 20/1/2016 Report]. As a result of Taliban’s increased presence in Khas Uruzgan, Hazara communities have reportedly been under greater pressure. There are also credible risks for Hazara Shi’as on the roads leading into and out of the Hazarajat (which includes Uruzgan), where ethnicity, religion or returnee status can be a contributing factor in attacks on the roads [citing the DFAT 18/9/2015 CI Report].

107    At IAA [20], the IAA makes this observation:

… I have accepted [that] the applicant refused to cooperate or meet the demands of the Taliban Commander/Taliban when they seized his land and that he departed Afghanistan in fear of his life. I accept the issue remains unresolved, that he may try to reclaim his land if he returned to the area and that he would be perceived as a threat and targeted for harm. … I am satisfied that the applicant’s Hazara Shi’a race and religion were the essential and significant reasons his land was confiscated and he was targeted for harm. In view of all the information before, I find there is a real chance that the applicant would be seriously harmed by the Taliban Commander or the Taliban if he returns to his home area in Uruzgan province.

108    However, the IAA observes that s 5J(1)(c) of the Act requires that a real chance of persecution relate to all areas of the receiving country and, in that context, the IAA at [21] observes that it has accepted that the appellant has personal links in Kabul and that the evidence supports the proposition that Hazaras comprise a large portion of Kabul’s population. The IAA observes that it has given consideration “to the viability of the applicant returning and residing in Kabul” and observes that it has “identified another place within Afghanistan with a substantial Hazara population where the applicant could reside without a real chance of persecution”. That place is the city of Mazar-e-Sharif, the capital of the Balkh Province.

109    Thus, the IAA begins a process of closely examining the security situation, in the context of the appellant’s claims, in Kabul and Mazar-e-Sharif. Many of the observations in the IAA’s decision (made on 16 May 2017) reflect the considerations in relation to the security situation prevailing in Mazar-e-Sharif and the Balkh Province reflected in the IAA’s decision in relation to appellant BJI17 (made on 10 March 2017). The decision-maker in both cases was the same decision-maker. By making this observation, I am not suggesting that the decision-maker in this decision concerning appellant CNV17 simply adopted the observations from the earlier decision. Far from doing that, the decision-maker has weighed the evidence before it based on very many of the same reports which were before it in relation to appellant BJI17. Those reports have been weighed in the balance in the context of a very similar question (the security situation across Afghanistan, in the Balkh Province and in Mazar-e-Sharif), and the security situation prevailing in Kabul.

110    In that context, the IAA at [22] notes that the security situation in Afghanistan is fluid and complex and that it deteriorated in 2015 and 2016 and it also notes the widespread concern about the Afghan government’s capability and effectiveness in ensuring security and stability across Afghanistan, citing the DFAT 5/9/2016 Report. It also notes the resilience of the Taliban and its growing territorial influence and the Taliban’s continued targeting of Hazaras in road incidents. The IAA at [23] refers to information indicating that Kabul has a higher level of government control and a greater level of security and State protection than other parts of Afghanistan, citing the DFAT 18/9/2015 Report. The IAA notes that the government maintains effective control and has implemented a range of counter-measures to detect threats, deter insurgents and quickly respond to attacks which continue to be carried out with some frequency against, in the main, high profile targets, citing the DFAT 18/9/2015 Report. The IAA notes that Kabul’s population estimates vary between 3.6 million and 7 million. It notes that DFAT assesses that the risk faced by individuals varies greatly. Those associated with government or the international community face a significantly higher risk than “ordinary Afghans in Kabul”.

111    The IAA at [24] notes that Mazar-e-Sharif, like Kabul, also carries “heavy political and economic weight and has a strong military and police presence”. It notes that the Balkh Province has maintained relative security for several years. It notes that in 2014 “Landinfo described Mazar-e-Sharif as one of the safest cities in Afghanistan, much more so than Kabul”, citing the EASO 20/1/2016 Report (in which the Landinfo remark is noted) and the EASO 1/11/2016 Report. It observes that DFAT had assessed that the government maintained effective control over the city, citing the DFAT 26/3/2014 Report. It also notes that “there is no indication from subsequent reporting that such control has been lost”. It also notes, citing the EASO 20/1/2016 Report quoting the Landinfo observations from 2014, that Mazar-e-Sharif had been relatively isolated from the conflict in the preceding decade and the EASO 20/1/2016 Report notes that in the period from 2009 to 2015, Mazar-e-Sharif and Herat were noted as urban centres with the lowest counts of civilian victims. The IAA also notes at [24] that even though the EASO 1/11/2016 Report made no reference to the earlier Landinfo description, Mazar-e-Sharif and Herat were still the cities with the lowest civilian victims.

112    The IAA at [25] observes that militant attacks do occur in Mazar-e-Sharif. It notes that between 1 November 2014 and 31 August 2015, sporadic attacks occurred targeting government forces and institutions. Explosions occurred at local markets in November 2014, October 2015 and August 2016. Attacks occurred in March, April and December 2015 targeting a court complex, family members of government officials and a police vehicle. The IAA accepts that while there have been several incidents in Mazar-e-Sharif since 2014 in which civilians have been harmed, “the incidents have been infrequent and have been primarily aimed at government or international community targets” (rather than persons of the profile of the appellant). The IAA at [26] observes that stability and control in the Balkh Province is a result of an agreement reached in June 2015 by governing factions within the Province to restore security to Northern Afghanistan, citing the EASO 20/1/2016 Report. The IAA at [26] observes that there is no evidence before it to suggest that the arrangement will not continue, and says this:

Even taking into account the fluidity of security in Afghanistan and the impact of recent events, on the balance of the country information before me I am satisfied that the Afghan government will maintain control over Mazar-e-Sharif in the reasonably foreseeable future.

113    The IAA at [27] notes that in both Kabul and Mazar-e-Sharif, the formal legal position and interests of Shi’as is “largely respected” and that “official discrimination on the basis of religion including as between Sunni and Shi’a Muslims is low”, citing the DFAT 8/2/2016 Report.

114    The IAA at [28] finds that the appellant’s previous problems with the Taliban Commander and the Taliban more generally arising out of the land dispute in Uruzgan, is confined to the appellant’s local area in Uruzgan. The IAA finds that, on the evidence, it is not satisfied that there is “a broader risk” to the appellant in relation to his claims, outside his home area, being the local area in Uruzgan. The IAA at [28] says that it does not accept that the Taliban would seek to “track low-profile individuals such as the applicant throughout Afghanistan” and notes that the appellant “still has some family in the area [the home area in Uruzgan] who have not been harmed despite their own interest in the [relevant] land”. The IAA finds at [28] that it does not accept that the Taliban or any other anti-government elements or insurgents or extremists outside Uruzgan would have knowledge of, or an interest in, the appellant and it finds that the appellant does not face a real chance of harm from the Taliban Commander or other Taliban members or anyone else in relation to the appellant’s previous problems and land dispute should he return to Kabul or Mazar-e-Sharif.

115    The appellant claimed before the IAA that he would be targeted because his origin in Uruzgan would become known and due to the heavy presence of Australian and international troops in that Province, he would be imputed with a pro-Australian or pro-Afghan government or pro-international community opinion. The IAA accepted that the appellant’s origins from Uruzgan may become known. However, the IAA concluded, on the basis of country information, that ordinary Afghans who relocate to Kabul or Mazar-e-Sharif from insecure areas within Afghanistan (and who, otherwise, have no direct connection with the military forces), or who relocate from areas of heavy fighting including areas where international military forces are based, will not be imputed with having a pro-Afghan government or pro-international community opinion, or be targeted on that footing.

116    Thus, the IAA did not accept that the appellant would face a real chance of being harmed in either city on the basis of his Uruzgan origins.

117    The IAA at [30] notes that Hazaras and/or Shi’as have been attacked in major urban centres including Kabul and Mazar-e-Sharif (and also Kandahar and Lashkar-e-Jangvi), citing the DFAT 8/2/2016 Report. The IAA notes that since October 2015, approximately 170 people have been killed and 621 injured in attacks against Shi’as and/or Hazaras in Kabul City. These attacks occurred in October 2015, 22 July 2016, 23 October 2016 and 24 November 2016. Attacks occurred in the Balkh Province (Zari District) in September 2015 and outside Mazar-e-Sharif in October 2016. There were two attacks in Herat City in November 2016 and January 2017. This information is drawn from the UNAMA February 2017 Report.

118    The IAA at [31] notes that Islamic State claimed responsibility for the four recent attacks against Shi’as in Kabul as well as some other attacks in Kabul. The IAA notes that the July 2016 attack has been described as the most deadly incident in Kabul since the Taliban’s fall in 2001, and the largest single attack on Hazaras since an attack carried out in 2011 by a group linked to Islamic State, citing the DFAT 5/9/2016 Report.

119    The IAA at [32] observes that Islamic State has not claimed responsibility for the attacks in Herat and neither IS nor any other group has claimed responsibility for the attack in the Zari District of the Balkh Province in September 2015 or the attack outside Mazar-e-Sharif in October 2016. The IAA observes that the Zari District attack was by “unknown gunmen” and the Mazar-e-Sharif attack was by an “unidentified group”, citing the UNAMA February 2017 Report.

120    The IAA at [34] notes previous DFAT advice indicating that IS has limited capacity and influence in Afghanistan and that civilians in Afghanistan face a low risk of violence from IS compared to the risks faced by high profile groups from other anti-government elements and the threat of violence generally in Afghanistan, citing the DFAT 18/9/2015 CI Report.

121    The IAA at [34] notes that although those DFAT observations predate the 2015 and 2016 attacks, other more recent reporting indicates that “Islamic State has struggled to expand beyond four districts in Nangahar as attempts to establish itself in other parts of Afghanistan have in large part failed”, citing the AAN 19/10/2016 Report, the JIW 25/7/2016 document and the UKHO 1/12/2016 Report (described as EASO in UK Home Office, “Country Policy and Information Note – Afghanistan – Fear of anti-government elements”, 1 December 2016, also cited earlier in these reasons under a slightly different title but clearly the same report).

122    The IAA at [35] observes that it has given careful consideration to IS’s overall capability and skills and effectiveness and particularly notes that IS has “adapted some of their strategies to conduct complex/sophisticated attacks in major urban centres, have active (underground) cells in Kabul and other parts of Afghanistan including Balkh Province and have potential for future recruitment”, citing the AAN 19/10/2016 Report. As to the security situation relevantly related to those observations, the IAA said this at [35]:

I do not discount the fact that Islamic State have the capability to conduct both sophisticated and non-complex mass casualty attacks in major urban centres and that Hazara Shi’as have previously been among its casualties and threatened groups. However having analysed the country information and noting [that] the government maintains effective control of Kabul and Mazar-e-Sharif cities and the Balkh provincial government has been actively managing clearance operations in the province [citing the EASO 20/1/2016 Report], I am not satisfied that such attacks will be conducted more than infrequently. I find that within the reasonably foreseeable future the continued efforts of the Afghan government, international community and even the Taliban’s efforts to eliminate Islamic State and to counter its influence will likely limit their expansion and capabilities. I do not accept [that] the applicant face[s] a real chance of being harmed by Islamic State or their affiliates through mass-casualty attacks or any other type of harm in Kabul or Mazar-e-Sharif.

123    The IAA at [36] accepts that the Taliban continued to threaten stability across Afghanistan. The IAA says that it has had regard to concerns about the Taliban’s historical animosity and past persecution of Hazara Shi’as and the effectiveness of authorities to provide durable State protection. The IAA also accepts that the Taliban or affiliated groups have recently targeted Hazaras travelling on roads in particular areas of the country bordering with the Balkh Province. It observes that there are “high confidence Taliban support zones and Taliban activity in parts of Balkh” and that government forces have been engaged in “clearance operations”, citing the EASO 1/11/2016 Report. It observes that recent security incidents in Mazar-e-Sharif have been infrequent and generally targeted against government or international community institutions or security forces. In that context, the IAA at [36] observes that it is satisfied that the appellant “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 that he would upon return [be regarded as having such a profile], even taking into account the applicant’s Uruzgan origins …”.

124    The IAA at [37] examines the extent of the Taliban and extremist group’s activities in areas surrounding Mazar-e-Sharif, the proximity of those events to Mazar-e-Sharif and the relevance of those events to a real chance of harm being suffered by the appellant. The IAA concludes that the nature of the events in the neighbouring areas which relate to government or international community institutions do not give rise to a real chance of harm to the appellant as he does not have the “requisite proximity” to such bodies and, in any event, EASO and other independent reporting suggests that the threats in the nominated neighbouring areas do not suggest any “impending or direct consequential threats to Mazar-e-Sharif or Kabul”. The decision-maker is satisfied that “the government will retain control in those cities in the reasonable foreseeably future”, citing the EASO 20/1/2016 Report and the EASO 1/11/2016 Report.

125    The IAA at [38], [39] and [40] considers other aspects of the security situation which do not need to be elaborated further.

126    Having regard to all of the matters already discussed and the matters at [38], [39] and [40], the IAA concludes that it is not satisfied that the applicant faces a real chance of serious harm in Kabul or Mazar-e-Sharif on the basis that he is a Hazara Shi’a.

127    At [43] and [44], the IAA examines the circumstances which would confront the appellant as a person returning to Afghanistan from Australia.

128    At [45], the IAA accepts that the appellant will face some societal discrimination at a community level which occurs “against Hazaras and returnees from the west”, citing the DFAT 18/9/2015 Report. However, the IAA was not satisfied that it would amount to persecution, again citing the DFAT 18/9/2015 Report.

129    Aspects of the personal circumstances of the appellant in relation to family links, family network, the appellant’s lack of education, employment possibilities, in the context of Afghanistan’s economy, access to basic necessities and the extent to which the appellant might be treated as an outsider, are discussed at IAA [46] to [50].

130    At [51], the IAA does not accept that the appellant would be subjected to forced recruitment by anti-government elements.

131    The IAA at [52] examines further security incidents which have occurred in Kabul and Mazar-e-Sharif and again notes that the focus of particular attacks has been upon “primary targets” being persons who have some association with government and the international community and although the appellant might be “harmed as a bystander” or “inadvertently … caught up in attacks”, the risk of harm from “generalised violence” in those cities “is remote”.

132    At [56], the IAA concludes that on all of this evidence, it is not satisfied that the appellant faces a real chance of being killed, forcibly recruited or otherwise suffering serious harm from the Taliban Commander, the Taliban, Islamic State or other extremists, in Kabul or Mazar-e-Sharif in relation to any land dispute in Uruzgan or on the basis of his profile as a Hazara Shi’a male from Uruzgan who would be returning as a westernised failed asylum seeker from Australia or for any actual or imputed connection with or support for the Afghan government, or the western or international community.

133    Thus, the IAA was not satisfied that the appellant meets the requirements of the definition of refugee.

134    The IAA then examined the claims of complementary protection and concluded that substantial grounds do not subsist for believing that, as a necessary and foreseeable consequence of being returned from Australia to Afghanistan, there is a real risk that the appellant will suffer significant harm and thus, the appellant did not meet the integers of s 36(2)(aa).

135    The appellant says that the IAA’s conclusion that he does not face a real chance of suffering serious harm and that the IAA is not satisfied that the appellant holds a “well-founded fear of persecution” in Kabul or Mazar-e-Sharif, is “unreasonable”. The appellant says that the findings that the Afghan government has a higher level of control in Kabul and Mazar-e-Sharif than other parts of Afghanistan (IAA at [23]), citing the DFAT 18/9/2015 Report; that this control is effectively maintained (notwithstanding references to attacks occurring with some frequency directed to targets of a particular character, the “high-profile targets”), IAA at [23] citing the DFAT 18/9/2015 Report; and that the appellant’s prospects of being a victim of those attacks is significantly lower than the high-profile targets (IAA at [23]), citing DFAT 18/9/2015 Report, are inconsistent with the following information.

136    First, the DFAT 18/9/2015 CI Report at para 2.33 contains the observations quoted at [86] of these reasons which recognise that although government forces maintain strong control in Kabul, “attacks remain a common occurrence even in these areas”, said to be consistent with the observations in the DFAT (Thematic) 18/9/2015 Report.

137    Second, the IAA provided no reasons for concluding that government control in Kabul appears strong enough to retain control over Islamic State for the foreseeable future when the DFAT 18/9/2015 CI Report at para 2.33 described the security situation in Afghanistan as “fluid”.

138    Third, that the circumstance that frequent, common attacks occur mostly against high-profile targets of the kind described by the IAA, and that the appellant does not have such a profile, “does not enable a reasonable conclusion to be drawn that the applicant faces no real risk of harm”.

139    Fourth, at [39], the IAA acknowledges that recent mass casualty attacks have been significant notwithstanding that Kabul and Mazar-e-Sharif remains under government control.

140    Fifth, the appellant puts this contention in this way: “[T]he chances of anyone facing a real risk of harm cannot simply be reduced to a ‘numbers game’ involving the drawing of a conclusion that because the population of Kabul is 4-7 million people [which is a reference to [23] of the IAA’s decision], the applicant only has a one in 4-7 million chance of being harmed”. The appellant says that this proposition fails to take into consideration that it is only the Hazara Shi’a population (the numbers of which were not considered by the IAA) that are targeted by Islamic State, not the general population. The contended conclusion made by the authority is said to be “unreasonable” because of its “illogicality”.

141    Sixth, the IAA is said not to have provided any reasoning to support the finding that Islamic State’s capability and expansion will be limited in the future. The appellant says that although the IAA concludes at [35] that the government maintains effective control of Kabul and Mazar-e-Sharif, it is not reasonable to conclude that it will always maintain effective control in the “reasonably foreseeable future”. The appellant contends that in the absence of reasoning leading to the conclusion, the finding is simply “an unsubstantiated assumption”. The appellant also says that the IAA’s reasoning that, because the Taliban has made efforts to eliminate Islamic State, IS will, necessarily, be eliminated thereby reducing the appellant’s risk of serious harm, is illogical when the IAA also finds that the Taliban continue to threaten stability across Afghanistan, and the IAA says that it has had regard to concerns about the Taliban’s “historical animosity and past persecution” of Hazara Shi’as, and “the effectiveness of authorities [in] providing durable State protection”: IAA at [36].

142    Seventh, the appellant says that the IAA cannot rely on the presence of the international community as a reason for the government maintaining effective control over Islamic State and other insurgent groups, in the future, in circumstances where the DFAT (Thematic) 8/2/2016 Report relied upon by the IAA says this at para 2.11:

[T]he general slowdown in economic growth across Afghanistan since 2014, driven partly by the gradual withdrawal of the international community, raises questions about whether these gains can be maintained or extended. DFAT assesses that uncertainty about the future security, economic and political situation in Afghanistan is an important factor driving emigration from Afghanistan, including for Hazaras. For more information on these general issues, see the [DFAT 18/9/2015 CI Report].

143    Eighth, the IAA at [49] notes the withdrawal of the international presence and again at [47], notes the withdrawal of troops.

144    Ninth, the appellant says that the IAA at [45] accepts that the appellant will face some societal discrimination, at the community level, which still occurs against Hazaras and returnees from the west and that it is not satisfied that such societal discrimination would amount to persecution. The appellant says that at [45] the IAA says that it “will detail its conclusion” to that effect, but fails to do so notwithstanding that at [46] the IAA accepts that the appellant would be identifiable as an outsider in Kabul.

145    Tenth, the appellant says that the IAA unreasonably concluded that it is reasonable and practicable for the appellant to relocate to Kabul or Mazar-e-Sharif when, in Afghanistan, ethnic, tribal and familial connections play an important role in daily life (especially with respect to societal discrimination) and yet, first, the appellant has never lived in Kabul or Mazar-e-Sharif and nor does he have any family or close friends in Mazar-e-Sharif (IAA at [46]); second, the appellant will be discriminated against as a returnee from a western country which can only be avoided if he maintains a low profile (IAA at [46]); third, the appellant lacks a formal education and has limited work experience (IAA at [47]); fourth, Kabul has high under-employment and unemployment (IAA at [47]); and, fifth, there will be decreasing opportunities as a result of the withdrawal of the international community and an increase in returning refugees (IAA at [47]).

146    The basis for the finding that the Afghan government has a higher level of control in Kabul and Mazar-e-Sharif than other parts of Afghanistan and that effective security control is maintained in those cities (notwithstanding that attacks on “high profile targets” are said to occur) is to be found in an assessment of the whole of the integrated reasons of the IAA in examining all of the circumstances thought to be relevant to the question in issue. Determining the state of control exercised by Afghan authorities in Afghanistan at large and, in particular, in Kabul and Mazar-e-Sharif, requires the IAA to make judgments about a wide-range of circumstances revealed in a range of reports, assessments and commentaries. The IAA does so as the body charged with determining questions of fact and although, of course, the IAA must exercise the statutory obligation of review reasonably, it must necessarily make evaluative judgments about competing factors determined according to a range of circumstances. Although, of course, the task discussed by Lord Hatherley, the Lord Chancellor, in Belhaven and Stenton Peerage (1875) 1 App. Cas 278 is not the same statutory inquisitorial task conducted by the IAA, there is nevertheless an analogically useful observation about fact-finding for a tribunal of fact when confronted with a wide-range of circumstances going to a question in issue. In Belhaven and Stenton, Lord Hatherley said this at 279:

[I]n dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.

147    In reaching its conclusions on the security situation in Afghanistan and in Kabul and Mazar-e-Sharif in particular, the IAA recognised that the security situation in Afghanistan is fluid and complex; that the situation deteriorated in 2015 and 2016; and that there is widespread concern about the capability and effectiveness of the Afghan government in ensuring stability across Afghanistan. Aspects of those factors are further discussed throughout the reasoning process as the IAA seeks to examine the circumstances of control in the two cities in question, the commentary on the scale and frequency of attacks, the security circumstances in Balkh Province, the fluidity of security in Afghanistan more widely, the most recent events, the country information and the particular claims of the appellant concerning his claimed well-founded fear of persecution and fear of suffering significant harm should he return to Afghanistan and reside in either Kabul or Mazar-e-Sharif.

148    The appellant places emphasis on one particular observation at para 2.33 of the DFAT 18/9/2015 CI Report, but it must be kept firmly in mind that in seeking to balance all of these factors, the IAA has expressly had regard to that report and also information and commentary drawn from the DFAT 5/9/2016 Report, the EASO 20/1/2016 Report, and the EASO 1/11/2016 Report, all directed to this very question of control and the degree of security control exercised by the Afghan government in Kabul and Mazar-e-Sharif. The balancing exercise takes into account the “militant attacks” that the IAA accepted do occur in Mazar-e-Sharif and the particular circumstances in 2014, 2015 and 2016. It addresses the degree of stability in the Balkh Province by reference to the cited reports. The reasoning of the IAA on these issues is described at [109] to [113] of these reasons. The appellant’s particular claims of harm, as examined by the IAA, are described at [114] and [115] of these reasons. The circumstances specifically relating to Kabul and Mazar-e-Sharif and the capacity of IS to expand and present a threat, as discussed by the IAA, are examined at [117] to [125] of these reasons. The particular remarks relied upon by the appellant in the DFAT 18/9/2015 CI Report, taken in the context of the entire process of reasoning engaging the other circumstances, does not render the impugned conclusions unreasonable or illogical. Can it seriously be said, as to the first two contended examples of unreasonableness (at [136] and [137] of these reasons) by reference to para 2.33 of the DFAT Report, that the IAA’s impugned conclusions about the state of the security situation in Kabul and Mazar-e-Sharif are properly characterised as “so unreasonable that no reasonable authority could ever have come to it”? That cannot be so because there is an exposed process of reasoning that, by reference to reliable information (in the sense of a legitimate plurality of views and circumstances) which had to be weighed in the balance, resulted in the IAA’s state of satisfaction on the question in issue.

149    As to the third and fourth contended examples of unreasonableness (at [138] and [139] of these reasons), the conclusion that the attacks in Mazar-e-Sharif in 2014, 2015 and 2016 were “infrequent” and primarily aimed at “government or international community targets” rather than individuals generally (although civilians are injured in such attacks) or individuals exhibiting the profile or circumstances of the appellant is attributed by the IAA to the EASO 20/1/2016 Report. The IAA further addresses the position in Kabul and Mazar-e-Sharif. In doing so, the IAA examines the DFAT 8/2/2016 Report, the UNAMA February 2017 Report, the DFAT 5/9/2016 Report and the AAN 19/10/2016 Report. However, the conclusion is impugned as unreasonable and unreliable in supporting the ultimate decision that the appellant faces no real risk of harm in Kabul or Mazar-e-Sharif because he does not exhibit the profile or characteristics of those who have been attacked (high profile government or international community members or troops). The appellant says that the IAA recognised that there have been recent significant mass casualty attacks in Kabul and Mazar-e-Sharif (IAA at [39]) and thus it follows that a Hazara Shi’a in either city is exposed to a “real risk” of “significant harm” in such a mass casualty attack even if directed at high profile targets. It is, of course, possible and likely that an attack against a high profile government person, government institution, member of the international community or an Embassy, will result in the death or injury of one or more civilians who are not the focus or target of the attack and who, like the appellant, are either “low-profile” or “no profile” individuals so far as attracting an attack from any particular sectoral interest group is concerned in Afghanistan or either city in question. However, the point of the IAA’s observations and their relationship with the conclusion that the appellant faces no real risk of significant harm, is directed to the consideration that on the basis of the available reports, the Afghan government maintains effective security control in both of those cities and there is nothing in the appellant’s circumstances that would single him out for attack or harm having regard to the evidence of the basis upon which attacks have occurred in those cities in recent years.

150    As to the fifth contended example of unreasonableness leading to the decision, the IAA’s conclusions about the extent to which the appellant would face a real risk of significant harm are not based on the consideration as framed by the appellant and, in any event, the population statistic is simply one of many factors weighed in the balance.

151    As to the sixth contended example, the process of reasoning demonstrates all of the factors taken into account in determining the IAA’s conclusions about the extent to which the government maintains effective control of Kabul and Mazar-e-Sharif. It is not necessary to mention those circumstances again. The point is that the reasons need to be read fairly and as a whole.

152    As to the seventh and eighth contended examples of contended unreasonableness infecting the legality of the decision, the appellant says that there is a contradiction between the IAA’s observation that the presence of the international community is a factor bringing about effective control by the Afghan government over the Islamic State and other insurgent groups, in circumstances where the IAA also relies upon the DFAT 8/2/2016 Report which contains the paragraph quoted at [142] of these reasons referring to a gradual withdrawal of the international community since 2014. The appellant, in this context, also notes that the IAA has made reference to the withdrawal of the international presence otherwise in its decision and has also made reference to the withdrawal of troops. On this topic, the IAA has recognised that the very presence of the international community in Afghanistan (and particularly Kabul) has been a contributing factor or reason for the government seeking to exercise and maintain effective control over the activities of Islamic State and other insurgent groups. The observation contained in the DFAT 8/2/2016 Report is that due to the general slowdown in economic growth across Afghanistan since 2014, questions arise about whether these gains can be maintained or extended. That dilemma is said to be partly contributed to by the “gradual withdrawal” of the international community, and DFAT’s assessment is that uncertainty about the future economic and political situation in Afghanistan, and future security in that country, is an important factor “driving emigration from Afghanistan, including for Hazaras”. The observation in the DFAT Report is a forward-looking assessment about economic, political and security factors partly contributed to by what is described as a gradual withdrawal of the international community. The IAA in its discussion plainly had regard to the DFAT 8/2/2016 Report and it explains its reasoning for reaching the conclusion that the presence of the international community has been a “contributing factor” encouraging the Afghan government to assert, exercise and maintain effective control in the relevant areas over Islamic State and insurgent groups.

153    The difficulty in all of these contentions is that the appellant is simply picking isolated statements in a document or in the IAA’s reasons and then seeking to apply a construct to the statement which fails to properly take into account the totality of the reasoning and the body of information relevant to the proposition.

154    As to the ninth contended example of unreasonableness, the appellant misconstrues the proposition put by the IAA at [45] of its decision. The IAA says that the appellant will face some societal discrimination which still occurs against Hazaras and returnees from the west and then goes on to say that “however as noted below, [the IAA is] not satisfied that such societal discrimination would amount to persecution”. At [45], the IAA then discusses the relationship between ethnic, tribal and familial connections in daily life and the relationship between those things and discrimination. The remarks in [45] are the matters “noted below”. There is no substance whatsoever to the contention let alone the notion that this is an example of something which is so unreasonable that no reasonable authority could ever come to such a conclusion.

155    As to the tenth contended example, it has five components to it as described at [145]. It is true that the appellant has never lived in Kabul or Mazar-e-Sharif. It also true that the appellant does not have any family or close friends in Mazar-e-Sharif. It is also true that the appellant would be “identifiable as an outsider”; that he may face societal discrimination as an outsider; and that the risk of societal discrimination may be increased as a result of his return from a western country: see IAA at [46]. It also true that the appellant lacks a formal education and has limited work experience. It also true that Kabul exhibits high under-employment and unemployment and that the withdrawal of troops from Afghanistan together with the increasing numbers of returnees to that country will be problematic for the appellant. All of these considerations are said to render the conclusion that it is reasonable and practicable for the appellant to relocate to Kabul or Mazar-e-Sharif, when the IAA otherwise recognises that “ethnic, tribal and familial connections still play an important role in daily life” in Afghanistan, “unreasonable”.

156    Again, the observations at [46] and [47] of the IAA’s reasons need to be read together with [48] to [50]. For example, at [46] the IAA observes that it has found that the appellant has some family or personal links in Kabul and that these links may protect him from being considered an outsider upon return (to that city), particularly as, in the assessment of the IAA, recent demographic estimates indicate that Hazaras are a large, if not the largest, ethnic group in Kabul. Also, the IAA at [50] observes that while the appellant may be treated as an outsider (in Mazar-e-Sharif), the IAA does not accept that the appellant will be ostracised or that his lack of support networks will lead to a real chance that he will be subject to exploitation or other serious harm. At [49], the IAA addresses the topic of high unemployment and under-employment and says that it has had regard to all the information insofar as that information addresses the impact of these factors on the ability of the appellant to reintegrate and subsist. The IAA says that taking into account information about Kabul and Mazar-e-Sharif and the appellant’s personal circumstances, the situation is “nuanced”. The IAA then develops its views having regard to country information about those matters.

157    None of these observations of the IAA are properly taken up or evaluated in the formulation of the 10th example as a contended example of unreasonableness.

158    It follows that the appellant has failed to make good the claims of jurisdictional error on the part of the IAA and has failed to demonstrate error on the part of the primary judge.

159    It is now necessary to examine the circumstances concerning CVQ17.

CVQ17

160    The appellant lodged an application for a Safe Haven visa on 14 December 2015. The application was refused by the Minister’s delegate on 1 November 2016 and the IAA affirmed that decision on 5 June 2017.

161    The IAA’s sequence of reasoning which is challenged by the appellant, develops in the following way.

162    The IAA accepted that the appellant is a Hazara Shi’a Muslim from an area within the Malistan District of Ghazni Province in Afghanistan. The IAA accepted that the appellant was employed as a full-time truck driver delivering road and construction related supplies for Contrack International (“Contrack”), a road construction company. The IAA also accepted that the appellant’s brother had also worked as a truck driver in an area around Ghazni, and went missing in 2006/2007. The IAA found that the disappearance of the appellant’s brother did not have a bearing on the risk facing the appellant upon return to Afghanistan. The IAA sets out a range of contextual circumstances relating to the appellant’s claims and his profile as a truck driver for Contrack. The IAA accepted the appellant’s claims that his village in Ghazni is close to a nominated Taliban base and that the appellant had been identified by the Taliban, and was the subject of multiple threatening letters from the Taliban, in 2012. The IAA accepted that the appellant’s family had engaged in disputes with Kuchis over land in Malistan. The IAA accepted that the appellant’s father had been killed in a Kuchi related conflict over land and grazing entitlements. The appellant had asserted that the problem with the Kuchis was also a reference to threats by the Taliban. The IAA accepted that the appellant’s father was killed by the Taliban in Ghazni but did not accept that his death was, in any way, linked to the appellant’s profile (as a person who had worked for Contrack).

163    The IAA, at [25], accepted that the appellant’s identity was known to local Taliban and that he held a profile of “adverse interest” for supporting government road construction. The IAA regarded the appellant’s role as a truck driver supplier for a road building company as “low level” in nature and, relevantly for the IAA, the appellant had ultimately complied with the Taliban’s demands and had ceased that work: IAA at [25]. The IAA at [28] accepts that as a Hazara Shi’a with an imputed pro-government profile identifiable to local Taliban, the appellant was at greater risk (in his “home district”). The IAA at [28] finds that in consideration of all the evidence, the appellant faces a real chance of serious harm “in travelling to and on his return to his home district due to his race, religion and imputed political opinion”.

164    The IAA notes that the appellant maintained that he would face harm in all parts of Afghanistan due to a serious and significant shift and deterioration in the security situation for Afghan Shi’as as a result of the increase in civilian casualties; multiple mass casualty attacks in 2016; anti-Shi’a rhetoric; growing capabilities of Islamic State; a strengthened Taliban taking more territory and control; and the rise of sectarianism amongst existing anti-government elements and emerging new insurgent groups: IAA at [29]. The IAA observes that it has given careful consideration to these and other points raised in submissions on behalf of the appellant: IAA at [29]. Throughout the course of the reasons, the IAA examines all of those matters.

165    The IAA at [30] examines aspects of the position in Mazar-e-Sharif as the capital city of Balkh Province. The IAA at [30] says that it is satisfied that the position of Hazaras and Shi’as and their interests are “largely respected” and that “official discrimination” on the basis of religion, including as between Sunni and Shi’a Muslims is “low” and that DFAT has no evidence of any official policy of discrimination pursued by the government of Afghanistan on the basis of ethnicity nor any information to suggest that Hazaras are significantly less able to avail themselves of State protection than other ethnic groups, citing the DFAT 18/9/2015 Report and the DFAT (Thematic) 8/2/2016 Report.

166    The IAA notes that Hazaras are active in the Afghan community, particularly in politics, education and civil society, including by holding protests without government intervention. The IAA is satisfied that Hazara Shi’as are free to participate fully in public life and do not face discrimination: IAA at [30]. The IAA at [32] observes that Mazar-e-Sharif, like Kabul, carries “heavy political and economic weight” in the country and has a “strong military and police presence”. It notes that the Balkh Province has maintained relative security for several years attributable to a monopoly on power, even in the Provinces’ most remote regions, held by an ethnic Tajik governor, citing the EASO 20/1/2016 Report. The IAA notes the “Landinfo” observation that Mazar-e-Sharif is one of the safest cities in Afghanistan and much more so than Kabul, citing the EASO 20/1/2016 Report. It notes DFAT’s assessment that the government maintains effective control over the city, citing the DFAT 26/3/2014 Report and observes that there is no indication in subsequent reporting that such control has been lost. It observes that nor is there an indication that such control would be lost in the reasonably foreseeable future even taking into account that “the political landscape may shift with the upcoming 2019 Presidential elections”.

167    The IAA also notes the remarks contained in the EASO 20/1/2016 Report that in the period from 2009 to 2015, Mazar-e-Sharif and Herat were urban centres with the lowest counts of civilian victims. It notes that EASO, in its 1/11/2016 Report maintained the position that Mazar-e-Sharif and Herat “were still the cities with the lowest civilian victims”.

168    The IAA at [33] notes that militant attacks do occur in Mazar-e-Sharif and particular examples of that are given. The IAA at [34] gives consideration as to whether the appellant would be among “targets” given his previous work as a truck driver transporting construction materials for a construction company contracting with the government. The IAA had earlier noted that the attacks described at IAA [33] were targeted upon family members of government officials, court complexes, police vehicles, the Afghan military forces and the Indian and German Consulates citing the EASO 1/11/2016 Report. The IAA concludes at [34] that it is not satisfied that the appellant would be identifiable to Taliban members other than those that previously threatened him in his home village.

169    At [35], the IAA notes that the appellant fears persecution on the basis of religion and ethnicity and notes that Shi’as have been targeted in Mazar-e-Sharif. It refers to the 2011 incident involving LeJ in which more than 80 people were killed in a co-ordinated attack specifically against Shi’as in Kabul, Kandahar and Mazar-e-Sharif, citing the DFAT 8/2/2016 Report. It notes that “very recently” there has been a “wave of violent sectarian targeted attacks against Shi’as/Hazaras killing 162 and injuring 524 in four separate attacks in Kabul city and in Khojagholak (outside Mazar-e-Sharif) in the second half of 2016”, citing the UNAMA Annual Report for 2016 dated 6 February 2017. It notes that attacks also occurred in Herat city injuring four on 22 November 2016 and killing one person on 1 January 2017, citing the UNAMA 6/2/2017 Report. The IAA at [36] notes that IS claimed responsibility for the four attacks against Shi’as in Kabul and some other attacks in the capital. The July 2016 attack was described as the most deadly incident in Kabul since the fall of the Taliban in 2001 and the largest single attack on Hazaras since LeJ’s 2011 attack. However, the IAA observes that there is no evidence of attacks against Hazaras/Shi’as in Mazar-e-Sharif since the 2011 LeJ attack.

170    At [37], the IAA notes the observations of UNAMA in its UNAMA 6/2/2017 Report to the effect that there has been a sixfold increase in civilian casualties from attacks targeting places of worship in 2016 compared with 2015. It notes UNAMA’s “grave concerns” about what it describes as an emerging pattern of deliberate sectarian attacks against Shi’as claimed, in the main, by Islamic State. The IAA notes UNAMA’s description that IS is operating with an increased capacity to strike beyond its perceived areas of influence and presence in Eastern Afghanistan exacerbating the escalation in conflict and deteriorating security environment. It refers to the attacks in January 2017 in Herat, citing the UNAMA 6/2/2017 Report. At [37], the IAA says this:

I accept that there is an Islamic State presence in Afghanistan including cells in Kabul and parts of Balkh Province, that they have shown some resurgence over the past year and are actively trying to recruit more fighters and expand their territorial foothold. I accept [that] they deliberately targeted Shi’as in mass-casualty attacks in Kabul and carried out other complex operations against other targets. I accept [that] they have threatened and intend to carry out more attacks against Shi’as and that they have released anti-Shi’a messaging and propaganda across various media and social medial platforms. I accept [that] they are trying to “stoke sectarian conflict” and to influence others to carry out their anti-Shi’a ideological agenda [citing the AAN 19/10/2016 Report].

171    Having noted those matters at [33] and [35] to [37] and the matters at [30] and [32], the IAA makes these observations at [38]:

However previous DFAT advice has indicated that Islamic State has limited capacity and influence in Afghanistan, and that civilians in Afghanistan face a low risk of violence from the organisation compared to the risks to high profile groups from other [anti-government elements] and the threat of violence generally in that country [citing the DFAT 18/9/2015 CI Report]. While this advice pre-dates the 2015 and 2016 attacks, other more recent reporting indicates that Islamic State has struggled to expand beyond four districts in Nangahar [citing the AAN 19/10/2016 Report] as attempts to establish itself in other parts of Afghanistan have in large part failed [citing the JIW 25/7/2016 Report and the EASO in UKHO 1/12/2016 Report]. They [IS] have only a limited presence outside Nangahar. Their numbers have been greatly reduced compared to their late 2015 strength and several key high-ranking Islamic State leaders have recently been killed [citing a report of the United States Department of Defence entitled “Enhancing Security and Stability in Afghanistan December 2016” (the “USDD December 2016 Report”); a report of the United States Congressional Research Service entitled “The Islamic State and US Policy” dated 18 January 2017 (the “USCRS 18/1/2017 Report”); and a document entitled “Islamic State Commander Killed by US-Afghan Airstrike”, Noor Zahid (Voice of America), 9 February 2017 (the “Zahid 9/2/2017 document”)]. I accept Islamic State has aspirations for a leadership position in the insurgency above that of the Taliban but it has not achieved this and I find that in light of recent reporting DFAT’s assessment is still applicable [that is, the assessment discussed at the commencement of the paragraph based on the DFAT 18/9/2015 CI Report].

[emphasis added]

172    The appellant contends that the IAA at [38] chose to rely upon the DFAT 18/9/2015 CI Report which described the risk of violence, based on events prior to 2015 as low, in concluding that the risk of violence to civilians (as opposed to “high profile groups”) remained low, without giving reasons for rejecting the matters set out in the DFAT Reports from January 2016 to January 2017. It is true to say that at [38] the IAA does not specifically discuss the DFAT 8/2/2016 Report or the DFAT 5/9/2016 Report. However, two things are clear. First, the IAA otherwise cites the reports and was astute to the content of the DFAT Reports. Second, the IAA has formulated its views having regard to the AAN 19/10/2016 Report, the JIW 25/7/2016 Report, the EASO (UKHO) 1/12/2016 Report, the USDD December 2016 Report, the USCRS 18/1/2017 Report and the Zahid 9/2/2017 document. In other words, the IAA has attempted to balance the observations contained in the DFAT 18/9/2015 Report with a range of other reports and commentaries addressing the question with which it was concerned.

173    Apart from the contention concerning IAA [38], the appellant contends that the IAA made a series of findings about the security situation in Afghanistan and Kabul and Mazar-e-Sharif concerning the position of Hazara Shi’as, and findings relating to the family and personal circumstances of the appellant (suggesting a level of threat consistent with a real chance of significant harm to the appellant), yet, inconsistently with those findings, it concluded that the appellant did not face a real risk of harm in Kabul or Mazar-e-Sharif. A number of the findings about the adverse security situation which are said to be inconsistent with the findings leading to the ultimate conclusion have already been mentioned at [167] – [169] of these reasons. Other findings (and criticisms) of the IAA’s process relied upon by the appellant are these.

174    First, the reliance placed by the IAA on the EASO 20/1/2016 Report and the EASO 1/11/2016 Report (see [166] – [168] of these reasons), is said to be misplaced because the EASO 20/1/2016 Report at para 1.4.1 expressed observations about the conduct of the security forces to the effect that although the civilian authorities have generally maintained control over the security forces, there have been instances where the security forces have engaged in arbitrary arrest and detention, torture, abuse and extrajudicial killings. At that paragraph, there is also a reference to the United States Government’s Special Inspector General for Afghanistan (“SIGAR”) Assessment that since 2013 there has been a “slowly decreasing capability” in the Afghan National Security Forces. There are, however, the other references referred to by the IAA upon which it relied in reaching its conclusions at [38] and as otherwise noted. The particular references referred to by the appellant do not render the other evaluative findings by the IAA as unreliable or misplaced.

175    The appellant also says that the EASO 1/11/2016 Report is said not to support the IAA’s views about the “low” level of security threat: see the discussion under the heading “Actors in the conflict” at para 1.2.1; and “Anti-Government Elements” at para 1.2.2 and the commentary at pp 28 and 29. In those references, however, EASO describes the capabilities of the Afghan National Security Forces (“ANSF”) and notes that despite identified weaknesses, the ANSF continued to fight against anti-government elements without foreign support. It describes the Afghan army as one of the strongest institutions in Afghanistan, although it faces challenges. EASO describes the strength of the Afghan National Police and the various local police forces. The local police forces are said to suffer from a lack of resources but their “efficiency has improved”, although abuses remain. EASO describes the role of the International Military Forces (“IMF”) and the transitional arrangements concerning those forces as from 31 December 2014 and 1 January 2015. The EASO Report then repeats the observations mentioned in the EASO 20/1/2016 Report about the security forces mentioned earlier in these reasons.

176    The criticism of the IAA’s reasoning on this topic is itself misplaced. First, each EASO Report has to be read in its entirety. Second, the IAA is forming its views on the security situation by taking the reports into account along with all of the other cited reports. Third, questions of emphasis arise to be assessed as a question of merits analysis which is a statutory task demanded of the IAA, not the Court. Fourth, the paragraph references relied upon by the appellant do not render reliance, in part, by the IAA on the cited references in those reports, necessarily inconsistent. Fifth, the IAA’s references to the cited portions of those reports does not render the ultimate decision (that the appellant does not face a real risk of significant harm) so unreasonable that no reasonable decision-maker could ever have come to it.

177    No doubt, all of these observations have been weighed in the balance by the IAA when considering those reports together with other material it cites including the AAN 19/10/2016 Report, the EASO in UKHO 1/12/2016 Report, the USDD December 2016 Report, the USCRS Report, the Zahid 9/2/2017 document and other information.

178    Second, the appellant says that at [42], the IAA accepts that the Taliban “continued to threaten stability across Afghanistan” and that in the Balkh Province there are “high confidence Taliban zones”. The appellant says that at [43], the IAA acknowledges that Mazar-e-Sharif “is not completely isolated from the conflict”. The appellant says that notwithstanding these findings, the IAA found that “as a result of infrequent attacks in Mazar-e-Sharif, the lack of sectarian motivation for those attacks and the appellant’s lack of profile, mean that he will not suffer serious harm in relocating to Mazar-e-Sharif”. There are a number of matters rolled up in the final part of the appellant’s contention that failed to fairly or properly come to grips with the sequence of reasoning or the balancing process undertaken by the IAA. At [42], the IAA notes the matters mentioned by the appellant but also says that “government forces have been engaged in clearance operations including against those accused of supporting the Taliban in Mazar-e-Sharif”, citing the EASO 1/11/2016 Report, and citing in support of the same proposition described at IAA [39], the EASO 20/1/2016 Report. The IAA says that “recent security incidents in Mazar-e-Sharif have been infrequent” and the focus of attacks has been upon “government or international community institutions or consulates” citing the EASO 1/11/2016 Report and a report by William Maley dated 22 December 2016 entitled “On the return of Hazaras to Afghanistan” (the “Maley 22/12/2016 document”). These matters were also discussed by the IAA at [33]. The appellant’s lack of profile in the sense of not rendering him a target of attack as a former Contrack employee is discussed in the course of the IAA’s reasons (not simply selected aberrantly as a factor thrown into the mix by the IAA) and although at [43] the IAA acknowledges that Mazar-e-Sharif is not “completely isolated” from the conflict (and again notes the particular circumstances of the appellant as a person not exhibiting characteristics that would single him out for attack), the IAA says that “weighing all the evidence before me” the IAA is not satisfied that threats of insurgency and Taliban activity “indicate the consequential fall of Mazar-e-Sharif in the reasonably foreseeable future, or that the applicant would face a real chance of harm”, in Mazar-e-Sharif.

179    Third, the appellant says that the IAA has reasoned that because the appellant does not have a profile rendering him a target, he will not face a real risk of significant harm in Mazar-e-Sharif. The appellant says that this reasoning leading to the conclusion is inconsistent with the DFAT 8/2/2016 Report at p 10, para 3.7, which says that “all groups in Afghanistan are vulnerable to violent attacks by insurgents and/or terrorist organisations, regardless of religious belief” and this is “as true for Hazaras as for other groups”. The appellant says that while it is true that the report (at para 10) goes on to conclude that sectarian violence in Afghanistan is “rare” and that “Hazaras have not been specifically targeted”, it is nevertheless “unreasonable” to conclude, based on those last two considerations, that the appellant “is not vulnerable because of his profile”. The conclusion the IAA actually reached was that, on the evidence, the IAA could not be satisfied that the appellant faces a real chance of suffering serious harm in Mazar-e-Sharif by reason of his previous work for Contrack (which might suggest pro-government sympathies held by the appellant); or his adverse profile with the Taliban in Ghazni; or because of his Hazara Shi’a race and religion; or the other reasons summarised by the IAA at [61]. The IAA also concluded, having regard to s 36(2)(aa), s 36(2A) and s 36(2B), that the appellant did not face a real risk of suffering significant harm in Mazar-e-Sharif for the reasons discussed at IAA [67] to [78]. To simply describe the findings of the IAA as “the appellant is not vulnerable because of his profile” fails to take account of the whole of the process of reasoning of the IAA that addresses, so far as Mazar-e-Sharif is concerned, the appellant’s work for Contrack; the consequential considerations arising out of his having had that job for the relevant period; the character of the threat to safety; the focus of attacks and targets of relevant actors; the “rare” feature of sectarian violence; and the circumstance that Hazaras have not been specifically targeted. There is nothing “unreasonable”, in the sense of reasoning going to the legality of decision-making, in the sense in which unreasonableness is properly understood, in the ultimate conclusions reached by the IAA, in part in reliance on the particular conclusions challenged by the appellant on this contended third example of unreasonableness said to give rise to jurisdictional error.

180    Fourth, the appellant contends that because the DFAT (Thematic) 18/9/2015 Report says that although attacks are often directed at specific targets, the methods of attack can be indiscriminate and often result in civilian casualties (and examples are given), it follows that the “profile” of the appellant is “irrelevant”. The IAA, correctly, did not regard the “profile” of the appellant as irrelevant to the questions to be answered in addressing whether it could be satisfied whether the appellant meets the requirements of s 36(2)(a) or s 36(2)(aa). The circumstances relating to the basis for the appellant’s claims to hold a well-founded fear of persecution, or to be at a real risk of suffering significant harm, necessarily engaged a consideration of whether the appellant’s “profile” (which is a shorthand term capturing all of the things about him that may, or may not, suggest a heightened interest in him by those he claimed to fear), exposed him to harm or not. The observation in the DFAT 18/9/2015 Report did not render his “profile” irrelevant to the questions in issue.

181    Fifth, the appellant contends that the IAA’s conclusion at [44] that Mazar-e-Sharif remains under effective government control despite recent mass-casualty attacks, is inconsistent with a conclusion reached by DFAT in the DFAT 18/9/2015 CI Report at para 2.33, already quoted at [86] of these reasons. For the reasons explained earlier, the proposition that the IAA’s conclusion on this topic suffers from legal unreasonableness is unsound. The contention fails to have regard to the whole of the IAA’s reasoning and the many reports cited concerning the security situation and the capacity for IS to expand (or not) its influence. Again, this process, engaged in by the appellant, of “cherry-picking” sentences from a DFAT report without contextualising all of the IAA’s commentary and reasoning on the topic in question is both analytically unsound and nothing more than improperly urging the Court to analyse the merits of the IAA’s balancing exercise in assessing all of the evidence on the question in issue including the many reports.

182    Sixth, the appellant returns to the same theme by contending that the commentary at para 2.11 (quoted at [142] of these reasons) in the DFAT (Thematic) 8/2/2016 Report to the effect that a gradual withdrawal of the international community has resulted in uncertainty about the future security, economic and political situation “across Afghanistan” and “in Afghanistan”, which, coupled with the observations in the DFAT (Thematic) 5/9/2016 Report to the effect that the security situation in Afghanistan is “unpredictable” and had “deteriorated” in 2015 and 2016, renders the IAA’s conclusion that IS will continue to have “limited influence and capacity”, inconsistent with the two DFAT Reports earlier mentioned and thus reliance on other reports is reliance on “unreliable information” with the result that the conclusion is “legally unreasonable”.

183    Again, the IAA’s conclusion concerning the capability or capacity of IS to exercise influence and present a security threat of either a real chance of persecution, or a real risk of significant harm to the appellant, in Mazar-e-Sharif, engages a process of reasoning which needs to take account of the entire reasons of the IAA. In reaching its conclusion on this topic, the IAA had regard to the DFAT 18/9/2015 Report, the EASO 20/1/2016 Report, the Landinfo commentary, the DFAT 26/3/2014 Report, the EASO 1/11/2016 Report, the UNAMA 6/2/2017 Report, the AAN 19/10/2016 Report, the EASO in UKHO 1/2/2016 Report, the USDD December 2016 Report, the USCRS 18/1/2017 Report and the Zahid 9/2/2017 document. The IAA’s discussion of the topic and the references to the cited material takes into account a range of factors and information that recognise both that IS is seeking to assert a particular presence in Afghanistan and also the counter-veiling constraints on its attempts to do so and its attempts at expansion: see [165] to [171] of these reasons and IAA at [47]-[50]. The IAA’s conclusions on this topic cannot be said to rest on “unreliable information” and suffer from jurisdictional error on the ground of unreasonableness as that term is properly understood according to the jurisprudence. The appellant is, in truth, simply asserting emphatic disagreement with the IAA’s conclusion on this topic and is really complaining that the decision is unfair or unreasonable in a lay or anecdotal sense rather than in any properly identified basis going to the legality of decision-making on the ground of unreasonableness.

184    Seventh, the appellant says that although the IAA found that he may face some societal discrimination as a result of being identifiable as an outsider in Mazar-e-Sharif, the IAA “unreasonably concluded” that it is reasonable and practicable for him to relocate to Mazar-e-Sharif even though he has no family or support networks in Mazar-e-Sharif and there is high under-employment and unemployment in that city and he faces “a difficult situation” on his relocation to that city. These factors of societal discrimination are discussed at IAA [51] taking into account the DFAT 8/2/2016 Report and the DFAT 18/9/2015 CI Report. The IAA at [52] accepts that the appellant “may face societal discrimination” in Mazar-e-Sharif and that he would be identifiable as an “outsider”, in that city. It accepts that the risk of societal discrimination may be “increased” as a returnee from a western country. The IAA also accepts that having regard to the employment considerations, the appellant faces a difficult situation upon return. The IAA’s reasoning on these matters reveals that it was astute to all of these factors and considerations and took them into account, as it expressly says at [52] and also addressed elements of these factors at [53] to [55]. The IAA’s recognition of the factors relied upon by the appellant on this topic is “one aspect” of the discussion. However, the full discussion is the IAA’s expression of its reasoning process weighing all of the factors on this topic relating to the dynamics of the personal circumstances of the appellant on relocation to Mazar-e-Sharif, so far as they relate to these particular factors.

185    There is no demonstrated unreasonableness in the decision reached by the IAA on this topic or in respect of each of the several conclusions it reached on the various topics each of which is said to demonstrate examples of conclusions that are “so unreasonable that no reasonable authority could ever have come to [them]”.

186    It follows that the appellant has failed to make good the claims of jurisdictional error on the part of the IAA and has failed to demonstrate error on the part of the primary judge.

187    It is now necessary to examine the circumstances concerning BYG17.

BYG17

188    The appellant lodged an application for a Safe Haven visa on 25 January 2016. The application was refused by the Minister’s delegate on 1 November 2016 and the IAA affirmed that decision on 7 April 2017.

189    The appellant was born in the Malistan District of Ghazni Province in Afghanistan. The appellant claimed that Kuchis indiscriminately grazed their herds on Hazara farmland near the appellant’s village in 2006, 2007 and 2008 and that in late 2008 and early 2009 his parents and sister were killed by Kuchis because the appellant’s father, as leader of the village elders, travelled to Ghazni City to lodge a complaint with the provincial authorities about the conduct of the Kuchis. The IAA accepted that on return to Ghazni City, the vehicle in which the appellant’s family was travelling was stopped and the Taliban, after examining documents in the possession of the appellant’s father, killed the appellant’s father and other family members. However, the IAA at [17] found that it was satisfied that the appellant did not have a well-founded fear of harm from the Kuchis or the Taliban in Malistan in the foreseeable future. After having examined the appellant’s account of the relevant events and having considered country information, the IAA was satisfied at [19] that the appellant faced a well-founded fear of persecution as a Shi’a Hazara “on surrounding roads leading to Malistan if he were to attempt to return there”.

190    The IAA then considered the question of whether there was an area or city within the receiving country where the appellant would not face a well-founded fear of persecution or be exposed to a real risk of significant harm. The IAA concluded that Mazar-e-Sharif was such a city. The IAA summarises its position in relation to that matter at [23] and then embarks upon a discussion of the relevant factors. Many of the considerations going to the question of the security situation in Mazar-e-Sharif as discussed by the IAA have already been examined in these reasons in the context of the criticisms made by each of the various appellants of very similar reasoning of the IAA to that evident in the IAA’s reasoning in the BYG17 decision.

191    It is not necessary to set those matters out again. It is, however, necessary to mention the conclusions identified by the appellant which he criticises and the basis for the criticism.

192    At [23], the IAA observes that Mazar-e-Sharif is one of the biggest commercial and financial centres in Afghanistan and is regarded as one of the safest cities (and much safer than Kabul) with the relative security of the province attributed to a monopoly on power, even in the province’s most remote reasons, held by the ethnic Tajik Governor and former warlord, Atta Mohammed Noor. The IAA at [23] also notes that although there was a reported increase in armed attacks in Mazar-e-Sharif and neighbouring districts of Balkh Province, and in 2015 and 2016 there were some attacks on high profile targets, EASO nevertheless indicates that the city “counted the lowest number of civilian victims” and that attacks were almost exclusively directed against the national security forces, with sporadic bombings in Balkh Province’s major cities extending to civilian targets.

193    At [26], the IAA observes that the appellant has not been directly associated with any of the groups who have been targets for insurgents and the appellant does not have a profile or imputed profile which would be likely to bring him to adverse attention.

194    At [29], the IAA observes that although the appellant may be subject to societal discrimination on return to the receiving country, in Mazar-e-Sharif, in relation to employment, particularly because he does not have family links in that city and has not lived previously in Mazar-e-Sharif, the IAA concluded that it was not satisfied that there is a real chance that as a consequence of such discrimination, the appellant would be denied the capacity to earn a livelihood or that he would be subject to economic hardship such that it would threaten his capacity to exist or that he would otherwise suffer treatment that may be considered serious harm.

195    At [45], the IAA concluded that Mazar-e-Sharif is under the effective control of the Afghan government. At [45], the IAA concluded that Mazar-e-Sharif is one of the biggest commercial and financial centres in Afghanistan. At [45], it concluded that the appellant is a single able-bodied male and is resourceful.

196    At [46], the IAA concluded that the appellant does not have any dependents to support.

197    The appellant contends that these findings are inconsistent with and contradict other findings made by the IAA and those findings are these.

198    First, the finding at [23] is said to be inconsistent with the DFAT (Thematic) 5/9/2016 Report that the security situation in Afghanistan is fluid and unpredictable and deteriorated throughout 2015 and 2016; the comment that the Afghan government’s capability and effectiveness in ensuring stability and security across Afghanistan is “concerning”; and that IS and the Taliban are active within the Balkh Province. All of these matters have been noted earlier in these reasons. The findings at [23] about the state of the security situation in Mazar-e-Sharif is also said to be inconsistent with the observations contained at para 2.33 of the DFAT 18/9/2015 CI Report, which is already quoted at [86] of these reasons. The appellant also says that the finding at [23] is inconsistent with the DFAT 8/2/2016 CI Report having regard to the comments in that report at para 2.11 concerning the withdrawal of the international community: para 2.11 is quoted at [142] of these reasons. The appellant couples that observation with the remarks noted above drawn from the DFAT (Thematic) 5/9/2016 Report and emphasises the appellant’s submissions to the IAA that IS is expanding into North West Afghanistan including provinces which adjoin the Balkh Province. The appellant says that taking all of those things together, it is “unreasonable” for the IAA to conclude that the Afghan government is and will necessarily remain stable in the future.

199    Each of these contentions has been addressed earlier in these reasons in the context of the IAA’s very similar reasoning and it is not necessary in the context of this appeal to re-examine the answer to those contentions. The central propositions identified earlier in these reasons in addressing essentially the same submissions apply in the context of the present appeal.

200    Second, the finding at [23] is said to be inconsistent with an increase in armed attacks in Mazar-e-Sharif and neighbouring areas which have affected residents, and inconsistent with the finding that bombings in Balkh Province’s major cities have extended to civilian targets posing an indirect threat to the multitude of international and non-governmental agencies operating from Mazar-e-Sharif.

201    Third, the information noted at [26] that there have been a number of attacks in Mazar-e-Sharif where civilians have been among the victims is said to be inconsistent with the finding that the appellant does not face a well-founded fear of persecution and is not exposed to a real risk of significant harm in Mazar-e-Sharif.

202    Similarly, relevantly analogous submissions in the context of very similar reasoning have been addressed in relation to the other appeals heard together. The submissions on those topics in this appeal suffer from the same problems identified in relation to like submissions in the other appeals.

203    The appellant also criticises the IAA’s finding that the appellant has not been “directly associated” with any of the groups that have been targeted by insurgents and that the appellant does not have a “profile” which would expose him to attack by any insurgent group. The appellant says that despite the IAA’s conclusion at [26] that attacks on civilian targets have increased in Mazar-e-Sharif and that Hazara Shi’as have been targeted and killed, the IAA concluded that the appellant’s profile as a Shi’a Hazara returning to the receiving country and relocating to Mazar-e-Sharif, will not expose him to a risk of significant harm. The appellant says that the “unreasonableness” of this conclusion is founded in these considerations.

204    First, as attacks are increasing and the government’s stability is being eroded, all civilians are at equal risk of harm irrespective of whether the attacks are being carried out against those “profiled targets”, whether government institutions or other high profile targets.

205    Second, the appellant says that the chances of anyone facing a real risk of harm “cannot simply be reduced to a ‘numbers game’ involving the drawing of a conclusion that because the attacks are sporadic and profile specific, then there is less risk of being harmed”.

206    Third, the appellant says that the question of whether he faces a real chance of harm is “evidenced by the fact that Hazara Shi’as are being attacked by anti-Shi’a/Hazara insurgent groups” (as to which see IAA [27]). The appellant says that the observations of DFAT in its 18/9/2015 Report go to this issue. The appellant draws attention to para 2.35 of that report which contains the observation that “[a]lthough attacks are often directed at specific targets, the methods of attack can be indiscriminate and often result in civilian casualties” (with examples being given in that paragraph).

207    Each of these matters have been raised by the other appellants in the context of their own circumstances and have been examined earlier in these reasons. The difficulty with these contentions is that they have the effect of selecting particular observations from particular reports about the security situation (especially in or throughout Afghanistan without the analytical discrimination of focusing upon the security situation in Mazar-e-Sharif quite specifically) without recognising that the whole of the IAA’s reasons need to be examined so as to properly take account of the evaluative process of reasoning in which the IAA seeks to balance out particular comments which recognise difficulties in the security situation and factors which suggest that the security situation in Mazar-e-Sharif is such that the appellant will not be exposed to a real risk of significant harm. Some of these factors involve the constraints upon the aspirations of IS to extend their presence in Mazar-e-Sharif. Characterising the IAA’s reasoning, for example, as “a numbers game” fails to recognise the scope of the reasoning and reports analysed by the IAA in reaching its conclusions.

208    The IAA’s remarks about the state of the security situation in Mazar-e-Sharif at [23] and [24] are based upon, and take into account, the EASO 20/1/2016 Report, the EASO 1/11/2016 Report, a Report by “Lifos” entitled “Hazaras in Afghanistan” dated 28 August 2015, the DFAT 18/9/2015 CI Report, and the DFAT (Thematic) 8/2/2016 Report. The IAA seeks to balance those observations with the remarks at [26] and [27]. In considering activity by IS and other insurgent groups so far as that conduct relates to Mazar-e-Sharif, the IAA at [26] considers the particular circumstances of the appellant and the extent to which those circumstances might or might not expose him to significant harm. The IAA at [27] considers the conduct of IS and insurgent groups and its connection with Mazar-e-Sharif and ultimately reaches the conclusion that it is not satisfied that the incidents, which it describes as isolated, in or near Mazar-e-Sharif in 2011 and 2016, indicate that the appellant faces a real chance of persecution as a Shi’a Hazara in Mazar-e-Sharif in the reasonably foreseeable future, and nor would he face a real risk of serious harm in Mazar-e-Sharif.

209    In reaching that conclusion, the IAA took into account a report by “Aljazeera” of 13 October 2016, a report by “Agence France-Presse (AFP)” dated 12 October 2016, the EASO 20/1/2016 Report, the EASO 1/11/2016 Report, and the AAN 19/10/2016 Report. In the context of the appellant’s circumstances and the reports, press articles and other information cited by the IAA specific to its consideration of factors relevant to the review of the decision of the Minister’s delegate concerning this appellant, the observations at [184] of these reasons are equally applicable in the case of this appellant.

210    Accordingly, there is no demonstrated unreasonableness in the decision reached by the IAA in respect of each of the several conclusions it reached on the various topics, challenged by the appellant, each of which is said to demonstrate examples of conclusions that are “so unreasonable that no reasonable authority could ever have come to [them]”.

211    It follows that the appellant has failed to make good the claims of jurisdictional error on the part of the IAA and has failed to demonstrate error on the part of the primary judge.

212    Thus, there is no demonstrated error on the part of the primary judge.

213    It follows that each of the four appeals must be dismissed with costs.

Associate:

Dated:    3 April 2020

REASONS FOR JUDGMENT

McKERRACHER AND BURLEY JJ:

214    We agree that the appeal must be dismissed with costs for the reasons given by Greenwood J.

Associate:

Dated:    3 April 2020